Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee has examined with interest the detailed first report communicated by the Government.

2. It takes special note of the adoption of a revised article 4 of the National Constitution in 1991, providing that the State "has a multicultural composition based originally on its indigenous peoples". The Committee also notes other recent legislation intended for the protection of the indigenous peoples of the country. It would be grateful if the Government would keep it informed of the progress achieved in adopting the legislation which will regulate article 4, and of its implementation in practice.

3. Article 1 of the Convention. The Committee notes the detailed census information provided on the indigenous population of the country. Noting that use of an indigenous language is the primary basis for deciding on whether an individual is counted as indigenous, the Committee would be grateful for information on how the requirement that self-identification be regarded as a fundamental criterion is implemented, in particular in a situation of conflict over whether an individual is to be included in an indigenous community.

4. Article 2. Noting the detailed information communicated on the involvement of indigenous communities in decision-making and in consultations, the Committee would be grateful for information on the effect given to the proposal to include indigenous representatives on the Executive Committee of the National Indian Institute (INI).

5. Article 6. The Committee notes the information in the report concerning consultation with indigenous peoples before implementing development projects which affect them. It would be grateful if the Government would provide a general assessment of the workings of this process; for instance, examples of cases in which these consultations have resulted in the modification of project designs.

6. Article 7, paragraph 3. The Committee notes that impact assessment is included among the responsibilities of the various organizations responsible for indigenous affairs, including the Regional Solidarity Funds for Development. The Committee would be grateful for information on how the requirement of this provision of the Convention is met in practice, including for instance information on whether impact assessments were carried out in relation to the decision to execute the San Juan Tetelcingo hydroelectric project which appears likely to have serious repercussions on the Nahua indigenous peoples of Alto Balsa, Guerrero.

7. Article 8. The Committee notes from the report that while article 4 of the Constitution as amended directs courts and agrarian tribunals to take into consideration the customs of the indigenous peoples, this may be in conflict with other constitutional provisions. It notes that INI has been negotiating agreements with federal and state prosecutors' offices for linguistic and anthropological expertise to be used in this area. Please provide further information on developments in this regard. Please also indicate the extent to which customary law may be respected in such areas as marriage, inheritance and other family relations, and on any procedures which may exist for resolving conflicts between customary and national law.

8. Article 9. The Committee notes the statement that traditional forms of organization of indigenous peoples are respected, amounting to recognition of the authority of traditional institutions, and that for serious cases the question may be put before the competent judicial authority. Please provide examples of any cases in which courts have considered customary methods for dealing with penal offences.

9. Article 10. The Committee notes from the report that while the Penal Code allows for methods of punishment other than imprisonment, no account may be taken of the cultural characteristics of an offender in imposing penalties. Please indicate what measures may be contemplated to give effect to this Article.

10. Article 12. The Committee notes the information provided on safeguarding indigenous peoples against abuse of their rights, and awaits with interest the adoption of legislation to implement article 4 of the Constitution.

11. Article 14. The Committee notes that legislation is being drafted to provide the framework for the protection of indigenous lands, and requests the Government to forward this legislation when it is adopted. It notes the statement in the report that the agrarian reform process gave rise to confusion over land rights, and that as a result most rural indigenous communities lack the documentation necessary to protect their rights and that many of the land holdings of these peoples are not clearly defined. The Committee therefore requests the Government to indicate in its next report the extent to which the lands traditionally occupied by indigenous and tribal peoples has been identified and their rights protected, as required by this Article. Please indicate also the experience which may now have been acquired under the recently adopted legislation on the resolution of land claims by indigenous communities, including the number of such claims which have been made and their resolution.

12. Article 15. The Committee notes that the State has primary responsibility for the management and conservation of natural resources (section 4 of the Agrarian Act of 23 February 1992). It also notes that there has been considerable degradation of the environment on indigenous lands, and that the National Development Programme is therefore considering projects to incorporate indigenous techniques into environmental conservation strategies implemented in these areas. The Committee notes however that no information has been provided on the extent to which indigenous peoples participate in the use, management and conservation of natural resources (paragraph 1 of this Article).

