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Dossier Dispossession and Resistance in India and Mexico

State Policy, Law and Mechanisms for Land Acquisition in Mexico

, by JIMENEZ MARTINEZ Nancy Merary

From the times of New Spain, or colonial Latin America, Alexander von Humboldt described its territory as a region characterized by inequality; he was shocked by the unfair distribution of fortunes, arable land and the high geographical concentration of productive activities, as well as the fact that the reduced white population –less than 10% of the total population– held most of the riches in the Spanish colony. Perhaps it is in this historical period that we can locate the roots of the agrarian structure that persisted for many years in our country.

Historical Context

The colonial period was characterized by a threatening concentration of the lands in a few Spanish hands –the so called mercedes reales or royal grants awarded by the Crown- which coexisted with multiple small owners of small portions of low quality land held by the Spanish and the colonial aristocratic classes, and to a lesser extent, by indigenous people, along with indigenous communal properties. The latter constituted this population group’s main survival mechanism and was subjected to “sales” or “leases” that actually disguised the dispossession or usurpation.

Even though this situation was unfair and disadvantageous for the underprivileged groups, it did not in itself represent a period of conflict. The population increase and expansion of the first cities demanded food supply, and this is what mobilized the land and jobs markets. The indigenous populations were incorporated to work in the haciendas or large landed estates, which generated two social-spatial effects: on the one hand it amounted to territorial uprooting and the reduction of their participation as landowners and agricultural producers; on the other, it led to their proletarianization. This context created a new form of organization of land, the hacienda, that made available large tracts of land to be put to use for agricultural production or mining. At the same time, it also propitiated a social reorganization typified by the landowner and the peon, related through the exploitation of the work of indigenous peoples and the incorporation of their lands.

It wasn’t until the 1917 Constitution, which came out of a social revolution, that a social property regime of land and natural resources was acknowledged; a stage in history that was also closely linked to the rise of the welfare state in Mexico. This led to distribution of land in a social form of property: the ejidos or communally held land tenures and agrarian communities.

Article 27 of this constitution established that the original proprietary rights over land and natural resources within its borders belonged to the nation, which reserved the right to transfer it to individuals as private property or social property. This property is inalienable and imprescriptible, and which cannot be seized. This is in addition to public property which belongs to the State and is to be used for social welfare of the people. It further instituted that the said property could be expropriated for public purpose or be subject to changes dictated by social interest. In the case of natural resources, no form of property was authorized over them and it was established that individuals could only exploit them through concessions granted by the federal government. As for the direct exploitation of oil, uranium and others, that belonged exclusively to the state.

Neoliberal reforms

In 1992 one of the most important constitutional amendments was made to this article, annulling the inalienable, imprescriptible and un-attachable character of social properties, held by ejidos and villages. Following this amendment, the rights over these lands can be transferred by sale, rent, partnership and other commercial initiatives. Sale and purchase have been the main mechanisms through which social properties have been impinged upon. Since the 1992 amendment, the land market has not only added social property lands to its offerings; it has also fueled three kinds of transactions that do not require State intervention: (1) when the agrarian community or ejido decides jointly to dedicate their common land to a commercial project; (2) when inside the ejido or agrarian community individual plot rights are transferred to another member of the same community; (3) through the acquisition of full ownership of the plots by the holder of the individual plot rights, who may then freely transfer them to whoever s/he sees fit. The effects have been overwhelming: by 2007 over 62 thousand instances of alienation of social property lands had been registered in the National Agrarian Register, not only transforming the agricultural use of the lands to touristic and development purposes, but also its relationship with the communities. This amendment went hand in hand with a range of new public policy measure leading to the deregulation of key public sectors, and facilitating the privatization of natural resources and legalization of territorial dispossession.

Some instances of these include: the Mining Law [1], according to which the extraction of hydrocarbons and minerals is considered preponderate over any other use that the land may be put to, such that this will always have preference over any other activity that involves harnessing the land or subsoil. The Energy Reform opened the door to private investments in energy projects whose exploration and extraction activities are considered strategic for the State. Lastly, the National Waters Law aims at the privatization of water and energy, and continues with the line of building dams. All these changes are made possible by mobilizing the concept of ’public purpose’, that is, with an apparent goal towards the general good of the people, that nevertheless violates the rights of communities to the land and the guarantee of their property in the face of private interests and uses. Hereunder we examine the modalities of this process.

Mechanisms of dispossession of land and natural resources in Mexico

Expropriation

This refers to a unilateral act by state authorities depriving the owner, private or social, from the use, enjoyment and possession of their property ‘for public purpose’ [2], that is, a mechanism through with the ‘original property’ goes back to its original owner, the nation.

Although this measure has been applied in many occasions throughout the nation’s history, especially during the times of President Cardenas (1913-28), in pursuit of strengthening national projects, the underlying impression nowadays is that it is deployed at the expense of the common good, privileging individual profit. For this reason, it is not surprising that expropriation is the recourse that is most used by the authorities for major public works that are then placed in private hands for its usufruct.

