Direct Request (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 Workers of La Jornada (SITRAJOR), dated 7 September 2009, which was sent to the Government on 5 October 2009. The Committee will examine both communications in 2010, together with any observations of the Government in this respect. With reference to its previous comments, 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 the present direct request, together with the most recent report.

Article 1 of the Convention. Identification and self-identification of the peoples covered by the Convention. The Committee notes the Government’s indication that there are approximately 10,103,571 indigenous persons living in Mexico, representing 9.8 per cent of the national population. With reference to its previous request concerning whether individuals belonging to indigenous groups who do not speak an indigenous language enjoy the protection of the Convention, the Committee notes the Government’s statement that “even if indigenous persons lose their language, they do not lose their identity, nor, consequently, do they lose their specific rights deriving from their cultural difference and their specific social, cultural, political and economic characteristics” and the criterion of voluntarily joining any group laid down in the Political Constitution remains the fundamental criterion for determining to whom the provisions relating to indigenous matters apply. Noting that the 12th General Population and Housing Census will be undertaken in 2010, the Committee requests the Government to supply updated information on the composition of the national population and indigenous groups, the criteria used to identify the members of those groups and the manner in which the criterion of self-identification has been applied. The Committee also requests the Government to indicate the manner in which this criterion is applied by the federal entities.

Articles 2 and 33. Coordinated and systematic action. The Committee recalls that the National Commission for the Development of Indigenous Peoples (CDI) replaced the National Indigenous Institute and that the Commission has an advisory council which includes 123 indigenous councillors. In this respect, the Committee notes the Government’s indication that the criteria used for the establishment of the first Advisory Council were honesty, service and recognition from the indigenous community. It also notes that the number of indigenous representatives increased from 123 to 140 for the second Advisory Council. The Committee notes that, according to the Government’s report, the CDI has implemented a number of programmes with the focus entirely on the indigenous communities, including the Programme on the promotion and development of indigenous cultures, the Programme on promotion of agreements in the area of justice and the Programme on productive organization for indigenous women. It further notes that the National Institute for Indigenous Languages, established in 2005 pursuant to the General Act on the linguistic rights of indigenous peoples, is responsible for formulating, proposing and promoting programmes, projects and surveys not only for the use and development but also for the revitalization and strengthening of indigenous languages. The Committee requests the Government to continue to supply information on the activities undertaken by the CDI. It also requests it to provide information on the programmes, projects and policies devised by the National Institute for Indigenous Languages and on the manner in which the participation of the peoples concerned in the formulation and implementation of such programmes, projects and policies is ensured. The Committee also requests the Government to supply information on the manner in which the application of Articles 2 and 33 of the Convention by the federal entities is ensured.

Indigenous communities and peoples as public law persons or entities. The Committee requests the Government once again to supply information on the extent to which the federal entities afford recognition to indigenous peoples and communities as public law persons or entities and on the scope of such recognition in the various federal entities.

Article 6. Consultation. The Committee refers to the recommendations in Governing Body report GB.289/17/3 concerning consultation and participation of indigenous peoples and notes that the CDI Advisory Council set up an “indigenous consultation system” for the purpose of maintaining a mechanism for communication and dialogue between the CDI and the indigenous peoples and communities. It further notes the Government’s indication that analysis of the proposal for a new Act on consultation has been started in the Senate of the Republic and is due to be concluded in 2009. The Committee also notes the indication in the 2008 CDI report on “government actions for the comprehensive development of indigenous peoples” that consultations were launched regarding mechanisms for the protection of rights relating to the traditional knowledge, cultural expressions and natural, biological and genetic resources of indigenous peoples. The Committee requests the Government to supply information on the operation in practice of the “indigenous consultation system”, including on the matters for which it has been activated, the results of the consultations held and their impact on the final decisions taken with regard to the matters under consultation. The Committee also requests the Government to supply information on consultations concerning mechanisms for the protection of rights relating to the traditional knowledge, cultural expressions and natural, biological and genetic resources of indigenous peoples. It also requests the Government to provide information on the procedure for the adoption of the abovementioned Act on consultation and on the manner in which the participation and consultation of indigenous peoples with regard to its formulation has been ensured.

Articles 6 and 7. Participation. The Committee notes with interest that in 2005 the General Council of the Federal Electoral Institute approved the territorial demarcation of the 300 uninominal electoral districts into which the country is divided and that the indigenous population was taken into account as a criterion in the structuring of the electoral districts. The Committee notes that as a result, there are 28 indigenous electoral districts. The Committee requests the Government to supply information on the impact of the reform of the federal electoral districts on the number of indigenous representatives elected.

