REPRESENTATION (article 24) - MEXICO - C169 - 1998

1. National Trade Union of Education Workers (SNTE), Radio Education

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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 Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education

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 Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education

Decision

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

Complaint Procedure

I. Introduction
1. By communications dated 9 July 1996 (received in the office on 20 January 1997), 4 June and 8 September 1997, the Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), referring to article 24 of the ILO Constitution, made a representation to the International Labour Office alleging that the Government of Mexico has failed to secure 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 Organization concerning 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 a 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 to be followed in the case of representations is governed by the revised Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the ILO, adopted by the Governing Body at its 212th Session (March 1980).
5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Mexico thereof, and brought it before the Officers of the Governing Body.
6. At its 270th Session (November 1997), on the recommendation of its Officers, the Governing Body decided that the representation was receivable and set up a committee to examine it, composed of Mr. Antonio Ducreux (Government member, Panama), Mr. Francisco Díaz Garaycoa (Employer member, Ecuador) and Mr. Federico Ramírez León (Worker member, Venezuela).
7. In accordance with subparagraphs (a) and (c) of paragraph 1 of article 4 of the Standing Orders, the Committee invited the Government to send its observations on the representation, and the organization which made the representation to furnish any further information which it would like to bring before the Committee.
8. In a communication dated 24 November 1997, the Secretariat for Labour and Social Welfare stated, inter alia, that the organization which made the representation had lodged an appeal for protection of constitutional rights before the Third Collegial Court of the Twelfth Circuit in order to obtain a review of the preliminary decision handed down by the Agrarian Tribunal (district No. 19) which had rejected its action. The Government considers that it is important to wait for the court's decision so that it will be the jurisdictional authority which will decide which side is right.
9. In communications dated 8 December 1997 and 9 and 24 March 1998, the Government sent its comments on the allegations made.
10. In a communication dated 18 December 1997 (received by the Office on 13 February 1998), the organization which made the representation sent further observations, which were transmitted to the Government on 23 February 1998.
II. Examination of the representation
A. Allegations made by the Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education
11. In a communication dated 9 July 1996, received by the Office on 20 February 1997, the Trade Union Delegation D-III-57 of Radio Education expressed its support for the Union of Huichol Indigenous Communities of Jalisco in their historical claim to their territories, in particular as concerns the case of the inhabitants of San Andrés de Cohamiata. The organization which made the representation alleges that, although the Government has shown its willingness to establish a new kind of relationship with the indigenous communities of the country, based on justice and equality, the reality shows that indigenous peoples are still marginalized and excluded from political and economic decisions; this is proved, according to the organization which made the representation, by the case of the Huicholes, who are still losing their lands without being consulted and without the consent of those affected.
12. A communication from the Union of Huichol Indigenous Communities of Jalisco appended to the communication of the SNTE states that the Wixarika (Huichol) people, specifically, the Huicholes of San Andrés Cohamiata (Tateikié in the Huichol language) have petitioned the Government for the territorial unification of San Andrés Cohamiata, i.e. to give back 22,000 hectares of land in possession of the Huicholes of San Andrés, but which, according to the organization which made the representation, the federal Government illegally adjudicated to mixed (mestizo) agrarian communities in the 1960s.
13. The communication states further that in 1993 the Huicholes brought a legal action before the Agrarian Tribunal of the State of Nayarit in order to obtain recognition of the Tierra Blanca community and registration of title to 1,255 hectares of the land that had been separated from San Andrés. This action was brought because it represented the most likely means of recovering part of the territory which is alleged to belong to them. The communication goes on to point out that, despite the fact that they had given grounds for their claim based on national and international law, history, anthropology and topography, on 24 June 1996 the Agrarian Tribunal handed down an opinion rejecting their claim concerning the village of Tierra Blanca, on the grounds that the Huicholes of Tierra Blanca had failed to provide proof of the elements of their action.
