Monthly Archives September 2016

Rules, limits and enforcement; where things are going wrong in Akumal Bay

14455941_10207974433626963_1770209317_o

On September 22, a tourist with his friends had just finished renting snorkel gear including lifejackets from the Akumal Dive Center when unfortunately, they were approached by a group of individuals who prevented them from entering the water. These individuals presented themselves as “Bay Vigilance,” some wearing the identifiable green shirts, and others in plain clothes. These men stopped the group and insisted that in order to swim with the turtles, it was mandatory to have a guide.

Staff of both Akumal Dive Center (ADC) and Hotel Akumal Caribe witnessed the abusive attitude and demeanor of the “Bay Vigilance.” They were intimidating the tourists and the driver who brought them. When the staff member of ADC went to assist them, he was also subjected to this intimidation. Finally, the group of tourists were allowed to enter the water on their own, yet when in the water they were also harassed and demanded that they exit the water and hire a guide.

The staff member of Hotel Akumal Caribe went to support the tourists and their right to free access into the water. The group stated they had been given all proper PROFEPA recommendations at the Dive Center and knew their rights. It was then that these “Bay Vigilance” men, who are mostly guides and members of the various cooperatives took out their cell phones and began recording and insulting the staff member of Hotel Akumal Caribe. He notified the authorities including PROFEPA, and the municipal police so that the relevant authorities could be there to clarify the disagreement and discontent.
.
According to the hotel staff member who stepped in, “We must avoid such disagreements that are caused by these civilians, guides and vendors representing “Bay Vigilance” that force tourists by threats and harassment or any means to pay a tour guide fees to get in to the bay.”

The PROFEPA staff member that arrived on the scene stated that it is mandatory to have a guide beyond the yellow buoys. Note, he did not say it was a recommendation, although this individual, when pressured, has been reported to say it is only a recommendation.

PROFEPA can only give out recommendations and ensure that the general public upholds the laws that SEMARNAT passes through a Bay Management Plan, which does not yet exist. Therefore, PROFEPA, who should be there solely to uphold the laws of SEMARNAT, are making up their own rules and stating that guided tours are mandatory.

What is interesting is one of PROFEPA’s strategic statements is “to stop the destruction of our natural resources and revert the process of environmental deterioration,” yet they do nothing when it comes to the overuse and consequently the deterioration of the bay. They are doing nothing to ensure that each SEMARNAT permit holder, who have a maximum limit of 12 people per day is being upheld. Nor do they act or limit agencies that enter without any authorization or permit to do so. They are also condoning the sale of tours by their own appointed “ Bay Vigilance”.

In other words, there are no limits being upheld by PROFEPA (within their legal jurisdiction), yet they are imposing rules (outside their jurisdiction) on people to force them to use a guide.

Photo: Two members of the Vigilance Committee patrol the beach of Akumal

Rights vs. abuse of Rights

September 15, 2016

private-property-sign-group-enteringThe right of passage to the federal zone is just that. It’s intended for everyone, of any nationality, to be able to access the beaches of Mexico for their recreational use.

But imagine if this law was applied to every beachfront property along the coast, whether a house, a condo, a villa, a hotel, or a restaurant. The government of Mexico opened up the Riviera Maya for tourism, and never thought of that. They did not leave enough public beaches, with bathroom and lifeguard facilities, picnic areas, trashcans and security. Instead they sold all the land they could, and then realized they needed an Urban Development Plan for the area.

This Urban Development Plan was approved in 2007 for the period 2007–2032. At that time, they designated the “Windows to the Sea” in order to provide access to the beach for the general public.

The central part of Akumal Bay never had a “window” designated, because this area is private property. However, the general public is passing freely to the bay given the unique situation that one of the private properties is not a hotel or a restaurant or a house or villa or condo. It is an Ecological Center and had always been and continues to be open to the community and everyone visiting Akumal.

The government declared a Window to the Sea on the southern part of the Main Bay just down the beach to the south of Akumal Bay Resort, along with all the others they designated in the area. None of these Windows to the Sea were opened up on Private Property.

The original developer of Akumal, Pablo Bush Romero, bought the entire piece of land as one parcel. The subdivisions he submitted for Akumal were how he envisioned the area could be developed. At that time, the municipal and state governments approved the subdivisions without requiring Environmental Impact Studies, public beach accesses, or centralized sewage treatment to name a few. It was very fortunate that Pablo was not a developer, he was a Ford Dealer, and his hobby was underwater archaeology and exploration, and he fell in love with the area. He only developed a small portion of Akumal with very low density and today the family property fully complies with all Environmental Laws.

