REPRESENTATION (article 24) - MEXICO - C169 - 2006

Union of Metal, Steel, Iron and Allied Workers (STIMAHCS)

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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 Union of Metal, Steel, Iron and Allied Workers (STIMAHCS)

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 Union of Metal, Steel, Iron and Allied Workers (STIMAHCS)

Decision

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

Complaint Procedure

I. Introduction
1. By a communication of 5 November 2002, addressed to the ILO Office for Mexico and Cuba, the Union of Metal, Steel, Iron and Allied Workers (STIMAHCS), registered with the labour authorities in Mexico as No. 5248, EXP. 10/1014, submitted proprio motu a representation sent in a communication (Endnote_1) of 9 October 2002 and made under article 24 of the ILO Constitution, alleging that the Government of Mexico had failed to observe certain provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). Indicating as well that it was submitting a supplement to the communication of 9 October, it attached a copy of its statutes and of a communication from the General Directorate for the Registration of Associations of the Ministry of Labour and Social Welfare, notifying an updated entry.
2. Mexico ratified the Indigenous and Tribal Peoples Convention, 1989 (No. 169), on 5 September 1990 and the Convention is in force in 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 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 Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization, as revised by the Governing Body at its 291st Session (November 2004).
5. In accordance with article 1 and article 2, paragraph 1, of the Standing Orders, the Director General acknowledged receipt of the communications, informed the Government of Mexico thereof and brought the communications before the Officers of the Governing Body.
6. At its 286th Session (March 2003), on the recommendation of its Officers the Governing Body decided that the representation made by the STIMAHCS was receivable and appointed two members - Mr. Francisco Díaz Garaycoa (Employer member, Ecuador) and Mr. Jesús Urbieta (Worker member, Bolivarian Republic of Venezuela) - of the Committee that would be examining it. At its 287th Session, it appointed the third member - Mr. Eduardo Varela (Government member, Argentina). Because other representations were being processed, by the time the Committee met its membership had changed. Mr. Francisco Díaz Garaycoa and Mr. Jesús Urbieta having left the Governing Body, at its 293rd Session (June 2005) the latter appointed in their place Mr. Guido Ricci (Employer member, Guatemala) and Mr. Gerardo Martínez (Worker member, Argentina).
7. By communication of 5 April 2005, the Office invited the Government to send its observations on the representation. The Government did so in a communication of 8 August 2005.
II. Examination of the representation
A. Allegations made
8. In its communication, the complainant organization refers mainly to the construction of a superhighway beginning in the city of Oaxaca, located on the Isthmus of Tehuantepec, with a branch road to the Bays of Huatulco (the Oaxaca Isthmus of Tehuantepec highway). The complainant asserts that the procedure employed violated Articles 6 (the right to consultation), 7, paragraphs 1 and 3 (the right of peoples to decide their own priorities and participation), 13, 14 (lands) and 20 (recruitment and conditions of employment) of Convention No. 169.
9. With regard to the right to consultation, the complainant organization states that, from the time the preliminary work began in 1996 up until the date when the representation was made, in November 2002, the indigenous peoples of the region had not been consulted and had not obtained any form of participation at either the federal or state government level. Furthermore, during the early stages of work on the Oaxaca-Isthmus-Huatulco superhighway, between 1996 and 1997, when staff of the Ministry of Communications and Transport (SCT) were marking, moving into and crossing lands belonging to the indigenous communities, neither the federal nor the state Government had informed the communities or sought authorization for these activities. Since then, says the complainant, both the Centro Tepeyac (Tepeyac Human Rights Centre) and the Chontal and Zapotec indigenous communities in the Sierra Sur mountains have requested information, but received no replies whatsoever, regarding the economic, social, cultural and environmental implications of the work carried out by the Government on the communities' lands. The peoples concerned learned of the project through the newspapers and with the arrival of engineers and surveyors.
10. According to the complainant organization, in 1998 and 2000, further marking was carried out without prior notification or consultation of the indigenous communities, despite the fact that the latter had actively sought to participate in the project and to obtain information. In 1999, the Governor of Oaxaca announced that part of the land belonging to the communities opposing the project would be expropriated.
