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Legal Aspects of Forest Management in Mexico

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Legal Aspects of Forest Management in Mexico ENVIRONMENTAL LAW INSTITUTE RESEARCH REPORT /HJDO$VSHFWVRI )RUHVW0DQDJHPHQW LQ0H[LFR April 1998 LEGAL ASPECTS OF FOREST MANAGEMENT IN MEXICO Copyright © 1998, Environmental Law Institute Acknowledgments The preparation of this report has been funded in part by the U.S. Agency for International Development’s sponsoring office in Mexico City, Mexico under the terms of Grant No. 523-G-00-92-00027-00, to the Environmental Law Institute. The opinions expressed herein are those of the author (s), and do not necessarily reflect the views of the U.S. Agency for International Development. This report was also supported by the John D. and Catherine T. MacArthur Foundation and the Tinker Foundation. The Environmental Law Institute would like to thank Gustavo Alanís Ortega, María del Carmen Carmona and María Fernanda Sánchez for their crucial assistance in researching and preparing this report. ELI also acknowledges with sincere appreciation the numerous people in Mexico and the United States who provided important information and assistance. At the Environmental Law Institute, staff participating in the project were Susan Bass, Susan Casey-Lefkowitz, Byron Swift, Paulina Torres and consulting attorney Ken Rosenbaum. Former ELI staff members Donald Hobbs, Carolina Gonzalez, Cynthia Ickowicz, Rafael Loza and Alejandra Navarrete also assisted in earlier stages of the project. Copyright © 1998 Environmental Law Institute ®. A limited license is hereby granted to visitors to the ELI Web site to download, electronically or mechanically store, or retrieve and print one copy of this work in its electronic format for personal, academic research, or similar non-commercial use only, provided that notice of copyright ownership appears prominently on the copy. Electronic retransmission of the work without the express consent of the Environmental Law Institute is strictly prohibited. All other rights reserved. Legal Aspects of Forest Management in Mexico Copyright © Environmental Law Institute ®. All rights reserved. ELI Project #921414 (Environmental Law Institute®, The Environmental Forum®, ELR®, and the Environmental Law Reporter® are registered trademarks of the Environmental Law Institute.) Summary The object of this study is to determine how laws, policies, and administration can be strengthened to combat deforestation in Mexico and better sustain the productivity and integrity of its forested ecosystems. The emphasis of the study is on protection of internationally recognized forest reserves, though the inquiry is necessarily broader. The study outlines international and domestic law affecting Mexican forests and looks at three case studies. Two of the case studies are reserves with threatened forests: the Monarca Special Biosphere Reserve in the central states of Mexico and Michoacan and the Montes Azules Biosphere Reserve in the southern state of Chiapas. The third case study looks at forests managed for timber production in the state of Durango. Finally, the study discusses some options for improving Mexico's forest laws. Defining the Problem Mexico contains about 50 million hectares of forest, half temperate and half tropical. By one estimate, it is losing about one percent of its temperate forests and almost two and a half percent of its tropical forests each year. The causes of forest loss in Mexico are varied. Fires and conversion of forests to pastures or farms are among the most important. Timber harvest is an important cause in tropical deciduous forests. Locally, oil exploration and urbanization can lead to forest loss. These causes often work in combination. For example, a logging road into pristine rain forest may facilitate incursion by ranchers or farmers. Secondary factors exacerbate the loses. Government policies until recently have encouraged the spread of roads, farms, and ranches. Social values encourage people to "clean up" wild lands. Population growth has increased the demand for rural land and for forest commodities like firewood and timber. International Laws As a sovereign nation, Mexico sets its own forest policy. However, the attitudes of the international community, communicated through declarations, treaties, and grants of aid, have strong influence on the forest laws of most nations. A recent series of non-binding international declarations have stated that nations should conserve natural resources like forests and manage them for sustainable development. This series includes the 1972 Stockholm Declaration, the 1982 World Charter for Nature, and the 1987 report of World Commission on Environment and i Development, leading up to the various documents from the 1992 United Nations Conference on Environment and Development (UNCED). Some non-binding efforts have focussed specifically on forest management. The Tropical Forests Action Program, aimed at developing countries, has sparked an allied domestic effort in Mexico. Governments and non-governmental organizations (NGOs) have begun to develop standards for sustainable forest management, which ultimately could influence domestic laws or international trade. While non-binding declarations help set the tone of forest policy, binding treaties often have more concrete effects. The UNCED Biodiversity Convention has accelerated the work of Mexico's National Commission for Knowledge and Use of Biodiversity (CONABIO). The Migratory Bird Treaty has helped protect forest-dwelling birds. That treaty, the Western Hemisphere Convention, and other treaties aimed at international cooperation have spawned a host of specific projects, many involving U.S. agencies like the National Park Service, the Forest Service, and the Fish and Wildlife Service. Mexico recently acceded to the Convention on International Trade in Endangered Species (CITES), which should lead to better controls on illegal trade in endangered and threatened species, including several forest-dwelling species found in Mexico. Two general trade treaties, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement (NAFTA), will change economic patterns in North America and the world and so necessarily affect the future of forests. They also place limits on environmental laws that restrict international trade and will bring pressures to bear to stop any subsidies that encourage forest harvest. The NAFTA supplemental agreement on the environment creates a forum in which to challenge failures of environmental regulation. It also creates a North American Commission for Environmental Cooperation, which has begun to promote cooperative environmental projects. Exactly what the net effect of all these will be is difficult to predict. Domestic Laws Mexico has a comprehensive set of forestry laws dedicated to protection of the most valuable and sensitive forests and sustainable use of other forests. The laws are difficult to put into practice. To understand why requires an understanding of the legal setting in which the laws operate, a grasp of the laws themselves, and an examination of the difficulties of implementing the laws in specific situations. The chapter of this report on domestic law considers the first two matters, and the case studies illustrate the last. Some basic values set the foundation of the Mexican legal system as it affects forests. First are a distrust of large landholders coupled with a commitment to distribute land among the rural people. These have led the government to expropriate latifundios (large land holdings) and to grant the lands to ejidos, rural villages that hold land communally. Nearly three fourths of the forests are on ejido land. That means that ii most forests are held by poor people dependent on the land for food and income. Restraining their use of the land is politically sensitive and can place a burden on some of the nation's poorest people. Second is a tradition of strong central government. This means a federal government with a powerful President and almost all important decisionmaking concentrated in the capital. Key decisions on forest use and protection often are made far from the forest, and local communities can be distant from the powers controlling use of their lands. The root of all natural resource and property law in Mexico is Article 27 of the Mexican Constitution. This sets out the nature of property ownership and empowers the federal government to regulate land uses to encourage development and to protect and restore ecological balance. It also establishes the nature of the social property held by ejidos and sets limits on the size of individual land holdings. In 1992, the federal government amended the Constitution and supporting laws to allow ejido lands to be used more like private property, to serve as collateral for loans or even to be sold. The object was to bring more market forces to bear on rural development. The outcome for forests remains to be seen. The two central federal statutes affecting forests are the General Law on Ecological Balance and Environmental Protection and the Forestry Law. The General Ecology Law grants most authority for environmental protection to the federal government. It creates some powerful but under-used tools for setting environmental policy, including creation of comprehensive standards or "orderings" for land use, development, and resource exploitation. It establishes a framework for creating protected natural areas and has provisions for protection of flora and fauna. Effective protection of forest-dwelling species may require protection of forest habitats. The Forestry Law sets out the basic forest
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