Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the communication from the Trade Union Delegation of Radio Educación, section XI of the National Union of Education Workers (SNTE), dated 25 September 2009, which was sent to the Government on 5 October 2009. It also notes the communication from the Independent Union of Daily Workers (SITRAJOR), dated 7 September 2009, which was also sent to the Government on 5 October 2009. Owing to their late arrival, the Committee will examine both communications in 2010, together with the observations of the Government in this respect. With reference to its previous observation, the Committee also recalls that it was unable to examine the Government’s report fully owing to its late arrival and will therefore examine it in its direct request, together with the most recent report.

Community of San Andrés de Cohamiata. Follow-up to the Governing Body report of June 1998 (GB.272/7/2). The Committee notes with regret that the Government’s report does not contain any information in reply to its previous observation in which it examined the case of the Community of San Andrés de Cohamiata on the basis of a communication received from the SNTE, dated 7 November 2007. In this communication, the SNTE alleged that the Government of Mexico had not complied with the recommendations made by the Governing Body in a 1998 report on the representation submitted by the abovementioned trade union years earlier (GB.272/7/2).

The Committee recalls that the subject of the representation was the claim made by the Union of Huichol Indigenous Communities of Jalisco, through union delegation D-III-57 of the SNTE, for the return to the Huichol community of San Andrés de Cohamiata of 22,000 hectares awarded by the Federal Government to agrarian groups in the 1960s. The land claimed 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.

The Committee also recalls that it re-examined the case of the community of San Andrés de Cohamiata in its direct request of 2001 and its observation of 2006, in connection with the receipt of communications from the SNTE which referred in particular to the situation of the community of Tierra Blanca and the community of Bancos de San Hipólito or Cohamiata.

In its observation of 2008, the Committee noted that the Government, according to the 2007 communication from the SNTE, was still failing to take the necessary action to rectify the situations which had given rise to the representation and that the territorial situation of the community of Bancos had seriously deteriorated since there was a real threat that what the SNTE called the “legalized dispossession” of the lands of this community might become definitive. The SNTE indicated in its communication that the agrarian tribunals had issued a ruling validating the Presidential Decision of 1981 which had been contested by the Huichol community. This Decision awarded the Bancos lands to the agrarian community of San Lucas de Jalpa. The SNTE also indicated that, on 10 August 2007, the community filed a claim for the protection of constitutional rights (amparo) against the ruling of the Higher Agrarian Tribunal and this is the final judicial procedure available in national law.

The SNTE alleged that, as things stand at present, the agrarian legislation does not provide for adequate procedures as referred to under Article 14(3) of the Convention, to recognize land traditionally occupied by indigenous peoples and that, on the contrary, the courts only recognize the validity of official documents. The union pointed out that, although there was substantial proof that the Huicholes had lived on the lands from time immemorial – as shown by the existence of titles granted by the Spanish Crown, as well as topographical, historical and anthropological studies – this was insufficient because there were no procedures in national law to establish a link between the facts as presented and international standards.

The Committee expressed its concern because the situation which had given rise to the representation remains unchanged. It observed that the key issue at stake in this case is the way in which national law and the Convention regulate land rights and remarked that, under Conventions Nos 107 and 169, “traditional occupation” is in itself a source of rights. However, it noted that, although the Government maintains that the procedures of the agrarian tribunals give expression to Article 14, the SNTE asserted that these procedures failed to take account of the evidence of traditional occupation because they gave precedence to the formal validity of the titles granted to San Lucas de Jalpa over the concept of traditional occupation. The Committee also pointed out that “the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force” (GB.276/16/3, paragraph 36). In the light of the above, the Committee asked the Government to do its utmost to guarantee the application of Article 14 in settling this case, including by means of negotiation, and to provide information in this respect. It also asked the Government to provide detailed information on the manner in which national law gives expression to Article 14 of the Convention and especially the concept of traditional occupation as a source of ownership rights.

The Committee understands that since the communication from the SNTE in 2007, various judicial rulings were issued on the case in question, culminating in amparo ruling No. 46/2009 of 17 June 2009 from the Administrative Collegial Tribunal and the ruling of 11 August 2009 issued by the Higher Agrarian Tribunal in compliance with the final judgement of the Collegial Tribunal: (i) declaring the partial nullity of the Presidential Decision of 28 July 1981, solely with respect to the disputed area of land of 10,720 hectares, which was issued in the proceedings for the recognition of, and granting of title to, communal property in favour of San Lucas de Jalpa, in order to make the village of Bancos de Calitique (or Cohamiata) a party to the proceedings; (ii) declaring the nullity of the proceedings which gave rise to the negative report from the Agrarian Advisory Board dated 20 June 1985 rejecting the award of land to the village of Bancos de Calitique; and (iii) ordering the Single Agrarian Tribunal of Durango to institute the claim of Bancos de Calitique dated 8 March 1968 as proceedings for the recognition of, and granting of title to, communal property. It also adds that the Single Agrarian Tribunal must also take into consideration in both proceedings that none of the claimant agrarian groups holds titles to land.

While noting these developments, the Committee is bound to express its concern at the fact that, although the proceedings for the recognition of, and granting of title to, communal property are being reintroduced, the obstacle remains that, according to the allegations, there is no adequate procedure which enables land claims to be settled in conformity with the Convention. The Committee again reminds the Government that, with regard to the application of the Indigenous and Tribal Populations Convention, 1957 (No. 107), it emphasized the fact that traditional occupation confers the right to land under the terms of the Convention, regardless of whether that right has been recognized or not. Similarly, Article 14 of Convention No. 169 provides that traditional occupation is in itself a source of rights. This means that if claims to land demonstrating traditional occupation cannot be settled, the land rights of indigenous peoples may be violated.