11. In 2001, the indigenous communities requested information on the project several times, (Endnote_2) indicating, among other things, the communities and sites (Endnote_3) where the first signs of marking for the Oaxaca-Isthmus-Huatulco highway project had been visible. In response, the Government issued an information document, which the complainant organization describes as too technical for the communities concerned to understand.
12. In 2002, the General Directorate of Federal Highways and Highway Projects of the Ministry of Communications and Transport sent the Centro Tepeyac a communication informing it of the planned route of the superhighway. The complainant organization considers that this was insufficient and led to increased anxiety among the peoples concerned, as there was no way of assessing the impact of the project with any certainty. There was no mention in the communication of the highway's exact route or of its ecological, cultural and economic impact, which increased the uncertainty as to what would become of croplands, springs, rivers, mangroves, forests and human settlements. Since the information it contains cannot be considered to be either full or accurate, the communication is hardly indicative of consultations carried out in good faith. Marking and clearance work in the community of Guadalupe Victoria has affected the only spring in the vicinity. Furthermore, in San Juan Alotepec, the routing affects a cave containing a water course and early Chontal remains, and a river and croplands in Asunción Tlacolulita will be affected.
13. With regard to land, the complainant organization adds that many of the communities on the land where the last stretch is located are engaged in ancestral land disputes. The fact that these are unresolved has allowed the communities to be excluded from the decision making process and from any compensation payable for their lands. Furthermore, the construction of the highway means the erosion of the community structures and fabric, while literally splitting communal property by cutting through lands and preventing the villagers from moving between their houses and plots. In Guadalupe Victoria, Santa María Zapotitlán and Guiechiquero in the municipality of Jalapa del Marques, the highway crosses orchards and the best cropland, indeed the inhabitants' only land, thus depriving families of a living. It should be highlighted that, according to the complainant organization, to leave the indigenous peoples without their traditional means of subsistence further weakens the social fabric and makes them more likely to offer their labour on poor terms, or to become braceros or migrant workers. According to the complainant, for the indigenous peoples, progress and development have meant only the plundering of their lands and crops and pollution of the environment.
14. The complainant organization states that, on the whole, the Plan Puebla Panama (PPP) (Endnote_4) is compatible with environmental protection, but that the highways and, in particular, the Oaxaca Isthmus Huatulco superhighway will pass through important ecological sites without any prior environmental impact studies having been carried out and without the indigenous peoples having been informed or consulted. The lack of consultation weakens their autonomy and self determination because it prevents them from contributing to the formulation of viable alternative projects guaranteeing real development for the communities.
15. The complainant organization reports that, for marking, measuring and clearance work for the highway, the Ministry of Communications and Transport hired indigenous workers, promising them good wages, money for mule hire and food. Despite this, some workers worked for 61 days without remuneration. A letter (Endnote_5) concerning this particular issue is attached to the representation. The workers do not know the name of the engineer who hired them but say that the vehicle he used belonged to the Ministry of Communications and Transport. Furthermore, citing government instructions, the ministry staff sought help for work on the highway from a number of traditional authorities, whom they asked to convene a Tequio - an indigenous peoples' ancestral form of organization for community work - without providing any remuneration whatsoever, taking advantage of the good will and trust of the people concerned. The ministry staff also threatened them with the withdrawal of government support should they fail to cooperate.
16. The complainant organization refers to other projects in the Isthmus region asserting that they have been or are being implemented in breach of indigenous rights and are altering and endangering the environment as well. One case it cites is a hydroelectric plant in Santa Maria Jalapa del Marqués about which the inhabitants were not informed. The Centro Tepeyac wrote to the Government but received no reply, and to the Mexican Electricity Corporation, which replied that the project was scheduled to begin in 2003, although it was already under way according to the complainant organization. The latter also refers to the planting and extension of eucalyptus forests in which indigenous people are hired under dubious working conditions. It cites San Felipe Zihualtepec, Bajo Mixe, Oaxaca as a case in point and mentions industrial or large scale shrimp farms, which are discouraging the activities of indigenous fishers and their cooperatives, compounding (by 50 per cent) the agrarian problem of encroachment on indigenous territory.
