REDD countries

During 2012, Mexico has undertaken substantial work in developing its climate change and forest protection legal framework, resulting in important improvements. As of early 2013, the REDD+ mechanism is not expressly mentioned in any law within the Mexican legal framework. However, several specific regulations directly support the REDD+ strategy, such as the recognition of carbon capture as an environmental service under the General Law of Sustainable Forest Development. Nonetheless, certain important legal aspects of REDD+, such as an overarching definition of forest and carbon rights, and benefit sharing definitions, remain inadequately addressed. Finally, laws related to agricultural development and the oil industry may conflict with REDD+ mechanisms if these sectoral policies are not tackled integrally with the REDD+ strategy at national and sub national levels.

Background

According to the Mexican Political Constitution (Constitución Política de México) of 1917 authority over environmental policy is shared between Federal and State governments, granting an important role in forest management to decentralized levels of government. The principle forest legislation in Mexico is the General Law for Sustainable Forest Development (Ley General de Desarrollo Forestal Sustentable) of 2003, which has as its objective the development of forest goods and services in consonance with safeguards like preferential rights of indigenous people to the natural resources in their land. Other Mexican laws also include payments for environmental services (PES) systems as a measure to enhance sustainable development in Mexico (e.g., the Law on Sustainable Rural Development and the Environmental Hydrological Services Programme). However, the General Law for Sustainable Forest Development is the only law that expressly includes “carbon capture” in its definition of environmental services.

Although conservation is a primary objective of the General Law for Sustainable Forest Development, the Agrarian Law (Ley Agraria) of 1993 only identifies land according to its economic use (it only recognizes agriculture, livestock and forestry lands). Therefore under the Agrarian Law, land dedicated to conservation is not recognized as having an economic use. Furthermore, if a land has not been allocated to a productive activity it is considered to be reserved for agriculture production, a rule that could enter into conflict with the Forest Law previously mentioned and with the implementation of REDD+ mechanisms (IDLO, 2011).

In 2012 the General Law on Climate Change (Ley General de Cambio Climático) was published, clarifying the distribution of roles and responsibilities related to the climate change policy of each entity at the federal level, and shedding light on the baseline scenarios methodologies (historic and projected baseline scenarios will be established based on ten and twenty year periods, respectively). The General Law of Environmental Equilibrium and Protection (Ley General del Equilibrio Ecológico y la Protección añ Ambiente) approved in 1988, is also relevant for a future REDD+ strategy. This law allows sustainable forestry management in protected natural areas in compliance with specific requirements of environmental protection.

Definitions relevant to REDD+ projects and programmes

The Mexican legal framework has several definitions important for REDD+. One of its most relevant is the definition of “environmental services” provided in the General Law for Sustainable Forest Development (2003). The definition includes “carbon capture” as one of the services provided naturally or through the sustainable management of forest resources, as well as climate regulation and other ecosystem functions (e.g., water provision). In the same vein, the aforementioned law states that ecosystem services are included as one of the potential defining characteristics in the legal concept of “forest resources,” thereby including carbon capture among the different recognized forest uses. Despite this recognition, currently it is unclear if REDD+ activities would be regulated as forest exploitation, forest conservation or payment for environmental services. To date, all REDD+ pilot projects have been planned provisionally as PES arrangements (IDLO and FAO, 2011).

The Mexican legal framework does not directly regulate “carbon ownership” or rights to emissions reductions; however, some norms may be seen as providing possible approaches under future regulation. First, under Article 5 of the General Law on Sustainable Forest Development, forest resources (which include environmental services and thus carbon capture) belong to the ejido, community, individual(s) or private or public entity that owns the land where they are located. Second, according to the Federal Civil Code, trees are considered as real property and presumably belong to the landowner due to their adherence to the ground (according to the legal principle of accession), until proven otherwise. Further reinforcing the likelihood that this emerging treatment could take final effect, the 2011 Draft REDD+ National Strategy (ENAREDD+), establishes as a short-term objective (1-3 years) the formalization of carbon ownership as an associated right to forest property (SEMARNAT, 2011).