14. The communication from the Union of Huichol Indigenous Communities of Jalisco states that it provided evidence to the Agrarian Tribunal of the existence of its titles to the land, granted by the Spanish Crown, dating back to 1725; of the acordonamiento (land survey using ropes) of its territory during the colonial era in 1809; and documents in which the federal Government admitted in 1960 that San Andrés Cohamiata had in its possession and held title to 129,000 hectares of land, including the 1,255 hectares of Tierra Blanca. The organization which made the representation explains that Tierra Blanca is in the locality of San Juan de Peyotán and that a group of mestizo settlers had displaced and expelled the original inhabitants (Cora indigenous people) and had used the titles granted by the Spanish Crown to the original inhabitants to apply to the federal Government in 1961 for the adjudication of this land. Finally, in 1965, title to only 74,940 hectares was recognized for San Andrés, thus segregating this area, in which more than 2,000 Huicholes live, whose cultural and territorial integrity has thus been affected. This segregated area also includes Tierra Blanca. Faced with the lack of political will on the part of the Government to recognize title to an area representing a minimal part of Huichol territory, it was decided to seek the ILO's assistance in requiring compliance with Convention No. 169.
15. The allegations made by the Union of Huichol Indigenous Communities of Jalisco are based on the following considerations:
-- San Andrés Cohamiata is one of the three communities of the Huichol people; its original name is Tateikié, which means "the house of our mother". The Tatekietari Huicholes live mainly in the north of the State of Jalisco, but large sections of the Huichol community also live in the States of Nayarit, Durango and Zacatecas.
-- The problem afflicting the community of San Andrés is the fact that 2,000 Tateikietari Huicholes, who own approximately 34,000 hectares of land, were illegally integrated by the federal Government in three mestizo villages in the 1960s. Today the Tateikietari Huicholes are asking the Mexican authorities to be allowed to return to their original community.
-- This problem originated in the illegal registration of title by the Government in the Huichol mountain areas, when 40 per cent of the land of San Andrés was given to a group of mestizo settlers, contrary to the agrarian legislation then in force and the historic rights acquired through ancestral possession of these lands by the Huicholes.
-- The Huicholes of San Andrés (Tateikietari) have continued to live on these lands for over 30 years, but in conditions which violate the most elementary individual and collective rights, since, being a minority among the mestizo population, they have not been recognized in land censuses, with the result that they have no legal rights to the lands which they occupy, and it is left to the discretion of the mestizo population whether the indigenous peoples may plant crops or keep livestock, and their cultural practices are constantly hindered.
-- The communication states further that the Huicholes of San Andrés (Tateikietari) have repeatedly appealed to the authorities and have requested their separation from the mestizo villages in view of their cultural differences and in order to be able to enjoy their ancestral property rights to their lands, demanding that the lands in their possession be reunified with San Andrés Cohamiata. They state that the authorities have not responded to these demands.
-- An anthropological report has been drawn up which concluded, after field work was carried out, that the inhabitants of Tierra Blanca are Huicholes of San Andrés origin and that they still maintain close ritual, family and organizational links with the community of San Andrés Cohamiata. Moreover, the Mexican Agrarian Act lays down two legal requirements for obtaining legal recognition as a community: the inhabitants of the area for which recognition is sought must be in possession of that land, and it must be in communal ownership. The communication indicates that both requirements have been met in the case of the Tierra Blanca community.
16. The communication concludes by stating that the fact that the court ruling denied recognition of the territorial right of the Tateikietari is a clear indication of the lack of willingness on the part of the Government to comply with the Convention, since if some of the San Andrés Huicholes are denied title to their land, it is all the more likely that the authorities will refuse to take the necessary action to restore all of the land which they have been seeking for so long.
17. In another communication dated 4 June 1997, the Union of Huichol Indigenous Communities of Jalisco, through the Trade Union Delegation D-III-57, Radio Education, confirms the alleged non-observance by the Government of Articles 13 and 14 of the Convention in failing to recognize the rights of ownership and possession of the lands traditionally occupied by the Huicholes in the villages of Tierra Blanca, Campatehuala, Tonalisco, Saucito, Corpos and Mojarras. These segregated villages are part of the mother community of San Andrés, which has repeatedly requested their reunification from the Government.
18. In a communication dated 8 September 1997, the Union of Huichol Indigenous Communities of Jalisco, through the Trade Union Delegation D-III-57, Radio Education, points out that the Huichol people managed to have the federal Government sign a working minute drafted in the village of Mesa del Tirador, which provides, inter alia, that the Agrarian Attorney General's Office will state the date and duration of a study which it will conduct on the scope of Convention No. 169; in particular, the study will carry out a juridical analysis of the possibility of reintegrating the Huichol indigenous people and the lands in their possession (El Saucito and Bancos de San Hipólito) in their original community, i.e. San Andrés Cohamiata.
