REPRESENTATION (article 24) - MEXICO - C169 - 1999

The Radical Trade Union of Metal and Associated Workers

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Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Radical Trade Union of Metal and Associated Workers

Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Radical Trade Union of Metal and Associated Workers

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. In a communication dated 8 July 1998, received by the Office on 15 September 1998, the Radical Trade Union of Metal and Associated Workers made a representation under article 24 of the Constitution of the International Labour Organisation alleging that the Government of Mexico has not adopted satisfactory measures for the observance of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
2. The Indigenous and Tribal Peoples Convention, 1989 (No. 169), was ratified by Mexico on 5 September 1990 and is in force for that country.
3. The provisions of the Constitution of the International Labour Organisation relating to the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure used for representations is based on the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the ILO, as revised by the Governing Body at its 212th Session (March 1980).
5. In accordance with article 1 and paragraph 1 of article 2 of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Mexico about it and brought it before the Officers of the Governing Body.
6. At its 273rd Session (November 1998), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and appointed a Committee for its examination made up of Mr. Gonzalo Guillén (Government member, Peru), Mr. Francisco Díaz Garaycoa (Employer member, Ecuador) and Mrs. María Rozas Velásquez (Worker member, Chile).
7. In accordance with the provisions contained in subparagraphs (a) and (c) of paragraph 1 of article 4 of the Standing Orders, the Committee invited the Government to submit its observations concerning the representation, and the association which had made the representation to submit any further information it wished to make known to the Committee.
8. The Government sent its comments on the allegations in a communication dated 15 February 1999.
II. Examination of the representation
A.Allegations made by the Radical Trade Union of Metal and Associated Workers
9. The Radical Trade Union states that in 1972 the federal Government ordered the construction of the "Cerro del Oro" dam in San Lucas Ojitlán, State of Oaxaca. The proposed dam would control the Papaloapan River, but would flood the region of San Lucas Ojitlán and force the relocation of 5,000 indigenous Chinantec families. The indigenous Chinantecs of Ojitlán strongly opposed the construction of the dam. In response, the Government sent officials to Ojitlán who warned the Chinantecs that it would not be in their best interests to oppose the Government's wishes. As an incentive the Government promised to compensate the Chinantecs for the loss of their homes, lands and crops. Despite the objections raised by the indigenous Chinantec community of Ojitlán, the President of the Republic issued a series of presidential decrees (dated 29 August 1972, 3 June 1973 and 14 January 1974, respectively) authorizing the construction of the dam. The decrees also made provision for the relocation of the affected Chinantec families who, without their consent, were forcibly removed from the lands they had occupied since time immemorial. The Government forcibly relocated Ojitlán's indigenous Chinantec families from their native lands and sacred sites and entirely disrupted their traditional way of life.
10. The claimants also point out that provision was made in the presidential decrees for the Chinantecs to receive 260,000 hectares of land in Uxpanapa Valley, in the State of Veracruz, as compensation for the loss of their lands. However, the relocated Chinantecs were only given 90,000 hectares. Both the federal Government and the Veracruz state Government failed to appropriate the remaining lands decreed to the Chinantecs. The Mexican Government also promised to provide the relocated Chinantecs with a paved main road and to carry out development projects to improve their living and health conditions in Uxpanapa Valley. According to the complainants none of these promises were fulfilled. The Chinantec community is currently living in housing which is unsuitable for Uxpanapa's tropical and rainy conditions; there is no sewage system, hospital or even a paved road.
11. In 1976 indigenous Chinantec leader Juan Zamora González contacted government officials and urged compliance with the presidential decrees which promised the Chinantecs land and basic public services. Government representatives assured Juan Zamora González that the new Government would fulfil its obligations under the presidential decrees issued by the previous President of the Republic; this did not, however, come to pass.