The General Law for Sustainable Forest Development provides legal definitions of concepts such as “deforestation”, understood as a complete loss of forest vegetation due to natural or induced causes, and also “degradation”, which is defined as a decrease in a forest ecosystem’s ability to provide environmental services or a decrease in its production capacity.

While these definitions represent an important step towards ensuring successful REDD+ regulations, some reports have pointed to a lack of coherence in relevant definitions in forest and agriculture regulations, as well as across different federal governance levels. Also relevant is the lack of an overarching definition of the term “forest” in the Mexican legal framework. The regulatory decree of the Law for Sustainable Forest Development provides separate definitions for “temperate forest” and “rainforest”, which relate to such ecosystems climate region (temperate or tropical) of. In both cases, the types of forest are determined by the National Institute of Statistics, Geography and Informatics. Additionally, various other forest definitions are found in some State laws (e.g., Veracruz, Chiapas). Finally, “commercial forestry plantations” are not considered as forest. This multiplicity of forest definitions has been identified as a possible obstacle to clarifying the forest types covered by REDD+ projects and to therefore defining the eligibility of land for such projects (SEMARNAT, 2011; IDLO and FAO, 2011).

Land & Forest Resource Law & Tenure

In Mexico, land ownership may be private, public (owned by any level of the Government) or “social” (ASSENNATTO B. and DE LEÓN M., 1996; LÓPEZ BÁRCENAS, n.d.). Possessory rights held in informal settlements called “colonias” are also recognized. “Social” ownership comprises “communal ownership,” recognized with respect to communities, and “ejidal lands”. Ejido is defined as a self-organized legal entity with a collective land holding granted by the State to rural communities through the agrarian reform process. According to Article 44 of the Agrarian Law, ejido lands are divided into lands for human settlement, lands for common use and parceled lands. Each category of use is determined and regulated by its own statute.

In addition to this, communities are also recognized as legal entities empowered to design their own statutes, including the regulation of the exploitation of their natural resources. In the case of both ejidos and communities, the State retains ownership and only allocates usufruct rights to lands (USAID, 2011). Social ownership of land is a central aspect of the national REDD+ strategy due to the fact that 50-80% of forests are on land regulated by such legal frameworks.

Since a 1992 Constitutional amendment, social ownership may be transferred and privatized. Also, agreements of association with other legal entities are allowed for better natural resource exploitation. Currently, approximately 55% of forest is under communal ownership by either ejidos or communities (CIFOR, 2010).

Although the Mexican Constitution declares the country to be a multi-cultural State, there is no specific national regulation of indigenous lands or territories. Ejidos and communal lands are legal concepts based on the current livelihoods of communities and not on their cultural origins. Indigenous land rights may fall under social, private or public property (LÓPEZ BÁRCENAS, n.d.). Mexico has made progress in terms of land tenure regularization in recent years, to the extent that some studies consider land tenure issues unlikely to represent the same hurdle to REDD+ as it may in other developing countries. However, numerous instances of insecurity of indigenous peoples’ tenure rights remain due to social inequity, extreme poverty and organized crime (IDLO and FAO, 2011).

Land ownership is governed by various regulations, mainly the Federal Civil Code, the Codes of each State and sectoral laws. Specific rules on the use and transfer of forestland are contained in the General Law on Sustainable Forest Development. In the case of ejidos and communal lands, the Agrarian Law provides the general regulatory framework, but aspects like distribution of profits and authorization of land division on communal and ejidal lands are set up by those groups’ internal regulations. According to Article 29 of the Agrarian Law, when an ejido right over an area of forest or tropical rainforest expires, the land returns to the Federal Government. This insecurity in terms of land rights may also negatively influence carbon ownership rights with respect to REDD+ projects located on such lands (IDLO and FAO, 2011).