17. The complainant organization also alleges that neither the federal Government nor the government of the state of Oaxaca have set up suitable internal legal procedures allowing indigenous peoples to claim enforcement of their rights, particularly their land and territorial rights; and that there is no clearly established authority, let alone any procedures for approaching it. Nor are there any clear regulations pertaining to the PPP, and such legal provisions as exist are incoherent, so the problem is being referred back and forth between the federal authorities and the Oaxaca state authorities. The amount of red tape involved means delay in the processing of the indigenous peoples' claims and hence in the enforcement of their rights.
18. Lastly, the complainant organization requests the ILO to recommend to the Government that it consult the peoples concerned about the content and viability of the projects and that it should do so through an efficient consultation mechanism rather than improvising. It furthermore requests the ILO to recommend to the Government that it establish legal mechanisms for information and consultation processes pertaining to the projects and that such mechanisms be agreed on by the peoples and the Government with advice from the ILO and the United Nations High Commissioner for Human Rights.
19. Enclosed with the complainant organization's communication are numerous letters sent by the Centro Tepeyac and indigenous organizations to the Government and the Government's replies, along with newspaper articles, photos of the construction works, records of an indigenous congress and the signatures of members of the indigenous communities affected by the failure to consult them. (Endnote_6)
B. The Government's observations
20. In a letter of 30 May 2005, the Government of Mexico asked the Committee to extend the deadline for the submission of its observations. By a communication of 8 August 2005, the Government of Mexico sent its observations on the representation.
21. The Government begins with procedural matters, noting that neither the FAT nor the STIMAHCS refer specifically to article 24 of the ILO Constitution in their communications. Furthermore, the STIMAHCS states that it is submitting a supplement to the representation, but sends only a copy of its statutes and challenges the FAT's locus standi.
22. The Government states that the PPP has its basis in a decision of 15 June 2001 by the Presidents of the countries making up Mesoamerica. In implementing the decision, Mexico consulted the people as the projects were developed and when they affected the culture, property and way of life of the region's inhabitants.
23. According to the Government, the PPP's institutions are regulated by sound legal mechanisms under the Acta de Institucionalización del PPP, signed on 25 March 2004 by the Presidents of the countries making up the Tuxtla Dialogue and Agreement Mechanism, and by the PPP operating regulations, which provide for participation by civil society organizations through a process of information, consultation and participation (ICP) that aims to link up citizens' groups with the PPP.
24. In response to demands from indigenous organizations reflected in a Declaration adopted by the seventh session of the Tuxtla Dialogue and Agreement Mechanism, held in Mérida, Yucatán, on 28 June 2002, seeking the establishment of mechanisms for participation that include indigenous groups, in May 2003 a body was set up under the ICP: the Advisory Group for the Participation of Indigenous and Ethnic Peoples (GAPIE). Its role is to promote the participation of indigenous and ethnic organizations in decision making about any development project that concerns their communities. According to the Government, no project is implemented without the prior approval - through consultation - and the participation of the communities. Furthermore, as a result of the creation of GAPIE, consultations with indigenous groupings have been carried out in their regions to obtain their views on development and mechanisms for participation and the identification of projects, which are reflected in the "Results of the public consultation in indigenous regions 2003 2004 (States of the South Southeast)". The Government adds that, from November 2003 to March 2004, 54 workshops were held in the states of Campeche, Chiapas, Guerrero, Oaxaca, Puebla, Quintana Roo, Tabasco, Veracruz and Yucatán.
25. Referring to the Oaxaca Isthmus Huatulco superhighway, the Government states that it is not new, having been built in the 1950s; it was in a state of disrepair, so work has been undertaken recently to rehabilitate and upgrade it. The work was undertaken in consultation with the communities through which the highway is routed and the latter's interests and rights have been taken into account.
26. As to the photographs purporting to show survey work for the routing of the Oaxaca Isthmus Huatulco superhighway, the Government states that there is no evidence that they correspond to the locations said to have been affected: they show no landmarks nor any authentication by either a notary or a community or local authority, and could therefore have been taken elsewhere. Furthermore, the newspaper articles from El sol del Istmo, Noticias and La Jornada, enclosed with the representation, may contain information that is inaccurate or out of date and facts that are no longer relevant, so they may not be regarded as proper evidence.
