On October 21, 2021, the Supreme Court rendered a decision in the case Fundación Ciudadanos Independientes c/San Juan Provincia De, Estado Nacional y otros s/ acción ambiental meramente declarativa, filed by the NGO Fundación Ciudadanos Independientes against the Province of San Juan; the Secretary of the Mining of the Province of San Juan; and the companies Minera Argentina Gold S.A., Barrick Exploraciones Argentina S.A., Exploraciones Mineras Argentina Sociedad Anónima (concessionaires of the Veladero-Pascua Lama Project); Minas Argentinas Sociedad Anónima, (a concessionaire of the Gualcamayo Project); and Intrepid Minerals Corporation, (a concessionaire of the Casposo project).

The case aimed to challenge the validity of the environmental licenses granted by the Province of San Juan to the projects mentioned before since -according to the plaintiff- they are located in glaciers of the mountain range area where the mining activity should be prohibited. Moreover, the plaintiff argued that the Province of San Juan authorized the mining projects without considering the potential environmental damages and claimed that the federal government omitted to include the areas where the defendants developed their mining activities in the National Glacier Inventory, created by Law No 26,639.

Besides, the plaintiff required a preliminary injunction to ban the mining projects until experts on the environmental field were able to monitor, control and analyze the environmental components -especially the water, the air, and the soil-, and report any potential changes.

The court considered that it lacks exclusive jurisdiction on the case based on the following grounds:

1) The fact that the plaintiff attributed responsibility to the federal government due to the binational nature of the Pascua-Lama project does not justify per se the court’s exclusive jurisdiction which only applies when the action filed is based "directly and exclusively" on constitutional matters, federal laws, or treaties and, thus, the federal matter is predominant on the case. On the contrary, the exclusive jurisdiction is not authorized when the subject matter involves local issues and powers, such as those related to environmental protection.

2) In the cases aimed to remediate collective environmental damages, the provincial jurisdiction should apply and exceptionally the federal courts may exercise its jurisdiction in the cases related to natural resources belonging to more than one province (Cfr. art. 7, law 25,675).

The court considered that in the case at hand it was not demonstrated that the activity carried out by the defendants could affect the environment beyond the limits of the Province of San Juan.

3) The exclusive jurisdiction of the court is not justified based on the plaintiff's argument on the potential effects of a conviction that could result from the process filed against Barrick Gold Corporation (BGC), domiciled in Canada, as the controlling company of one of the defendants. The Court clarified that the exclusive jurisdiction applies in the cases in which a foreign citizen is a party, provided that there is a civil case involved (causa civil), as established in article 24, subsection 1 of Decree-Law 1285/58. Such a requirement was not met in the case at hand and, thus, the dispute should be resolved in accordance with the public local laws and regulations. The foreign nationality, in effect, yields to the superior principle of provincial autonomy so as not to interfere with the internal administration.

4) The responsibility attributed to the federal government based on the alleged omission to include the area where the defendants performed their mining activities in the national glacier inventory should be treated on a separate case according to the criterion set forth in “Mendoza” case. In that regard, the Court held that more than one ruling can be validly issued if the subject matter of the case determines that the defendants have a separate standing.

Given the reasons above mentioned, the action filed against the Province of San Juan to cease and repair the alleged environmental damages that may occur due to mining activities related the “Pascua-Lama” and “Veladero” projects and other mining projects, was rejected by the Supreme Court. As regards the claims filed against the federal government the Supreme Court considered that the plaintiff should file a separate action.