Article 7. Development plans and programmes. The Committee notes from the information sent by the CDI that the National Development Plan included the results of 57 peoples’ consultation forums, in which more than 4,000 indigenous representatives participated. It also notes the Government’s indication that consultations were held with the indigenous peoples concerning the forms of development to which they aspired, and this enabled the CDI to formulate recommendations and proposals for the content of the “National Programme for the development of indigenous peoples 2007–12”. The Committee requests the Government to provide information on the steps taken or contemplated to ensure that the peoples concerned can participate in the application and evaluation of the abovementioned programmes and their results. It also requests the Government to supply information on any evaluation undertaken for determining the extent to which the National programme for the development of indigenous peoples reflects the development priorities of the indigenous peoples and takes account of the proposals and recommendations made by the CDI.

Environment. The Committee notes the Government’s statement that the Secretariat for the Environment and Natural Resources (SEMARNAT) is carrying out awareness-raising activities for all civil servants with regard to the human and environmental rights of indigenous peoples and has “incorporated the indigenous sector” into the Advisory Councils for Sustainable Development. The Committee requests the Government to supply further information on the “incorporation of the indigenous sector” into the Advisory Councils for Sustainable Development and on the consultations held by these bodies. It also requests the Government to clarify the relationship between this consultation mechanism and the consultation system set up by the CDI.

Follow-up to the Governing Body report of June 2006 (GB.296/5/3). The Committee refers to the representation made in 2002 by the Union of Metal, Steel, Iron and Allied Workers (STIMAHCS), alleging violation of indigenous peoples’ rights to consultation and participation concerning the work done by the Government in relation to the Oaxaca-Istmo-Huatulco highway. It also refers to the recommendations in points (b)–(f) of paragraph 45 of the Governing Body report on the representation. The Committee requests the Government to supply detailed information on the follow-up measures taken in relation to the recommendations made by the Governing Body in report GB.296/5/3.

Articles 8 to 12. Administration of justice. The Committee notes that in the context of the “Strengthening and modernization of the administration of justice” project, a specific training programme was implemented (in indigenous languages) for bilingual public defence lawyers. It also notes that the EU–Mexico Human Rights Programme 2008–10 provides for the training of translators and legal experts in indigenous habits and customs. It also notes the research conducted by the CDI into the legal systems of the country’s indigenous communities. It further notes the Government’s indication that the Higher Court of Justice has set up courts specializing in indigenous matters, which function through internal legal systems, including in the indigenous language of the region concerned, where judges are elected by the assembly of the indigenous community, in the same way that the traditional authorities are elected. The Committee requests the Government to continue to supply information on the implementation of the abovementioned programmes and also of the CDI programme for the “Promotion of agreements in the area of justice”. It also requests the Government to provide information as follows:

(i)    examples of decisions adopted by the courts specializing in indigenous matters and also of decisions from the ordinary courts which have given effect to indigenous habits and customs;

(ii)   the actions undertaken by the Specialist Unit for Indigenous Affairs of the Office of the Attorney-General, especially regarding the possibility of imposing penalties other than imprisonment, in accordance with Article 10 of the Convention; and

(iii) whether consideration is being given to the possibility of indigenous peoples and indigenous communities being represented by their representative bodies in judicial proceedings.

Article 14. Land rights. The Committee recalls that the Governing Body urged the Government in its 2004 report (GB.289/17/3) to look for appropriate solutions to the issue of land in order to avoid a repetition of the situation in Agua Fría and asked it to inform the Committee of Experts: (i) of the functioning in practice of procedures to resolve the land claims of the peoples concerned; (ii) of the manner in which these procedures recognize the right of ownership and possession over the land traditionally occupied by the peoples concerned; and (iii) of the measures taken 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 (paragraph 139(e)).

The Committee notes the indication in the Government’s report that the CDI and the Agrarian Ombudsperson’s Office (PA) are implementing a project for the investigation of agrarian disputes in indigenous cooperatives (ejidos) and communities in order to contribute to the planning of action and policies aimed at finding satisfactory solutions to existing problems in indigenous cooperatives and communities. It also notes the “Programme for the certification of cooperative rights and granting ownership of land plots” and the “Agricultural and stockbreeding settlements programme”, the objective of which is to regularize the possession of land on the part of these settlements. With reference to its observation, the Committee again requests the Government to supply information on the following:

(i)    the conclusions of the investigation project undertaken by the CDI and the PA and the resulting action taken to settle agrarian disputes affecting indigenous communities;

(ii)   the results achieved by the abovementioned programmes with regard to the regularization of the possession of land and progress made by the programme dealing with the most serious problems (focos rojos);

(iii) the action taken or being taken in relation to the situation of the lands of the following communities: Ñahñú community of San Pedro de Atlapulco, the Suave community of San Francisco del Mar, the Zoque communities of Chimalapas and the Mazahua community of San Antonio de la Laguna; and

(iv)  the measures taken 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.