According to the Agrarian Law there are three types of productive lands in Mexico: agriculture, livestock and forestry lands. The Law does not recognize conservation or enhancement of environmental services as a land use, which is one of the objectives of the General Law for Sustainable Forest Development. If rural land has not been designated under any use, it is automatically presumed to be reserved for agricultural production. The category of “conservation lands” will need to be included within the classification of economic land uses in order to be coherent with the General Law for Sustainable Forest Development and with the development of a REDD+ strategy (IDLO and FAO, 2011).

Finally, Article 51 of the General Law on Sustainable Forest Development created the National Forest Register (Registro Forestal Nacional, within the Secretary of Environment and Natural Resources (SEMARNAT) to record all transactions relating to forest land ownership, land use rights and authorized forest management programs.

Other Relevant Laws and Processes

The energy sector

The Oil Sector Law of 1958 (Ley Reglamentaria del Artículo 27 Constitucional en el Ramo del Petróleo) declares the oil industry a “public utility” with preferential land use rights on any type of land, including over ejido or community lands. The supremacy given to the oil sector could cause uncertainty to implemented REDD+ projects (IDLO and FAO, 2011). 

The Law for Renewable Energy Development and Financing (Ley para el Aprovechamiento de Energías Renovables y el Financiamiento de la Transición Energética) of 2008 designates finance instruments to promote renewable sources of energy. This law could generate some pressure on land use and may have some impact on REDD+ projects. The Law for the Promotion and Development of Biofuels (Ley de Promoción y Desarrollo de los Bioenergéticos) of 2008 could generate similar pressure by incentivizing forest conversion and land use change (IDLO and FAO, 2011).

Agriculture & mining sectors

The Agrarian Law is charged with implementing Article 27 of the Constitution, which requires the government “to encourage agriculture in general and to prevent the destruction of natural resources. . .” Towards the first part of that clause, the law holds that only three types of land exist (agricultural, livestock and productive use of forests or rainforests), and that any land not falling into one of these productive categories is automatically deemed to be reserved for agricultural use. Proposals are under consideration to add conservation as a recognized economic use as is found under the General Law of Ecological Equilibrium and Environmental Protection and the General Law on Sustainable Forest Development, and in keeping with the purposes of REDD+. Additionally, the agricultural legal framework supports growth in the agricultural sector via initiatives such as providing access to credit, and promoting sectoral investment and rural associations (IDLO, 2011). As agriculture is a main driver of deforestation in Mexico (FAO, 2010), a review of current and anticipated agriculture legislation is necessary to support the implementation of an effective REDD+ mechanism. 

In a similar manner to the Agrarian Law, the Mining Law and its Mining Act Regulations generally give preference to subsurface rights over other land uses. Unless amended, this treatment would have negative repercussions for areas established for REDD+ activities under which mineral deposits are discovered (CARRILLO and IDLO, 2011).

Procedures

The system for granting concessions  

Although the Mexican forestry legal framework establishes some procedures for granting concessions, it is still unclear whether the General Law on Sustainable Forest Development would regulate REDD+ projects activities as forest exploitation, forest conservation or payment for environmental services. Until now, all REDD+ pilot projects have been developed under the latter modality (IDLO and FAO, 2011).

An authorization from the Secretary of Environment and Natural Resources (SEMARNAT) is required to convert forest land to other land uses, to exploit timber and non-timber resources, or establish plantations of more than 800 hectares. Authorization must be registered within the National Forestry Registry and is exclusively granted to land owners, possessors or usufructuaries with legal title. Such authorizations are transferable. Furthermore, according to the General Law for Environmental Equilibrium and Protection, an Environmental Impact Assessment is needed for forest exploitation projects of more than 20 hectares of tropical rainforest or forest in natural protected areas with species that have difficulty regenerating. Finally, for the exploitation of non-timber forest products (NTFPs), a written communication to the relevant authority is required, but regulations may establish simplified management programmes for NTFP exploitation. 

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