Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

Convenio sobre pueblos indígenas y tribales, 1989 (núm. 169) - México (Ratificación : 1990)

1. The Committee takes note of the Government's substantial and detailed report and of the information supplied by the Authentic Labour Front (FAT) on a number of occasions.

2. Article 2. The Committee previously noted with interest the broad-based process of consultation on the rights and participation of indigenous peoples, launched by the Government with a view to drawing up, revising and promoting a programme of constitutional and legislative reform in the area of indigenous rights and culture. The Committee is grateful for the full report on this nationwide consultation process and the other relevant documents. The Committee notes that, as a result of these consultations, constitutional reform initiatives concerning indigenous matters have been submitted to the Federal Congress by the Federal Executive, by two political parties. It must be emphasized that there is also a bill that has been presented by the Commission on Reconciliation and Peacebuilding (COCOPA) of the Federal Legislature. Similarly, it notes the fact that, at the federal level, specific provisions relating to indigenous issues have been included in the Copyright Act, the Forestry Act and the General Act respecting environmental balance and protection. The Committee also notes the fact that some of the communications transmitted by the FAT draw attention to the peace accord signed by the Government and the Zapatista National Liberation Army (EZLN) in San Andrés on 16 February 1996. Bearing in mind that the Convention was used as a reference document in these negotiations, the Committee requests the Government to continue to provide information on any developments in the situation with regard to the practical implementation of the agreements reached during the negotiations. The Committee also requests the Government to continue to provide information on the nature of the constitutional initiatives that have been submitted and on the stage which they have reached in the Federal Congress.

3. In a previous direct request, the Committee requested detailed information on developments in practice with regard to the proposed changes to the National Indian Institute (INI) to increase participation by indigenous peoples. The Committee notes the information in the report to the effect that the resources intended for the indigenous peoples are channelled through regional funds for the development of indigenous peoples. The Committee requests the Government to provide information on the INI's proposals to transform itself in order to allow the transfer to the states of operational programmes, budgets, staff and assets and to promote participation by indigenous people in the management and planning of its policies and activities.

4. Articles 8 to 12. Justice. With regard to the administration of justice, the FAT states in its comments that torture is used to extract confessions and that criminal trials are held without any interpreters for the defendants and without any regard for indigenous customary laws. The comments of the FAT also indicate that numerous violations of individual rights against indigenous people continue to be reported in various states. For example, the communication alleges that in Oaxaca, following a campaign for the release of indigenous people carried out by the Human Rights Centre "Tepeyac", 229 indigenous prisoners were released between March 1994 and March 1995; of these, 163 (71 per cent) were acquitted, while the rest were released conditionally. According to the communication, this shows the high proportion of indigenous people who are unjustly prosecuted and incur damages therefor, for which they are never given just compensation.

5. The Committee notes the detailed information provided by the Government concerning this point of the observation, in which it indicates that legislative reforms have been introduced in certain states (Campeche, Chiapas, Chihuahua, Durango, Guerrero, Hidalgo, Jalisco, México, Nayarit, Oaxaca, Querétaro, Quintana Roo, San Luis Potosí, Sonora and Veracruz) in the form of provisions stipulating that interpreters must be present at trials of indigenous people and that indigenous customs should be taken into consideration during the trial and at the time of sentencing. The Committee also notes that the Attorney-General's Office has devoted particular attention to trials involving indigenous people, in particular 311 criminal cases, offering legal advice and ensuring that the rights of the defendants are respected. It notes further that the Inspectorate for Indigenous Affairs has continued to cooperate with public defenders in district courts in all states of the Republic, and notes also the creation in February 1998 of the Fourth General Inspectorate with the aim of guaranteeing effective access to justice for members of indigenous peoples and the full exercise of their human rights. The Committee notes that between February and May 1998, the Fourth General Inspectorate obtained the release from prison of 90 indigenous people who were eligible for early release.

6. The Committee recalls that indigenous peoples must have the same rights as other citizens in the country and must accept the corresponding obligations. In this case, the Committee notes that in certain cases, the fundamental rights of indigenous people were violated because they were given no chance to mount an adequate defence and were kept in ignorance of the offences of which they were accused by being denied access to an interpreter or public defender. The Committee points out that the objective of Article 12 of the Convention, in providing for special protection for these peoples is to compensate for the disadvantages they may be under in that they may not possess the linguistic or legal knowledge required to assert or protect their rights. The Committee regrets the large number of indigenous people held in prison in Oaxaca without having been convicted. It requests the Government to continue to take the necessary measures to provide effective protection of and respect for the rights of indigenous people both in legislation and in practice, in accordance with the Convention. The Committee requests the Government to inform it of any progress made in this matter and to continue to provide information on action taken by the Fourth General Inspectorate on cases involving the imprisonment of indigenous people.