12. The claimants go on to indicate that in 1983 the aggrieved Chinantec community once again requested the federal Government to comply with the original presidential decrees and the promises made by subsequent federal administrations. The Government never responded to their petitions and inquiries. The relocated Chinantecs staged a mass demonstration on 2 April 1983, in front of the offices of the Papaloapan River Commission, in which over 10,000 indigenous Chinantecs participated to protest against the failure to comply with the obligations entered into vis-à-vis the Chinantec community relocated owing to the construction of the "Cerro del Oro" dam in Ojitlán. During this demonstration, the claimants indicate, police and armed forces tried to intimidate the Chinantec protestors. As a result of this protest the Veracruz state Governor met the Chinantecs who had participated in the protest and declared that, on the instructions of the President of the Republic, the Government would finally comply with its obligations. Despite this express renewal of their commitments to the Chinantec community, neither the state nor federal Governments took any action to comply with the presidential decrees.
13. In March 1990, indigenous Chinantec leader Juan Zamora González led a march of approximately 3,000 Chinantecs from the Uxpanapa Valley to Ciudad Isla, Veracruz, to speak with the then President of the Republic on the occasion of a visit to the region. The President personally addressed the Chinantecs in Ciudad Isla and promised that he would order the immediate paving of 150 kilometres of the main Uxpanapa road. To date, the claimants indicate, none of the Mexican Government's promises have been fulfilled.
14. The claimants state that in the light of their unsuccessful experiences with the Mexican Government, the indigenous Chinantecs and Zoqueans of Uxpanapa Valley founded the Uxpanapa Indigenous Council (CIUX) on 28 October 1994. As an autonomous grass-roots organization, the mission of the CIUX was to promote compliance by the federal and state (Oaxaca and Veracruz) governments with the presidential decrees relating to the relocation and compensation of the Chinantec people. In May 1996, the CIUX requested the Oaxaca state Governor to intervene on behalf of the aggrieved indigenous communities concerning their claims against the federal Government and the Veracruz state Government. The Governor of Oaxaca agreed to intervene on the CIUX's behalf and a statement of claims to be submitted to the federal Government and the Veracruz state Government was drawn up. However, after six meetings of fruitless discussions with the Oaxaca state Government, the CIUX requested an audience with the Governor of Oaxaca who refused, once the time came, to help the CIUX or to listen to its claims. In November 1996, the CIUX decided to organize a march to the Governor's palace in Oaxaca to protest his refusal to listen to the CIUX.
15. In December 1996, an Oaxaca government sub-delegate met with CIUX leaders and arranged a meeting for them with the Governor of Oaxaca. As a result the CIUX sent 15 ejido leaders to meet the Governor on the appointed date. However, the Governor did not attend the meeting; instead, the state General Secretary met with the CIUX leaders. In order to address the Chinantecs' claims against the Government, the state General Secretary proposed setting up the Uxpanapa Commission which would be made up of government representatives from Oaxaca and Veracruz, CIUX leaders, ejido leaders and other government officials. The Uxpanapa Commission was due to meet in January 1997. The CIUX leaders arrived at the scheduled meeting place, but none of the appointed government representatives appeared.
16. On 3 October 1996, the statement continues, Chinantecs from the Benito Juárez ejido organized a general assembly in order to arrange a visit by an Uxpanapa solicitor specializing in agrarian matters. This lawyer declared that the land on which the Benito Juárez Settlement No. 1 Chinantecs were living belonged to the Carolina Anaya ejido. The solicitor ordered that the Chinantecs from Settlement No. 1 should move despite the presidential decree granting that particular piece of land to the Chinantecs. During the meeting there was no violence, no threats were made and the solicitor left the meeting freely and without problems. In order to solve this particular land dispute and prevent the Veracruz Government from displacing the Benito Juárez Chinantecs from the lands promised to them by the federal Government, in November 1996 CIUX leader Juan Zamora González organized negotiations with officials from the Veracruz Government, the agrarian solicitor and the National Water Commission.