13. As concerns paragraph 2 of Article 15, the Committee notes from the report that the Government retains ownership of most natural resources pertaining to land, including the lands traditionally occupied by indigenous peoples, but that expropriation can only take place for reasons of public utility, and the exploitation of mineral resources under indigenous lands can take place only with the consent of the peoples concerned. Please indicate what legislation provides for the consent of indigenous peoples to mineral exploitation.

14. The Committee has found no indication from the information provided in the report that special measures have been taken to safeguard the rights of indigenous peoples to the natural resources pertaining to their lands. The Government has provided no information on any measures which would ensure shared responsibility for management and conservation of resources, or that the indigenous communities would benefit from the exploitation of resources on their lands, and the Government has made no mention in its report of any programme except expropriation and compensation as a response to the possibility of exploitation of the natural resources pertaining to the lands of indigenous communities.

15. The Committee would point out that the retention of ownership of natural resources by the State is no obstacle to ensuring that exploration and exploitation cause a minimum of disruption to indigenous peoples, that these peoples participate in the use, management and conservation of these resources, and that they share in the benefits of these activities, especially when the present Article is read together with Articles 13 and 16 of the Convention, and in the light of the requirement in Article 7 that they shall participate in the formulation, implementation and evaluation of plans and programmes for development which may affect them directly. It would be grateful for additional information in the next report on the measures envisaged to implement these provisions of the Convention.

16. Article 17. The Committee requests the Government to keep it informed of progress towards the adoption of legislation to apply article 4 of the Constitution as it affects respect for the procedures established by these peoples for the alienation of lands they occupy (paragraph 1); and of the consultations being held in this regard with indigenous representatives (paragraph 2). As concerns paragraph 3, the Committee notes that recent changes in the agrarian legislation would facilitate the alienation of the land of ejidos which was formerly inalienable, or its transformation to individual holdings which would also remove earlier restrictions on alienation. Please indicate the measures being taken in this connection to ensure that this does not lead to the loss of indigenous lands through persons not belonging to these peoples taking advantage of their customs or lack of understanding to secure the ownership of these lands. The Committee notes in this connection that landlessness among indigenous peoples is closely linked to poverty and to migration toward the cities.

17. Article 20. The Committee is concerned to note from the comments of INI in the report that there are serious abuses practised against workers in the rural sector, of whom more than 60 per cent are indigenous. INI reports that many indigenous people are recruited by "enganche", that basic wages are not paid, that trade unions do not represent indigenous workers and that when indigenous workers attempt to form trade unions they are denied registration, that basic safety precautions are lacking, and that many other abuses may be noted. It is stated in this section of the report that the Federal Labour Act provides no protection, and that in so far as the regulation of agricultural work is the responsibility of the constituent states, almost no labour inspection is carried out especially for seasonal rural workers. It is also stated that forms of compulsory labour are practised against indigenous workers in some states. The Committee notes at the same time that the Ministry of Labour and Social Welfare has not reported such practices in the information it has provided on the application of the Convention, and has not commented on the information provided by INI. The Committee therefore hopes that the Government will provide detailed information in its next report on the measures it is taking to correct this situation on an urgent basis.

18. Articles 21 to 23. The Committee notes the information on the various measures to promote vocational training, handicrafts and rural industries, and hopes that the Government will provide additional information in its future reports on the practical impact of these programmes.

19. Articles 24 and 25. The Committee notes the information provided on social security and health in the indigenous communities. It is apparent that significant efforts are being made in this regard, inter alia in the context of the Health Programme within the National Development Programme for Indigenous Peoples. Comments on the Government's report by the World Health Organization indicate that INI has been active in the development of community health teams and training and setting up the National Council of Traditional Practitioners. The Committee hopes that the Government will continue to provide information in this respect in its future reports.

20. Articles 26 to 31. The Committee hopes that the Government will continue to provide information in future reports on the progress achieved in extending educational services to indigenous communities.

21. Article 32. The Committee notes that large numbers of indigenous refugees from Guatemala have been living in Mexico for some time. It would be grateful for information on their situation, including information on whether measures have been taken to promote contacts between these refugees and Mexican indigenous people.