7. The Committee also notes that, in the state of Chiapas, the Act respecting the economic development of the state has been adopted. The Government states that this Act will have a major impact on the indigenous population. The Committee also notes that provisions relating to the need to take into account indigenous customs have been introduced in a number of state constitutions and regulatory laws, such as the Agriculture Act, the Organic Act respecting the Federal Public Administration and the General Education Act, and that the work of establishing a legal framework appropriate to the nation's multicultural make-up is progressing. The Committee requests the Government to provide further information in this regard.

8. Articles 13 to 19. Land. The Committee notes the report presented to the Governing Body by a tripartite committee set up to examine a representation made by the Trade Union Delegation, D-III-53, section XI of the National Trade Union of Education Workers (SNTE), alleging non-observance by the Government of Mexico of certain provisions of the Convention. In this regard, the Committee requests the Government to inform it of any decision handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection by the organization which made the representation, the Union of Huichol Indigenous Communities, against the decision of the Agrarian Unitary Tribunal in the particular case of Tierra Blanca; to inform it of measures taken or contemplated to provide redress for the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in any agrarian census, measures which might include the adoption of special measures to safeguard the existence of these peoples as such and their way of life to the extent that they themselves wish to preserve it; and to provide information on the possible adoption of suitable measures to remedy the situation which has given rise to this representation, taking into account the possibility of allocating additional land to the Huichol people when their own land ceases to be sufficient to provide the essentials of a normal existence or for any possible increase in their numbers, in accordance with Article 19 of the Convention.

9. The Committee takes due note of the information provided the Government during its meeting to the effect that the agrarian tribunals are autonomous and independent. It notes also the establishment of the Agrarian Inspectorate, a decentralized body which is in the process of speeding up the proceedings in the various courts concerning the presentation made by the SNT. Similarly, it notes that meetings have been convened to update the agrarian censuses, and advice and arbitration is being made available to the complainants, and that an inter-institutional commission has been set up that has held a number of meetings with a view to resolving the questions raised. In this regard, the Committee requests the Government to keep it informed of any progress made with regard to the specific points made in the representation.

10. The Committee also notes the fact that the Radical Trade Union of Metal and Associated Workers made a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Mexico of a number of Articles of the Convention. The representation was declared receivable by the Governing Body at its 273rd Session (November 1998).

11. Further, the Committee notes that the FAT, in its comments, continues to allege that the mining and logging activities of multinational companies in the Tarahumara range in the State of Chihuahua have caused deforestation which in turn has led to an increase in drought conditions and placed the survival of the Rarámuri people in jeopardy. Similarly, in the Chimalapas, in the State of Oaxaca, exploitation of natural resources in the region has affected indigenous communities and led to confrontations between them. The communication of the FAT refers to the mega-project of the Tehuantepec isthmus which includes the construction of a super highway and a "bullet train" railway and the development of 146 industrial projects, without any consultations with the indigenous peoples in the region on the social, spiritual, cultural and environmental impact of this project on the land and the people's way of life.

12. The Committee notes the information provided by the Government on the measures which it has taken, in particular the advice on land questions provided by the Agrarian Inspectorate; on cases of land recognition and title that have been settled since August 1997; and on the Programme of Certification of Rights (PROCEDE) and the Programme of Regularization of Ownership of Land in Communities. The Committee also notes that during the period covered by the report, 860 cases pertaining to agrarian law and legal representation were concluded in municipalities of indigenous populations and 1,722 in municipalities of indigenous concentration. The Committee also notes the detailed information provided by the Government concerning the legal situation of los Chimalapas, particularly the commitment to seek consensus-based solutions through measures adopted under an agrarian conciliation programme with the participation of all the indigenous groups and communities involved in the dispute. In this regard, the Committee requests the Government to keep it informed of any developments in the situation in the Chimalapas.