27. The Government refers to: the request for information on the Oaxaca Isthmus Huatulco superhighway construction project; the complainant organization's assertion that the information sent by the Government in 2002 was inadequate; the assertion that there were environmental repercussions for a number of communities, such as Guadalupe Victoria, San Juan Alotepec, Asunción Tlacolulita; ongoing agrarian disputes and the complainants' assertion that no amount or terms were set for payment of compensation, which would in any event be unlikely to make up for the damage to the communities. In responding to these points, the Government refers the Committee to its observations concerning the route to be taken by the highway and the references pertaining thereto (see paragraph 25 in fine).
28. On environmental matters, the Government states that PPP activities are consistent with international agreements and standards and are based on the Memorandum of Understanding for coordination of the Mesoamerican sustainable development initiative of the PPP, signed on 2 June 2003 by the member countries' environment ministers and the presidential commissioners of the PPP, the regional instruments governing implementation being the Regional Environmental Plan for Central America (PARCA) and Mexico's National Environment and Natural Resources Programme. According to the Government, no PPP project will be implemented without the requisite environmental impact study.
29. In response to the allegations in paragraph 15 that the Ministry of Communications and Transport required inhabitants of the communities to work without paying them, the Government indicates the relevant legislation in detail. It furthermore states that the Government of Mexico, through the Ministry of Labour and Social Welfare, has stepped up the dissemination and promotion of the labour rights and obligations of indigenous peoples and has produced a Charter of Labour Rights and Obligations for Indigenous Peoples, which has been translated into several indigenous languages and disseminated. The Government also refers to a system of economic aid for labour migrants within the country, the Federal Regulations on Safety, Health and Environment, standards on the use of pesticides, and the laws and regulations prohibiting forced labour, inter alia. It indicates that the labour authority in each jurisdiction is responsible for enforcing labour standards and that in this case responsibility lies with the authorities of the federative states and their labour directorates or departments, the Labour Rights Ombudsman (Procuraduría de la Defensa del Trabajo), the Federal and Local Conciliation Boards and the Local Conciliation and Arbitration Boards. In conclusion, the Government states that the Ministry of Communications and Transport does not hear labour claims on behalf of the Mixe, Chontal and Zapotec indigenous communities in the Tehuantepec Isthmus region of the state of Oaxaca.
30. As to the hydroelectric power plant in Jalapa del Marqués, the planting and extension of eucalyptus forests and the establishment of large scale shrimp farms, the Government emphasizes that it has never promoted any projects of this kind. The Government questions the validity of the signatures contained in the attachment, (Endnote_7) on the grounds that the electoral credentials of the signatories were not enclosed, many signatures are in similar handwriting and there are signatures that look alike.
III. The Committee's conclusions
31. The Committee notes the information and attachments submitted by the complainant organization and the Government's reply.
32. It also notes the Government's statement that article 24 of the ILO Constitution is not mentioned in the representation and that the STIMAHCS submitted a copy of its Statutes, rather than a supplement to the representation, and the Government's assertion that the FAT had no legal standing to make a representation. In this regard, the Committee points out that article 24 is specifically referred to on page 2 of the communication as the basis for making the representation. The question of whether or not the STIMAHCS' communication constitutes a supplement has no bearing on the proceedings. What is relevant, however, is that, in its communication, the STIMAHCS stated that it was submitting proprio motu the representation attached to the communication of 9 October 2002. As to the matter of the FAT's locus standi, the Committee points out that at its 286th Session (March 2003), (Endnote_8) the Governing Body declared that the representation was receivable only with regard to the STIMAHCS and that the other organization is therefore not a party to these proceedings.
33. Consultation and participation regarding development projects. Articles 6 and 7 of the Convention. The Committee notes that the gist of the complainant's allegations is that there was no consultation or participation of the indigenous peoples regarding work that the Government carried out in connection with the Oaxaca-Isthmus-Huatulco highway between 1996 and November 2002, when the representation was made.
