The main premise of land reform in Mexico was to provide land tenure security by the provision of property rights through issuing land certificates (Zepeda 2000;
Nuijten 2003a). The land certification programme (Procede) was the main tool that the National Agrarian Registry designed to distribute land certificates. These land certificates where supposed to help smallholders to obtain credits, while legalizing the practices that where considered illegal (renting, selling, sharecropping, inheritance, etc) (Contreras-Cantu and Castellanos-Hernandez 2000; Lewis 2002). This situation had profound consequences on how individuals and groups within the rural sector in Mexico controlled and maintained their access to resources. As mentioned by the participants of a focus group with Ejidatarios (FG-2):
“Participant 1: We decided to participate in Procede because of various reasons:
some [villagers] where worried they would lose their lands without the certificates;
some others suggested that we could have credits in any bank with our certificates;
however, none of the villagers have had access to credits so far. Participant 2:
When [Procede representatives] came to explain us, they told us that it was illegal to [sharecrop], rent or sell our lands and that if we participated in Procede, we could do so even with people from outside the community. When we were about to decide to participate or not, we knew we would not have any credit with our certificates because we knew that those where only promises from the government. We also knew that we would not sell or rent our lands to [outsiders] because that is more illegal for us. Participant 1: That is true, with or without Procede certificates; we will never share our land with people from other villagers, but we were afraid the government would take reprisals against us, so we decided to participate.”
The villagers of San Francisco Oxtotilpan have a clear distinction between what is legal and illegal according to the politico-legal institution they refer to. The evidence presented suggests that the practices that were supposed to be legalized by the implementation of the new legal framework, did not bear any modification, since they where considered legal by the local consuetudinary law. Renting, sharecropping, inheriting and even selling was already regulated by the local
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authorities. Hence, community members were holders of legitimate property rights sanctioned and recognized by custom and convention even before their participation in the land regularization programme. These community members could assert their rights to control who has access to resources and to ensure their own maintenance of benefits.
The situation for those members without such rights has not changed in relation to the implementation of Procede. While some members of the community received official land certificates (Ejidatarios and Comuneros), other community members without any recognized right keep the same pattern of access to land-based resources before and after the early 1990s land reform. For instance, in order to get access to agricultural plots, Posesionarios and Avecindados have to rent, sharecrop or be employed as labourers by other community members in possession of land. Hence, if landless households needed to obtain benefits from land-based resources, they had and still have to negotiate their access with rights holders through the payment of fees, exchange of labour (jornales) or other mechanisms.
Another notable aspect is that community members are aware of the possible reprisals that the State could take against them if not being contemplated within the official statutory law. Although there is no evidence of coercive enforcement of the community‟s participation in Procede, this fear comes from other array of conflicts that community members have been facing by carrying out actions that are considered illegal by the State, but sanctioned as legal by the local authorities45. “This differentiation between what is legal accordingly to the politico-legal institution that sanctions any activity as such, has deep consequences on the consolidation and contestation of different systems of legitimacy” (Ribot and Peluso 2003:163 emphasis in original). Land transactions
45 Due to the strong regulations on extractive practices, community members have suffered prosecution by federal officers due to extraction of both timber and non-timber products.
Examples of prosecution and imprisonment have been more common on villagers extracting forest resources from within the boundaries of the Nevado de Toluca National Park. The ambiguities and overlapping regulations that rule National Parks and forest activities in Mexico provokes that communities settled in similar areas receive enormous pressures and restrictions for accessing forest resources. These legal constrains are not perceived as strong in other communities in Mexico that are settled in „unprotected‟ forest lands (See Zepeda 2000; DiGiano, Racelis et al.
2008) .
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are at the core of these systems of legitimacy since members of the agrarian community choose to participate on them besides sanctioned as illegal by the official legislation. Table 5.2 shows the land transactions carried out in San Francisco Oxtotilpan.
Table 5.2. Frequency of land transactions by agrarian status
aTransactions on
Selling Ejidatario and Comunero 1 100
Sharecropping
The land transactions presented here were completely illegal before the land reform of the 90‟s in Mexico. However, since the creation of Ejidos after the Mexican revolution in 1920s, these practices were carried out de facto by smallholders in Mexico‟s rural sector (Wolf 1956; Deininger and Binswanger
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1999; Otero 2000; Nuijten 2003a; Bouquet 2009). The legal framework introduced during the land reform in Mexico, did not include regulatory mechanisms that could control these land transactions. In San Francisco Oxtotilpan, where there has not been privatization of land, and where land transactions are restricted to members of the agrarian community, community members report that agricultural plots are sharecropped, rented and sold with the same frequency than before the land reform.