17. The claimants allege that at the end of the meeting indigenous leader Juan Zamora González was detained by the authorities and taken to the Acayucan Regional Penal Centre, being accused of illegally detaining the agrarian solicitor who had visited Benito Juárez Chinantec Settlement No. 1. The State Lower Court of Combined Jurisdiction declared Juan Zamora González guilty of this offence even though Zamora González was not even present during the peaceful visit of the agrarian solicitor. Ironically, the Veracruz state Government secured Zamora González's bail.
18. In May 1997, the Veracruz state Government offered to conduct a dialogue with CIUX leaders in Tres Valles, Veracruz. Juan Zamora González and other CIUX leaders met with Veracruz state officials. The Veracruz state Government was unwilling to offer anything more than an audience with the House of Representatives in Xalapa, Veracruz. After four hours of fruitless discussions, CIUX leaders requested a ten-minute recess in order to consult with the indigenous Chinantec community which was congregated and waiting outside. When the leaders returned to the negotiating table, the Veracruz state Government representatives had left the building by the back door, and had not been subject to any form of violence or hindrance. The CIUX leaders and the Chinantec community then decided to organize a march to Mexico City to protest the Government's continued bad faith in negotiating with the Chinantecs and its refusal to comply with the original presidential decrees. Juan Zamora González led the CIUX march from Uxpanapa, Oaxaca, to Mexico City that same month, May 1997.
19. The Radical Trade Union also indicates that approximately 1,000 Veracruz and Oaxaca police blocked the Veracruz-Oaxaca federal highway with the aim of disrupting the march. The police told the participants that they had no right to demonstrate or protest in the State of Veracruz. As a result, the police arrested and detained without any form of warrant CIUX leader Juan Zamora González, and his brother, Marcos Zamora González, who have been held at the Allende prison at the port of Veracruz since 3 May 1997. The Government sought to intimidate the indigenous Chinantecs and their organization, the CIUX, by arresting the Zamora González brothers. The charges made by the federal Government and the State of Veracruz against Juan and Marcos Zamora González are still pending.
20. The claimants conclude by pointing out that the Mexican Government has failed to secure the effective observance of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), and has violated the following Articles:
Article 6: The Government of Mexico failed to consult in good faith, with the objective of achieving agreement or consent, with the indigenous Chinantec peoples with respect to their land claims in Uxpanapa Valley, Veracruz. Instead of consulting in good faith with indigenous Chinantec leaders, the Mexican Government ceased all negotiations and ordered the arbitrary arrest of the Chinantec leader, Juan Zamora González, and his brother, Marcos Zamora González, in May 1997.
Article 7: The Government of Mexico failed to include Chinantec participation in the economic and special development projects affecting them directly in Uxpanapa Valley.
Articles 5 and 13: The Mexican Government failed to respect the special importance of the Chinantec peoples' spiritual and cultural relationship to their ancestral lands in Ojitlán, Oaxaca.
Article 16: The Mexican Government removed the indigenous Chinantecs from their traditional lands without their free and informed consent. Also, it failed to provide the displaced Chinantecs with new lands of quality and legal status equal to that of the lands they had previously occupied. The Government of Mexico failed to carry out its promise to provide lands for the Chinantecs in UxpanapaValley.
B. The Government's reply
21. In a communication dated 15 February 1999 the Government sent information concerning the background to the construction of the "Cerro de Oro" dam. Given the need to solve the social, economic and technical problems in the Papaloapan River basin, on 24 April 1947 a decree was issued to set up the Papaloapan Commission, responsible for planning, preparing projects and performing all protective construction work in the river; improving irrigation; developing power and sanitary engineering; constructing communication routes, as well as suggesting measures and provisions pertaining to industry, agriculture and colonization for the integral development of this part of the country. The Commission was also responsible for monitoring the annual flooding of the tributaries of the Papaloapan River resulting in the loss of lives and material damage to the riverside settlements.