13. As regards the mining and logging activities of multinational companies in the Tarahumara range and plans to develop the Tehuantepec isthmus, the Committee recalls that, under Article 15 of the Convention, the rights of indigenous peoples to the natural resources pertaining to their lands shall be specially safeguarded, and these peoples should have the right to participate in the use, management and conservation of these resources. Governments are also required to establish and maintain procedures for consulting the peoples concerned with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Committee requests the Government to make full use of appropriate procedures for consulting the indigenous communities who may be affected by any development projects on their lands or by the award of any concessions for the exploitation of natural resources on lands belonging to or traditionally occupied by those peoples. The Committee requests the Government to provide detailed information in its next report on measures taken for this purpose.

14. Article 20. Recruitment and conditions of employment. The Committee takes note of the report provided by the FAT entitled "Slavery in Mexico: Rural migrant workers ... their human rights", which describes the situation of indigenous migrant workers, among others, recruited under the so-called "enganche" system through intermediaries who deceive the workers recruited and take a percentage of their wages. The report also indicates that the employers sign collective agreements only with the official trade unions, rather than individual contracts, without the workers knowledge or consent.

15. The socio-economic and cultural situation of indigenous peoples, according to the FAT, has forced them to migrate to the cities where they suffer discrimination and violations of their labour rights. One example is that of the tobacco plantations of Nayarit employing Huichol migrant day labourers, whose working conditions have deteriorated owing to the use of toxic pesticides, without any monitoring or control by the health and environment authorities. The communication from the FAT states that the day labourers are not informed about the use of the pesticides, which are used even by children below the age of 14 years and adolescents without any protection, resulting in cases of severe poisoning including a number of fatalities. Furthermore, wages paid to indigenous workers are lower than those paid to other workers.

16. The communication also states that these workers have no access to timely medical care because the Social Security Act provides only for medical attention during the period of their employment, on condition that they present a "pass", which is in many cases difficult to obtain where a worker does not have a birth certificate and because control over passes by the employer has become another source of abuse. The workers only have access to trade unions which have shown no concern for their precarious situation, while independent organizations that have started to organize agricultural workers have been systematically denied the right to register. The FAT states that situations such as this have been notified to the appropriate authorities, but there has been no satisfactory response.

17. The Committee notes that according to the Government's report, a programme of legal training and information has been developed for migrant indigenous peoples in the states of Baja California, Sonora and Sinaloa, which have the greatest number of migrant agricultural workers of indigenous origin. The Committee also notes that the Government has established the National Programme for Agricultural Day Labourers (PRONJAG) which deals with problems in areas such as housing and environment, food and supplies, health and social security, education, culture and recreation, employment, training and productivity, and obtaining justice. This programme also includes workshops for indigenous migrant workers on indigenous rights, in particular on the Convention. The Committee observes that the Government has not replied to the specific comments sent by the FAT on recruitment and conditions of employment of migrant workers.

18. In the light of the allegations, the Committee recalls that, under Article 20 of the Convention, governments are required to adopt special measures to ensure effective protection for indigenous peoples in the area of recruitment and conditions of work. The Convention also states that governments must do everything possible to prevent any discrimination between workers that are members of indigenous peoples and other workers, in particular with regard to equal pay for work of equal value, medical care and health at work, and to ensure that workers belonging to the peoples in question are not required to work in conditions that are hazardous to health, in particular as a result of their exposure to pesticides or other toxic substances. In this regard, the Committee requests the Government to continue to keep it informed on the effect in practice of these measures, in particular with regard to protection of wages and maternity protection for indigenous agricultural day labourers, on measures taken or contemplated to prevent child labour among indigenous peoples and on medical services and the general conditions of employment of these migrant indigenous workers.

19. The Committee, while noting that the Government has entered into undertakings to collaborate with state governments to strengthen occupational safety and health inspection, wishes to point out that one of the most important means for ensuring effective protection of fundamental labour rights is frequent and effective inspections of workplaces where indigenous workers are employed. The Committee urges the Government to intensify its efforts to improve the labour situation of indigenous workers, and to provide detailed information on the number and the results of inspection visits covering indigenous workers in rural areas and in areas with a large number of indigenous migrant workers.

20. The Committee notes with interest the information provided by the Government during its meeting on its plans to hold a seminar in the first quarter of 1999 on labour inspection in rural areas. The Committee hopes that this seminar will take place with the participation of representatives of the indigenous peoples concerned.

21. A request regarding certain points relating to the application of the Convention is being addressed directly to the Government.