Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Mexico (Ratification: 1990)

Other comments on C169

Observation

Direct Request

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The Committee notes the observations made by the Independent Workers’ Union of “La Jornada” Newspaper (SITRAJOR), of 4 August 2010, referring to matters raised previously, and the Government’s reply thereto.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO) (GB.272/7/2). Community of San Andrés de Cohamiata. The Committee recalls that in its previous comments it requested the Government to take the necessary measures to ensure that full effect is given in practice to Article 14 of the Convention through the resolution of the case relating to the Bancos community, and in particular to ensure that account is taken of traditional occupation as a source of land rights, including through negotiations. Taking into account the fact that the claims of the Huichol community of Cohamiata also include the reincorporation of areas other than Bancos, the Committee also requested the Government to take steps to ensure that there are adequate procedures to settle land claims which are still pending and to contemplate the possibility of modifying existing procedures relating to land claims in order to resolve 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.

In this regard the Committee notes that, in its communication of 25 September 2009, the National Union of Education Workers (SNTE) refers to the court decisions which the Committee noted in its previous comments. The SNTE indicates, in particular, that the amparo (judicial means for the protection of constitutional rights in Mexico) ruling No. 46/2009 of the Administrative Collegial Tribunal of 17 June 2009 and the decision of the Higher Agrarian Tribunal of 11 August 2009, benefiting them by acknowledging that the President’s decisions which granted formal land titles to the San Lucas de Jalpa community did not take into account the claims of the Cohamiata community, treated those legal titles in equal footing with the historical land titles (stemming from traditional occupation) to which the Cohamiata community is entitled, and which the Bancos de San Hipólito community considers to have inherited. The trade union emphasizes that the ruling authority failed to realize that those former legal titles were precisely the reason for the dispute and that existing judicial procedures do not allow recognition of titles derived from traditional occupation.

In this respect, the Committee notes the Government’s indication that: (1) the dispute concerning an area of approximately 10,720 hectares between the Bancos de San Hipólito community and the agrarian unit of San Lucas de Jalpa comes within the competence of agrarian tribunals and the secretariat of the Agrarian Reform through the Programme to Address Social Conflicts in Rural Areas (COSOMER); (2) the lands in question were not returned to Bancos de San Hipólito on the grounds that, according to the decisions of the agrarian tribunals, among other reasons, it was for San Andrés de Cohamiata to seek the return of that area; (3) the National Commission for the Development of Indigenous Peoples (CDI) in collaboration with the governments of the federated states in which the Huichol are settled, have undertaken various actions to strengthen and update the rights of that people; (4) COSOMER has given this dispute priority among all the pending matters, but has not been able to achieve conciliation, nor a negotiated settlement, as it has not been accepted by the parties to the dispute; (5) at the present time, the claim for amparo lodged by the San Lucas de Jalpa community against the decision of the agrarian superior tribunal that decided that the rights of Bancos had not been taken into account is still pending; (6) the Office of the Agrarian Public Prosecutor has not undertaken procedures in the context of any programme for the certification of rights, as that has not been requested by the interested parties. In this regard, while acknowledging the measures adopted so far by the agrarian tribunals with the aim of resolving the dispute, as well as the activities undertaken by the Government for the protection of the Huichol communities, the Committee notes with regret that this dispute, which has been continuing for many years, has not yet been resolved. The Committee observes that the decisions of the agrarian tribunals have not settled the dispute, and that a claim for amparo filed by the community of San Lucas de Jalpa is still pending examination. The Committee therefore requests the Government to take all necessary measures to settle this conflict that has continued for many years. The Committee once again emphasizes the Government’s obligation to recognize the rights of the peoples concerned to the lands they traditionally occupy and to which they have traditionally had access, in accordance with Article 14 of the Convention. The Committee once again urges the Government to take all necessary steps to ensure full compliance in practice with this provision in resolving the case of the Bancos community and, in particular, to ensure that account is taken of traditional occupation as a source of land rights, including by means of negotiation. The Committee suggests, in this regard, that the Government endeavour to resolve the dispute through a system of conciliation and negotiation which enjoys the confidence of both parties. The Committee reminds the Government of the recommendation made in report GB.272/7/2 concerning the possibility of assigning additional lands to the Huichol people when they do not have the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers, as provided for in Article 19. The Committee also requests the parties to the dispute to make every effort to endeavour to reach a solution that is satisfactory for both parties and to bring an end to this dispute which has been going on for decades and that jeopardizes peace in the area.

In more general terms, the Committee requests the Government to consider the possibility, in consultation with the indigenous peoples, of establishing adequate procedures to resolve land claims with a view to giving full effect to Article 14 of the Convention, and to provide detailed information on the measures adopted in this respect.

