Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

The Government has sent the following information:

With regard to the first paragraph of the observation of the Committee of Experts, the Government has reaffirmed its desire to pursue cooperation with the ILO not only by submitting reports and information requested from time to time, but also by the implementation, when necessary, of specific recommendations. With reference to the 1996 observation of the Committee of Experts, on 24 May 1999, the Government organized a "Seminar on the Inspection of Labour Conditions in the Rural Sector". This technical cooperation included the participation of ILO officials, representatives of indigenous peoples' organizations, and officials of the Mexican Government.

The second paragraph deals with the protection of land rights of the Huichol Indian community of San Andrés Cohamiata, in the municipality of Mezquitic, Jalisco. In June 1998 the Governing Body adopted the report of the committee set up to examine the representation concerning the violation by Mexico of ILO Convention No. 169, submitted under article 24 of the ILO Constitution by the Radio Education Trade Union Delegation, D-III-57, section XI, of the National Radio Education Trade Union (SNTE). The Government of Mexico had received supplementary information from this trade union delegation in August 1999 and replied in October 1999. At this stage, the Committee of Experts requested the Government to provide detailed information in its next report. The Government of Mexico provided the information as requested to the ILO on this representation concerning an alleged violation of Convention No. 169. According to the complainant, the Mexican authorities have not returned to the Huichol Indian community of San Andrés Cohamiata, and in particular to the "Tierra Blanca" group of Huichol Indians, land they had historically possessed and which had been given to another rural mixed-race population at Nayarit. This case has been on judicial appeal for several years. In this regard, the Government had presented its comments in communications dated 24 November 1997, 8 December 1997, and 9 and 24 March 1998. The Committee of Experts is already aware of the decision of the Agrarian Unity Tribunal of Tepic, Nayarit, of district XIX, which is the authority in charge of examining the "amparo" No. 430/96 (request for constitutional review), brought by the indigenous people of "Tierra Blanca" in application of the executory decision of the third circuit collegial tribunal which declared the lower court's decision groundless, resulting in the appeal procedure to clarify the terms used in the judgement which protected them. The "Asociacion jaliciense de apoyo a grupos indigenas" (AJAGI) was legally involved in the controversy concerning San Andrés Cohamiata and "Tierra Blanca". This association developed management advisory training and agrarian military defence and human rights activities in the Huichol region, in the states of Jalisco and Nayarit, and is funded by the Indian National Institute (INI) to develop its activities in the framework of a coordination programme of conventions regarding legal recourse. Detailed information will be supplied on this case in the next report of the Government in 2001; however, this discussion is a suitable forum at which to indicate that the case is before the Agrarian Unitary Tribunal. Concerning the executory act previously mentioned, on-site inspection is presently taking place.

The third paragraph of the observation of the Committee of Experts refers to a representation concerning land rights of the indigenous community of Chinanteco displaced in the Uxpanapa Valley in Veracruz. In November 1999 the Governing Body adopted the report of the committee set up to examine the representation concerning the violation by Mexico of ILO Convention No. 169. The representation had been submitted under article 24 of the ILO Constitution by the Radical Trade Union of Metal and Similar Workers. In January 1999 the Mexican Government received a request for information on the indigenous community of Chinanteco, and provided a reply on 25 February 1999. At this stage, the Committee of Experts requested the Government to provide information on the measures taken to bring a solution to the situation of the indigenous community of Chinanteco. The Government of Mexico has informed the ILO of the situation of the indigenous population of Chinanteco which had been displaced from their native land of Oaxaca in the Uxpanapa Valley, following a government decision to build a dam in 1972, and of the complaints regarding presidential decrees ordering their displacement. Reserving the right to provide supplementary information in the report it is preparing, the Government of Mexico has provided the following information on the current situation.

In the first place, the Government had concentrated its efforts on communication with the indigenous community of Chinanteco resettled in the Uxpanapa Valley. To this end the INI has supported the creation of social organizations such as the Committee for the Defence of Indian Rights, Chinanteco-Zoque-Totonaco and the Indian Council of Uxpanapa to protect the rights of the communities and to further economic and social development. Parallel to this, there is a Regional Indian Fund in the Uxpanapa Valley which supports the organizational process of the communities and promotes regional development. A Regional Indian Fund for the women of Chinanteco will be set up in August to promote training and development with regard to gender questions. Following its creation in 1996, the free municipality of Uxpanapa has benefited from significant financial resources: 15 million pesos during the past five years, financing public works, food projects and, in general, all economic and social development projects of the region. In November and December 1999, the INI developed workshops for evaluation and planning of infrastructures. These workshops helped to provide financing for various agricultural programmes and the purchase of machinery. Since January 1999, the municipality of the Uxpanapa Valley has the following public services: 19 systems of drinking water, 26 electrical energy networks, one drainage infrastructure, a market, a garrison, municipal agencies, a post office, a satellite telephone and a radio communication system. Concerning education, there were 44 crèches, 67 primary schools, nine secondary schools, two high schools and five dormitories for students of the INI. Concerning public health: one clinic of the ISSSTE, the IMSS-COPLAMA and a health secretariat, eight treatment centres organized by the health secretariat of the government of Veracruz, and six rural medical units.

The fourth paragraph of the observation referred to a loss of a right of inalienability of indigenous lands, to agreements with multinational enterprises allowing exploitation of mineral and forestry resources on indigenous lands without the involvement of indigenous peoples as contemplated in the Convention, the failure to take account of results of consultations with indigenous representatives concerning constitutional reforms, and allegations of abuse and exploitation of indigenous migrant workers. In September 1999, the International Labour Office sent the Government of Mexico information concerning a second report from the Authentic Workers' Front (FAT) on the situation of the indigenous populations in Mexico. The Government provided its comments on 5 November 1999. The Committee of Experts considered that the information provided in this reply was insufficient.

(a) The Government considers that land rights belong to every Mexican Indian. The lands of Indian populations can be considered in three different ways which are recognized by the Constitution: national, private and social. With regard to the composition of the population, the communes and the communities can be Indian or mixed-race; all are not made up of exclusively indigenous populations. Similarly, the indigenous populations of Mexico are not all organized in communes. Concerning the arguments according to which the protection of land of indigenous peoples had been ended with the repeal of the Federal Law on Agrarian Reform of 1972, according to which the Agrarian Reform of 1992 would render indigenous land transferable, attachable and seizable, it must be observed that the Constitution and numerous relevant articles of the Agrarian Law prove the contrary, since article 27 of the Constitution recognized the legal personality of the ejido (collective lands) and comunidades and that Title VII, paragraph 2, deals with protection and the integrity of the lands of indigenous peoples.

In its paragraph 4, the aforementioned text sets forth that: "The law, as concerns the wishes of the members of an ejido of a community to adopt the most suitable conditions for the exploitation of the productive resources, will regulate the exercise of rights of members of the community over the land and the ejidatario over its part (...) and as concerns its ejidatarios, will regulate transmission of land rights to other members of the community. Likewise, it will set the conditions according to which the ejido assembly grants to each member influence concerning its parcel. In the case of transfer of parcels, the right of preference set forth in the law will be respected".

In conformity with the Agrarian Law (articles 64 and 107), the land of the ejidos and the communities which are set aside by the Assembly for Human Settlement are inalienable and non-transferrable since they are a part of the irreducible patrimony of the community. Lands for building are the property of their holders, whether these are ejidos or members of a community, as set forth in the Federal Law on Agrarian Reform of 1972 and previous agrarian codes (1934, 1940 and 1942). Lands for collective use, governed by one or the other form of social property are inalienable, non-transferable and non-attachable, except in cases where the communal Agrarian Assembly -- the highest authority -- decides to transfer when and as it sees fit to do, to civil or commercial enterprises (articles 74, 75, 99 and 100). Land subdivided in parcels within domains (ejidos) belong to their allocates, who exercise a right of maintenance, use and usufruct. The law states the procedure to follow in order to transfer these lands and the relevant rights (articles 76-86). In conformity with article 101 of the previously mentioned law, the communal form of ownership implies the individual status of the member, a status which gives the latter the use and possession of his parcel, and right of transfer to parents or next-of-kin. Article 56 of the Agrarian Law states that it is for the communal Agrarian Assembly, collective domains or communities to designate its zones of parcels for common use or for settlement. Concerning land for collective use, it is also up to the assemblies to define the rights of members, the rule being that these rights are presumed to be granted on the basis of equality, unless the Assembly decides to attribute the parcels proportionately, according to the financial contribution, the work and the financial resources of each individual. In keeping with the preceding, and in direct connection with the legal safeguards under the law, the Agrarian National Register delivers certificates attesting to the rights on land for collective use. These certificates state the name of the holder as well as his percentage of rights over the lands for collective use, as provided in the agreements of the assemblies. It should be mentioned that certificates confirming the rights on lands for collective use do not state a specific surface area for their holders, since land for collective use is worked collectively, for the benefit of the agrarian community as a legal person and the ejidatarios or members of the community in their assigned proportion. It should be noted that the rules concerning the use of collective land, as set forth in article 10 of the aforementioned law, must be specified in the by-laws or communal statute, according to whether it is a ejido or a community.

