Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Mexico (Ratification: 1990)

1. The Committee notes the detailed information provided by the Government in its report and refers to its observation under this Convention.

2. The Committee notes the various legislative initiatives enacted during the period covered by the report. In these comments it examines in particular the Constitutional reform relating to indigenous matters published in the Diario Oficial of the Federation on 14 August 2001. It notes the Government’s statement that the Constitutional reform respecting indigenous rights and culture amounts to a decisive legal change for the future of the country, and provides the basis for developing a country which recognizes cultural differences at the national level. The Committee notes that the legal initiative amends articles 1, 2, 4, 18 and 115 of the Political Constitution of Mexico and covers to a large extent the issues addressed by the Convention. The Committee is aware that these reforms have given rise to much controversy and that various sectors of Mexican society, including indigenous organizations and workers’ organizations, have expressed their concern at the impact that the above reforms may have on the social, economic and legal situation of indigenous peoples in Mexico. The report received by the Office shows that the concerns expressed by the indigenous peoples of the country concerning the reforms are focused on the following matters: the definition of indigenous peoples, the rights of indigenous peoples over land and natural resources, the power entrusted by the reforms to federative entities to define indigenous peoples in their state, and their rights to self- determination and autonomy, and the alleged lack of consultations during the discussion of the reforms in the Senate.

3. The Committee notes the prohibition of slavery and the addition of a third paragraph to article 1 of the Constitution, setting out a prohibition of discrimination, including discrimination on grounds of ethnic origin. It requests the Government to provide information on any measures which have been taken or are envisaged to ensure the application of these prohibitions in practice.

4. The Committee notes that the reforms have broadened the text of article 2 of the Constitution, to include a series of matters addressed in the Convention.

5. Definition and self-identification. The Committee notes with interest that article 2 of the reform provides that awareness of indigenous identity shall be a fundamental criterion in determining those persons to whom the provisions on indigenous peoples apply. Article 2 then defines the component communities of an indigenous people as "those which form a social, economic and cultural whole ... settled in a territory". The Committee also notes the fifth paragraph of article 2, which provides that "the recognition of indigenous peoples and communities shall be set out in the constitutions and laws of federative entities, which shall take into account, in addition to the general principles set out in the previous paragraphs of this article, ethno-linguistic criteria and physical location." The Committee would be grateful if the Government would provide information in its next report on the manner in which ethno-linguistic requirements and physical location are interpreted, and in particular on how recognition is ensured of the membership of those indigenous peoples or communities which have lost their ancestral land and have resettled in urban areas.

6. The Committee notes that paragraph A(VIII) of article 2 of the reform empowers the federative entities to establish the characteristics of self-determination and autonomy of indigenous peoples in each entity, and provides for the recognition of indigenous peoples as entities of public interest. The Committee requests the Government to indicate the manner in which the full and uniform application of the provisions of the Convention is ensured by federative entities, and to provide clarifications on the legal effects of recognizing indigenous peoples as "entities of public interest".

7. Land. Article 2 of the reform provides that these peoples shall have the right to "conserve and improve the habitat and reserve the integrity of their lands under the terms established in the Constitution" (subparagraph V) and that they shall have the right to "have access, in compliance with the forms and procedures for land ownership and holding established in the Constitution and respective laws, and the rights acquired by third persons or members of the community, to the use and preferential exploitation of the natural resources of the locations inhabited and occupied by the communities, with the exception of those which constitute strategic areas under the terms of the Constitution" (subparagraph VI). Article 27(VII) of the Constitution establishes that "the law shall protect the integrity of the lands of indigenous groups". The Committee notes that indigenous peoples have expressed their concern that these reforms weaken the protection of the integrity of their lands.

8. The Committee reminds the Government that the concept of indigenous territories covers the total environment of the areas which the peoples concerned occupy or otherwise use (Article 13, paragraph 2). Article 14, paragraph 1, also lays down the obligation to take measures to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. The Committee requests the Government to indicate the measure which have been taken or are envisaged to ensure the full application of the provisions of Articles 13 and 14 of the Convention.