Grants

They represent the means through which the state awards permission to private players to exploit federal resources that the state cannot undertake because of the lack of technical, human, or economic capabilities.

Imposition of modalities

This is a mechanism to restrict the right to ownership of territories and natural resources. Its legal basis is in Article 27 of the Constitution [3] and in line with the case law of the Mexican Supreme Court [4] wherein “modality in private property is understood as the establishment of a general and permanent legal norm that essentially modifies the form of this right”, which implies “a limitation or transformation in property rights”.

In general terms, limitations to property have been used for the establishment of land laws and the declaration of Protected Natural Areas, under which the owners or rights holders are subject to the modalities established in these decrees or their management programs. This has been used to prevent the full exercise of the property rights of many ejidos and agrarian communities, some of them indigenous.

Lease

Land leases constitute another mechanism for the dispossession of the lands and natural resources of the communities. The Constitution refers to it as partnership with private players or with the State; however, in the Agrarian Law we also find references to this modality, which states that ejido owners can make use of their land parcels directly or concede its use or usufruct to other ejido owners or to third parties “through sharecropping, partnership, lease or any other legal act not prohibited by the law, with no need of authorization from the [village] assembly or any authority”. [5] In general, these are euphemisms that under the pretext of temporary occupation, or a contract for partnership or use, have become new legal routes to legalize dispossession.

The hard data is overwhelming. According to the 2007 Agricultural and Livestock Census, in Mexico 2 million 667 thousand hectares were rented; 667 thousand, under sharecropping; 1 million 557 thousand were loaned, and 1 million 435 thousand hectares were “under different forms”. This indicates that approximately 6 million 300 thousand hectares were being used by people other than the holders of the ejido or community rights. We know that a part of these leased lands is used for export agribusiness, as well as the installation of wind parks and the mining industry, sectors for whom land leasing has been the principal mechanism for the exploitation of land or national resources in Mexican soil.

We can state that through “lease arrangements” many companies have managed to conduct a silent and concealed dispossession under the protection of a legal contract.

By way of conclusion

The first three modalities: expropriation, grants and imposition of modalities, are unilateral state intervention mechanisms. The first one makes effective the vertical faculty of the state to deprive owners (private or social) from the use, enjoyment and possession of their properties on grounds of ’public purpose’; the second represents an act of authority in which a form of property is granted by the state to private players for its exploitation; finally, the third modality merely imposes limitations on the right to ownership. On the other hand, leasing, buying and selling are mechanisms where there is no need for the intervention of the authorities; however, they all share one characteristic: they belong to a group of commercial agreements that are establishing new legal paths to legitimize the dispossession of land and natural resources.

If, the responsibility of the state is to promote and enforce human rights, the case of Mexico demonstrates that the state uses legislative and administrative instruments, resource allocation, and legal instruments, amongst others- measures that endanger social property of the land and natural resources, to implement a systematic policy of territorial dispossession that impinges on these very rights.

In Mexico, legal security over land is limited by its social function; that is to say, the privilege of the so-called ‘collective interest’ that the state claims in order to impose modalities on private property or to make it an object of expropriation, has been violated and has served to legitimize the subjection of communities to neoliberal interests. The violation of territorial rights that has been made possible in the last few years, as well as the establishment of mechanisms to legitimize dispossession, tell us that the dismantling of a welfare state based in the rule of law and ‘public purpose’ has given way to the intervention of capital, the establishment of the free market, and the lack of protection/security.

This public policy on land and natural resources indicates that the Mexican state has compromised the nature of original property and social property, bypassing the responsibility to promote and ensure a responsible use of natural resources for public interest, disregarding its responsibility to ensure the distribution of wealth as well as overseeing the preservation and balance of the environment.

Notes

[1The Law was published in the Diario Oficial de la Federación (Federal Official Gazette) on June 26, 1992. See last amendment published in the DOF. Available at: http://www.diputados.gob.mx/LeyesBiblio/pdf/151_110814.pdf

[2The notion of ‘public purpose’ is used not only in Article 27 of the Constitution, but also in the Expropriation Law, Agrarian Law, National Waters Law, General Ecological Equilibrium and Environmental Protection Law, Sustainable Forest Development Law), Mining Law, and the General Human Settlements Law

[3Also, the General Ecological Equilibrium and Environmental Protection Law, particularly for the formulation of ecological laws and the creation of protected areas.

[4Jurisprudence of the Supreme Court of Justice of the Nation. Available at: http://sjf.scjn.gob.mx/sjfsist/paginas/Reportes/ReporteDE.aspx?idius=232486&Tipo=1

[5Article 79, Agrarian Law

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Nancy Merari Jimenez Martinez – She is doing her postdoctoral research at the Centro Regional de Investigaciones Multidisciplinarias, UNAM, Mexico City.

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