19. In another communication dated 18 December 1997, the organization which made the representation supplied detailed information on the historical, legal and anthropological background of the Huichol people of San Andrés Cohamiata. The anthropological report which it provided, dated 28 July 1994, states that anthropological research found that the present inhabitants of San Andrés Cohamiata formed part of a historical and cultural community of Huicholes which has existed for at least 1,000 years. The report maintains that a large part of this historical and cultural community had been recognized in the title granted by the Spanish Crown in 1725 and in the information plan of 1958, but the boundaries laid down in the Presidential Resolution of 1965 have reduced the land and left part of the Huichol ethnic group outside the community of San Andrés Cohamiata. The report states that since 1950 mestizo livestock breeders have taken control of substantial areas of land which historically belong to indigenous people, displacing the Huichol inhabitants. The Huicholes depend on these lands not only for their economic subsistence, but also for reasons related to their religion and social organization. As a result, the Huichol people of this area are coming closer to losing not only a large part of their lands but also their identity as such.
20. The documents appended to the communication mentioned in the preceding paragraph include a report of the Secretariat for Agrarian Reform (File No. 276.1/63) on the technical studies for establishing the communal boundaries of San Andrés Cohamiata. The report, dated 10 July 1961, and issued by the head of the Land Office of the Department of Agrarian Affairs, describing the inhabitants of the above-mentioned community, states that they were Huicholes, that they held communal titles dating back to the colonial era, that they lived on "hills or strategic sites such as caves", that they had a primitive way of life and maintained a communal system of ownership. The conclusions of the report state that the lands "of San Andrés Cohamiata" were free of disputes; the location of the communal lands of this community was indicated, as well as the fact that, after measuring the lands, it was determined that they covered an area of 129,250 hectares.
B. The Government's observations
21. In a communication dated 24 November 1997, the Government states that the Agrarian Tribunal, district No. 19, having examined and assessed the evidence provided by the parties, ruled on 24 June 1996 that it would be inappropriate to recognize the property rights of the Tateikie community of Tierra Blanca since this would affect the rights of third parties (the indigenous community of San Juan de Peyotán), section 164 of the Agrarian Act would be infringed ("in proceedings involving lands belonging to indigenous groups, the tribunals shall take into consideration the customs and habits of each group in so far as they do not run counter to the provisions of this Act or affect the rights of third parties"), and the claimant did not provide proof of the elements of the action which it had brought. The communication states further that the claimants were not without defence, but that they had availed themselves of the national juridical procedures and had lodged an appeal for protection of their constitutional rights with the Third Collegial Court of the Twelfth Circuit in order to obtain a review of the decision of the Agrarian Tribunal. According to the communication, no decision has been handed down by the Collegial Court to date, from which it may be inferred that the matter has not yet been concluded and is in the hands of the judiciary. The communication goes on to state that since 1963 a ruling has been handed down recognizing the indigenous community of San Juan de Peyotán, El Nayar municipality, Nayarit, and its title to the land which is being requested by the Tateikie community of Tierra Blanca, and in addition, another decision was handed down in 1965 recognizing title to land of the Tateikie indigenous community of San Andrés Cohamiata, Jalisco, including the community of Tierra Blanca. Accordingly, points out the communication, it is important to take into account the decision which will be handed down by the court before which the case is pending.
22. In a communication dated 10 December 1997, the Government states that the Secretariat for Labour and Social Welfare has made inquiries in order to obtain more information on the progress of the study being drawn up by the Agrarian Attorney General's Office, and that the result of these inquiries will be sent.
23. In communications dated 9 and 24 March 1998, the Government sends detailed observations and encloses the texts of national legislation mentioned below concerning the representation. It also refers to a study carried out by the Agrarian Attorney General's Office, analysing the scope of Convention No. 169 of the ILO in Mexico and concludes that the provisions laid down in the Convention oblige governments of ratifying States to include in their national legislation provisions enabling the rights of indigenous peoples to be protected. The Convention forms part of Mexican positive law and may be invoked as grounds for a claim brought before the national authorities. It also concludes that the Mexican legal system concerning land claims is consistent with the provisions laid down in the Convention, as can be inferred from the Constitution of Mexico (articles 4, paragraph 1, 27, clause VII, 103 and 107), the Agrarian Act (sections 49, 98, 106, 107, 163 and 164), the Organic Act respecting Agrarian Tribunals (section 9, subsection II, and section 18, subsection II) and the Act respecting the protection of constitutional rights (Book Two, sections 212 to 234), and that they are entirely in conformity with Articles 13 and 14 of the Convention. The study also points out that the interpretation and application of the provisions of the Mexican legal system are exclusively within the competence of the judiciary, which is responsible for ruling independently and exercising full jurisdiction in the actions brought before it.
