ARGENTINA Law and Practice Contributed by: Sebastián P. Vedoya, Sergio Arbeleche and Dolores Cattaneo, Bruchou & Funes de Rioja
nity. The public consultation is the instance at which the authorities and those who will carry out the project must inform the community of all the relevant aspects of the project. Citizens’ involvement shall be ensured mainly during the environmental impact assessment processes. Previous public consultation pro - cedures are the responsibility of the competent authority, prior to the issuance of the resolu - tion deciding on the approval of the ESIA. The outcome of the consultation procedure is not binding, but it has to be duly addressed by the permit. 2.5 Impact of Specially Protected Communities on Mining Projects According to the Argentine constitution and Convention 169, indigenous communities have the right to be recognised by the Authorities (at federal and provincial level) as entities with legal status. This allows them to act as entities with collective rights, such as community ownership of lands they inhabit and property of the natural resources existing there. When recognising the legal status of indigenous communities, they are registered in a special registry along with other relevant information such as the structure of their organisation, their authorities, their location and area of interest, and the appropriate consultation procedure that they require in order to give them proper partici - pation in accordance with their own traditions. However, the obligation to grant legal status to an indigenous community when it is requested does not imply that indigenous communities have an obligation to make such a request. Convention 169 and many federal and provincial regulations determine that it is enough for indi - viduals to consider themselves as indigenous for authorities to recognise their ethnic identity
and the lands on which they live. National and some Provincial Authorities have issued regula - tions related to the implementation of Conven - tion 169. In Argentina, and depending on the province, the instance of citizen participation and the instance of indigenous communities’ participation may be held separately or carried out simultaneously. It is worth mentioning that, in most cases, it is not necessary that the indigenous communities give their consent to a mining project, since this is restricted to some very exceptional cases spe - cifically identified in Section 16 of Convention 169 (when relocation of the indigenous commu - nity is required). Opposition by indigenous communities to the performance of any activity in a public consul - tation process is not binding on the authori - ties. In any case, the validity and legality of the approval act will depend on how an authority has responded to the observations and questions of the indigenous communities. 2.6 Community Development Agreement for Mining Projects It is not usual to have community agreements for the development of mining projects in Argentina. As a general rule, it is not mandatory to enter into such agreements and these have been entered into with local communities and/or municipalities only in certain cases. It is likely that the nego - tiation and execution of these agreements will become common practice in the future. In the last few years, local authorities have been nego - tiating and executing with mining companies’ agreements focused mainly on the contribution to public infrastructure.
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