Summary of Environmental Law in Mexico

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15 Private Land Use Planning and Management

 

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15.1 Zoning and Environmental Regulation of Private Land

 

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Ecological Zoning Plans

Both the Political Constitution of the United States of Mexico (hereinafter Mexican Constitution) and the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente) (hereinafter Ecology Law) call for the creation of ecological zoning plans (ordenamientos ecológicos). There are four types of ecological zoning plans: (1) a national general ecological zoning plan; (2) regional ecological zoning plans; (3) local ecological zoning plans; and (4) marine ecological zoning plans.

Article 3, Section XXIII of the Ecology Law defines ecological zoning as "The environmental policy instrument intended to regular or cause land use and production activities, in order protect the environment and the sustainable use of natural resources based on an analysis of deterioration trends and the potential uses thereof."

National General Ecological Zoning Plan

Pursuant to Article 20 of the Ecology Law, SEMARNAT is responsible for developing the overall national ecological zoning plan in the framework of the National Democratic Planning System (Sistema Nacional de Planeación Democrática). The overall zoning plan has the following goals: (1) the regional ecological zoning of the country, taking into consideration the characteristics, availability and demand of existing natural resources, the promotion of productive activities in a given area and the presence of human settlements; and (2) the ecological strategies and guidelines for the preservation, protection, restoration and sustainable exploitation of existing natural resources. SEMARNAT must promote the involvement of citizen groups, entrepreneurs and scholars in the devising of ecological zoning plans.

Regional Ecological Zoning Plans

SEMARNAT, through cooperation agreements, assists state governments and that of the Federal District in devising and issuing regional ecological zoning plans that may cover the federate entity as a whole or part of it. Regional ecological zoning plans must abide by and comply with the national "general" ecological zoning plan. Besides considering ecological and environmental factors, ecological zoning plans must also evaluate socioeconomic and political factors, including, population, urban development, state and municipal services and primary, secondary, and tertiary productive economic activities, to name a few.

Local Ecological Zoning Plans

These are issued by municipalities or the Federal District for the purpose of determining the different ecological areas within the zone, as well as regulating urban centers and land uses and establishing the conditions for the sustainable exploitation of natural resources in urban centers.

Marine Ecological Zoning Plans

Article 20 Bis 6 of the Ecology Law empowers SEMARNAT to devise, issue and implement marine ecological zoning plans for the purpose of designing the policies aimed at the preservation, protection and sustainable exploitation of natural resources. These must be consistent with the general, regional and ecological zoning plans. Marine ecological zoning plans shall contain: (1) the designation of ecological zones; (2) the productive activities that may be carried out in the zone; and (3) the policies adopted for the protection and the sustainable development of natural resources in accordance with the applicable laws and international treaties to which Mexico is a party.

Present State of Ecological Zoning Plans

To date, all 31 Mexican states have incorporated the ecological zoning plan into their state environmental laws. Nevertheless, the national "general" ecological zoning plan and particularly local state and municipal are still in the process of being developed. At present, SEMARNAT is focusing its attention on priority regions, providing logistical, technical and financial support for state and municipal ecological zoning plans and developing special conservation, restoration and protective programs. Through the end of 1994, INE had devised a total of 54 ecological zoning plans in regions of biological importance or areas where large development projects were planned.

Urban Land Use Planning

The role of the federal government in urban land use planning is limited, as land use regulation is delegated primarily to state and municipal authorities. The Secretariat of Social Development (Secretaría de Desarrollo Social (SEDESOL)) is the federal agency responsible for regulating, administering and promoting urban development in cooperation with other federal secretariats and state and municipal authorities, within their respective areas of competency. Furthermore, SEDESOL and the state and municipal governments assist in developing and regulating the "national zoning plan of human settlements and urban development" (hereinafter national urban zoning plan), which is part of the National Democratic Planning System (Sistema Nacional de Planeación Democrática). The national urban zoning plan establishes broad policies, on a sector by sector basis, that are aimed at advancing the objectives set out in the national, state and municipal plans.

The national urban zoning plan is implemented under Article 12 of the General Human Settlements Law through a series of other federal, state and municipal urban development plans and programs which include: the national urban development program and "the zoning programs for integrated urban zones". Integrated urban zones are two or more urban areas situated in neighboring states or municipalities that, due to their geographical, economic and urban conditions, constitute a single urban area. Integrated urban zoning programs are adopted and overseen by an Integrated Urban Commission (Comisión Conurbada), headed by a SEDESOL representative; they are instrumental in the coordination of the planning and regulation of the integrated urban area. Once approved by the Commission the program is implemented by the respective municipalities. Finally, the federal government works with states and municipalities to establish territorial reserves for urban development and housing.