22. The Government states that the communities affected by the construction of the dam were to be compensated by moving them to nearby areas safe from flooding or to other lands acquired by the Secretariat of Hydraulic Affairs for that purpose if they so preferred. The representatives of those affected could choose where they wished to resettle and the Secretariat of Hydraulic Resources and the Papaloapan Commission would complete the necessary construction work to allow the Department of Agrarian Affairs and Colonization to carry out the relocation sometime in 1973.
23. By way of an expropriation decree dated 5 June 1973, 270,700 hectares from various privately owned sites located in a number of municipalities in the States of Oaxaca and Veracruz, were expropriated for the nation in order to establish irrigation areas and carry out additional construction work in the Lower Papaloapan River and for the resettlement of the ejidos affected by the construction of the "Cerro de Oro" dam. The expropriation did not include ejidal or communal land as it only related to privately owned land. The Government explains that in Mexico, under substantive law, rural property is divided into private property and social property; and social property is divided into ejidos and communities. On the same date 6,500 hectares of various pieces of privately owned land located in the State of Oaxaca were also expropriated for the nation in order to establish the reservoir and federal zone of the "Cerro de Oro" dam in Oaxaca. The creation of the Uxpanapa Drainage District was declared to be in the public interest, as was the construction of the technical, economic and social infrastructure surrounding it and the acquisition of the necessary land to build and operate it.
24. The Government points out that by way of a presidential agreement published on 4 April 1978 various options were established for the payment of compensation to the ejidal groups that it was necessary to expropriate in order to construct the reservoir for the "Cerro de Oro" dam and a Resettlement Committee was set up comprising a representative from the Secretariat of Hydraulic Resources, a representative from the Department of Agrarian Affairs and Colonization, a representative from the National Fund for the Promotion of Ejidos and a representative from the National Institute for Indigenous Issues. This Resettlement Committee was to be responsible for paying the ejido members in kind or in land, according to their preference.
25. The Government stresses that it appears clear that the construction work on the "Cerro de Oro" dam, contrary to what is claimed in the representation, was carried out in order to avoid, as far as possible, disasters being caused by flood waters and to make use of the dam to generate electric power and subsequently supply water to irrigate the countryside during the dry season for the benefit, among others, of the ejido and community members. In addition, the Government underlines that it cannot be alleged that the decrees issued in 1972, 1973 and 1974 relating to the construction of the dam violate the provisions of the Convention, as maintained in the representation, as that Convention only came into force in September 1991.
26. The Government explains that for the construction of the reservoir, surrounding area and protection of the "Cerro de Oro" dam, in addition to the abovementioned lands, 50 ejidos in the State of Oaxaca were expropriated by means of expropriation decrees published in 1975, 1976, 1992 and 1997. Of these 50 ejidal groups, 35 were fully appropriated and 15 partially appropriated. The Government explains that the ejidos appropriated for the "Cerro de Oro" dam did not fall into the category of immemorial and ancestral possession of lands as the entitlement derived from the presidential resolutions which established the ejidos. The 50 appropriated settlements were made up of peasants who were given land grants or extensions in order to establish ejidos and give the peasants a means of subsistence. These groups of farmers did not have possession of the land from the time of the colony, and neither was their possession immemorial or ancestral.
27. With reference to the brothers Juan and Marcos Zamora González and their imprisonment, the Government states that they were detained on 3 May 1997 and confined in the Ignacio Allende Centre for Social Rehabilitation in Veracruz. Since August of this year, the National Institute for Indigenous Issues (INI) established contact with the public prosecutor's office specializing in indigenous affairs of the Office of the Attorney-General of the Republic, in order to document the case. In March 1998, INI lawyers took up the defence of the Zamora brothers in criminal action No. 128197 heard by the First Court of First Instance resident in Cosamaloapan, Veracruz.