As regards the devolution, transfer or conveyance of rights, if the Agrarian Law authorizes the member of an ejido to transfer his rights over a parcel as provided in article 80, this right simply allows conveyance either to other ejidatarios or other members of the same community, it being understood that the spouse and children of the transferor exercise the same right. Likewise, the Agrarian Law sets forth in article 47 that no ejidatario can hold rights over parcels with a surface area greater than 5 per cent of the total land of the ejido or the equivalent of a small holding. In the case of coemption, the Secretariat of Agrarian Reform orders, after review, a member of an ejido to sell the excess within one year from notification of the decision. As is the case with devolution of land, articles 81-86 of the Agrarian Law govern the procedure for full and complete accession to property. As regards communal property, under article 101, the Agrarian Law provides for the transfer of rights, this transfer being limited to parents or next of kin, but is not authorized for third parties outside the community. Any devolution of lands or accompanying rights which breach the Agrarian Law would be justifiable before the agrarian tribunals in such a manner that the Commissariat for Agrarian Questions has in this regard the prerogatives of the Public Minister and would represent the accusation in this context.

The sale of land is an historic phenomenon, which existed within the agrarian communities prior to the constitutional reform. It is necessary not to lose sight of the form which the conveyance of property or the use of property or land has taken. According to agrarian studies carried out on the ejidos by the Commissariat for Agrarian Questions in 1998, a third of the ejidatarios have an agreement for the use of their parcel which implies a transfer of the usufruct on the land in the form of tenant farming, an annuity or a loan. This signifies that the lands are worked by people other than their owners. Likewise, the survey showed that this type of practice has existed for many years and that they were only brought to light during the reform of article 27 of the Constitution. In fact, nearly one-third of the agricultural agreements pre-date the reform, 42 per cent have been drawn up since the start of the process in 1993 in collective property, and 26 per cent began when the Notarial Act was deposited and ended with the last harvest. According to this study, it can be seen that the forms according to which rural workers to whom the collective property belongs acquire these lands are determined by socio-economic and cultural conditions according to the large regions of the country, and they have been reinforced by the characteristics of the agrarian reform in each region.

(b) Concerning the working rights for mineral and forestry resources, it must be noted that article 27 of the Constitution, section VII, authorizes rural workers who belong to the community to join together with the State and third parties in authorizing the use of these lands.

Section VIII(b) of this constitutional provision declares void: "All concessions or sales of land, water or hills made by the Secretariats of State for Development and Finance or any other federal authority since 1 December 1876 to date, which enabled invasion or illegal occupation of collective lands, communal property, or other property belonging to inhabitants of villages, hamlets, congregations, or communities".

Likewise, the rural workers in villages of indigenous communities enjoy the right to work and manage forestry resources or those of protective natural zones by virtue of laws on forestry from 1997 and on ecological balance and environmental protection in 1996 in particular. The Government indicates that it is worried about the supervision of the application of these standards and procedures concerning the management of resources, the forms of participation, exploitation and administration as provided in the national legislation.

(c) Concerning consultations with indigenous representatives on constitutional reforms, as previously indicated to the Committee of Experts in the report sent in 1998, several drafts of constitutional reforms were submitted in March 1998 to Congress, with a view to recognizing indigenous rights. The impetus for the process of constitutional reform which recognizes the rights of indigenous peoples in the context of their cultural difference, began a little more than a decade ago in local Constitutions, in criminal codes and codes of procedure, regulatory laws, organic laws relating to judicial power, organic municipal laws and other texts in the federal and state framework.

(d) Independently of the information that the Government will provide in its next report, it should be noted that, concerning the abuse of indigenous migrant workers, the Government has held consultations with the responsible authorities and, when it has received this information, it will bring it before the Committee of Experts.

Concerning indigenous migrant workers, it should be noted that the Government has adopted the following measures in order to make known the labour rights applicable to indigenous communities:

-- publication and distribution among the core indigenous population of a document entitled "Labour rights and obligations for rural workers";

-- translation of information on labour rights in the different indigenous languages with the help of the INI;

-- communication of information on labour rights by means of 18 radio broadcasts by the INI;

-- creation and management of training scholarships and advice on commercialization of productive projects. In order to identify the needs concerning indigenous women workers, links were set up with programmes with the Secretariat of Labour, such as the programme for training of unemployed workers (PROBECAT), and the programme of qualification and integral modernization (CIMO), as well as the Council for Standardization and Certification (CONOCER);

-- the training of government officials in charge of explaining labour rights of indigenous populations, such as rural teachers of the National Council of Educational Development (CONAFE). Likewise, measures have been taken with the Autonomous University of Chapingo to train social workers;

-- the creation of a commission in charge of analysing the problems and determining the strategies for implementation of social security law. This commission includes organizations of employers, rural sector agricultural workers and the Federal Government through the Secretariat of State for Labour and Social Security and the Mexican Institute of Social Security;

-- the promotion and defence of labour rights;

-- the holding of seminars, including the "Seminar on Migrant Agricultural Workers" which was held in Los Angeles, California, in February 1999.

Moreover, in the field of safety and health, as well as conditions of work, the federal labour delegations of the Secretariat of State for Labour and Social Security have referred to a total of 4,237 inspections carried out in all the States of the Republic, in their monthly reports sent from January to September 1999.

Finally, concerning paragraph 5 of the observation, the Committee requests the Government to re-examine the measures taken to overcome the problems which indigenous people have had to face in the country. Throughout this commentary, the Government has indicated the mechanisms of permanent dialogue set up between it and the indigenous peoples at different levels. The mechanisms enable the description and the application of public policies, to find solutions to conflicts, and to meet the requests of the indigenous peoples. It is important to underline that these processes of change do not take place overnight. The Government will continue its efforts to improve the living conditions of indigenous peoples. As the Indigenous and Tribal Peoples Convention, 1989 (No. 169), sets forth in Article 2, with the participation of the indigenous population, Mexico has accepted to develop coordinated and systematic action with a view to protecting the rights of these people and guaranteeing the respect of their integrity. The Government indicates that it has demonstrated an openness in this regard at all levels. As an example, concerning the legislative power, it is appropriate to underline the plurality of parties present on committees in charge of indigenous peoples, both in the local Congress and in the federal Congress. The politico-social participation of indigenous people in Mexico has been gradually set up, particularly in the political, public administration, education, culture, health and social framework. Numerous measures have been taken to facilitate full, fair and equitable development of indigenous people, which have contributed to the improvement of their well-being and their standard of living. Progress and results in the policies and the measures taken by the Government of Mexico have taken place, and it should be underscored that these coincide with engagements resulting from the application of the Convention. The interaction between the Government of Mexico and the indigenous communities has been fruitful, open and responsible. This demonstrates that article 4 of the Constitution of Mexico is applied in this respect and ILO Convention No. 169 is incorporated in the national legislation. The Government will continue to work with the International Labour Organization in this regard.

In addition, before the Conference Committee, a Government representative stated that the observation of the Committee of Experts did not cast doubt on the compliance of the Government with the obligations it had assumed under the Convention. The Committee indicated that information on its comments should be provided by Mexico in its next report. The Government was already working on this report which would be submitted, as required, in 2001. For that purpose, it was holding consultations with all the institutions concerned with the situation of indigenous peoples. She reaffirmed the willingness of her Government to cooperate with the ILO.