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15.2 Takings/Expropriations and Other Limitations on Regulation

 

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Article 27 of the Mexican Constitution provides the federal government with the authority to restrict private land use and regulate the use of natural resources in the public interest, for the purpose of achieving a fair distribution of public wealth. This Article allows the federal government to adopt whatever measures it deems necessary to preserve and restore the ecological balance and avoid the destruction of natural elements. In addition, Article 27 provides the government with the right to expropriate private property in the public interest, provided that the government indemnifies the party involved within a brief period of time. Pursuant to recent amendments to the Expropriations Law, in furtherance of the North American Free Trade Agreement (NAFTA), the government must indemnify those parties whose properties are being expropriated by paying the fair market value for the properties within one year from the time of expropriation.

At what point does a government action go beyond regulating and controlling and become expropriation? The Expropriations Law (Ley de Expropiación) does not provide a clear answer to this question. Nevertheless, the legal principle that "the well-being of society transcends individual well-being" normally will apply in favor of the government. The Constitution specifies that conserving the natural elements is in the public interest. If the government can show that environmental regulations are in the public interest, then the action most probably will not constitute expropriation warranting indemnification.

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15.4 Land Tenure (Including the Rights of Native Peoples)

 

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Overview

Private property rights are derived from Article 27 of the Mexican Constitution. The first paragraph of Article 27 grants the federal government original ownership of all the lands within the national territory and the right to transfer its title to private individuals, thereby creating private property. There are two types of private land tenure in Mexico which are governed under Article 27 of the Constitution and the Agrarian Law (Ley Agraria): (1) private property and (2) social or common property which includes ejidos and comunidades.

Private Ownership and Use

Pursuant to Article 27 of the Constitution, only Mexicans are granted the right to own land or be granted concessions for minerals or water. The federal government, however, may grant foreigners the right to hold property provided they do not invoke the protection of their governments. In general, foreigners are prohibited from acquiring direct dominion over lands or waters within one hundred kilometers of the Mexican border and fifty kilometers of its coastline. However, the Foreign Investment Law (Ley de Inversión Extranjera) allows foreign ownership in such restricted areas, provided a trust is set up for a period not to exceed 50 years.

Constitutional Limits on Private Ownership

Article 27 of the Mexican Constitution prohibits large single-owner land holdings referred to as latifundios and limits single property owners to what is referred to as small property holding under the Mexican Constitution. Land classification is determined by the SAGARPA in accordance with the requirements set out in Articles 115 to 124 of the Agrarian Law, which implement Article 27 of the Constitution. A small property holding varies in size depending on its use and quality. For example, Article 27(XV) of the Constitution and Articles 117 to 119 of the Agrarian Law contemplate eight different requirements and size limits for small agricultural property. Should a property exceed the limits of a small property holding, the owner must reduce its acreage according to the priorities set by Article 124 of the Agrarian Law. The Agrarian Law does, nevertheless, allow business corporations, known in Mexico as 'sociedades civiles y mercantiles', to own a piece of land for agricultural, cattle raising or forest farming purposes up to twenty five times the small land holding. On the other hand, the Agrarian Law sets safeguards intended at prohibiting individuals from using business corporations as a fronting for owning large plots of land.

Other Private Property Land Use Restrictions

Besides being governed by the regulations set forth in Article 27 of the Constitution and the Agrarian Law, private land use is further regulated by the following laws, regulations, decrees and compacts:

  1. the national, state and municipal ecological zoning plans;
  2. forestry zoning ;
  3. Natural Protected Areas;
  4. reserves;
  5. Executive land use declarations pertaining to the creation of biospheres and special biospheres under the Natural Protected Areas system; and declarations regarding the protection and restoration of areas that suffer from serious environmental degradation;
  6. federal, state and municipal laws and regulations dealing with human settlements and zoning; and
  7. the Civil Codes of the states and the Federal District.

Social or Common Property: A Historical Perspective of the Ejido and the Land Tenure System

Historically, ejidos are common lands occupied and farmed by rural peasants or farmers. The ejido land system first became a legal entity in Mexico in 1573, although the concept of common lands dates back to Mayan times. Following the Mexican Revolution of 1917, the Mexican Constitution sought to do away with large land holdings (one percent of the Mexican population controlled 97 percent of the land) by expropriating large plots of land, outlawing latifundios and replacing them with ejidos, common lands collectively run by elected community representatives that worked and lived in the lands. There is more to the ejido land use system than simply common lands being held and managed by a group of people. Indeed, the ejido is a system with its own government structure, as set out in Article 21-44 of the Agrarian Law, made up of an assembly, an ejido commissariat and a security advisory council.