In particular, this implies that the procedures referred to by Article 14(3), of Convention No. 169 can only be considered “adequate” if they enable indigenous peoples to assert traditional occupation as the source of their land rights and thereby settle their claims. In this respect, the Committee wishes to emphasize once again that “the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force” (GB.276/16/3, paragraph 36) and that, in the case in question, tackling the consequences which are still felt at the present time is precisely what is necessary.

However, the Committee recalls that one of the allegations made by the SNTE is basically that judicial rulings under national law took no account of the proof of traditional occupation by the community of Bancos, such as titles granted by the Spanish Crown, and topographical, historical and anthropological studies submitted by the community, and precedence was given to the formal validity of the titles granted to the agrarian community of San Lucas de Jalpa, whereas it was precisely those titles which were contested for having been granted without taking account of the traditional occupation by the community of Bancos.

The Committee also expresses its deep concern at the fact that the claims in question have remained before the agrarian tribunals for decades without any solution being reached. In addition to the above the Committee considers that a criterion for determining procedures are “adequate”, in accordance with the terms of Article 14(3), of the Convention, is that they enable land claims to be settled within a reasonable period of time. The Committee also recalls that, according to the terms of Article 14(2), of the Convention, Governments have the obligation to take the necessary steps to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. In this respect, the Committee also wishes to emphasize that Article 12 of the Convention states that the peoples concerned must be able to take legal proceedings for the effective protection of their rights or, in other words, legal procedures must exist which enable the effective protection of their rights.

Moreover, the Committee cannot overemphasize the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories which they occupy or otherwise use and the obligation of governments to respect that relationship. The Committee considers that the recognition and effective protection of the rights of indigenous peoples to the lands that they traditionally occupy in accordance with Article 14 of the Convention is of vital importance for safeguarding the integrity of these peoples and, consequently, for respecting the other rights established in the Convention.

Emphasizing the Government’s obligation to recognize the rights of the peoples concerned to the lands that they traditionally occupy and to which they have traditionally had access in accordance with Article 14 of the Convention, the Committee urges the Government to take all necessary steps without delay to ensure full compliance in practice with this provision in resolving the case of the community of Bancos and, in particular, to ensure that account is taken of traditional occupation as a source of land rights, including through negotiations. Recalling that the claim submitted by the community of San Andrés de Cohamiata also covers the reincorporation of areas other than Bancos, the Committee also requests the Government to take the necessary steps to ensure that there are adequate procedures in accordance with the terms described above to settle the land claims which are still pending. More generally, the Committee requests the Government to contemplate the possibility, in consultation with the indigenous peoples, of modifying existing procedures relating to land claims in order to solve the problems relating to the full application of Article 14 of the Convention such as those which have arisen in the case of San Andrés de Cohamiata. The Committee also requests the Government to supply detailed information on the measures taken in this respect and also with regard to compliance with the recommendations contained in paragraph 45(a) and paragraph 45(b)(i), (ii) and (iii) of Governing Body report GB.272/7/2.

Articles 2, 3 and 7. Forced sterilization. Follow-up to the Governing Body report of March 2004 (GB.289/17/3). The Committee refers to its observations of 2006 and 2007 containing its follow-up to the Governing Body report of March 2004 (GB.289/17/3) and with regard to point (g) of paragraph 139 of the report (forced sterilization), including on the basis of a communication received from SITRAJOR.

The Committee recalls that the reports of the Commission for the Defence of Human Rights (CODDEHUM-GUERRERO) and the National Human Rights Commission sent by SITRAJOR refer to complaints, investigations, observations and recommendations regarding cases in which members of public health institutions, both state and federal, were alleged to have performed vasectomies on indigenous men and fitted indigenous women with intra-uterine devices as a method of birth control, without their free, informed consent, in the States of Guerrero and Oaxaca. The Committee also noted the report’s reference to a specific local study alleging that the health system for indigenous communities is precarious, and referring to the inhumane and discriminatory treatment of indigenous persons in health-care centres, and to the practice of forced contraception of women by tying their fallopian tubes without their consent.

The Committee notes the Government’s indication in its report that the health institutions of the Government of Mexico have no record of judicial or administrative complaints concerning alleged violations of the sexual and reproductive rights of the indigenous population. The Government states that, in the context of the “Opportunities” programme of the Mexican Social Security Institute (IMSS), guidance is given on family planning and the result of such activities was that more than 12,000 persons came to the medical centres to take permanent contraceptive measures, their freedom of choice being fully respected. The Committee requests the Government to supply information on the steps taken to guarantee that the decision to take permanent contraceptive measures is indeed a free choice and to ensure that the persons concerned are fully aware of the permanent nature of the contraceptive measures concerned. The Committee also requests the Government to supply information on the extent to which indigenous peoples participate and are consulted with regard to reproductive health and family planning programmes and policies. The Committee requests the Government to carry out thorough investigations into the allegations of forced sterilization and supply information on the results of the investigations and, if applicable, the penalties imposed and the measures taken to compensate the victims. The Committee also requests the Government to provide information on the steps taken to promote community health services for indigenous peoples with their full participation.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]