The comments made by the Committee of Experts referred to the dialogue of the Mexican Government with indigenous communities and to three specific cases: the Huichol Indian Community, the indigenous communities in the Uxpanapa Valley and a general report on the situation of indigenous peoples in Mexico. She expressed surprise with regard to the comments of the Committee of Experts concerning the alleged expressions of concern by the Governing Body with regard to an "apparent lack of real dialogue between the Government and indigenous communities". She noted that the documents on the basis of which the Governing Body adopted its decisions on the cases to which the Committee of Experts referred did not contain such terms. There was permanent dialogue between the Mexican Government and its indigenous populations, which formed part of its public policies and was a characteristic of the country which had been in existence before its accession to Convention No. 169, the ratification of which marked the commitment of the Mexican State to its indigenous peoples.

In Mexico, 10 per cent of the population was indigenous. Most of them lived in rural areas in widely dispersed communities. Forty-five per cent of these communities consisted of fewer than 99 inhabitants and were located in mountainous or tropical areas, which made it difficult for them to have access to the basic social infrastructure of health, education and roads. A priority objective of the Mexican Government was to develop a new relationship between the State, society and indigenous peoples based on dialogue and respect for cultural and linguistic diversity, as set out in the National Development Plan, 1995-2000. This Plan set out the main lines of the current Government's social, political and economic development policy. It also provided for the integral participation of all social groups in the improvement of the living conditions of indigenous peoples with a view to preserving their cultural and social heritage and ensuring recognition of their individual and collective rights.

With regard to the issue of the legal recognition of the rights of indigenous populations, she indicated that Mexico had commenced in 1986 a process of legislative reform at the federal, state and municipal levels based on consultation and consensus with a view to the recognition of the rights of indigenous peoples. This process had been intensified during the 1990s and had led in the first place to the reform of article 4 of the Constitution in 1992. This article recognized the pluri-cultural composition of Mexico "with its origins in its indigenous peoples" and established that "the law shall protect and promote the development of their languages, cultures, usages, customs, resources and specific forms of social organization, and shall guarantee to their members effective access to the jurisdiction of the State". This had been followed by amendments at the federal level, including the Agrarian Act, the General Education Act, the General Act respecting ecological balance and the protection of the environment, the Forest Act and the Copyright Act. This legislative process had not been confined to the federal level. Up to this year, some 16 of the 31 states of the Republic had adapted their constitutions to incorporate the principles for the recognition of cultural plurality set out in article 4 of the Constitution. The Federal Code of Penal Procedure and a number of state penal codes had been amended to include provisions envisaging the consideration of the usages and customs of indigenous peoples as elements in their assessment and to guarantee the presence of translators during legal proceedings. Options were also being explored for the adoption of legislation at the municipal level with a view to ensuring that the reforms had a greater impact and achieved a substantial change in the relations between the federal, state and municipal authorities for the benefit of indigenous peoples.

Between 1995 and 1996, the national consultation had been held on indigenous rights and participation, with the broad representation of indigenous peoples. The Federal Executive had introduced a constitutional reform initiative in 1998 respecting indigenous rights and culture which recognized the right of indigenous peoples to free determination, in the sense of the autonomous capacity to take decisions on, among other matters, the manner in which they lived in common and organized themselves, the application of their legal systems, the election of their authorities and the preservation of their culture. It was the responsibility of the Congress to decide upon and discuss this and other initiatives. At the international level, indigenous Mexican legislators participated actively in the American Indian Parliament (PARLATINO) and the Inter-Parliamentary Union. She emphasized that it was the traditional priority of the Mexican Government to combat the social, economic and educational backwardness of indigenous peoples. The national programme to promote priority regions operated on a basis of dialogue between the federal, state and municipal governments and social and community organizations. This programme promoted integrated and sustainable processes of development in rural and indigenous regions affected by the highest levels of social exclusion through the management and redistribution of economic resources. The plan gave priority for immediate action to 35 regions, 22 of which contained 51 per cent of the indigenous population. During the course of 1999, the programme had channelled investments worth over $900 million. This year, the amount would be over $1,000 million. With regard to health care, between 1995 and 1999, coverage had been extended in the indigenous areas of 24 states through the provision of basic services which directly benefited 5 million indigenous persons. During the 1999-2000 school year, basic education had been provided to over 1 million indigenous children, who received school books free of charge in 36 indigenous languages, as well as school equipment and learning materials. During the same period, 129 editions of books in indigenous languages had been reprinted with a circulation of 1 million copies. The programme of regional Indian funds of the National Indian Institute was promoting local and regional development through production projects developed by indigenous organizations of rural producers. The management, administration, technical follow-up and evaluation of these projects was also the responsibility of the above organizations. Over the past five years, this programme had covered 23 states, benefiting 11,583 organizations with 1.5 million indigenous members.

The Government representative reaffirmed that the access to justice and the promotion and defence of the human rights of indigenous peoples was also a priority of her Government, to which great efforts and resources were assigned. The National Human Rights Commission had established in 1998 a general support unit to address the demands and needs of indigenous peoples. The Secretariat of the Government, the Office of the Attorney-General of the Republic, the Federal Public Legal Institute and the National Indian Institute had signed an agreement to coordinate their activities and resources with a view to ensuring that indigenous persons who were the victims of crimes at the federal level had access under the best possible conditions to the jurisdiction of the State. Since 1995, a programme had been in operation to promote concerted agreements respecting access to justice, through which the National Indian Institute provided financing to indigenous organizations and communities and to non-indigenous organizations which worked in Indian regions with a view to promoting self-management in areas such as legal defence, guidance, training and the dissemination of information on rights. Through this programme, technical and financial support had been provided to almost 1,000 indigenous civil and community organizations.

She also referred to the civil registration programme, the objectives of which were to bring the civil registration services closer to indigenous persons; to train community promoters to facilitate the delivery of birth, marriage and death certificates and reduce administrative requirements for the indigenous population. This programme was particularly important in the case of migrant indigenous persons. Among the many activities undertaken to disseminate information on indigenous rights, the Mexican Government, through the Labour Secretariat, the National Human Rights Commission and the National Indian Institute had issued publications and analyses of indigenous rights, including information to promote the provisions of Convention No. 169. In 1999 alone, over 1,000 radio programmes had been broadcast in 954 towns in indigenous areas.

Land was the fundamental basis of indigenous and rural culture and undoubtedly constituted a fundamental issue for the peoples and the Government. Since the first decade of the twentieth century, the Mexican revolutionary heritage had recognized that land belonged to whomsoever worked it. It could therefore be claimed that the first agrarian policy in Mexico had also been indigenous. Through the distribution of agricultural land, thousands of groups of rural workers had been provided with land for the upkeep of their families. At the present time, there were 27,460 ejidos (collective lands) and 2,400 comunidades. Over 50 per cent of the national territory was therefore under social ownership, which left less than half for private property, national lands and agricultural and stock-raising farms. The ejidos and comunidades in Mexico were two forms of land ownership which were characterized by their legal personality and inheritance rights. Indigenous peoples owned land under all the forms of ownership recognized by the Mexican Constitution. After 85 uninterrupted years of agrarian policies, the Government continued to endeavour to achieve the effective delivery of agrarian justice. Agrarian tribunals had been established in 1992 and enjoyed autonomy, full jurisdiction and were obliged to take into consideration the language, usages and customs of indigenous persons in their proceedings and to ensure the presence of a translator for anyone who required one. In 1999, the agrarian tribunals examined 30,664 cases of disputes concerning land holdings in ejidos and comunidades by indigenous populations. A satisfactory solution was found in 82 per cent of these cases. The Agrarian Legal Office, which had been set up in the same year, was the body responsible for the defence, representation and provision of free legal advice to holders of ejidos and comunidades, workers in ejidos and comunidades, daily agricultural workers and private landowners. The Agrarian Legal Office worked with the National Agrarian Registry to provide security of title for the ownership of rural lands. With a view to ensuring legal security to the rights and lands in ejidos and comunidades, a programme had also been established for the certification of the rights to ejidos and the titularization of unused land. The programme was a product of the reform of article 27 of the Constitution in 1992. The objective of the programme was to regularize rights of workers in ejidos and comunidades and to delimit lands within agrarian zones. Government agencies which were involved in agrarian issues, and particularly the assemblies of workers in ejidos and comunidades, which were the highest bodies in agrarian zones, participated in the application of the programme. The above assemblies decided upon the time, the manner and the periods over which the certification and titularization process of their lands and rights would be carried out.