As the years went by, the government introduced environmental laws and agencies that required new developments/developers to apply for permits. The old subdivisions that had not been built on were no longer valid, and as each subdivision was sold, the developers had to submit a new proposal for the land and comply with all the new requirements. This included Aventuras Akumal, South Akumal, Jade Bay, and Punta Sur. Of those, the newer subdivisions now have Public Beach Accesses, because they were designed into them when the developers applied for their permits, thus not having to use anyone’s private property.

Today, there is a dispute over private property rights on the Main Bay of Akumal. Two pieces of land that were once one piece, and that were subdivided by Pablo Bush Romero are being challenged by a group of people that claim there is a public access there. One piece, he donated to a non profit organization, Club de Yates Akumal, which is now Centro Ukana I Akumal AC (CEA). The other, the family business Hotel Akumal Caribe. Both pieces of land were Pablo’s, and yet today the family is being challenged and their private property rights have been violated.

Private property is the right of a particular individual or entity to use, enjoy and dispose of within the limitations established by law.

In our legal system private property has been recognized as an individual guarantee from the Constitution of 1814. In the current Constitution there is reference to a number of fundamental human rights, protecting private property against arbitrary acts of authority.

Article 14 states that no person shall be deprived of liberty or property, possessions or rights without a trial before previously established courts in which due process is observed and in accordance with laws issued prior to the fact.

Furthermore, Article 16 says that no one may be affected in his person, family, home, papers or possessions, except by written order of the competent authority which is founded and motivated by legal procedural cause.

These provisions are fundamental human rights that are aimed at protecting private property from arbitrary acts of authority, which must respect and protect private property. The authority has the obligation to care for the property of individuals, acts or omissions made illegally through third parties or other arbitrary acts of authority.

Boundary lines between CEA and Hotel Akumal Caribe have been corrected over the years. This is very common as adjustments are made over time under new governments with new technology. The lines were first corrected by the Municipality of Cozumel, then by the Municipality of Solidaridad (Playa del Carmen) and more recently by the Municipality of Tulum. Each claimed that their instruments were correct, and the past ones were not. These certifications do not prove or indicate any wrongdoing, nor do these documents indicate or certify that there is a separate title for a public Access.

Certainly not by a group of citizens who push a vote by the Municipal council that is not the legal entity to decide on matters of Land Registry, thus violating several laws. Certainly not without a court order, and without the proper officials present to carry out a notification before they take land over. Certainly not by destroying private property.  The courts recognized the illegality of these actions on September 2, 2016.

Imagine if one day that a group of people representing a commercial activity in front of your property decides that they want to open up an access through your land to get to the beach. Imagine that you have all your paperwork to prove it is yours, and yet they allege that you stole land from the federal government through an adjustment in your property boundaries with your neighbour.

Imagine that the neighbor had been allowing access through his land for years through a pathway they have on their property. That pathway shows up on your Certification of Means and Boundaries document stating that the neighbouring property has an access to the beach, but it did not say a “Public” Access to the beach. Furthermore, that pathway is not in the Land Registry record, because it is only a reference to a pathway that the property has leading to the beach, and yet a group of private citizens say it is Public based on this.

And suppose that those arguments were used to have a group of private citizens come in and take over a portion of your land, tear down your palapas and whatever else is in their way, and take over that access and control it as if they were the government!  And imagine that no government official was sent to manage this so-called Public Access and that the government allows a group of private citizens to manage it; to tell people what they want, and carry out their business the way they see fit through this access. This is not a Public Access, this is an invaded piece of private property run and controlled by a group from the private sector that conduct snorkel tours in the bay.

You do not need to imagine any of this, because that IS what is happening today. The rights to access the main beach of Akumal have never been violated. There has not been one day that there have not been people freely going in and out of the main bay to the beach.

The rights of private property are being violated through the abuse and disregard of the laws of Mexico.


 

The following article was provided by the owner/operator of Hotel Akumal Caribe as a reflection on the recent events.  

 

“They will regain their property” reads PorEsto! article

They will regain their property” is the headline found in the PorEsto! in the September 9, 2016 edition. The original Spanish content is online HERE. What follows below is a translation of this article.


 

AKUMAL, TULUM, September 8, 2016—At a press conference organized by the managers of Centro Ecológico Akumal (CEA), the Asociación de Hoteles de Tulum (AHT) and representatives of Hotel Akumal Caribe, it was announced that legal action will be taken in adherence to the law regarding the access which was opened in Akumal, after the council of Tulum approved its opening and reversal of the means and bound document  this past August 29 which the pobladores say is a “window to sea,” although the legal entity that is part of a lodging center where the path was opened, declared it is  private property.

Therefore, Armando Couto Keever, legal representative for Laura Bush, who owns the hotel Akumal Caribe, said that the access that the pobladores were fighting for on paper is the part  that adjoins to the private property of the CEA which is in conflict, so it is part of the property belonging to the lodging center that has been invaded.