Table 5.2 shows that during the agricultural cycle surveyed, the majority of villagers renting in land were Comuneros (32%), Posesionarios (27%) and Avecindados (27%). Comuneros are the group with better economic possibilities for renting in land due to their wider sources of income (see Chapter 7).
Posesionarios and Avecindados rely more on agricultural land since their access to other off-farm activities is restricted for economic reasons. This situation forces them to look for ways of accessing plots for agricultural production. These strategies include land transactions such as renting in, buying or sharecropping agricultural plots. Buying land implies having enough economic funds to pay for the plot. Comuneros and Posesionarios are reported as the main groups when it comes to buying agricultural land (30% each). Avecindados do not report to have bought any agricultural plot during the period studied this is also an illustration of the economic constrains that this group faces. This finding is supported by the fact that sharecropping is the main land transaction by which Avecindados get access to agricultural plots (33%).
Sharecropping involves an agreement between two producers; one has land to spare and agricultural inputs; fertilizer, herbicide, seeds, etc. while the other provides the labour during the whole agricultural cycle. The production is then split into two parts, one for the landowner and the other one for the labourer.
Sharecropping often involves the production of commercial crops such as potatoes, peas, beans or broad beans; this way the products are not split, but the earnings. The landowner gets half of the profits plus the inputs expenses, leaving the labourer only a fraction of the total profits.
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Renting in land and sharecropping are reported as the practices more used to access agricultural land when needed. As explained before, the main difference in between these activities is the economic resources needed for each one of them.
At a first glance, sharecropping could be seen as disadvantageous for the landless, however, not only the production is split between the participants, but also the risk of losing the crop if the climatic conditions are not optimal. In the case of a drought or an excessively wet season, both the owner can lose the investment, and the labourer can lose the potential revenue. For the case of renting in land, the risk is high as well, since the rent needs to be paid under any condition. These agreements are mainly based on trust, and no document is ever signed. The local authorities address the resolution of conflicts.
Although having consuetudinary property rights recognized by the community authorities and the rest of villagers, Posesionarios have limitations since they do not have the right to participate on Ejidatarios and Comuneros assemblies, even though being in possession of agricultural plots. However, it can also work the other way around. Having an official certificate does not imply guaranteed access to agricultural land. The following table focuses on the distribution of landless community members and their agrarian status.
Table 5.3. Frequency of landless households by agrarian status
aAgrarian Status
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There are several examples in which some Ejidatarios or Comuneros are not in possession of agricultural land. These households can have official land certificates; however, their access to land is limited since they could have already rented out or sold their agricultural plots. As shown in Table 5.3, 30% of Avecindados and 22% of Posesionarios do not have agricultural land. Compared to the low proportion of landless Comuneros and Ejidatarios (5% and 5%
respectively), Avecindados and Posesionarios are the community members with more restricted access to agricultural land. The figures on rainfed and irrigated land show similar proportion, demonstrating that irrigated land is mostly concentrated on those having Ejido or Tierras Comunales certificates. It is interesting to highlight that from the households in possession of both Ejido and Tierras Comunales certificates, 50% reported not having agricultural land, but the other half has irrigated and rainfed plots. This implies that this type of households have recognized rights over plots located on both the Ejido and Tierras Comunales. The main conclusion that its possible to derive from the figures obtained in Table 5.3 is that it is possible to have property (the right to benefit) without having access (the ability to benefit)46.
According to Ribot and Peluso (2003:164): “any access gained “illegally” is also rights-based: it is a form of direct access defined against those based on the sanctions of custom, convention or law. Illegal access refers to the enjoyment of benefits from things in ways that are not socially sanctioned by State and society”.
Hence, different politico-legal institutions enforce different sets of regulatory norms. While the State relies on statutory law, community-based authorities enforce consuetudinary regulations that restrict or allow different access to resources. Resource users have to bear in mind the set of regulations they need to follow in order for them to be considered legal or not. Traditionally, any action is considered „illegal‟ when it is carried out in contravention of official laws and regulations (Casson and Obidzinski 2002); when it comes to land-based resources strong measures to regulate extractive activities have strained the State to design and implement more strict regulations. However, given that the legitimacy of
46 For a detailed analysis of the distribution of land among members and not members of either Ejido and Tierras Comunales, refer to chapter 6.
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authorities when it comes to sanctioning property claims can be contested at the user‟s level, defining whether an extractive activity is legal or illegal is extremely difficult (Ibid).