The Government representative indicated that public policies could not be carried out without the participation of indigenous peoples and that Mexico was therefore envisaging mechanisms of dialogue for their design and implementation. The representation of indigenous peoples was guaranteed through their participation in all political parties and in the federal and state legislative assemblies. For example, 40 per cent of the deputies were indigenous in Oaxaca, 16 per cent in Quintana Roo, 15 per cent in the Federal District and 10 per cent in Chiapas and Tabasco. This trend for wider representation was also being extended to the municipal level. Indigenous affairs commissions, composed of the various political parties, existed in 56 per cent of the states of the Republic, including those with the highest proportions of indigenous peoples. The Congress of the Union also had a Commission on Indigenous Affairs.

She then referred to a number of the points set out in the observation of the Committee of Experts. Reference was made in paragraph 2 to the land rights of the Huichol Indian Community in San Andrés Cohamiata, Mezquitic Municipality, Jalisco. She recalled in this respect that Mexico had already provided the ILO with information on the occasion of a representation alleging non-compliance with Convention No. 169. According to the representation, the authorities had not returned to the Huichol community in San Andrés Cohamiata lands which had historically been in their possession, and particularly the area of the Huichol group of Tierra Blanca, the ownership of which had been recognized to another agrarian area in Nayarit. As the Committee of Experts was already aware, the Huichol of Tierra Blanca obtained a protection order under the terms of which the decision of the Unitary Agrarian Tribunal of Tepic, Nayarit, was overturned. In complying with the protection order, the case was currently at the stage of the presentation of evidence before the same Tribunal. Information on the outcome would be provided in the next report in 2001. In this respect, she emphasized that due attention had been paid to the Huichol people and existing judicial bodies had been used. She also indicated that the Jalicense support association for indigenous groups had represented and defended the persons concerned. This social organization undertook managerial, advisory, training and defence activities in agrarian matters and human rights in the Huichol region in the states of Jalisco and Nayarit. Over a period of five years, it had received from the National Indian Institute technical and financial support amounting to around $100,000 within the context of the programme promoting concerted agreements for access to justice.

She noted that paragraph 3 of the observation of the Committee of Experts referred to a representation concerning the land rights of Chinantecos indigenous persons relocated in the Uxpanapa Valley in Veracruz. She stated that, in the same way as with other indigenous peoples, through its everyday work the Government was strengthening channels of communication with Chinantecos indigenous persons relocated in the Uxpanapa Valley. The National Indian Institute had supported the establishment and financed social organizations, such as the Committee for the Defence of Chinanteco-Zoque-Totonaco Indigenous Rights and the Uxpanapa Indian Council. These were organizations which protected the rights of communities and promoted their economic and social development. The Uxpanapa Valley Regional Indian Fund also supported the process of organizing the communities and promoting their regional development. The National Indian Institute had participated in the establishment of the Uxpanapa Municipality in 1996. Through the Regional Fund, it was currently channelling significant resources to the region for public works, nutrition projects and social and economic development. At the end of 1999, the National Indian Institute held diagnostic and planning workshops for infrastructure, the results which made it possible to obtain support for the opening of roads and the implementation of various agricultural projects. She added that in the next few weeks a regional fund would be established for Chinanteca to promote training and development activities in the area with a gender perspective.

With regard to paragraph 4 of the observation, she stated that the right to land was enjoyed by all Mexicans. The Mexican Constitution established three forms of land ownership: national, private and social. The lands of indigenous peoples could be owned under any of these forms of ownership. The report of the Committee of Experts had referred to the claims made by the Authentic Workers' Front (FAT), which had erroneously alleged that the agrarian reform of 1992 had had the effect of making indigenous lands alienable, seizable and prescriptible. She denied that this was the case and stated that the Mexican Constitution recognized the legal personality of communities on ejidos and comunidades and protected their ownership of the land, both in terms of human settlement and productive activities. It also protected the integrity of the lands of indigenous groups. The Agrarian Act provided that the assemblies of agrarian areas were the entities which determined the possibility of alienating their lands or their rights. In this way, the workers on ejidos were the ones who had the exclusive competence to decide upon the alienation of their rights and lands. With regard to communal ownership, the Agrarian Act permitted the cession of rights to communal land, but provided that it could only be to the benefit of family members and neighbours of the community. This meant that the cession of rights was not permitted for the benefit of third parties unrelated to the community. She emphasized that any dispute in this respect could be taken to the agrarian tribunals.

Turning to the issue of rights to the exploitation of mineral and forest resources, she stated that article 27 of the Constitution allowed workers in ejidos and comunidades to establish associations among themselves with the State and with third parties, as well as to grant the right to use and benefit from their lands. Similarly, the protection of the resources and the participation of indigenous peoples and communities in activities related to the exploitation, management and administration of forest resources and resources in protected natural areas were set out in the Forest Act, 1997, and the Act of 1996 respecting ecological equilibrium and environmental protection, among other legislation. The Government supervised the application of rules respecting the type and management of resources, forms of participation, exploitation and administration set out in the law.

With reference to consultations with indigenous representatives concerning constitutional reforms, she stated that the Government had already reported that constitutional reform initiatives had been submitted to the Congress of the Union in March 1998 for obtaining the recognition of indigenous rights.

With regard to the dissemination of information on the rights of indigenous migrant workers, the Government of Mexico was publishing and distributing documents such as the volume entitled "Labour rights and duties of agricultural workers". Within the framework of programmes of grants for vocational training, integrated skills and the modernization and certification of vocational skills, a service had been established to guide and manage the award of grants for training and guidance in commerce and productive projects, and for the training of community resource persons for the dissemination of the labour rights of indigenous workers. A commission had also been established to examine the problem and establish strategies to promote their right to social security.

She referred to paragraph 5 of the observation, in which the Government was requested to re-examine the measures it was taking in regard to the problems encountered by indigenous peoples in the country. In this respect, she recalled that many channels of dialogue existed in Mexico between the Government, indigenous peoples and society. One of the major changes of the past decade had been the development of public policies which focused on indigenous peoples as the agents of their own development and promoted their cultural and linguistic diversity. All public policies respecting indigenous peoples therefore included dialogue mechanisms for their design and implementation. Indigenous peoples also enjoyed high levels of representation in the Federal Congress and in local Congress. These were real and effective institutions of dialogue. In accordance with Article 2 of the Convention, the Government was taking responsibility, with the participation of its indigenous peoples, for the development of coordinated and systematic action to protect their rights and ensure respect for their identity. For her country, compliance with the terms of article 4 of the Constitution also implied compliance with Convention No. 169. She emphasized the amply demonstrated will of the Government to cooperate with the ILO, particularly for the application of Convention No. 169. The Government compiled its reports on the basis of broad consultation processes. It dealt with complaints relating to specific cases and carried out cooperative activities such as the "seminar on the inspection of working conditions in the rural sector", held in May 1999.

All the efforts which had been described above indicated the series of coordinated government processes and activities which formed the historical, everyday and permanent work in relation to indigenous peoples, communities and organizations at the various levels through many institutions. These processes required time and evaluation. The task was not easy, but awareness was high that in order to carry through legislative action and programmes it was necessary to maintain the political will and the co-responsibility of the various actors in order to continue achieving the consensus needed to promote the participation of indigenous persons in the future of the country. This was a democratic and ongoing exercise which touched on social, cultural, political and legal matters involving the citizens of Mexico.