“We are asking the authorities to do their job and everything depends on how circumstances arise, but obviously it comes down to recovering property, because that opened access is part of Akumal Caribe,” he said.

He also mentioned that in the coming days they will proceed according to the law and will not allow people to access property that he alleged belongs to the hotel.

Asked whether private security personnel would be hired to prevent the passage of people, Couto Keever said that that it is not up to him, and the only intention “is that people do not pass if it is not a public access.”

In addition, with respect to the suspension granted by a judge, following an application  of appeal, submitted  after the events carried out by the pobladores this past August 31 with the presence of the police protection, and that the closing of this access would go against the process, the interviewee replied that they expect the lawyers to proceed according to the legal process they are carrying out.

Recalling that on the seventy-fourth session of the council of Tulum, held this past August 29, under General Business, the pobladores lobbied the council to approve the reopening of a public access to the bay, because in past years they have alleged that it is a window to the sea.

During that session, seven aldermen and one trustee voted to revoke the content of the “document” number  DC/DTC/201/2013 dated August 26 2013, effectively backdating the effects of the means and boundaries before that date, and proceeded to open this access.

As a result of that vote, the legal council of the hotel stated that the action by the city of Tulum to declare the revocation of this document, several irregular actions occurred: First, the statement to overturn the said “document” was made without substantiating any proceedings which meet essential formalities established by law.

As well, this agreement also resulted in the confiscation of private property, and depriving the right of private ownership of a particular part of the property and made use of it without having acquired it through expropriation proceedings or through other legal means of  acquisition.

In addition, the council of Tulum lacks the power to determine the revocation of that “document,” as in accordance with the Law of Land Registry of the State of Quintana Roo, the council of Tulum has the authority to resolve appeals of revocation proceedings brought against their own actions and decisions and generally not those that are brought  against acts and decisions made by other  municipal authorities.

Note that this clearly suggests that in the next few days this access to Akumal beach could close, for which the dispute whether it is public or private has gone on for various years, so with that, there could be another confrontation with acts of violence.

The Early Days of Akumal

Many people ask about Akumal’s early days as a tourism destination. It started out not as a tourism destination but as a coconut plantation on a coastline that was all but forgotten. The mode of transportation was on horseback to Tulum, a very small fishing and chicle camp. Supplies were taken over by boat from Cozumel to the one family that lived in Akumal taking care of the coconut plantation and in an emergency they would go on horseback all the way to Valladolid.

Pablo Bush Romero arrived in 1959 to explore a Spanish shipwreck and used it as the base camp for the expedition. Not long after that, he purchased the land, which he subdivided into sections.

Tourism in Akumal started later in the 60s and it was the first tourist destination on the coastline. Cancun did not exist until the 1970.

On the main bay, he founded Club de Yates Akumal Caribe A.C. as a non-profit, whose founding members stayed at one of the 8 bungalows facing the open ocean. These units were rented when the members did not use them to cover the costs of upkeep and improvements. There was also a restaurant called the Zazil. The destination was mostly for divers and adventurers.

The Cancha on Club De Yates property provided the housing for the staff and the maintenance area for the power plant because government power was not available yet.

Initially, the small number of staff needed was hired from Merida and surrounding towns, principally Kantunil and Sotuta and their families stayed in their hometowns. If a husband and wife were hired and they had children, they often left them with relatives in their towns.

The land behind the Club property was all government owned and years later when more development took place in Akumal, especially after 1985 when Aventuras Akumal was developed, the workers that were not provided with housing where they worked, moved in to this area, building homes out of thatch and wood with dirt floors. There were no septic tanks or proper sewage of any kind and no running water. They got their water from over the ground water lines that were run to them from the main water line. Some brought their families at that time. This area became known as “ The Jatos”.

The Cancha area on Club Property became the area for the few services that could be provided. A space was rented out for a small pharmacy, another space provided to the police for a small station, and some families still lived there that worked on the property. The hotels on the bay provided their own housing, but the few homes that did not have a caretaker casita, and eventually the condos that were built, had no where to house their employees, so they settled in the “Jatos”.

The government allowed these families to squat there and build there because there were no other options. The conditions were very poor and very unsanitary, as it is lowlands and any time it rained they had to put boards to walk over to get to their homes. Mosquitos were a real problem and for years the hotels lobbied with the government to get them decent housing.

Anyone legally employed in Mexico contributes to a government-housing fund and their employers contribute to this fund for them too. The government must provide access to government housing and those that have enough points can obtain their own homes. Government housing was not available until the Hotel Association of Akumal lobbied to get the town of Chemuyil opened up, and infrastructure in place, to make it available for anyone that qualified under the “Infonavit” housing system.

