Community Protocols as Tools for Collective Action 187
natural resources pertaining to their lands, in 2000, and this has helped to underpin the case law of the Inter-American Court of Human Rights filed by communities in Salinas Grandes
3 (Marchegiani et al., 2020). In 2007, it signed the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
which also contains legal provisions on consultation and consent.
In the same 1994 Constitutional reform, Argentina introduced two other
changes with significant impacts on questions of local community involvement
and mining decisions. First, the Constitutional reform introduced the right to a
healthy environment,
4 which, in turn, opened the way for minimum standards
for environmental protection to be set. Following the federal organization of the
State, the Constitution gives power to the central State to set minimum standards
of environmental protection for all citizens in the country. Provinces may regulate beyond these, increasing protection standards, but may not limit or regulate
to standards lower than them.
Second, the reform recognized the ethnic and cultural pre-existence of
indigenous peoples and community rights over lands traditionally occupied by
them.
5 This opened the way for provincial governments to transfer communal land
rights to indigenous communities. Although these transfers have not transpired in
full for a host of reasons, including a lack of information about indigenous communities, a lack of State capacity, budget and political will, the reform remains
important for the case in hand. This is because, as noted by former UN Special
Rapporteur on the rights of indigenous peoples, James Anaya, the A rgentinean
Mining Code “requires the permission of the land ‘owners’ to explore for minerals” (Anaya, 2012, para. 45).
6 Although the Mining Code does not contain any
other requirement for consultation, this gap is arguably filled by the existing environmental framework which calls for participation (Marchegiani et al., 2020).
The 2002 General Environmental Protection Law sets these minimum standards. This law introduced environmental policy principles to be mainstreamed
across all policy areas, and a slew of tools for environmental management, including the environmental impact assessment (EIA) processes applied in the case of
lithium mining in the Salinas Grandes and Laguna de Guayatayoc area discussed
here. The new EIA tools were accompanied by minimum standards to be followed in their implementation in the provinces. EIAs are obligatory, and a report
on their outcomes must be published before any activity with significant impacts
on the environment or on local populations’ quality of life (or both) begins.
7 The
process itself must comprise a participatory phase allowing citizens to debate the
proposed activity and its implications. Other minimum standards concern access
to information. EIAs must include a statement from the proponent explaining
the activity and its environmental impacts, and they must include a report identifying impacts and mitigation measures. Information must be provided in a
timely fashion for the participatory phase. Finally, a public authority must make
a decision about the proposed activity.
These minimum standards are then fleshed out in more detail at the provincial
level. Here, however, we find lags in the implementation of both national and
natural resources pertaining to their lands, in 2000, and this has helped to underpin the case law of the Inter-American Court of Human Rights filed by communities in Salinas Grandes
3 (Marchegiani et al., 2020). In 2007, it signed the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
which also contains legal provisions on consultation and consent.
In the same 1994 Constitutional reform, Argentina introduced two other
changes with significant impacts on questions of local community involvement
and mining decisions. First, the Constitutional reform introduced the right to a
healthy environment,
4 which, in turn, opened the way for minimum standards
for environmental protection to be set. Following the federal organization of the
State, the Constitution gives power to the central State to set minimum standards
of environmental protection for all citizens in the country. Provinces may regulate beyond these, increasing protection standards, but may not limit or regulate
to standards lower than them.
Second, the reform recognized the ethnic and cultural pre-existence of
indigenous peoples and community rights over lands traditionally occupied by
them.
5 This opened the way for provincial governments to transfer communal land
rights to indigenous communities. Although these transfers have not transpired in
full for a host of reasons, including a lack of information about indigenous communities, a lack of State capacity, budget and political will, the reform remains
important for the case in hand. This is because, as noted by former UN Special
Rapporteur on the rights of indigenous peoples, James Anaya, the A rgentinean
Mining Code “requires the permission of the land ‘owners’ to explore for minerals” (Anaya, 2012, para. 45).
6 Although the Mining Code does not contain any
other requirement for consultation, this gap is arguably filled by the existing environmental framework which calls for participation (Marchegiani et al., 2020).
The 2002 General Environmental Protection Law sets these minimum standards. This law introduced environmental policy principles to be mainstreamed
across all policy areas, and a slew of tools for environmental management, including the environmental impact assessment (EIA) processes applied in the case of
lithium mining in the Salinas Grandes and Laguna de Guayatayoc area discussed
here. The new EIA tools were accompanied by minimum standards to be followed in their implementation in the provinces. EIAs are obligatory, and a report
on their outcomes must be published before any activity with significant impacts
on the environment or on local populations’ quality of life (or both) begins.
7 The
process itself must comprise a participatory phase allowing citizens to debate the
proposed activity and its implications. Other minimum standards concern access
to information. EIAs must include a statement from the proponent explaining
the activity and its environmental impacts, and they must include a report identifying impacts and mitigation measures. Information must be provided in a
timely fashion for the participatory phase. Finally, a public authority must make
a decision about the proposed activity.
These minimum standards are then fleshed out in more detail at the provincial
level. Here, however, we find lags in the implementation of both national and