The Worker members noted with interest the oral and written information provided by the Government of Mexico. As the written information submitted was voluminous and was received at a late stage, they proposed to defer the examination of this document to the Committee of Experts. They underscored that this case had been suggested by the Workers' group and it demonstrated their effort to balance attention given by the Committee on the Application of Standards to basic human rights cases and other difficult cases. They were somewhat concerned by the possible inference that could be drawn from the statement by the Government representative, Director of the National Indian Institute, that this case did not reflect serious problems. With reference to the Government's query as to the basis for the Committee of Experts' conclusions, he recalled, in particular, paragraph 45(a) of the November 1999 report of the tripartite committee set up to examine a representation under article 24 (GB.276/16/3, November 1999). They emphasized that, in their conclusions, the Committee of Experts had expressed serious concerns by the apparent lack of dialogue between the Government and the indigenous peoples. Another main point was the information submitted by the Authentic Workers' Front (FAT) which was still under scrutiny by the Committee of Experts. They expressed concern over the fact that the Government did not seem to attach sufficient importance to the grievances and dissatisfaction voiced by the indigenous peoples. While they acknowledged and had taken note of the efforts the Government had reported taking, they maintained that the Government had not deployed sufficient efforts, in particular towards establishing the appropriate climate of consultation. They further noted, with interest, that this case had been brought to the ILO by trade unions. However, neither one of the larger employers' and workers' organizations in Mexico seemed to have taken any interest in this case as their views had not been made known to the Committee of Experts so far. In this context, the Worker members quoted from paragraph 70 of the General Report of the Committee of Experts in which the Committee emphasized the importance it attached to the contribution by employers' and workers' organizations to the task of the supervisory bodies. They further considered it relevant to note that member States who ratified a Convention should be able to implement their obligations forthwith. A ratification could not only be seen as a declaration of good intentions. They concluded by expressing support for the proposal by the Committee of Experts that the Government request technical assistance from the International Labour Office (paragraph 5 of the observation by the Committee of Experts). Such assistance could represent a good starting point for a dialogue to seek a solution to the serious problems this case reflected. They underscored the importance of a broad representation in such a dialogue including, inter alia, the small trade unions who brought this case to the attention of the ILO and genuine representatives for the indigenous peoples concerned.

The Employer members recalled that this Committee had previously discussed the case of Mexico in 1995. At that time, information of serious problems involving Chiapas had been received from organizations representing indigenous communities and from the National Indian Institute. Noting that the Committee was now examining different issues, the Employer members thanked the Government representative for supplying a detailed report on the issues raised. The Committee of Experts had included four points in its observation, but had not provided sufficient detail. Accordingly, this Committee could not evaluate the issues in depth. With regard to the issue of the land rights of the Huichol community, the Employer members noted the Government's indication that a judicial appeal (amparo) was being pursued and that the indigenous peoples' rights had been recognized in that case. Noting that special agrarian courts existed in Mexico to address such land rights issues and resolve disputes, the Employer members considered that this special court system offered an effective form of assistance. Turning to another issue of land rights concerning the Uxpanapa Valley indigenous communities, who had been displaced following the construction of a dam, the Employer members noted that this problem was longstanding. Noting that the situation had not been resolved, the Employer members indicated that a real dialogue between the Government and the indigenous community might be necessary, as suggested by the Committee of Experts. Regarding the Government's conclusion of agreements with multinational enterprises allowing exploitation of mineral and forestry resources on indigenous lands, the Employer members noted that the Committee could only hold an interim discussion on this point, as insufficient information had been supplied.

The Employer members noted that the two representations brought before the Governing Body had led to the adoption of conclusions and recommendations suggesting that the Government engage in dialogue with the indigenous communities to resolve issues in accordance with the consultative spirit on which the Convention was based. Noting that consultation appeared to be the main issue of this case and was stressed in the closing paragraphs of the Committee of Experts' comments, the Employer members pointed out that, according to the Director of the National Indian Institute, the institute's main activity was in fact to develop and establish such a dialogue with the indigenous communities. The Committee should therefore express its hope that the necessary measures would be developed and expedited so that tangible problems could be resolved. The Employer members requested the Government to provide detailed information on the issues raised by the Committee of Experts.

The Employer member of Mexico expressed full support for the report presented by the Government representative. He said that Mexican employers witnessed and were protagonists in the efforts made by the Government to maintain social dialogue and promote investment in the most isolated regions of the country, in which indigenous peoples predominated, with a view to ensuring their economic and social integration with the rest of the population. For this purpose, the development of private initiative was being promoted in these areas through fiscal incentives and many types of facilities to encourage the installation of industry. In this way, employment and the recruitment of local inhabitants was being encouraged. Nevertheless, he warned that the subject covered by the Convention lent itself to all types of rhetoric and manipulation by interests which were completely unrelated to the issue. It was no surprise that so-called workers' organizations, with a view to gaining notoriety, claimed to submit complaints concerning disputes of which they had no knowledge. It would be very different if the ethnic groups concerned had submitted a complaint setting out in detail the matter which was of concern to them. He emphasized that in Mexico the fundamental rights of indigenous peoples were recognized and respected and that they were considered to be an important part of the population. He added that employers were interested in developing sources of employment in the most isolated parts of the country. He stated that the Convention was fully applied in a context of dialogue, with the participation of the various social partners. Finally, he expressed the view that the additional report requested by the Committee of Experts from the Government would be sufficient to respond to the points raised by the Conference Committee.

The Worker member of Mexico indicated that the Confederation of Mexican Workers, like the National Peasants' Confederation and the Indigenous Council, had taken part alongside the Government in the legislative reform process through discussions and dialogue with various legislative bodies at the federal, state and local levels. At the state level it had been decided to draft community laws. He pointed out that more than half of Mexico's states had amended their constitutions to respect the principles of the Convention. It was important to observe that workers, peasants and indigenous peoples belonged to the Union Congress, whose decisions were taken jointly. The fact that Mexico had more than 100 distinct indigenous groups within its borders, each with its own language and customs, posed a serious problem. Those communities were open to interference from the outside not only by groups seeking to safeguard human rights but also from every sort of religious sect taking advantage of the situation to pursue its own interests. Peace and order could only be maintained under such circumstances in the context of respect for the law. Otherwise, the situation would degenerate into a large-scale conflict which, understandably, no one wanted. To conclude, the Worker member stated that a dialogue was under way and the problems were being addressed slowly, but productively.

The Worker member of Brazil indicated that he was speaking out of solidarity for the Mexican people and because there was also a high number of indigenous peoples in his country. He welcomed the statement by the Government representative. He stated that it was important to examine whether the activities and policies which had been described were in conformity with the Convention. He recalled the importance of one of the basic objectives of the Convention, namely that indigenous peoples should participate in the development of the policies applicable to them and should be consulted through appropriate procedures. In this respect, he shared the concern of the Committee of Experts with regard to the development of Mexican public policies which did not respect this principle. He emphasized that consultation required institutionalized mechanisms which were freely accessible to all organizations. Another aspect referred to in previous years by the Committee of Experts had been the legal and constitutional reforms which could have the effect of negating or restricting the legal scope of the provisions of the Convention. In that regard, he recalled that a country that ratified a Convention undertook to give it full effect in national law and could not therefore introduce reforms which undermined its application. With regard to Articles 8 to 12 of the Convention, he recalled that in previous years the Committee of Experts had expressed concern at the large number of indigenous persons who were in prison in the State of Oaxaca without having been found guilty. With regard to Articles 13 to 19 of the Convention, it had requested information from the Government concerning whether the ownership and possession of the land was guaranteed for indigenous communities. In respect of Article 20 of the Convention, which dealt with the recruitment and conditions of employment of indigenous peoples, it had noted that it was regrettable that wage discrimination still existed and needed to be eliminated. Finally, he reaffirmed that an essential element of the Convention consisted of the holding of consultations with representative organizations. He added that where there was no certainty of being able to work with independent trade unions, it could not be said that the Convention was being applied.

Another Government representative, with reference to the intervention by the Worker members, said that there had perhaps been a misunderstanding when the other Government representative, in her statement had referred to the observation of the Committee of Experts which indicated that concern had been "expressed by the Governing Body over an apparent lack of real dialogue between the Government and the indigenous communities". She had stated that the above statement did not come from the documents prepared for the Governing Body and that it was certainly an error on the part of the Committee of Experts. While the Committee of Experts had indeed expressed concern at the lack of dialogue, this was an unjustified concern since, as had been mentioned, there were numerous channels of dialogue. In contrast with the views expressed by the Worker members he denied his Government was minimizing the problem and emphasized that it was aware that the indigenous people had been exploited and that it was endeavouring to resolve the heritage of 500 years. For this purpose, the Constitution had been amended, new programmes had been implemented and funds and policies developed in favour of this underprivileged category of the population. It was not the intention of the Government to ignore this situation nor to remain inactive. It was not possible to expect that the poverty which existed in his country, and particularly in indigenous populations, could be resolved in the short term. The situation was a phenomenon of underdevelopment and efforts were being made to resolve it. He affirmed that Mexico had not ratified the Convention prematurely, as stated by the Worker members. When it had done so, all the provisions of the Convention had been covered in national legislation. Finally, he emphasized that none of the supervisory bodies of the ILO had stated that Mexico had violated the Convention.