28. Criminal action No. 65/98 against them was also heard by the Fourth District Court resident in Boca del Rió, Veracruz. In this action, the INI secured the bail required by the judge for provisional freedom, only with respect to these criminal proceedings. They were defended by the officially appointed lawyer assigned to the court. In addition, two further criminal cases were also heard against Mr. Juan Zamora González. Judicial proceedings were initiated against the Zamora brothers for the crimes of sabotage on the consumption of national wealth and deprivation of liberty, the carrying of prohibited arms and the carrying of arms without a licence, attempted homicide, depravation of physical freedom and offences against authority.
29. The Government also states that the Uxpanapa Indigenous Council submitted a complaint to the National Human Rights Commission, which gave rise to action No. 1122197NER/4636 in which the INI was not involved. However, the INI has taken a number of steps to support the Chinantecs relocated in the Uxpanapa Valley, who settled inside the political demarcations of four municipalities in the State of Veracruz (Minatitlán, Jesús Carranza, Hidalgotitlán and las Choapas), participating in drawing up the Draft Economic Agreement in December 1996, in which the request made by the villagers for the establishment of the free municipality of Uxpanapa is approved, in which the Chinantec inhabitants and lands are included. The Government also reports that in the Uxpanapa area the INI supports production projects, finances a number of children's shelters and two civil organizations for the defence of indigenous rights.
30. With reference to the allegation concerning the lack of consultation prior to the expropriation of the lands intended for the construction of the "Cerro de Oro" dam, the Government indicates that, under the federal Agrarian Reform Act, regulated by article 27 of the Constitution, at the time when the expropriation proceedings were established, those to be affected were to be notified accordingly. This notification took place and was published in the Diario Oficial of the Federation and in the Periódico Oficial of the Oaxaca state Government; the individual groups were informed through their Ejidal Commission, which serves as their legal representative. As a result there was no violation of the Convention. In this connection, Convention No. 107 (Endnote 1) indicated that in cases such as this prevailing substantive law should come into play.
31. With regard to the allegation that the special importance of the land for the indigenous Chinantecs was neither recognized nor respected, the Government states that in the construction of the "Cerro de Oro" dam a total of 50 ejidos were affected, which due to their very nature did not have community status and had not possessed the lands since time immemorial. For this reason, the Government reiterates that the ejidos affected were granted lands in accordance with the provisions of earlier agrarian legislation. As a result, no violation was committed, and in addition those affected were allowed to remain on the land until the reservoir was flooded; likewise, the work was carried out in such a way as to avoid loss of life and material damage and those concerned were offered a choice between relocation or payment, their wishes being duly respected.
32. Concerning the claim that under the expropriation decree provision was made for the Chinantecs to receive 260,000 hectares of land in the Uxpanapa Valley, in the State of Veracruz, the Government states that the registered decrees do not contain any reference to a commitment by the federal Government to deliver that area, in view of the fact that the area expropriated for the construction of the "Cerro de Oro" dam did not entirely correspond to the ejidal groups, which were only affected over an area of 26,262 hectares.
33. The ejidal groups expropriated in full were compensated with lands and relocated to municipalities in Veracruz and Oaxaca, where they were granted, for this purpose, an area larger than the 51,358 hectares appropriated, in the following manner: between 1978 and 1997 and to compensate for the expropriated lands, 52 resolutions were issued as a result of which an equal number of new ejidal population centres were created for 4,110 ejido members; 38 new ejidal population centres were located in the State of Veracruz, to which 45,535 hectares for 3,611 ejido members corresponded, while 5,822 hectares for 499 ejido members were granted to 14 agrarian groups in the State of Oaxaca. In addition to the new ejidal population centres, 1,457 ejido members were relocated who had been affected by the construction of the reservoir, federal zone and protection of the "Cerro de Oro" dam in 28 ejidos in the municipalities of Minatitlán, Hidalgotitlán and Jesús Carranza in the State of Veracruz.
