The Sovereign Stewards of Biodiversity 303
“agrarian communities” (“comunidad agraria” as in Capulálpam de Méndez). There is
an i mportant difference between the two: agrarian communities
are based on the recognition, restitution, confirmation, or a combination of these
factors of the property rights of population centers – núcleos de población or pueblos –
that have communally possessed land, water, and forest since precolonial times;
their members – comuneros – have presumably had possession since immemorial
times, and have followed customs and communal practices often recognized by
the Spanish crown in colonial times [...]. Land recognition, confirmation, or restitution was often made upon submission of colonial land titles so called títulos
primordiales
(Gutiérrez-Zamora & Hernández Estrada, 2020, n. 1)
Landless peasants or núcleos de población (nuclei of settlements) unable to prove their
possession were granted land through the ejido system. Both ejidos and agrarian communities are legal entities with legal personality, types of land endowments (in the
former, it is a dotación, in the latter a restitución), land-tenure arrangements, and institutional organisations. On the institutional side, ejidos and agrarian communities alike
have a general assembly as its highest level of governance, and the executive bodies
are, respectively, the commissary ejidal – designated by the ejidatarios – and the commissary of communal goods – designed by the comuneros (each executive organ comprises a president, a secretary, and a treasurer). Their work is supervised by a vigilance
committee. Until 1992, the property regime of both ejidos and agrarian communities was a sort of usufructus (collectively or individually held property depending on
whether it applied to areas for collective use or to surfaces under cultivation that were
parcelled out). As a consequence, lands could not be sold, rented, used as collaterals
for loans, or subjected to any market transactions. Following the new Agrarian Law
of 1992 (The Political Constitution of the United Mexican States, Art. 27, § VII; Ley
Agraria D.O.F., 26-02-1992), a liberal-inspired counter-reform, land redistribution
to landless communities was discontinued. Furthermore, the rights to ejido members
were extended. Now, ejidatarios can rent or even sell their land to other persons in the
ejido. Plots assigned for housing in the ejido are allotted as a private property. Finally,
the individual ejidatarios may grant as security the usufruct of the lands for common
use and of their parcels of land for cultivation (Kelly, 1993, p. 563). Currently, the
only practical difference that exists between ejidos and agrarian communities is that in
the latter, farming plots are never granted personally (whether or not they are farmed
individually) and comuneros cannot sell their lands. Nevertheless, following a vote of
the assembly, comuneros can choose to shift to the ejido system and “thus gain access to
individual plots and, even, to their later sale if it is decided by a qualified assembly”
(Morett-Sánchez & Cosío-Ruiz, 2017).
33 In Mexico, indigenous peoples are not subjects of public law, but “entities of public
interest” (“entidades de interés público”) (Constitution, para. A(VIII) of article 2). A
limited consultation process is now included in Art. 2, para. B(IX) of the constitution (amended DOF 29-01-2016), which obliges authorities to “[c]onsult indigenous peoples in the preparation of the National Development Plan and the plans
of the federative entities, municipalities and, where appropriate, the boroughs of
Mexico City; and, where appropriate, to incorporate the recommendations and
proposals they make”. Significant progress was nevertheless achieved recently. For
instance, the Ley General de Desarrollo Forestal Sustentable (General Law for Sustainable Forest Development), 5 June 2018 (Nueva Ley DOF 05-06-2018), recently
amended by Decree 26 April 2021 (Decreto por el que se reforman diversas disposiciones
de la Ley General de Desarrollo Forestal Sustentable, D.O.F. 25-04-21, Art. 93), which
states: “In the case of land located in indigenous territories, the authorisation for
change of land use must be accompanied by measures of prior, free, informed,
culturally-appropriate and bona fide consultation, subject to the terms of the
“agrarian communities” (“comunidad agraria” as in Capulálpam de Méndez). There is
an i mportant difference between the two: agrarian communities
are based on the recognition, restitution, confirmation, or a combination of these
factors of the property rights of population centers – núcleos de población or pueblos –
that have communally possessed land, water, and forest since precolonial times;
their members – comuneros – have presumably had possession since immemorial
times, and have followed customs and communal practices often recognized by
the Spanish crown in colonial times [...]. Land recognition, confirmation, or restitution was often made upon submission of colonial land titles so called títulos
primordiales
(Gutiérrez-Zamora & Hernández Estrada, 2020, n. 1)
Landless peasants or núcleos de población (nuclei of settlements) unable to prove their
possession were granted land through the ejido system. Both ejidos and agrarian communities are legal entities with legal personality, types of land endowments (in the
former, it is a dotación, in the latter a restitución), land-tenure arrangements, and institutional organisations. On the institutional side, ejidos and agrarian communities alike
have a general assembly as its highest level of governance, and the executive bodies
are, respectively, the commissary ejidal – designated by the ejidatarios – and the commissary of communal goods – designed by the comuneros (each executive organ comprises a president, a secretary, and a treasurer). Their work is supervised by a vigilance
committee. Until 1992, the property regime of both ejidos and agrarian communities was a sort of usufructus (collectively or individually held property depending on
whether it applied to areas for collective use or to surfaces under cultivation that were
parcelled out). As a consequence, lands could not be sold, rented, used as collaterals
for loans, or subjected to any market transactions. Following the new Agrarian Law
of 1992 (The Political Constitution of the United Mexican States, Art. 27, § VII; Ley
Agraria D.O.F., 26-02-1992), a liberal-inspired counter-reform, land redistribution
to landless communities was discontinued. Furthermore, the rights to ejido members
were extended. Now, ejidatarios can rent or even sell their land to other persons in the
ejido. Plots assigned for housing in the ejido are allotted as a private property. Finally,
the individual ejidatarios may grant as security the usufruct of the lands for common
use and of their parcels of land for cultivation (Kelly, 1993, p. 563). Currently, the
only practical difference that exists between ejidos and agrarian communities is that in
the latter, farming plots are never granted personally (whether or not they are farmed
individually) and comuneros cannot sell their lands. Nevertheless, following a vote of
the assembly, comuneros can choose to shift to the ejido system and “thus gain access to
individual plots and, even, to their later sale if it is decided by a qualified assembly”
(Morett-Sánchez & Cosío-Ruiz, 2017).
33 In Mexico, indigenous peoples are not subjects of public law, but “entities of public
interest” (“entidades de interés público”) (Constitution, para. A(VIII) of article 2). A
limited consultation process is now included in Art. 2, para. B(IX) of the constitution (amended DOF 29-01-2016), which obliges authorities to “[c]onsult indigenous peoples in the preparation of the National Development Plan and the plans
of the federative entities, municipalities and, where appropriate, the boroughs of
Mexico City; and, where appropriate, to incorporate the recommendations and
proposals they make”. Significant progress was nevertheless achieved recently. For
instance, the Ley General de Desarrollo Forestal Sustentable (General Law for Sustainable Forest Development), 5 June 2018 (Nueva Ley DOF 05-06-2018), recently
amended by Decree 26 April 2021 (Decreto por el que se reforman diversas disposiciones
de la Ley General de Desarrollo Forestal Sustentable, D.O.F. 25-04-21, Art. 93), which
states: “In the case of land located in indigenous territories, the authorisation for
change of land use must be accompanied by measures of prior, free, informed,
culturally-appropriate and bona fide consultation, subject to the terms of the