24. In addition, the Government refers to the argument put forward by the organization which made the representation, to the effect that the decision of the Agrarian Tribunal is a clear indication of the lack of willingness on the part of the Mexican Government to respect and ensure respect of its rights as a people and, hence, to comply with Convention No. 169. In this respect, the Government points out that account should be taken of the fact that the decision handed down by the Agrarian Tribunal, district No. 19, in which it ruled that it would be inappropriate to recognize property rights of the Huichol community of Tierra Blanca, was in accordance with the provisions of Mexican legislation concerning land claims, since it was based on grounds and reasons in accordance with the law, in the light of the evidence provided by the parties. The communication states further that it should nonetheless be emphasized that account should be taken of the decision which will be handed down by the Collegial Court before which the appeal for protection of constitutional rights has been brought by the persons concerned, since it is for the judiciary to rule independently and exercising full jurisdiction in the actions brought before it. The assertion made by the trade union delegation of the SNTE in its representation to the effect that the Government has not displayed willingness to comply with Convention No. 169 because the Agrarian Tribunal, district No. 19, denied Tierra Blanca the recognition which it requested, is groundless, since the agrarian authorities act in accordance with the legal framework laid down in the Constitution and the applicable legislation in order to protect the rights of indigenous communities.
25. The Government provides an analysis of the legal principles applicable in this case and points out that the representation made before the ILO centres on the non-conformity of the alleged refusal of the Government of Mexico to restore land to a population unit (Tierra Blanca) which claims to have a right to it, and as a consequence, violation or non-compliance with Convention No. 169. It adds that in Mexico agrarian matters are governed by the Constitution and the applicable legislation. In accordance with articles 4 and 27, paragraph VII, of the Constitution, guarantees have been laid down through the relevant laws, which protect the rights of indigenous peoples, and provisions have been adopted for their observance. In this respect, when the village of Tierra Blanca asked for recognition of an area which it claims to possess and which it alleged had been taken away from it, it was acting in accordance with section 98, subsection III, of the Agrarian Act in petitioning for recognition as a community by bringing an action before the Agrarian Tribunal on 1 July 1994.
26. The Agrarian Tribunal, district No. 19, states that when it lodged its claim, this village omitted to state that the area of land which it wishes to be restored to it had been recognized and adjudicated to the community of San Juan Peyotán on 6 January 1963. This Presidential Resolution had declared that there were no boundary disputes between this village and the villages of Santa Rosa and San Andrés Cohamiata, as an agreement had been signed on 16 August 1960 by the indigenous groups involved, in which they set aside the titles and documents in their possession in order to accept the boundaries which were established.
27. The Government's communication points out that even after the court ruled against it in the action brought by this village in 1993, at any time since then Tierra Blanca could have opposed, by means of an appeal for protection of its constitutional rights, the Presidential Resolution which recognized and awarded title to the village of San Juan Peyotán, and thus at no time were they without defence, since this means was always available to them in accordance with section 207 of the Act respecting the protection of constitutional rights, which provides that actions for the protection of constitutional rights with regard to land are imprescriptible.
28. The Government goes on to state that in this respect, Presidential Resolution of 14 September 1965 had confirmed and recognized title to a total area of 74,940 hectares for San Andrés Cohamiata, as the village had provided proof of ownership to communal land and possession thereof. A Presidential Resolution of 6 January 1963 had confirmed and recognized title to an area of 18,690 hectares for San Juan Peyotán. When the resolution was executed in May 1986 and the boundary line laid down in it was followed, an excess of 1,789 hectares (making a total of 20,479 hectares) was found, making it necessary to draw a new boundary to adjust the 18,690 hectares laid down in the resolution. In this context, what would obviously be a violation of Convention No. 169, would be to recognize title for the Tierra Blanca community to the area it claimed, since this would mean disregarding the rights of the San Juan Peyotán community, which were confirmed by the above-mentioned Presidential Resolution of 1963.
29. The Government concludes with the following arguments:
-- Articles 13 and 14 of Convention No. 169 provide that governments shall take measures, inter alia, to respect the importance of the relationship of peoples with the lands and territories which they occupy or otherwise use and the rights of ownership and possession over the lands which they traditionally occupy, for example, when demarcating the boundaries of these lands. This does not necessarily imply resolving disputes in the manner requested by possible claimants.
