Mining regulations in Argentina are mainly established in the Argentine Mining Code (AMC), although others may be found in local procedure laws and some special federal laws. Specifically, the AMC governs the rights, obligations and procedures referring to the exploration, exploitation and use of mineral substances. These regulations create the legal framework for the relations between the state and those carrying out any kind of mining activities (through exploration permit or concession). Additionally, the regulations govern relations between those carrying out mining activities and third-party rightholders, mining joint ventures and harm to third-party interests. The Argentine legal system is applicable to all the substances specifically named in the AMC.
The activities caught by the AMC are those aimed at the extraction of the minerals, which implies much more than the extraction itself. This is why all the regulations that deal with the search for and conservation of deposits and the transportation, storage and transformation of the extracted minerals, along with other related activities, should also be considered as ruled by the AMC and complementary legislation.
Mines are the private property of the state (provinces, in accordance with section 124 of the National Constitution) where they are located. They are then divided into three categories:
The first is mines belonging exclusively to the state (provinces), the private ownership of which may be acquired only by virtue of concession. This class of mines includes all of the precious metals which are listed in the AMC: hydrocarbons, mineral oils, etc, and precious stones. Concessions may be obtained by the persons who discover the deposits either accidentally or as a result of legally authorised exploration. To perform exploration a permit must be obtained, whether the land is on public or private property, and generally landowners cannot interfere with any person who has obtained formal permission to explore in their land. A petition containing the information required by the AMC must be submitted to the Registry of Mines of the area to be explored. The Registry will then notify the landowner and will record and publish the petition so that anyone opposing the application may file an opposition. At this point, it is important to clarify that the original ownership of mines is vested in the Argentine state; that is to say, the mines are in the public domain. The state (mostly the relevant provincial state) grants the right of “mining property” to those interested in mining exploration and exploitation, and the granting of this right involves a legal concession – though maintaining the state’s original dominion on the mines. The original public dominion pre-exists the mining property granted; coexists during the concession; and continues even after the concession becomes void.
In return for the exploitation of the mine, the concessionaire will pay a royalty to the federal or (as is almost always the case) the provincial state. This royalty is determined by local regulations corresponding to the province where the deposit is located.
Mining property differs substantially from civil property: please see the table (above) for the major relevant differences. Furthermore, mining property is subject to certain conditions. Firstly, it is subject to a suspensive condition, meaning that the concession must be registered; once this requirement has been met, the condition becomes resolutory, facilitating the concession’s termination in the case of lack of payment of the mining fee, or for non-performance of the investments to be made.
To obtain rights over mining property a formal concession must be obtained. An application must be submitted before the Registry of Mines of the relevant Mining Direction or Mining Court, and must contain the data required by the AMC. An application must be filed for the measurement of the claims, which must be duly published and the adjoining owners notified. If no objection is presented, the measurement takes place. It is then recorded and a copy is given to the applicant as evidence of his title.
It is important to note that the process to obtain and exercise the rights over mining rights, as originally ruled by the AMC, has evolved to include environmental and social components – interaction with the surface owners and community being one of the key aspects to consider nowadays.
The second class of mines is divided into two subdivisions and comprises those which may be exploited by anyone without concessions and those which are granted preferentially to the owners of the surface land. The first subdivision consists of metallic sands and precious stones found in riverbeds; running water and deposits along the sides of streams; and the workings and waste of abandoned mines. The second subdivision of this class of mines includes borates, salt, peat, metals not comprised in the first class and various classes of earth. The owner of the surface land has a preferential right to the deposits falling into this category.
The third class of mines includes deposits of stone and materials, which are used for construction and ornamentation.These belong to the owner of the surface land. In the case of land owned by the state or municipalities, deposits falling into this category may be collected by virtue of a contract with the government, though if there is no contract then they may be exploited by anyone.
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