When Chemuyil was opened up, most of the people wanted to have decent homes and qualified to get a house, so they moved out of the “Jatos” area gladly and willingly.  It was a huge improvement over their living conditions in the Jatos.

The small number that was left either did not want to move to Chemuyil, and or they did not qualify because their employers did not put them into the system  (household workers and condo and villa employees) or they were self-employed.

That left the few that could not, or would not move as squatters on a piece of land that the government wanted to recuperate in order to sell it.  These people became angry and decided to occupy another piece of government land closer to the entrance of Akumal with the help of a social activist they brought in from Mexico City. This was a time of conflict for Akumal.

When Hurricane Roxanne hit in October of 1995, there were people living at the far corner of the entrance to Akumal by the highway, fighting for that property, but the government decided to give them land across the highway. Granting that land was the government’s quick fix, but was made without proper urban planning.  Because of this, the effects of raw sewage going into the ground are being felt in the bay of Akumal and along the entire area. The underground river systems lead to the ocean and along with it goes all the polluted waters of the pueblo and the residential areas that still do not have proper sewage treatment.

The government never seemed to have enough money to provide for the town of Akumal, and that’s where the local community and the businesses and hotels were, and are  able to help out the schools, community center and a library to name a few.  They help with sports fields and sponsoring the various sports teams.

The residents of the pueblo established supermarkets, shops, restaurants, rooms for rent, and even small hotels now either as part of their own homes or buying more lots. Some of the residents of Chemuyil bought land in Akumal Pueblo and now rent out the rooms or houses. Some that built houses live elsewhere, some as caretakers of private homes, and they rent their houses out in the pueblo. There has been prosperity.

In 1992, the original club members decided to turn the Club de Yates into an Ecological Association and use the Club building on the beach as the base of operations to run the programs. The rest of the land was set up with rental locations in order to fund the programs after covering costs of operation. This organization is audited yearly and cleared to operate as a non-profit with tax deduction status with very strict guidelines for fiscal compliance.

Akumal has had its fair share of turmoil. It started with the lack of housing, and the ensuing problems of an inadequate town, but today there are far more families that had their lives improved both in Chemuyil and in Akumal Pueblo than not. There have been plenty of jobs with all the hotels, villas, condos and homes that have been built in the area and the parallel service industries. New industries like the snorkel tour business, has created new conflicts and more challenges for Akumal. These challenges need to be resolved for the sake of the ecosystem and the future of Akumal Bay.

Hotel Association of Tulum expresses concerns about recent events in Akumal

Below is the English version of a press released issued by the Hotel Association of Tulum.
Spanish version here: Comunicado-Akumal-AHT-2016-09-03


 

PRESS RELEASE

To the municipal, state and federal authorities.

To the general public.

The Hotel Association of Tulum, wishes to express, by this means, that we are extremely concerned about the illegal and irresponsible resolutions taken by the Municipal Council of Tulum in the meeting held on August 29, 2016, fueling a climate of violence and aggression, causing legal uncertainty and violating fundamental rights, which affects tourism (the only economic activity in the region), and creating a climate of social unrest that discourages investment.

In the above-mentioned meeting, in a manner that is unfounded, illegal and without judicial authority, the Municipal Council of Tulum agreed to “open” an alleged public access to the beach in Akumal Bay, which included the authorization to use public force.

The actual access, to which the resolution of the council refers to is located on private property with an entitlement since 1962, which, according to the fundamental rights contained in our Constitution of the Republic, can not be affected without first complying with a set of formal and legal requirements that are clearly stated in the legal framework that governs every Mexican, especially the authorities, and in this case have not been met in any way.

In order to affect a private property in this regard, a duly justified legal decision issued by a competent authority is required. For example, an irrevocable judgment of a legal petition by judicial authority.

This anti-constitutional resolution of the Municipal Council, which provoked the informal business groups of “tourist service providers” to endorse the  concept, was fueled by commercial and economic interests, under the guise of a community movement, who, on this past August 31, forced open the so-called “public access” without legal authority or official representation, using the the agreement by the council as the argument, which, besides being a violation of several rights and forming various crimes, could have easily ended in violence as has happened previously.

The owners of the properties that can be affected by the aforementioned resolution of the council have already begun the defense of their legitimate rights and interests in the corresponding legal entities, but as hoteliers and tourism service providers assembled in the Hotel Association of Tulum, we make an urgent appeal to the authorities of the three levels of government to intervene immediately in order to guarantee and protect the fundamental rights and restore peace, social tranquility, and harmonious coexistence in the region, by reestablishing a genuine state of law.

PRESIDENT OF THE HOTEL ASSOCIATION OF TULUM
Adolfo Contreras Grosskelwing