34. The complainant organization alleges that the indigenous peoples were not duly informed of the exact route of the highway, nor of its ecological, cultural and economic impact. Furthermore, they did not receive full information, either directly or through the Centro Tepeyac, nor were they consulted or given the opportunity to make proposals in this respect. It notes in particular the records of the Congress of Indigenous Peoples affected by the Oaxaca-Isthmus-Huatulco Superhighway, held on 16 and 17 May 2002, and an open letter, referred to in footnote 6, in which the Congress states its opposition to the PPP citing, among other grounds, breach of Article 6 of Convention No. 169.
35. The material provisions here are Articles 6 and 7 of the Convention. Article 6(1) states:
In applying the provisions of this Convention, governments shall:
(a) 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;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
This Article must be read in conjunction with Article 7 of the Convention, paragraphs 1, 3 and 4 of which provide that:
1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
3. Governments shall ensure that, whenever appropriate, studies are carried out, in co operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.
4. Governments shall take measures, in co operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.
36. The Committee recalls that, in accordance with Article 6, governments shall consult those communities likely to be affected directly, in order in accordance with Article 7 of the Convention, to allow them to participate in their own development and in particular to ensure that "studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them" (Article 7(3)) and to "take measures, in co-operation with the peoples concerned, to protect and preserve the environment". What needs to be determined, therefore, is whether there was consultation and participation for the development projects as the Convention requires. The Committee observes that the Government does not deny the existence of such an obligation.
37. The Committee notes that, in May 2003, a body was created as part of the PPP ICP process known as GAPIE; the aim of which, according to the Government, is to promote the participation of indigenous and ethnic organizations in decision-making about any development projects for their communities. According to the Government, as a result of the creation of GAPIE, workshops have been held in different regions of Mexico to obtain the indigenous peoples' views on development. The Government refers to a document entitled "Results of the public consultation in indigenous regions 2003-2004 (States of the South-Southeast)". The Committee observes that these steps help to ensure that development projects are designed to be inclusive. Noting that in the absence of appropriate machinery for consultation and participation, indigenous peoples are excluded from the formulation of development projects that will have social, spiritual and cultural repercussions for their way of life and affect the environment, the Committee welcomes the creation of this new mechanism. It hopes that the mechanism will take into account the requirements contained in Articles 6 and 7 of the Convention and that it will contribute to promoting real participation by the indigenous peoples in development plans and projects in the future.
38. The Committee notes that GAPIE was created in 2003, subsequent to the period covered by the representation (prior to November 2002). What needs to be ascertained first, therefore, is whether the Government provided specific information on any consultations carried out during the period covered by the representation. Secondly, it notes that the information relating to GAPIE could be material to this case in terms of whether it has been applied, or will be applied in the future, in the event of repercussions from the highway construction work.
39. The Committee also notes that, according to the Government, work is not to construct a new highway but to repair and upgrade an existing one and it was undertaken in consultation with the communities concerned, their interests and rights being taken into account. The Committee observes that the complainants refer in a general way to the construction of a superhighway, (Endnote_9) but that their allegations are based not on whether the highway is new or not, but on the impact and consequences of the work and on the fact that the information provided "made no mention of the exact route or of the ecological, cultural and economic impact of the highway". (Endnote_10) In the Committee's view, the provisions of the Convention that address consultation and participation apply equally to new construction work and to repair work. (Endnote_11)
40. The Committee notes that the Government does not deny that consultation about the highway was necessary. Indeed, it refers to "the work being undertaken in consultation with the communities concerned, their interests and rights being taken into account". While welcoming this information, the Committee notes that the Government says nothing about any consultations during the period covered by the representation. It is therefore unable to conclude from the documentation available that consultations were held during that period. However, in view of the Government's statement that there were consultations, the Committee considers that detailed information needs to be provided on the studies carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact (Article 7(3)) on them of the activities for the construction and/or repair and/or upgrade of the Oaxaca-Isthmus-Huatulco highway, and on the measures taken, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit (Article 7(4)). Furthermore, it is essential that such studies should precede development activities, in accordance with Article 6 of the Convention, because Article 7(3) requires that: "The results of these studies shall be considered as fundamental criteria for the implementation of these activities."