The Committee also requests the Government to supply copies of administrative and judicial decisions referring to traditional occupation, recognition of the rights of indigenous peoples to the lands they traditionally occupy, and the settlement of land claims.

Article 15. Natural resources. With reference to the communication from the Mexican Union of Electricians (SME) of September 2007 alleging violations of the rights to consultation and participation of indigenous peoples in the case of the La Parota hydroelectric project, the Committee notes the Government’s indication that the project was suspended. The Committee requests the Government to supply detailed information on the steps taken to award fair compensation to the peoples concerned for any damage suffered as a result of the implementation of the La Parota hydroelectric project. The Committee requests the Government to supply information on the consultations which, according to the report, are being held in the case of the Istmo de Tehuantepec mega-project and on any other consultation procedure launched in relation to activities for the exploration or exploitation of natural resources on indigenous lands, including under the consultation system set up by the CDI.

Article 20. Recruitment and employment conditions. The Committee recalls that the Governing Body, in its 2004 report (GB.289/17/3), asked the Government to provide further information with regard to allegations of forced labour in the Zolontla community in the municipality of Ixhuatlán de Madero in the State of Veracruz and also asked it to supply information on the application in practice of the plans intended to improve the situation of indigenous day labourers and in particular indigenous children and internal migrants, and on the manner in which Article 20 of the Convention is applied in practice to these categories of workers (paragraph 139(d) and (f)). The Committee also refers to its direct request of 2005 concerning the communication sent in 2001 by the Union of Telephone Operators of the Republic of Mexico (section 49) in conjunction with other trade unions concerning the maquiladoras (export processing plants) if the clothing industry in the indigenous areas of Tehuacan, Teziutlán and Atlixco of the State of Puebla. While noting the information supplied by the Government on programmes to promote and monitor compliance with labour standards and programmes relating to agricultural day labourers, the Committee requests the Government to supply information on the specific measures taken or contemplated to ensure that indigenous workers enjoy their labour rights in full, including information with regard to agricultural day labourers, indigenous children and internal migrants. It also requests the Government to provide information on the results of labour inspections with respect to indigenous workers and information on the situation of indigenous workers in the Zolontla community of the municipality of Ixhuatlán de Madero in the State of Veracruz.

Articles 21 to 23. Vocational training, handicrafts and rural industries. The Committee requests the Government to continue to supply information on the application of Articles 21, 22 and 23 of the Convention, including information on the manner in which the participation of indigenous peoples in the formulation of special programmes of training and for the promotion of their traditional activities is ensured.

Articles 24 and 25. Social security and health. The Committee requests the Government to supply updated information on the application in practice of Articles 24 and 25 of the Convention, particularly with regard to the organization of community health services, training and employment of local community health workers and also the use of traditional preventive care, healing practices and medicines.

Articles 26 to 29. Education. The Committee notes the CDI “Indigenous Youth Scholarship Project”, under which, in 2008, 319 scholarships were awarded to young indigenous higher-level students so that they could complete their studies. It also notes the “Project for the strengthening and revival of original cultural expressions for use in teaching material”, the “Programme for the protection of indigenous languages at risk of disappearance” and the cooperation agreement between the Secretariat of Public Education (SEP) and the CDI for the purpose of boosting inter-cultural education. The Committee also notes the reference in the 2008 CDI report on government actions for the comprehensive development of indigenous peoples to the “Programme for the revitalization, strengthening and development of national indigenous languages 2008–12” of the National Institute for Indigenous Languages. The Committee requests the Government to supply information on the measures taken under the cooperation agreement between the SEP and the CDI and on the implementation of the abovementioned programmes. The Committee again requests the Government to indicate whether there are sufficient trained bilingual indigenous teachers in the recognized languages and whether such teachers belong to the communities in which they work. It also requests the Government to provide information on the application of Article 27(3), of the Convention.

Article 32. Cross-border contacts and cooperation. The Committee requests the Government to supply information on the measures taken in accordance with this provision.