Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. In 2004, the Committee noted the Government’s report received in October 2004. Because the report had arrived late and was extensive, the Committee was unable to examine it in detail and it therefore confined its comments to matters directly related to the report of the tripartite committee appointed to examine the representations made by the Union of Academics of the National Institute of Anthropology and History (SAINAH), the Trade Union of Workers of the National Autonomous University of Mexico (STUNAM) and the Independent Union of Workers of La Jornada (SITRAJOR), adopted by the Governing Body in March 2004 (document GB.289/17/3). The Committee stated that it would refer to the other matters in subsequent sessions.

2. Further to the above report, the Committee raised the following issues: (a) consultation (paragraph 108 of the tripartite committee’s report); (b) SITRAJOR’s representation containing allegations that cover much of the Convention (paragraph 139 of the report); and (c) the content of the constitutional reform (paragraph 141 of the report). On the subject of consultation, the Committee noted the establishment of the National Commission for the Development of Indigenous Peoples (CDI). It will examine further the issues relating to the mechanisms and representativeness in its direct request. As to paragraph 139 of the report, in view of the vast range of subjects involved, the tripartite committee asked the Committee of Experts to monitor them and the Committee requested the authors of the representation to provide the information sought in paragraph 139(g) of the report of the tripartite committee. The Committee observes that this information has not been supplied. It will continue to examine these matters further in its direct request. As to the constitutional reform, the Committee referred in its previous comments to the following: (1) Definition and self-identification. Linguistic requirements and physical occupation; (2) Land, territories and natural resources; and (3) Administration. The Committee examines further the issues raised in (1) and (3) above in its direct request. As to the communication sent in 2001 pursuant to article 23 of the ILO Constitution by the Trade Union of Telephone Operators jointly with other workers’ organizations (section 49), the Committee takes note of the Government’s reply. Since some of the points raised by the above organizations are general in nature, the Committee will examine them in its direct request in the context of its general examination of the application of the Convention.

3. The Committee further notes that the 2004 report contains information in response to comments the Committee made in 2001. The Committee suspended its examination of these matters pending completion of the representation proceedings (which ended in March 2004) in view of the fact that the representations covered most of the Convention. The Committee notes the Government’s efforts to provide the Committee with full information on a number of highly complex issues related to the Convention. It also notes the Government’s efforts to apply the Convention and invites it to pursue the search for a solution to several very complex matters which are still at issue, such as those involving lands and natural resources with the participation of the indigenous peoples concerned.

Communication from the National Union of Education Workers

4. Land. The Committee notes the communication from Trade Union Delegation No. D-III-57, section XI, of the National Union of Education Workers (SNTE), Radio Educación, pursuant to article 23 of the ILO Constitution received on 28 June 2005 and forwarded to the Government on 29 July 2005. The SNTE alleges that the Government of Mexico failed to follow the recommendations in the report submitted to the Governing Body by the tripartite committee set up to consider a representation made by the SNTE (final report adopted by the Governing Body in June 1998 - document GB.272/7/2).

Background

5. The subject of the above representation was a claim filed by the Union of Huichol Indigenous Communities of Jalisco, through the SNTE, for the return to the Huichol community of San Andrés de Cohamiata of 22,000 hectares adjudicated by the federal Government to agrarian groups in the 1960s. The land in question included Tierra Blanca, El Saucito, in the State of Nayarit (which includes the villages of El Arrayán, Mojarras, Corpos, Tonalisco, Saucito, Barbechito and Campatehuala) and Bancos de San Hipólito, in the state of Durango, which, according to the complainant organizations, also belonged to San Andrés Cohamiata.

6. In paragraph 45 of the above report, the Governing Body asked 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; to inform the Committee of Experts on the decision to be handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection of constitutional rights ("amparo") lodged by the complainants and the Union of Huichol Indigenous Communities, against the decision handed down by the Agrarian Tribunal in the particular case of Tierra Blanca; on the measures which had been taken or could be taken to remedy the situation of the Huicholes, who represent a minority in the area in question and who have not been recognized in agrarian censuses, 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; and on the possible adoption of appropriate measures to remedy the situation which gave rise to this representation, taking account of the possibility of assigning additional land to the Huichol people when they do not have the land necessary for providing the essentials of a normal existence, or for any possible increase in their numbers, as provided in Article 19 of the Convention.

7. In 2001, the Committee took note of the decision rejecting the claim for constitutional rights ("amparo") filed by the members of the Huichol community of Tierra Blanca, and reiterated its request to the Government to make all necessary efforts to remedy the situation that gave rise to the representation, taking into account the possibility of assigning additional land to the Huichol people, as provided in Article 19 of the Convention.

8. Communication from the SNTE. In its communication of 28 June 2005, the SNTE alleges that seven years after the recommendations were issued, the Government has not taken the necessary steps to remedy the situation that gave rise to the representation. The SNTE refers to two communities: the indigenous community of Tierra Blanca and the indigenous community of Bancos de San Hipólito or Cohamiata.

Indigenous community of Tierra Blanca

9. The communication indicates that on 13 February 2001 the Agrarian Tribunal handed down a new decision in which it denied the existence of the community of Tierra Blanca on the grounds that it retains community status only in relation to its parent community, San Andrés Cohamiata, despite being officially separated from the latter; and, although the two continue to be united by culture, history and geography, and Tierra Blanca’s relationship with San Andrés Cohamiata, "is its ceremonial centre, but is unconnected to the land they have been claiming, which is a part of the land adjudicated to other communities and to which the latter hold title".