Another Government representative emphasized that no attempt was being made by her Government to minimize the issue of indigenous peoples, which constituted an important problem in respect of which gradual progress was being made towards achieving results. She did not agree with the view expressed by the Worker members that the measures taken for the benefit of indigenous peoples could be described as completed. These were issues of justice and development, and it was never possible to consider that a task had been completed. If that was so, the ILO would not exist. With regard to the question of consultations, she indicated that they were not only common practice in her country, but also constituted an obligation for Mexican public servants. All policies and activities were organized and undertaken in consultation with the various indigenous communities. In response to the question raised by the Worker member of Brazil on land ownership, she cited part of article 27 of the Constitution under the terms of which "the legal personality of population units shall be recognized and their ownership of the land shall be protected. The integrity of the lands of indigenous groups shall be protected". She emphasized that indigenous persons were not only entitled to own land and to the protection of their ownership, but also to recognition of the legal personality of their communities. She added that the National Indian Institute and the Social Development Secretariat were national consultative bodies which contributed to the dialogue on self-development projects, technical assistance and human rights, among other matters. A new body had recently been created with the participation of 50 representatives of 35 indigenous regions and in which 17 different languages were spoken. These were examples of institutionalized and pluri-cultural consultation bodies.

The Worker members expressed their full appreciation of the difficulties caused by the level of poverty in Mexico referred to by the Government representative. They disagreed, however, with the inference that poverty was or could be seen as the basic explanation for the problems at issue. Although they agreed that it was essential to obtain further information on this case, and that technical assistance from the ILO usefully could contribute thereto, they reiterated that one of the main problems in this case was the apparent lack of dialogue with the indigenous peoples concerned.

The Employer members noted the statement by the Government representative that numerous measures had been taken in order to resolve the problems encountered with respect to indigenous and tribal peoples. To this effect, an amendment to the Constitution, amendments of legislation and other measures had taken place. However, the Committee was not in a position to determine whether these measures were sufficient to protect the rights of indigenous and tribal peoples. This was also due to the particular character of the Convention which provided for complex measures to be taken by a ratifying State. Therefore, this discussion had rather an interim character which nevertheless was valuable as it should encourage the Government to take prompt action, and contributed to creating a greater awareness of the problems of indigenous and tribal peoples. In conclusion, they stated that the Government should provide additional information in a report.

The Committee noted the detailed written and oral information supplied by the Government representatives, and the discussion which took place. The information provided indicated that the Government was taking active measures to address the questions raised by the Committee of Experts, but that continuing efforts were still required. It noted with concern that the Governing Body, in its conclusions on two representations under article 24 of the Constitution, had evoked problems in carrying out effective consultations between the Government and representatives of indigenous peoples. Similar questions had been raised in comments by workers' organizations, as had continuing allegations of labour abuses practised against rural indigenous workers and questions concerning the land rights of indigenous peoples. The Committee urged the Government to continue to provide detailed information on measures to the Committee of Experts to resolve the numerous questions raised by the Committee of Experts concerning the application of the Convention, with the technical assistance of the Office, if necessary.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information on points 4 and 5 of the observation made on this Convention:

Mexico was the first Latin American country to ratify Convention No. 169. In this way, it reiterated recognition of the country's multicultural composition, originally based in its indigenous peoples, and assumed all its responsibilities to protect and promote the development of its languages, cultures, usages, customs, resources and specific forms of social organization. This Convention has been ratified by only seven States and entered into force, upon Mexico's ratification, on 5 September 1990.

By virtue of the Convention, the Government has adopted the measures necessary to assure, on an equal footing, the rights and opportunities that the national legislation grants to other members of the population. Account was taken in the reports to the ILO of the fulfilment of the international obligations undertaken, and the Committee of Experts has noted this with satisfaction and interest, as expressed in its last report.

The Government states, in relation to point 4 of the observation, that it has begun consultations with the National Indigenous Institute, the Directorate of the Labour Inspection Service of those States of the Federation which have indigenous populations and interested organizations with a view to preparing the report which will be submitted in due course to the Committee of Experts, within the normal time period. This information will be supplementary to that already given in previous reports and will provide a broad view of the practical results obtained.

In point 5 of the observation, it is stated that the absence of basic protection for indigenous workers' rights and working conditions was one of the origins of the outbreak of violence in the State of Chiapas in January 1994. In this respect Mexico has maintained, and has been supported in this by various independent sources, that the basic cause of the conflict was the conditions of extreme poverty and economic backwardness that, unfortunately, still prevail in this zone despite the Government's efforts to remedy them.

Chiapas is the State of the Federation which has the highest level of needs for improvements in the well-being of its population. It is more than double the national average rate. More than half the inhabitants are minors under 14 years of age. The various indigenous groups that live in this State are dispersed throughout 12,000 localities which average less than 100 inhabitants.

With regard to the technical observations given in the previous report relating, among other things, to labour inspection among indigenous populations, the Committee of Experts itself recognized that "it is aware that a situation of the kind outlined in the previous report will take time to correct" and that "it hopes that the Government will keep it informed of the situation of indigenous workers in this region and elsewhere, and of the practical steps taken to improve the situation". The Committee concludes by encouraging the Government "to continue the efforts it has already made to improve the working situation". With regard to this question, the Government has begun to collect the necessary information for, on the one hand, the preparation of the next report, and, on the other hand, the adoption of the corresponding measures to give adequate attention to the problems referred to.

The Government is pleased to note that the information presented in its previous report has been described as encouraging by the Committee of Experts and it wishes to repeat to the Conference Committee on Standards its constant concern for the rights of indigenous workers, as well as their conditions of work. It is studying all the practical measures which could guarantee these rights and improve these working conditions. In addition, it is considering whether it would be useful to have recourse to the technical collaboration of the Office through its multidisciplinary team situated in San José, Costa Rica, with a view to finding the most appropriate solutions to the technical problems which might arise under this, or other, ILO Conventions ratified by Mexico.

In addition, a Government representative reiterated the written information provided.

The Workers' members emphasized that it was the first time that a case had been discussed under this Convention, which was aimed at protecting the rights of indigenous peoples and at guaranteeing their integrity. The Committee of Experts in points 4 and 5 of its observation noted that very serious problems existed with respect to the elementary protection of the rights and conditions of the workers in the rural sector, most of whom were indigenous people. It had underlined, as had other authorities, including the National Indian Institute, the absence of protection in practice for the rural workers, pointing out to the coercive recruitment practices, denial of trade union rights, non-payment of wages, etc. These practices were due notably to the total absence of labour inspection while Article 20(4) of the Convention highlighted the importance that the Government should attach to the creation of adequate labour inspection services, in particular in the rural sector.

The Workers' members noted on the basis of the information provided by the Government that there were modifications and improvements in the legislation. However, they were preoccupied with the concern that it was not enough to provide for principles in the legislation, if the legal framework and the social infrastructure were not really operational and if not enough initiative was being applied to remedy the situation. In these circumstances, the Workers' members considered that it was not really surprising to see that the population, such as the indigenous people of Chiapas, revolted against social exclusion and poverty. Referring to the Declaration and the Programme of Action adopted by the World Summit for Social Development, the Workers' members recalled that the fight against social exclusion and poverty in order to strengthen social peace and social justice should be an absolute priority of each government. To achieve this, sustainable and coordinated policy should be developed.

The Workers' members noted that, according to the Government representative, his Government wanted to apply the Convention in practice. It was important in this respect to ask the Government to implement a strong and coherent policy to guarantee, in law and in practice, protection for the workers in the rural sector and in the areas of indigenous population, as well as to insist that the Government organize an efficient system of inspection, provide detailed information on the application in practice of the Convention and, finally, that it avail itself of the technical assistance of the ILO in this area.