41. Land. Articles 13 and 14. With regard to land which may be affected, the Committee notes that according to the complainant organization: the final section of the highway affects communities involved in ongoing ancestral land disputes (allowing their exclusion from the decision-making process and from any compensation payable for their lands); the highway will erode community structures and fabric, as well as literally splitting communal property by cutting through lands and preventing villagers from moving between their houses and their plots. Moreover, in Guadalupe Victoria, Santa María Zapotitlán and Guiechiquero in the municipality of Jalapa del Marques, the highway crosses the best land, and will cross a river and croplands in Asunción Tlaculita. According to the complainant organization, such a situation would make the indigenous peoples more likely to offer their labour on poor terms (see paragraph 13 of this report). As to the Government's assertion that the attachments to the representation contain information that is inaccurate or out of date and facts that are no longer relevant and therefore do not constitute reliable evidence, the Committee observes that since this representation dates back to 2002 and its examination was delayed owing to the examination of other representations about how the consultation procedure was applied in the context of constitutional reforms, some of the information might well be out of date. However, the representation refers to a number of specific locations that were affected by work related to the highway and which are mentioned above (Guadalupe Victoria, Santa María Zapotitlán and Guiechiquero in the municipality of Jalapa del Marques). As to the Government's assertion that the photographs are indeterminate, the Committee notes that the following locations are indicated at the top of the photographs: Llano Veria Totolapilla community, Jalapa del Marques; San Juan Alotepec community, Yautepec; Guadalupe Victoria community, Yautepec and Asunción Tlacolulita Community, Yautepec. (Endnote_12) The Committee considers that, although the Government finds the photographs inconclusive, the places cited by the complainant organization could be of use to it in formulating observations on any work carried out at these locations and on how the Convention has been applied. The issue here is whether the lands traditionally occupied by the aforementioned communities or by other communities affected by the highway (regardless of whether they have title to the lands) have been affected by the work, the impact studies have been carried out in cooperation with the indigenous peoples and the measures adopted as a consequence of the studies - for example, bridges over the highway, compensation. The Committee notes that the Government has provided no specific information in this regard. It considers that the complainant organization should likewise provide further information to facilitate the task of locating sites said to have been affected.
42. Recruitment and conditions of employment. Article 20. The Committee notes the allegations that the Ministry of Communications and Transport hired indigenous workers for marking, measuring and clearance work, promising them good wages, money for the hire of mules and food, but did not pay them; and that a request was made for a Tequio (unpaid community work) to be convened to perform work free of charge for the Ministry. The Committee notes that in response, the Government provides extensive information on its labour legislation (a summary of which is contained in paragraph 29 of this report), and states that pay claims are heard not by the Ministry of Communications and Transport, but by the labour courts. The Committee observes that the Government has provided no specific information on these allegations. It considers that the Government should provide information on any measures taken to follow up on this case, in which according to the complainant, the Administration is the employer. It also considers that the complainant organization should provide specific information on the communities affected, indicating whether the individuals and/or communities affected have taken their claims to the courts and, if so, to report on the status of the proceedings.
43. As to the allegations regarding the construction of a hydroelectric plant in Jalapa del Marqués, the planting and extension of eucalyptus forests and the establishment of large-scale shrimp farms, the Committee notes the Government's statement that it has never promoted any projects of this kind. Since the complainant's and the Government's submissions contradict each other, the Committee considers that there is insufficient evidence on which to proceed further on this point. It would therefore be advisable for the Government and the complainant organization to continue to send information on the matter to the Committee of Experts.
44. The Committee also notes that various communities have expressed their concern to the Government through the Centro Tepeyac and the records and open letter of the Congress of the Indigenous Peoples of the Isthmus Region. It notes the signatures of local people concerned by the work on the highway and by the work referred to in paragraph 43 of this report. It also notes the Government's claim that the signatures are not valid as the electoral credentials of the signatories were not enclosed, that many signatures are in similar handwriting and that there are signatures that look alike. The Committee notes that the signatures regarding the work on the highway are accompanied by electoral credential numbers and the stamp of the local courts or other local authorities, while the list of signatures regarding the other works referred to in paragraph 43 bears the stamp of the Centro Tepeyac and is signed by its director. Although the Government may be justified in questioning the validity of some of the signatures, the Committee cannot conclude that the 149 pages of signatures endorsed by the complainant organization and bearing the stamps of communal authorities or the Centro Tepeyac should be completely ignored, neither does the Government advocate such an approach. The Committee considers that the importance of these signatures lies in the fact that they demonstrate that some members of the indigenous communities concerned feel that they were excluded from the consultation process. It notes that point 6 of the list of requests contained in the representation asks that legal mechanisms for information and consultation processes pertaining to development projects be agreed on by the indigenous peoples and the Government, with advice from the ILO and the United Nations High Commissioner for Human Rights. Considering that the establishment of efficient consultation and participation mechanisms contributes to the settlement of conflicts through dialogue, while reducing social tensions, and that such mechanisms are prescribed by the Convention in order to ensure that development plans and programmes are truly inclusive, the Committee highlights the need for efforts to create a consensus regarding procedures; to facilitate access to the said procedures and to ensure their widespread dissemination, as well as creating a climate of trust with the indigenous peoples conducive to productive dialogue. The Committee considers that it is imperative in all consultations to establish a climate of mutual trust.