Property Rights Under the Ejido Land Tenure System

There are three types of land within an ejido; lands intended for (1) common use, (2) human settlements, or (3) individual use or ownership. The internal ejido regulation established by the assembly determines the use, conservation and access to lands for common use. The assembly may also transfer the ownership of common lands to business associations in which the ejido or its members participate, provided they receive approval from the Agrarian Attorney General (Procurador General Agrario). In addition, ejido lands may be contracted out temporarily to third parties for a period not to exceed thirty years.

In accordance with the 1992 Agrarian Law, the assembly may also grant each ejidatario a plot of land, unencumbered whenever possible, within the urbanized zone, for human settlement purposes. Finally, the assembly may assign plots of land to individual ejido members in one of two ways. Land may be assigned with the right to use the land in any legal way or sold to individual members of the ejido or the inhabitants of the surrounding areas of the ejido. The second option is to assign to ejido members the absolute right to the land, in which case the property is removed altogether from the ejido system and may be disposed of at will. Private owners may retain their rights over other ejido lands and their status as private landowners does not change the ejido system. Article 27 of the Constitution limits individual ownership within the ejido system to a small land holding and/or to no more than five percent of all of the ejido lands.

Land Tenure System of Comunidades

Although under the Agrarian Law the ejido land system includes common lands, the Law, pursuant with Article 27(VII) of the Mexican Constitution, also creates separate legal entities known as comunidades. Comunidades are essentially communal lands that are governed by a communal statute and a representative assembly similar to that of the ejido system. The main difference, however, between ejidos and comunidades is that all the members of the comunidad hold title to the communal property. If individual plots of land are not assigned, then it is presumed that the land is divided up equally. A comunidad may be formed in a number of different ways: (1) voluntarily by individual landowners; (2) through the restitution of lands to communities deprived of their property, or (3) by turning an ejido into a comunidad. Similarly, comunidades may also be converted into ejidos.

Observation of Environmental Laws Under the Ejido and Comunidad Land Tenure Systems

Even though ejidos and comunidades are autonomous, they must comply with federal laws, such as the Ecology Law, the General Law on Human Settlements, the Forestry Law and the Sustainable Rural Development Law, to name a few. As a result the ejido assembly must adhere to both the urban development and ecological systems, as well as to all environmental permitting provisions. Ejidos may use and farm their forests but the Agrarian Law prohibits ejido woodlands from being sold. When planning urban development areas, the ejido assembly must also consult with the respective municipal authorities and meet all the standards set out in the Official Mexican Standards (Normas Oficiales Mexicanas (NOMs)). Ejidos are prohibited from establishing or building urban areas in ecological preservation zones or in Natural Protected Areas. The Agrarian Reform Secretariat (Secretaría de la Reforma Agraria (SRA)), with the assistance of SEMARNAT and SAGARPA, is responsible for overseeing ejido land use practices and promoting their conservation.

The Sustainable Rural Development Law applies to ejidos and rural production communities and organizations or associations at the national, state, regional, district, municipal or community level. Article 11 of the Law provides that the actions undertaken by the above-mentioned groups must meet the preservation, restoration and sustainable use criteria for the biodiversity's natural resources, as well as the prevention and mitigation criteria for environmental impact.

The Law provides that the State has responsibility for planning of sustainable rural development, carried on through the federal government agencies and entities and its agreements with the states and municipalities. The basis of the territorial and administrative organization of the Special Concurrent Plan, including all sector programs as provided in Article 29 of the Law.

SAGARPA is responsible for the Intersecretarial Commission for Sustainable Rural Development (Comisión Intersecretarial para el Desarrollo Rural Sustentable), which in turn is responsible for managing, coordinating and following through on the sector and special programs aimed at promoting sustainable rural development, as well as promoting and coordinating the actions and agreements for allocating roles to the respective federal agencies and entities.

With the participation of the Mexican Council for Sustainable Rural Development (Consejo Mexicano para el Desarrollo Rural Sustentable), the Commission may establish special programs, sector programs and concurrent special emergency programs when contingencies occur that so justify, pursuant to Article 13 of the Law.

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2003