9. The Committee notes that the right set out in article 2 of the reform "to the use and preferential exploitation of the natural resources of the locations that the communities inhabit and occupy" appears to make this right subordinate to the recognition of the "rights acquired by third persons" and to the "strategic areas" defined in the Constitution. It notes that if these provisions were to be applied in such a manner that the rights of indigenous peoples were made subordinate to the interests of third persons, this would be contrary to the provisions of the Convention. The Committee therefore requests the Government to provide information on the application of these provisions, including any regulations made thereunder. It also notes the "strategic areas" defined by the Constitution and requests the Government to indicate the measures which have been adopted or are envisaged to ensure that full effect is given to Article 15, paragraph 2, of the Convention in these cases.

10. Administration. The Committee recalls that Article 2 of the Convention lays down the obligation of the Government to develop "coordinated and systematic action" to protect the integrity of indigenous peoples in the country. The Committee notes that article 2 of the reform provides that "the Constitution and laws of federative entities shall establish the characteristics for the free determination and autonomy which best express the situations and aspirations [of the indigenous peoples] in each entity". In view of the fact that the Mexican Constitution establishes as exclusive spheres of federal competence issues which are of particular relevance to indigenous peoples, such as land, forests, water, mines and the environment, the Committee requests the Government to indicate the manner in which it will be ensured that the application of article 2 of the reform does not create a legal vacuum relating to fundamental aspects of the Convention.

11. The Committee notes that Part B of article 2 covers a series of actions by federal, state and municipal governments with the objective of improving the living conditions of indigenous peoples in relation, among other areas, to housing, access to education, health, equality of opportunity and treatment for indigenous women, productive activities and economic development. Please provide information on the manner in which it is envisaged to apply and coordinate these actions between the various federal, state and municipal governments with a view to ensuring the full application of the Convention, and on any measure adopted in this respect.

12. The process of the adoption of the constitutional reforms. The Committee notes the Government’s statement that the Senate heard the views of indigenous peoples when it adopted the reforms in question. Nevertheless, the Committee is aware that the indigenous and workers’ organizations contend that the Senate substantially modified the COCOPA initiative without holding adequate consultations with the indigenous peoples of the country on the modifications made by the Senate. The Committee would be grateful if the Government would provide its comments on this matter, as well as on the process of consultation that is being undertaken concerning the application of the reforms.

13. With reference to its previous comments, the Committee notes the information provided by the Government concerning the current situation of the dialogue between the Government and the Zapatista National Liberation Army (EZLN). The Committee notes with interest the action taken by the Government in response to the claims of the EZLN, including the suspension of over-flights and patrols in the conflict zone in Chiapas, the withdrawal of military positions requested by the EZLN, the release of prisoners held for causes related to the conflict and the meetings held between the federal Government and the COCOPA with a view to renewing the dialogue between the Government and the EZLN. The Committee also notes with interest the cooperation activities undertaken by the federal Government and the government of the state of Chiapas, and particularly the transformation in March 2001 of two military installations into centres for the development of indigenous communities. The Committee would be grateful if the Government would continue providing information in future reports on any developments in relation to these activities.

14. The Committee notes with interest the information provided by the Government on the adoption of regulations respecting indigenous affairs by various Mexican states. Noting the Government’s statement that, due to the enactment of the constitutional reforms on indigenous matters, the legislative process will have to be reviewed in accordance with the new legislation, the Committee requests the Government to keep it informed in this respect.

15. The Committee notes the Government’s statement that the assistance of the ILO Office is not necessary. Nevertheless, the Committee reminds the Government that, in the light of the far-reaching legal changes arising out of the constitutional reforms, the experience of the Office in relation to the application of the Convention could help in promoting the effective application of the provisions of the Convention in Mexico and that the Office remains ready to provide the Government with any assistance that the latter may consider appropriate.