IV. The Committee's recommendations
45. The Committee recommends to the Governing Body that it approve this report, and that, in the light of the conclusions contained in paragraphs 31 to 44 of the report:
(a) it request the Government to inform the Committee of Experts on the Application of Conventions and Recommendations whether the Advisory Group for the Participation of Indigenous and Ethnic Peoples (GAPIE) has been employed (and if so, how) to resolve any situations resulting from work on the Oaxaca-Isthmus-Huatulco highway;
(b) it request the Government to provide the Committee of Experts with detailed information on the studies carried out, during the period covered by the representation, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of the construction and/or modernization work on the Oaxaca-Isthmus-Huatulco highway; on measures taken, in cooperation with the peoples concerned, to protect and preserve their environment; on the way in which the results of the studies have been or are considered to be fundamental criteria for the execution of the work, in accordance with Articles 6 and 7 of the Convention, and to provide copies of any studies or consultation carried out to this effect during the period covered by the representation;
(c) it request the Government and the complainant organization to provide further information to the Committee of Experts on which lands traditionally occupied by indigenous communities within the meaning of Article 13 of the Convention (whether or not they have title to the lands), including those lands referred to in paragraph 41 of this report, have been affected by work on the highway, and, if so, how and what measures have been adopted, including any compensation;
(d) it request the Government to provide information on the follow-up to the allegations concerning indigenous workers who were hired on the basis of a verbal agreement and who received no remuneration, as well as on the convening of a Tequio, and request the complainant organization to provide specific information on those communities allegedly affected by the convening of a Tequio and to indicate, furthermore, whether the persons and/or communities allegedly affected by the non-remunerated work have taken their claims to the courts and, if so, to report on the status of the proceedings;
(e) it request the Government and the complainant organization to provide detailed information to the Committee of Experts in support of the contradictory information on the construction of a hydroelectric plant in Jalapa del Marqués, as well as on the planting and extension of eucalyptus forests and the establishment of large-scale shrimp farms;
(f) it request the Government to adopt any measures necessary to resolve the situation that gave rise to the representation, including the establishment, following consultations with the indigenous peoples, of efficient consultation and participation processes regarding the development projects, plans and programmes, in order to ensure that these are truly inclusive; to facilitate access to the said procedures and to ensure their widespread dissemination, as well as creating a climate of trust with the indigenous peoples conducive to productive dialogue and providing detailed information to the Committee of Experts in this regard.
46. The Committee recommends that the Governing Body adopt the present report, in particular paragraph 45, and that it declare the present procedure closed.
Geneva, 7 June 2006.
Point for decision: Paragraph 46.
Endnote 1
The communication of 9 October 2002 was from the Authentic Workers' Front (FAT).
Endnote 2
Letters sent by the Centro Tepeyac on behalf of the communities mentioned therein which were signed by the Bishop Emeritus of Tehuantepec and President of the Centro Tepeyac dated 8 January 2001, 25 January 2001, 21 December 2001 and 18 January 2002.
Endnote 3
The letter of 21 December 2001 refers in detail to various communities located in the municipalities of San Carlos Yautepec, San Pedro Martir Quiechapa, Santa María Quiegolani and Santa María Ecatepec, and indicates that preliminary markers had already been laid out in these areas in preparation for highway construction work.