34. The Government stresses that the above details demonstrate that the information maintaining that the federal Government carried out the relocation without taking into account the wishes of those affected and that force was used to undertake the move is untrue, as the relocation required the agreement of those involved. In order to cover the payment for those who chose it a working party was set up consisting of representatives of several government offices, the Oaxaca state Government and the Trusteeship National Fund for Ejidal Promotion (FIFONAFE). This working party met on four occasions and held its last meeting on 10 June 1994. It recommended to the FIFONAFE that the ejido members from the 35 ejidos expropriated entirely for the construction of the "Cerro de Oro" dam should be paid according to their rights in the proportion corresponding to them under the terms of article 96 of the Agrarian Act. This was carried out individually for all those concerned.
35. The Government explains in detail how the ejido members were compensated and indicates that the Agrarian Attorney-General's Office plays a social role and is responsible for defending the rights of ejido members, community members, the successors of ejido and community members, ejidos, communities, small landowners, settlers and agricultural day labourers, and in each of the country's states has delegations and offices to fulfil these responsibilities. In the municipality of Uxpanapa there is currently an office attached to the Agrarian Attorney-General's Office which attends to agrarian matters as far as consultancy and representation are concerned, and which also serves as an ombudsman in agrarian matters, and therefore those with grievances are invited to have recourse to these services which are available free of charge, are impartial and are provided by staff trained in both general and agrarian law.
III. The Committee's conclusions
36. The Committee observes that the claimants have supplied detailed information in support of their allegations, which date back to 1972 when the construction of the "Cerro de Oro" dam was ordered in the State of Oaxaca. It also observes the Government's declaration that it cannot be alleged that the decrees issued in 1972, 1973 and 1974 for the construction of the dam violate the provisions of Convention No. 169, as stated in the representation, as that Convention only came into force for Mexico in September 1991. This being the case, the Committee considers that the provisions of the Convention may not be applied retroactively, particularly as regards questions of procedure (including the types of consultations which would have been required at the time of taking these decisions if, hypothetically, the Convention had been in force). However, the effects of the decisions that were taken at that time continue to affect the current situation of the indigenous peoples in question, both in relation to their land claims and to the lack of consultations to resolve those claims. The Committee therefore considers that the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force.
37. Likewise, the Committee notes the Government's statement that the construction of the "Cerro de Oro" dam affected a total of 50 ejidos which due to their very nature did not have community status and had not possessed the lands since time immemorial. The Committee recalls that the fact that land rights have originated more recently than colonial times is not a determining factor. The Convention was drafted to recognize situations in which there are rights to lands which have been traditionally occupied, but also may cover other situations in which indigenous peoples have rights to lands they occupy or otherwise use under other conditions.
38. The Committee notes the claimants' allegation that, in violation of Article 6 of the Convention, consultations in good faith were not carried out with the purpose of reaching an agreement or obtaining the consent of the indigenous Chinantec people with respect to their land claims in the Uxpanapa Valley which relate to the quantity of land to be awarded in compensation for the eviction from their lands due to the construction of the "Cerro de Oro" dam, and to the execution of certain development projects. It also notes the Government's statement that the communities affected by the construction of the dam were to be compensated by moving them to nearby areas safe from flooding or to other lands acquired by the Secretariat of Hydraulic Affairs for that purpose if they so preferred. The representatives of those affected could choose where they wished to resettle and the Secretariat of Hydraulic Resources and the Papaloapan Commission would complete the necessary construction work to allow the Department of Agrarian Affairs and Colonization to carry out the relocation sometime in 1973.
39. The Committee further observes that the Government, at the time that the expropriation proceedings were initiated, notified the people affected and published a notice in the Diario Oficial of the Federation and in the Periódico Oficial of the Oaxaca state Government; the individual groups were informed through their Ejidal Commission, which serves as their legal representative. However, it does not appear from the Government's replies that at any time consultations were held with the representatives of the indigenous peoples affected by these actions.