The Employers' members concentrated their comments on the two issues raised in paragraphs 4 and 5 of the observation of the Committee of Experts. Concerning paragraph 4, this observation was based on the report presented by the National Indian Institute which denounced serious abuses against indigenous people, such as the non-payment of wages and the denial of the right to organize. They expressed the hope that the Government would very soon take the appropriate measures to eliminate such abuses.

In respect of paragraph 5, which dealt with the acute problem in the Chiapas State, the Employers' members agreed with the Government representative that the causes of this manifestation of violence lay in the extreme poverty and the backwardness of those regions where the indigenous peoples lived. While the Employers' members recognized that the solution to this problem would require a certain time, they insisted on the fact that all efforts should be deployed in order to remedy the situation, including having recourse to the technical assistance of the ILO, and to provide detailed reports in this respect.

The Workers' member of New Zealand underlined the importance of the Convention which provided an excellent framework in order to understand the situation of indigenous and tribal peoples throughout the world. She commended the Mexican Government for ratifying this crucial Convention, providing a strong example to most other countries with indigenous peoples. In considering the report of the Committee of Experts in the case of Mexico, one had to bear in mind that the Convention recognized the aspiration of indigenous peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions within the framework of the States in which they live. The Convention also acknowledged that in many parts of the world these peoples were unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they lived and that their laws, values, customs and perspectives had often been eroded.

It was clear from the report of the Committee of Experts that this was indeed the case in Mexico, in terms of evidence of serious abuses against workers in the rural sector, most of whom were indigenous. The Government had responded by saying that it had begun consultations with the National Indigenous Institute, the Directorate of the Labour Inspection Service of those States of the Federation having indigenous populations, and interested organizations with a view to preparing a report. The speaker hoped that the Government would provide detailed information on the matter.

However, not only governments had failed up to now to recognize and promote the rights of indigenous peoples but also trade unions had only recently begun to understand and incorporate indigenous peoples in their membership in ways which ensured compliance with the requirements of the Convention. For that reason, she insisted on the vital role of the labour inspectorate. By way of concluding remarks, she urged, as did the Workers' and Employers' groups, the Government, not merely to consider, but indeed to have recourse to the technical collaboration with the ILO with a view to tackling these serious problems.

The Government representative thanked all the speakers for the comments they had formulated and pointed out that the Government had developed, with the participation of indigenous communities, a systematic and coordinated programme to protect their rights and to ensure respect for their integrity. Only a month ago the President had submitted to Parliament the National Development Plan which contained five fundamental objectives for the period 1995-2000. The second of these objectives was the consolidation of a system of social conviviality with equal justice for all and resolution of conflicts. On the basis of the Plan appropriate programmes paying special attention to the problems of indigenous and rural populations should be considered. A number of chapters in this Plan were dedicated to indigenous problems. The Government indicated that it wanted to establish a new relation with the indigenous peoples to be based on the respect and the recognition of cultural diversity, and to promote the participation of indigenous peoples in the planification, definition, application and administration of programmes for the improvement of health, welfare and education of the indigenous communities.

The Committee noted with interest the written and oral information provided by the Government, as well as the discussion which had taken place. It welcomed the changes that had been made in the National Constitution and legislation to take account of the ratification of the Convention.

The Committee, while taking into account the National Development Plan of the country, noted that there were real problems in the implementation of the national labour legislation to the rural Indian populations of the country, and it was concerned that this appeared to have contributed to the unrest in the Chiapas State beginning in 1994. It also noted the indication that the Government was undertaking consultations with a view to finding solutions to these problems but regretted that the last report contained no information on the ground situation. It hoped that the Government would soon agree to receive a technical advisory mission from the Office to explore ways of improving the situation. It looked forward to receiving information for its next session indicating the achievement of substantial progress on the practical situation concerning protection for the indigenous people, including through the strengthening of inspection, which had been called for by the Committee of Experts.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

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

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.

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.]

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes a communication from the Trade Union Delegation of Radio Education, section XI, of the National Union of Education Workers (SNTE), of 7 November 2007, and the Government’s reply of 18 August 2008. The SNTE alleges that the Government of Mexico failed to comply with the recommendations in a Governing Body report concerning a representation it made (Governing Body document GB.272/7/2, June 1998). The Committee notes that in a communication dated 26 August 2008, the Mexican Government stated that the preparation of the report was complex because various complaints had to be addressed. It indicated that consultations were under way for this purpose and requested an extension of the deadline for the report. The Committee notes that it received the full report from the Government on 25 November 2008. Due to the late arrival of the report, the Committee will not be able to examine the report fully at this session, though it will examine the information relevant to the trade union communication.

Background. The subject of the 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 communities 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 de Cohamiata.

In paragraph 45 of the abovementioned report, the Governing Body: (a) urged 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; (b) requested the Government to inform the Committee of Experts, through the reports to be submitted on this Convention under article 22 of the ILO Constitution, on: (i) the decision to be handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection of constitutional rights lodged against the decision handed down by the Agrarian Tribunal in the particular case of Tierra Blanca; (ii) the measures which have been taken or which could be taken to remedy the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in land censuses, which might include the adoption of 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; (iii) the possible adoption of appropriate measures to remedy the situation which has given rise to this representation, taking account of the possibility of assigning additional land 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 in Article 19 of the Convention.

The Committee re-examined the matter in 2001 and 2006 after receiving a communication from the SNTE stating, inter alia, that the Presidential Decision granting title for the land to San Andrés de Cohamiata had recognized only a part of its land, removing from San Andrés 43 per cent of its ancestral lands; and it was precisely on these lands in which the community of Bancos lived which were given to San Lucas de Jalpa. The SNTE added that a forestry exploitation concession had been granted to San Lucas de Jalpa, which was unlawful because the land involved was currently the subject of litigation.

Communication from the SNTE of 2007 and the Government’s reply. The SNTE states that despite the nine years that have lapsed since recommendations were made concerning the representation in question, the Government has still not taken the necessary measures to deal with the situations that gave rise to the representation. The agrarian situation of the community of Bancos had become worse, and there was a real danger that the “legal dispossession” of its land would become definite. It also pointed out that the Agrarian Tribunals had handed down a ruling along the lines of the Presidential Resolution of 1981, contested by the Huichol community. Under this Decision, the title of the lands of the Bancos community had been conceded to the agrarian community of San Lucas de Jalpa. The SNTE states that on 10 August 2007, the community had filed a claim for constitutional rights (amparo) against the decision of the Higher Agrarian Tribunal, which in this matter would be the final judicial procedure available. The SNTE also indicates that the indigenous community of Bancos proposed to the Government, among other things, that the Secretariat for the Agrarian Reform should critically review the legality and correctness of the acts resulting in the illegitimate granting of titles on the lands of the Bancos community of San Lucas since the Secretariat had at its disposal technical information collected by the Secretariat itself which proved the ancestral possession of the Bancos community. The SNTE states that this could contribute to the solution of the dispute without affecting the separation of powers.

The SNTE states that, for the time being, the agrarian legislation does not provide for adequate procedures referred to under Article 14(3) of the Convention to recognize land traditionally occupied by indigenous peoples, and that for the judges, only the official documents are valid. They basically uphold the decisions confirming the validity of the titles given to San Lucas de Jalpa, to the detriment of the Huichol community, on the basis that the titles of 1981 and 1985 were legal. It was precisely these titles that the indigenous community protested against, because they failed to recognize their traditional occupation of the land. According to the trade union, the traditional occupation should already have been recognized in accordance with Article 11 of the Indigenous and Tribal Populations Convention, 1957 (No. 107), which specifies that “the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised”. It points out that the Higher Agrarian Court considered that Convention No. 169 had not entered into force when the Presidential Decision was issued on 28 July 1981 and the negative decision of the agrarian advisory body was passed down on 20 June 1985.