Endnote 4
According to the home page of the Government of Mexico (http://ppp.sre.gob.mx/), the PPP is an instrument for cooperation which seeks to integrate the Mesoamerican region, coordinating the efforts and actions of the seven countries of Central America and the nine states which make up the south/south-east region of Mexico. The objective is to promote integral development, as well as integration in areas where a joint approach would create regional public assets and improve the quality of life of the inhabitants.
The home page of the Interamerican Development Bank (http://www.iadb.org/ppp/) refers to the PPP in the following terms: the Plan Puebla Panama is a proposal made by the eight Mesoamerican countries to strengthen regional integration and to promote social and economic development projects in the states of the south/south-eastern region of Mexico and the Central American Isthmus. The participants in the PPP are: Belize; Costa Rica; El Salvador; Guatemala; Honduras; Nicaragua; Panama and the nine states of the south/south-eastern region of Mexico: Campeche; Chiapas; Guerrero; Oaxaca; Puebla; Quintana Roo; Tabasco; Veracruz and Yucatan. The Mesoamerican region covers over 1 million square kilometres and has around 64 million inhabitants.
Endnote 5
Letter from the Centro Tepeyac dated 21 May 2002 to the Ministry of Communications and Transport, according to which three workers from Santa María Zapotitlán were hired on 3 April 2001 to work on sites that are specified, having verbally agreed on a sum, only to be then paid a much lower amount, after having been obliged to sign a blank sheet of paper on the understanding that the necessary paperwork would be completed at the Ministry and that the remainder of the sum in question would be paid subsequently. According to the letter, the workers in question are Mr. Francisco Flores Rosales, Mr. Joel Flores Martínez and Mr. Elías Flores Martínez, all of whom are from Santa María Zapotitlán in the Sierra Chontal mountains and worked in: (1) the area bordering on San Juan Alotepec; (2) Cerro Cascabel; (3) Los Ocotes Tiernos; (4) La Laguna; (5) El Guacamayo; (6) El Arroyo Encino; and (7) El Achiote.
Endnote 6
Letters sent by the Centro Tepeyac from 8 January 2001, requesting information on the route of the superhighway and its implications (bridges, branch roads) and seeking consultations; a letter from the General Coordinator of the Presidency of the Republic to the Director of the Centro Tepeyac stating that the PPP was at the integration phase and was a sustainable development project, the main aim of which was to contribute to raising living standards in the south/south eastern region and a communication - Oficio 105.1.086 - of 16 January 2002 from the General Directorate of Federal Highways to the Centro Tepeyac containing general information about the highway and stating that more detailed information could be requested from the Oaxaca Ministry of Communications and Transport; an open letter from the Congress of Indigenous Peoples of the Isthmus Region, held on 16 and 17 May 2002, opposing the project, inter alia, on the following grounds: (a) destruction of biodiversity and places of worship and disbanding of communities; (b) failure to hold the consultations prescribed in Convention No. 169; (c) failure to respect the practices and customs of the indigenous peoples; (e) generation of cheap labour and plundering of resources; and (d) risk of theft of ancestral knowledge accumulated over centuries; a letter from the Centro Tepeyac to the Ministry of Communications and Transport claiming pay on behalf of three workers and a letter of June 2002 to the President of the Republic from the Centro Tepeyac and community members and citizens of Jalapa del Marqués expressing concern at the construction of an electricity generating plant on community lands which was not notified to inhabitants, to which were attached seven pages of signatures and a letter of 1 October 2002 about the plant addressed to the Minister of Energy. Also attached were: (1) a document entitled "Citizens Belonging to the Indigenous Peoples Affected by the Failure to Consult Them on the Construction of the Oaxaca Isthmus Huatulco superhighway" (149 pages containing some 21 signatures per page; (2) photos of the construction works; (3) newspaper articles; (4) a record of the Congress of Indigenous Peoples affected by the Oaxaca Isthmus Huatulco Superhighway, held on 16 and 17 May 2002 (24 pages).
Endnote 7
See footnote 6.
Endnote 8
Record of decisions, document GB.286/205.
Endnote 9
See para. 8.
Endnote 10
See para. 12.
Endnote 11
See document GB.282/14/3, para. 82.
Endnote 12
Other locations are cited in footnote 3.