40. The Committee recalls that according to Article 12(2) of Convention No. 107, which was in force at the time of the relocation, and Article 16(4) of Convention No. 169, when a return to their lands is not possible, indigenous and tribal peoples shall be provided in all possible cases with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. The Committee, in this case in particular and bearing in mind that a number of years have passed since the removal of these indigenous peoples took place, wishes to suggest to the Government that, in the quest for solutions to the problems that still appear to affect the relocated Chinantec communities, it resume a dialogue to enable both parties to seek solutions to the situation facing these peoples in the Uxpanapa Valley.
41. The Committee observes, moreover, that the Government has submitted detailed information concerning the measures taken. This information is not consistent with the observations submitted by the trade union on behalf of the indigenous peoples, which indicates a communication problem between the parties. In the Committee's opinion, consultations constitute an essential element in resolving this type of problem, as well as being one of the Convention's requirements. The Committee recalls that, under Article 6 of the Convention, governments shall consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. It requests the Government to continue providing information concerning developments in this situation, particularly as regards the establishment of new channels of communication with the peoples affected.
42. With regard to the arrest of the indigenous Chinantec leader Juan Zamora González and his brother Marcos Zamora González in May 1997, the Committee, noting that the charges of which they are accused are still pending before the courts and that they are in prison, wishes to recall that, as provided in Article 3 of the Convention, indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. It also recalls that a very slow judicial process can, in many cases, equate to a denial of justice. It urges the Government to inform the Committee of Experts on the Application of Conventions and Recommendations of any progress made in the judicial proceedings being brought against the Zamora González brothers.
43. The Committee notes the complainants' allegation that the Government violated Articles 5 and 13 of the Convention by not respecting the special importance for the culture and spiritual values of the Chinantec people of their relationship with their ancestral lands in Ojitlán, Oaxaca. It also notes the Government's statement that during the construction of the "Cerro de Oro" dam the lands of the affected ejidos did not have community status and had not been in the possession of the Chinantecs since time immemorial, and also that, in accordance with the provisions of earlier agrarian legislation, the ejidos affected were granted other lands. In view of these contradictory assertions, the Committee requests both the Government and the complainants to provide the Committee of Experts with additional information to allow it to give an informed opinion on this matter with a greater knowledge of the facts.
IV. The Committee's recommendations
44. In adopting this report, the Committee is aware that the implementation of the Convention in Mexico is a matter of importance for the Government, which has taken measures to improve the working and living conditions of a number of indigenous groups, a fact which has been closely examined by the Committee of Experts on the Application of Conventions and Recommendations with respect to various points. The Committee hopes that the Government will continue to stay in close contact with the Committee of Experts and the Office to resolve any difficulties which may arise in the implementation, in legislation and in practice, of the Convention.
45. The Committee recommends to the Governing Body that it approve this report, and taking into account the conclusions submitted in paragraphs 36 to 43 of the report:
(a) that it suggest to the Government that, in the quest for solutions to the problems that still appear to affect the relocated Chinantec communities, it carry out a dialogue to enable both parties to seek solutions to the situation facing these peoples in the Uxpanapa Valley;
(b) that it request the Government to continue providing information concerning developments in the situation in its reports under article 22 of the Constitution of the ILO in respect of this Convention, to the Committee of Experts on the Application of Conventions and Recommendations, particularly as regards the establishment of new channels of communication with the peoples affected;
(c) that it strongly urge the Government to inform the Committee of Experts of any progress on development made in the judicial proceedings being brought against the Zamora González brothers;
(d) with regard to the alleged violation of Articles 5 and 13 of the Convention, and in view of the contradictory information and assertions submitted on this point of the representation, the Committee recommends that the Governing Body request the Government and the complainants to provide the Committee of Experts with additional information to allow it to give an informed opinion on this matter with a greater knowledge of the facts;
(e) that it declare closed the procedure initiated before the Governing Body when the representation was submitted.
Endnote 1
The Indigenous and Tribal Populations Convention, 1957 (No. 107) was ratified by Mexico in 1959 and denounced in 1990 on account of the ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).