-- In this spirit, and as mentioned above, both the Constitution of Mexico and national secondary legislation lay down protective standards and the necessary procedures: to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access; to identify the lands which they traditionally occupy and to guarantee effective protection of their rights of ownership and possession; and to resolve land claims by the peoples concerned.
-- The nature and scope of national legislation, both in terms of its substantive provisions and its procedural provisions, take into account the particularities and conditions (historical, cultural and legal) characteristic of the country, without impairing the rights and advantages afforded to indigenous peoples by other legal enactments. This is fully in accordance with the provisions laid down in Articles 34 and 35 of Convention No. 169.
III. The Committee's conclusions
30. The Committee notes the detailed information provided in this case both by the organization which made the representation and by the Government. The Committee notes in particular that the subject of this representation is the request made by the Union of Huichol Indigenous Communities of Jalisco, through the Trade Union Delegation D-III-57 of the National Trade Union of Education Workers (SNTE), that the Huichol community of San Andrés Cohamiata be restored 22,000 hectares of land to which the federal Government had conferred title on agrarian units during the 1960s. The Committee notes that the representation appeared at first to confine itself to a request for the reintegration of the Tierra Blanca community in the San Andrés Cohamiata community, and that the organization which made the representation subsequently specified that this area also extended to the areas of El Saucito in the State of Nayarit (which includes the settlements of El Arrayán, Mojarras, Corpos, Tonalisco, Saucito, Barbechito and Campatehuala) and Bancos de San Hipólito in the State of Durango, which, according to the organization which made the representation, also belonged to San Andrés Cohamiata.
31. The Committee notes that at the time of receiving this representation, the Third Collegial Court of the Twelfth Circuit had not yet handed down a ruling on the appeal for protection of constitutional rights lodged by the organization which made the representation in the particular case of Tierra Blanca. Since the Committee concludes below that this matter should continue to be examined by the Committee of Experts, this Committee has decided to continue its examination of the case. The Standing Orders concerning the procedure for the examination of representations do not provide that a decision must be reached in a national procedure before the Governing Body may examine the case or the aspect of the case which is still pending before the national jurisdiction and, in fact, the examination of a representation by the Governing Body sometimes becomes a relevant circumstance in a decision being handed down in a national legal procedure on a specific aspect of the application of a ratified Convention. The Committee therefore considers that it should conclude its deliberations of this matter at its present meeting.
32. With regard to claims for the restitution of land, the Committee would like to point out that it does not claim to issue an opinion on the resolution of individual land disputes under the Convention or to make recommendations to the Governing Body for this purpose. The Committee considers that its essential task is rather to ensure that the appropriate means of resolving these disputes have been applied and that the principles of the Convention have been taken into account in dealing with the issues affecting indigenous and tribal peoples.
33. The Committee is aware of the difficulties raised by land disputes when there are different interests and opposing viewpoints with respect to the relationship which different communities have to the land, their cultural meaning, and the beliefs of different ethnic groups, which are profoundly affected when their relationship to the land which they occupy, sometimes since time immemorial, comes up against another vision which is culturally alien to theirs.
34. The Committee considers that the provisions of the Convention dealing with land, and specifically Articles 13 and 14 on which the organization which made the representation bases its allegations, must be understood in the context of the general policy set forth in Article 2(1) of the Convention, namely that governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. The Committee also refers to Article 6 of the Convention, which provides that consultations shall be carried out in good faith with the peoples concerned and in a form appropriate to the circumstances, and means should be established by which these peoples can freely participate in decision-making on matters which concern them.
35. In the case of the Huicholes of San Andrés Cohamiata, it is obvious that they have exercised rights over the land in question, either through possession and use of the land which is the subject of the representation, or by holding titles dating back to the colonial era. The Committee understands that the possession of 129,250 hectares by the community of San Andrés Cohamiata was recognized by the Government at the beginning of the 1960s, as may be inferred from the report of the Secretariat for Agrarian Reform referred to above. In this respect, the Government states that the indigenous community concerned signed an agreement in 1963 in which it set aside its titles and documents in order to accept the established boundaries, which are at issue in the representation before this Committee.
36. The Committee notes that the Huicholes of San Andrés Cohamiata request the restitution of a number of hectares which had been adjudicated in the 1960s to three villages, which they described as mestizos, in which approximately 2,000 Huicholes live. It also notes that according to the allegations these Huicholes had never left these lands, which had been kept in communal ownership in a peaceful, public and continuous manner since a time preceding the Spanish colonial era, and have maintained their cultural unity independently of land or state boundaries.