Indigenous community of Bancos de San Hipólito or Cohamiata

10. The communication states that the presidential decision granting title for the land to San Andrés de Cohamiata, recognized only a part of the land, removing from San Andrés 43 per cent of its ancestral lands recognized in titles dating back to the colonial era. Furthermore, the lands thus separated included the community of Bancos, which was thus excluded from all protection, and title for its lands was given to San Lucas de Jalpa. On 14 February 2000, the President, Secretary and alternate Spokesperson of Bancos filed a claim for constitutional rights ("amparo") to the Third District Court for Administrative Affairs of the State of Durango. In February 2001, the above Court ruled that land claims are to be brought before the Agrarian Tribunal. On 7 November 2002, the representatives of the community accordingly sought the quashing of the 1981 presidential decision in favour of San Lucas de Jalpa as invalid, and the land claims are still being pursued under Case No. 327/2002. In addition, a forestry exploitation concession has been granted, which the complainants allege to be unlawful because the land involved is currently the subject of litigation. The concession was granted by the Secretariat of Environment and Natural Resources (SEMARNAT) to San Lucas de Jalpa for the exploitation of wooded areas which, according to the complainants, are part of the traditional lands of Bancos de San Hipólito.

11. In conclusion, they indicate that, in August 2003, the federal Government announced the "programa focos rojos", a special plan to deal with rural disputes which includes the Huichol region, but not the Bancos de San Hipólito community.

12. The Committee notes that the Government has not sent comments on the above communication. It notes, however, that in its report of 2004 it provided the following information.

13. In the part of its report dealing with Tierra Blanca, in Nayarit, the Government states that this is an Huichol indigenous community that came to the State of Jalisco and settled on a 2,000 hectare area of land claimed by the mestizos of San Juan Peyotan as part of their land. The Government indicates that conciliation proceedings had been ongoing for ten years, following the establishment of machinery by the Instituto Nacional Indigenista for dialogue in pursuit of a peaceful settlement whereby the agrarian group of San Juan Peyotan would allow the Huicholes to keep the area. According to the Government, a number of options have been examined including a proposal to transfer the Huicholes to another area, but for a number of reasons the problem has not been resolved and has now been referred to the Agrarian Tribunal. The Committee further notes that in its 2004 report, referring to agrarian disputes that require immediate settlement, the Government indicates that the Secretariat for Agrarian Reform signed the agreement establishing the operational rules of the programme to deal with disputes in rural areas in which the populations involved have the status of ejidos, communities, communes, small "neighbour owners" and any other party to a dispute concerning land tenure in a rural area. Under the programme, persons involved in some type of dispute about land tenure in a rural area benefit from economic support, in kind or in the form of compensation paid for agreed expropriation.

14. The Committee notes with concern that the situations which prompted the SNTE’s representation have still not been settled. It notes with interest, however, that programmes are being developed to deal with agrarian disputes. It invites the Government to give priority to the situation of the communities about which the representation was made, particularly those of Bancos de San Hipólito and Tierra Blanca, to include them in such programmes and to seek appropriate solutions in consultation with the indigenous peoples concerned. It also invites the Government to provide information on the measures which have been taken or which could be taken to remedy the situation of the Huicholes, who are a minority in the area in question and have not been recognized in land censuses. These measures could include 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. The Government is also invited to take appropriate measures to remedy the situation which gave rise to the representation, taking account of the possibility of assigning additional lands to the Huichol people when they do not have the area necessary for providing the essentials of normal existence, or for any possible increase in their numbers, as provided in Article 19 of the Convention. The Committee further invites the Government to explore suitable solutions regarding the concession granted for wooded areas, to the extent that they have been traditionally occupied, in accordance with Articles 13 and 15 of the Convention.

Constitutional reforms. Follow-up to the report adopted
by the Governing Body in March 2004 (GB.289/17/3)

15. The Committee reiterates paragraphs 10 and 11 of its observation of 2004, which read as follows:

10. Lands, and territories and natural resources. Section 2(A)(VI) of the reform provides that the Constitution recognizes and guarantees the right of indigenous peoples and communities to "have access (…) to the use and preferential exploitation of the natural resources in the areas inhabited and occupied by communities except for those which are strategic areas" under the terms of the Constitution. Strategic areas are defined in article 27 of the Constitution. In this respect, the Government states in its report that "the reform considers that, in supplementing the use and exploitation of the natural resources in their lands and territories, these are understood as the whole of the habitat used and occupied by indigenous communities, except those for which direct control is exercised by the nation and which are enshrined in article 27 of the Constitution". The legislation in many countries provides that rights over subsurface resources remain the property of the State. In Article 15, paragraph 2, of the Convention, in which this legal principle is recognized, the obligation of States is set forth to consult indigenous peoples who may be affected before permitting activities for the exploration or exploitation of subsurface resources located in indigenous territories. This means that the Convention contains specific provisions on the territories traditionally occupied by indigenous peoples which are the property of the State, but does not exclude them from the scope of the Convention. Indeed, Article 15, paragraph 2, of the Convention was drawn up precisely for cases in which the State retains ownership of mineral or subsurface resources.

11. The Committee requests the Government to indicate the manner in which effect is given to Article 15, paragraph 2, of the Convention in the strategic areas referred to in the provision of the reforms referred to above and in article 27 of the Constitution.

The Committee is also addressing a request directly to the Government.