Articles 2, 3 and 7. Forced sterilization. Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO) (GB.289/17/3). In its previous comments, the Committee requested the Government to: (1) provide information on the measures 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; (2) provide statistical information disaggregated by sex, age and ethnic origin on the persons who have adopted such methods; (3) provide information on the manner in which indigenous peoples participate and are consulted with regard to reproductive health and family-planning programmes and policies; (4) carry out appropriate investigations into the allegations of forced sterilization and supply information on the results of the investigations and, where applicable, the penalties imposed and the measures taken to compensate the victims; and (5) provide information on the steps taken to promote community health services for indigenous peoples with their full participation.

The Committee notes the Government’s denial of the existence of a state policy or systematic practice to promote violations of the sexual and reproductive rights of the population. However, a policy does exist to promote broader knowledge of reproductive health among the members of indigenous peoples. The Government provides information on the reproductive health programmes implemented, which the Government states also benefit indigenous peoples, and emphasizes that contraceptive methods are used with the full knowledge and consent of the users. The Government also refers to the persons receiving advice from family-planning services and provides information on the number of persons who have opted for temporary and definitive contraceptive methods. The Government indicates that the IMSS-Opportunities Programme is in constant contact with traditional care providers who use local therapeutic resources to treat various health problems, and that it promotes referral to medical units when the problem requires institutional care. The Government adds that, at the request of the CDI Gender Equity Board, it is intended to carry out a national consultation on the situation of indigenous women in their peoples and communities, which will include reproductive rights among its principal subjects. The Committee requests the Government to provide information on the impact on indigenous peoples of the reproductive health measures and programmes adopted. It also requests the Government to take the necessary measures to ensure that whenever contraceptive methods are being made available to members of indigenous peoples, such methods are undertaken only with their free and full consent and full knowledge of the effects, particularly in the case of permanent contraceptive measures. The Committee also requests the Government to continue providing statistical data on the persons who use permanent contraceptive methods, disaggregated by sex and age. Finally, while recognizing the Government’s indication that there is no state policy or systematic practice that results in a violation of sexual and reproductive rights of indigenous peoples, the Committee requests the Government to provide information on the measures adopted with a view to investigating the allegations of SITRAJOR based on the reports of the Human Rights Defence Commission and the National Human Rights Commission of 2002.

Follow-up of the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO) (GB.296/5/3) of June 2006). In its previous comments, the Committee requested the Government to provide detailed information on the follow-up measures taken in relation to the recommendations made by the Governing Body concerning the representation made in 2002 by the Union of Metal, Steel, Iron and Allied Workers (STIMAHCS) alleging the absence of consultation and participation of indigenous peoples in relation to the work carried out by the Government in connection with the Oaxaca–Istmo–Huatulco road. In this regard, the Committee notes the Government’s indication that the CDI, through its Directorate for Indigenous Participation and Consultation, held a consultation meeting in 2004 on a regional development plan which would include possible solutions to the adverse effects and situations which might arise from the construction of the Oaxaca–Istmo–Huatulco road, and especially the Salina Cruz–Huatulco section. The Directorate also took the necessary measures to resolve situations giving rise to claims relating to the development projects and plans during the meeting, based on the Indigenous Consultation System. The Committee requests the Government to provide more detailed information on the specific claims made in relation to the work carried out by the Government in connection with the Oaxaca–Istmo–Huatulco highway, the manner in which they were resolved and whether they gave rise to the payment of compensation.

Comments made by SITRAJOR. The Committee notes that, in its communications dated 7 September 2009 and 4 August 2010, SITRAJOR refers to the appointment in May 2009 of a non-indigenous governmental delegate for the State of Guerrero to the National Commission for the Development of Indigenous Peoples (CDI) without consulting the representatives of indigenous peoples. SITRAJOR indicates that, nevertheless, in 2001 the Guerrero Council “500 Years of Indigenous Resistance” had been allowed to appoint an indigenous member as representative. The same occurred in 2008, when a state indigenous convention provided a shortlist, from which the indigenous delegate was appointed. This gave rise to protests by the indigenous peoples of Guerrero, who occupied the premises of the CDI for five weeks. For this reason, according to the trade union, four criminal proceedings were initiated against five indigenous leaders. The Committee notes the Government’s indication that the designation of the CDI delegate in the State of Guerrero was carried out in accordance with sections 58 and 59 of the Federal Act on parastatal bodies and section 11 of the Act respecting the National Commission for the Development of Indigenous Peoples. The Government indicates that none of these provisions require the designation of state delegates of the CDI to be undertaken through consultation with indigenous peoples. It adds that there are currently no criminal proceedings pending against the indigenous leaders who occupied the premises of the CDI. In this regard, while recognizing that there is no legal obligation to undertake consultations with indigenous peoples before designating governmental delegates, the Committee notes that the indigenous peoples had participated on two previous occasions in the designation of the delegate and it emphasizes the importance, for the discharge of her or his duties, for the state delegate to enjoy the confidence of the parties. The Committee therefore invites the Government to ensure that in future, when state delegates are appointed, the importance of ensuring that the person who is designated enjoys the confidence of the indigenous peoples is taken into account so that the state delegate is able to discharge her or his duties in the best possible manner.

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