16. Articles 8 to 12 of the Convention. The Committee notes with interest the series of measures taken by the Government, including the Programme for the Promotion and Access to Justice, under the responsibility of the National Indian Institute (INI), and notes in particular that it envisages the participation of the peoples and communities concerned in the development of the Programme. The Committee requests the Government to provide information on the manner in which the Programme secures the participation of these peoples. Please also indicate the progress achieved in promoting the creation of the conditions necessary for the effective access of the peoples concerned to the system for the administration of justice in the country. The Committee also notes the results of the programme for the release of prisoners, which resulted in the release of 2,214 indigenous persons between 1999 and June 2001, with the intervention of the INI. The Committee requests the Government to continue providing information on the efforts made in this respect.

17. Articles 13 to 19 of the Convention. The Committee notes the information provided by the Government in relation to the representation made by the Trade Union Delegation D-III-57, section XI, of the National Trade Union of Education Workers (SNTE) (final report adopted by the Governing Body, GB.272/7/2, June 1998), and particularly on the ruling denying the application for protection lodged by the members of the Huichol community in Tierra Blanca. In the light of the information provided, the Committee once again requests the Government to make the necessary efforts to remedy the situation which gave rise to the representation, taking into account the possibility of allocating additional land to the Huichol people, as provided in Article 19 of the Convention. It requests the Government to continue providing information on any progress achieved with regard to the situation of the Huichol people.

18. The Committee also notes the information provided by the Government with regard to the representation made by the Radical Trade Union of Metal and Associated Workers (final report adopted by the Governing Body, GB.276/16/3, November 1999) concerning the situation of a Chinantec community resettled in the Valle de Uxpanapa, Veracruz, as a consequence of the construction of a dam in 1972. The Committee notes with interest the activities undertaken by the National Indian Institute (INI) in the Valle de Uxpanapa, and particularly the establishment of funds to support productive activities, the active participation of the beneficiaries in the administration of the funds and the implementation of productive activities. It notes in particular the regional fund established for the women of Uxpanapa. It requests the Government to continue providing information in future reports on the activities undertaken to improve the situation of indigenous peoples in the Valle de Uxpanapa. The Committee notes the information provided by the Government concerning the legal situation of the Zamora González brothers. With reference to its previous comments requesting additional information on the alleged violation of Articles 5 and 13 of the Convention, the Committee notes the information provided by the Government concerning the issue of the compensation arising out of the various expropriations for the communities effected by the construction of the "Miguel Alemán" and "Cerro de Oro" dams. The Committee would be grateful if the Government would provide information on the final solution reached in this respect.

19. The Committee notes the Government’s explanations concerning the agrarian reform and the adoption of the Agrarian Act of 1992. The Government states that the Constitution of Mexico recognizes the legal personality of population groups in "ejidos" and communes and that it also protects the integrity of the lands of indigenous groups. The Government states that there currently exist 27,460 "ejidos" and 2,400 communes. With regard to the measures taken to impart agrarian justice, the Government indicates that in 1999 agrarian tribunals heard 30,664 cases of disputes concerning the possession of land in "ejidos" and communes involving indigenous populations and that 82 per cent of these were resolved in a satisfactory manner. The Committee requests the Government to provide information on the various types of disputes resolved by the agrarian tribunals up to the present. It notes with interest the collaboration between the Higher Agrarian Tribunal and the INI with a view to ensuring that these proceedings are more accessible to indigenous peoples. It would be grateful if the Government would provide information on any measure that has been taken or is envisaged to given effect to the second paragraph of article 27 of the Constitution, which provides that the State shall protect the integrity of indigenous lands.

20. With reference to its previous comments on the transformation of the National Indian Institute, the Committee notes with interest that the new policy of the Mexican Government concerning indigenous peoples envisages the creation of nine bodies, including the Representation Office for the Development of Indigenous Peoples of the Office of the President of the Republic (established in December 2000), the National Council for the Development of Indigenous Peoples (established in March 2001) and the Centres for the Development of Indigenous Communities (established in March 2001). The Committee requests the Government to provide information in its next report on the activities undertaken by these bodies.