37. The Committee also notes that these lands are occupied at the same time by other cultural groups which, according to the Huicholes, are in the majority and have held title to these lands since 1963. It notes further that the Government states that the national legislation lays down protective provisions and the necessary procedures to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access; to identify the lands which they traditionally occupy and to guarantee effective protection of their rights of ownership and protection; and to resolve land claims by the peoples concerned.
38. The Committee notes that Article 14 of the Convention provides that:
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
39. Although it appears that certain property titles were transferred to another community in 1963 and in the particular case of Tierra Blanca an appeal is still pending before a Collegial Court, the Huicholes have continued to share occupancy of the lands at issue in this representation. Pursuant to the second sentence of paragraph 1 of Article 14, the Government would be obliged to take measures, in appropriate cases, to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, and this appears to be the situation in this case.
40. As regards paragraph 2 of Article 14, the Committee notes that the lands at issue in this representation are clearly identifiable, and that in the case of Tierra Blanca the rights of the parties are being determined before the courts. In the case of the other lands, the Committee requests the Government to take the necessary measures to guarantee effective protection of the rights of ownership and possession of the Huicholes, in particular to protect them from possible intrusion by third parties.
41. Paragraph 3 of Article 14 requires adequate procedures to be established within the national legal system to resolve land claims by the peoples concerned. The Committee notes that there are procedures in place to resolve land disputes, and that while it is not the intention of this Committee to determine whether or not these procedures are adequate with respect to individual claims, it perceives that they are accessible to indigenous communities and that, with respect to this case in particular, it appears that such land claims are being examined in depth.
42. Apart from land disputes, the Committee would like to express its concern about the allegations of the organization which made the representation to the effect that the Huicholes seeking the reintegration of the land at issue live in conditions which "violate the most elementary individual and collective rights" since, being a minority compared to the other inhabitants, they have not been recognized in land censuses, with the result that they have no legal rights to the land which they occupy, and it is the majority of inhabitants who decide whether the indigenous inhabitants may plant crops and keep livestock, and their cultural practices are constantly hindered. The Committee requests the Government to examine the measures which can be taken to remedy this situation, 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 wish to safeguard it, which is one of the primordial objectives of this Convention.
43. With respect to the above, the Committee would like to draw attention to Article 19 of the Convention, which provides that "national agrarian programmes shall secure to the peoples concerned treatment equivalent to that accorded to other sectors of the population with regard to: (a) the provision of more land for these people when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers; (b) the provision of the means required to promote the development of the lands which these people already possess." The Committee expresses the hope that the Government will examine the measures which should be taken in this case to apply the provisions of this Article and to bear in mind two fundamental principles of the Convention: (1) that laid down in Article 4, according to which special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned; and (2) the need to consult the peoples concerned in applying the provisions of the Convention, through appropriate procedures, whenever consideration is being given to legislative or administrative measures which may affect them directly, as provided in Article 6.
IV. The Committee's recommendations
44. In adopting this report, the Committee is aware that the application of the Convention and the improvement of the situation of indigenous people in Mexico are priority issues for the Government and that this has been carefully examined by the Committee of Experts on the Application of Conventions and Recommendations with regard to certain points. The Committee hopes that the Government will maintain close contact with the Committee of Experts and the Office to resolve any difficulties which might arise in this respect.
45. The Committee recommends that the Governing Body approve this report and, in the light of the conclusions in paragraphs 30 to 43 of the report --
(a) that it urge the Government to take measures in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, in accordance with Article 14 of the Convention;
(b) that it request the Government to inform the Committee of Experts, through the reports to be submitted on this Convention under article 22 of the ILO Constitution, on:
(i) the decision to be handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection of constitutional rights lodged against the decision handed down by the Agrarian Tribunal in the particular case of Tierra Blanca;
(ii) the measures which have been taken or which could be taken to remedy the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in land censuses, which might include the adoption of special measures to safeguard the existence of these people as such and their way of life, to the extent that they wish to safeguard it;
(iii) the possible adoption of appropriate measures to remedy the situation which has given rise to this representation, taking account of the possibility of assigning additional land to the Huichol people when they do not have the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers, as provided in Article 19;
(c) that it declare closed the procedure initiated before the Governing Body as a result of the representation.