21. In its previous comments, the Committee noted the observations transmitted by the Authentic Labour Front (FAT) concerning mining and logging activities in the Sierra Tarahumara, the exploitation of natural resources in the Chimalapas, the mega-project of the Tehuantepec isthmus and the development of 146 industrial projects. The FAT had indicated that there had been an absence of consultation with the indigenous peoples concerned. The Committee notes the Government’s statement indicating that no multinational enterprise has been exploiting the forests in the region since 1995. It notes the progress achieved following the enactment of the Forest Act in 1997 and its Regulations, as well as the establishment of the Chihuahua Forestry Trust and the Advisory Technical Forestry Council of Chihuahua. The Committee requests the Government to provide information on the participation of indigenous peoples in these organizations. Noting the 170 projects envisaged in the region of Tehuantepec, the Committee requests the Government to keep it informed of any developments in this respect, including the consultations held or envisaged with the indigenous peoples affected. With regard to the situation in the Chimalapas, the Committee notes the information provided by the Government on the action taken in the region and requests the Government to continue providing information on the solution achieved.

22. Article 20. Recruitment and conditions of employment. In its previous comments, the Committee noted the communication from FAT on the situation of migrant indigenous workers recruited under the so-called "enganche" system, as well as the working conditions of daily migrant workers, with particular reference to the frequent use of toxic pesticides in the fields in which they work. The Committee notes that, according to the report, Mexican legislation concerning recruitment and conditions of employment makes no distinction between indigenous workers and other workers. In view of the problems raised concerning recruitment and conditions of employment, the Committee requests the Government to consider the possibility of establishing special practical measures to ensure effective protection for indigenous peoples in this respect, in accordance with Article 20, paragraph 1,of the Convention. With regard to the labour inspectorate, the Committee notes that, during the period covered by the report, a total of 120,193 inspections were carried out. The Committee notes that the report does not contain information on the number and results of the inspections carried out in rural areas and in regions in which there are large numbers of indigenous workers. The Committee once again recalls that one of the most important means of ensuring effective compliance with the protective measures set out in Article 20 of the Convention is the establishment of adequate labour inspection services in regions in which workers belonging to indigenous peoples are employed. The Committee therefore requests the Government to continue providing information on the measures taken for this purpose.

23. The Committee notes with interest the training programmes that are being undertaken, with particular reference to the programmes for the training of indigenous women. The Committee also notes the translation and dissemination of the Labour Rights and Duties Charter for Indigenous Persons, which is principally intended for indigenous workers migrating to the urban areas of the country. The Committee would be grateful if the Government would provide a copy of the Charter in Spanish. Furthermore, noting the Government’s indication that it is estimated that 40 per cent of the national indigenous population is concentrated in Mexico City, it requests the Government to indicate the measures which have been adopted or are envisaged to assist members of indigenous peoples cope with the problems associated with migration to urban areas.

24. With regard to the situation of indigenous migrant workers, the Government states that the Secretariat of Labour and Social Insurance is participating in the development of an Inter-institutional Agreement, under the direction of the Office for Indigenous Affairs of the Office of the President of the Republic, with a view to responding to the demands concerning recruitment and conditions of employment, including the protection of wages and maternity for daily agricultural indigenous women workers, measures to prevent work by indigenous children, and the medical services and conditions of employment of migrant indigenous workers. The Committee requests the Government to continue providing information on any developments in this respect, including the implementation of the Employability and Integration Project for daily agricultural workers and indigenous communities. The Committee also notes that, during the year 2000, the National Programme for Daily Agricultural Workers (PRONJAG) was operational in 15 federative entities providing services to 753,285 persons, of whom approximately 42.1 per cent are members of indigenous peoples. The Committee notes with interest that, according to the report, in 2000 some 15,342 projects were undertaken for this category of workers, including indigenous peoples.

25. Article 25. The Committee notes that in the field of health, the IMSS Solidarity Programme has an infrastructure of 3,540 rural medical units and 69 rural hospitals in 17 federative entities. It notes that, up to June 2001, the Programme had provided services to 2,275,123 members of indigenous peoples. The Committee would be grateful if the Government would continue providing information on the measures which have been adopted or are envisaged in relation to the application of this Article of the Convention.