The SNTE adds that, although there was considerable evidence 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 historical and anthropological studies – this was not enough because there were no procedures in national law to establish a link between the facts as presented and international standards. The Committee notes that, in its reply, the Government states that it is vital to find a solution to the ancestral disputes over rural land in order to maintain peace and social stability; and it is also of extreme importance to give effect to the decisions of the Judiciary and Agrarian Tribunals. It stresses that the community in question is a small community. It points out that on 30 April 2008, the Secretary of Agrarian Reform and the Governor of the state of Durango signed an agreement to settle the agrarian problem in this State (the dispute is between San Lucas de Jalpa and Bancos de Calitique o Cohamiata), and further added that injecting financial resources to reach a settlement was a priority. The Government is envisaging negotiations once all the legal means have been exhausted. It adds that, on 7 May 2008, a framework agreement was signed with the National Commission for the Development of Indigenous People (CDI), and that one of the objectives of this agreement is to preserve the land of indigenous peoples and communities.

Concerning the forestry areas granted under concession by the Secretary of the Environment and Natural Resources (SEMARNAT) to San Lucas de Jalpa, claimed by the indigenous peoples of Bancos as belonging to them (upon which the Committee made comments in 2005), the Government has undertaken to deal with this matter and cancel the forestry exploitation concession of San Lucas de Jalpa, even though the land involved was currently the subject of litigation.

The Committee notes with concern that the situation which gave rise to the representation remains unchanged. It notes, however, that the Government has expressed its determination to try to negotiate once the legal avenues have been exhausted. It also notes the Government’s intention to look into and even cancel the concession of the forestry land, which the Huicholes claim they have traditionally occupied. The Committee observes that the main issue at stake in this case is the way in which national law and the Convention regulate land rights. This is a matter of vital importance because indigenous peoples do not usually hold titles established in accordance with civil law, whereas under Conventions Nos 107 and 169, “traditional occupation” is, in itself, a source of law. Furthermore, the Committee recalls that, in another document (GB.276/16/3, paragraph 36), on a representation, the Governing Body considers that “the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force”. Although the Government states that the procedures of the Agrarian Tribunals make it possible to give effect to Article 14, the trade union points out that these procedures failed to take account of the elements proving traditional occupation, because they gave precedence to the titles granted to San Lucas de Jalpa over the concept of traditional occupation.

Under Article 14 of the Convention, traditional occupation of land creates rights which the State is obliged to recognize. According to paragraph 1 of this Article, “the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized”. Under paragraph 2 of this Article, “Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession”. Finally, paragraph 3 of the same Article states, “adequate procedures shall be established within the national legal system to resolve land claims by the people concerned”. Article 14(3) refers to the rights laid down in paragraphs 1 and 2 of the same Article, and consequently the Committee infers that, in order to be adequate, procedures must enable indigenous peoples to settle their land disputes by proving that they have been traditionally occupying the land. If the indigenous peoples were unable to assert traditional occupation as rights of ownership and possession, Article 14 of the Convention would become a dead letter. The Committee is aware that it is difficult to capture this principle in the legislation, as well as to establish adequate procedures, but stresses that the recognition of rights and possession over land which people have traditionally occupied, by means of adequate procedures, is the cornerstone of the land rights system established under the Convention. The concept of traditional occupation may be reflected in various ways in national legislation, but it must be applied. For these reasons, the Committee requests the Government to do its upmost to guarantee the application of Article 14 in dealing with this case, including by means of negotiation and to provide information in this regard. The Committee also requests the Government to provide information on how it considers the proposal put forward by the indigenous community of Bancos regarding the possibility that the Government revises its acts granting land titles to the community of San Lucas, with a view to redressing the situation under examination. Similarly, it requests the Government to provide detailed information on the way in which this Article, and especially the concept of traditional occupation as being a source of rights of ownership and possession, is reflected in national law, and to indicate whether adequate procedures, as envisaged under Article 14(3) of the Convention, exist. Furthermore, given that there is a difference of opinion as to whether existing procedures are in conformity with Article 14 of the Convention and the length of these proceedings, the Committee suggests that the Government engages in consultations with the indigenous peoples on changes that might bring these procedures more in line with the Convention. The Committee asks the Government to provide information on the measures taken in this regard. Finally, the Committee requests the Government to provide information on the implementation of the recommendations contained in paragraph 45(a) and (b)(i), (ii) and (iii) of the above-mentioned representation, specifying those matters that have been settled and others that are still pending.

In the light of the information submitted by the Government on 25 November 2008, the Committee requests the Government to provide any additional information it may consider relevant for its examination at its next session in 2009.

[The Government is requested to reply in detail to the present comments in 2009].

 

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the communication of the Government, dated 4 January 2007, containing its comments on the observations made by the Independent Union of Workers of La Jornada (SITRAJOR) concerning the report adopted by the Governing Body in March 2004 on 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) (GB.289/17/3). It also notes a communication received on 3 September 2007 from the Mexican Union of Electricians (SME), which was forwarded to the Government on 17 September 2007.

2. Communication of the Government of Mexico. Background. The communication was provided in the context of the follow-up to the report of the Governing Body of March 2004 (GB.289/17/3). Pursuant to the recommendations contained in the Governing Body report, in 2004 the Committee requested the authors of the representation to provide the information requested in point (g) of paragraph 139 of the abovementioned report (forced sterilization). In 2006, the Committee noted the reports of the Commission for the Defence of Human Rights (CODDEHUM-GUERRERO) and of the National Human Rights Commission, provided by SITRAJOR, which referred to complaints, investigations, observations and recommendations regarding cases in which members of public health institutions, both state and federal, were alleged to have carried out vasectomies on indigenous men and placed intrauterine devices in indigenous women as a birth control method without their free, informed and shared consent, in the States of Guerrero and Oaxaca. It also noted the report on 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 the practice of forced contraception of women by tying their fallopian tubes without their consent. It noted the report of the Committee on the Elimination of Racial Discrimination (CERD) on the 15th periodic report of Mexico (CERD/C/473/Add.1), dated 19 May 2005, which refers to the same issue.

3. The Committee notes the Government’s indication in its communication dated 4 January 2007 that the SITRAJOR communication provides certain documentary evidence with the objective of creating the impression that there is an intentional practice of sterilization by the authorities, which cannot be substantiated. The Government adds that the “Report on forced or involuntary sterilizations in a community” does not indicate its authorship, documentary source, date, or the community or location in which the alleged facts occurred, which undermines its validity. It further indicates that the paper prepared by the country Rapporteur for the report of Mexico to the CERD, of 15 February 2006, which indicates that the practice of forced sterilization of indigenous people has undoubtedly existed in Mexico (paragraph 29), is based on paragraphs 153, 154 and 155 of the document CERD/C/473/Add.1 and, in the view of the Government, these paragraphs do not provide a basis for inferring that forced sterilization actually exists. The Government referred to information from the Office of the Attorney-General of the Republic (PGR), that no substantiated record of such acts has been found, nor has any investigation been carried out based on complaints of alleged abuses against the peoples of these communities on the grounds of sexual and reproductive health practices (reports are attached by the delegations from Oaxaca and Guerrero of the Office of the Attorney-General dated October 2006).

4. The case of Oaxaca. With regard to the allegations of the placing of intrauterine devices against the will of the person concerned, the National Human Rights Commission issued recommendation No. 46/2002 in which it called for the following: (i) administrative responsibilities to be established and the Public Prosecutor’s Office informed; and (ii) the personnel of the Mexican Social Security Institute (IMSS) to be instructed to train family planning staff on informed consent. With regard to the first point, in accordance with the Federal Act on public servants, there is a period of prescription of three years for the imposition of penalties and, as the alleged offences occurred on 7 January 2000 and the internal supervisory authority was notified on 10 March 2003, the IMSS was barred from taking any action within its own responsibilities. With regard to the second recommendation concerning training, the Government attaches materials relating to the training provided on family planning and reproductive health and indicates that the fourth report of the National Human Rights Commission indicates that recommendation 46/2002 has been given full effect.

5. The Guerrero case. With reference to the communication from SITRAJOR alleging that vasectomies were carried out on 14 men from Ojo de Agua, Ocotlán, La Fátima and El Camaleón, the Committee notes recommendations Nos 041/99 and 035/2004 of the Committee for the Defence of Human Rights of Guerrero which call for: (1) the conducting of an investigation; (2) the compensation of those affected; and (3) the issuing of instructions to the personnel of the health secretariat so that family planning policies are in compliance with the Convention.

6. The Committee notes that the Government provides information on numerous reproductive health activities and programmes and, in particular, the signing of a letter of intent aimed at the strengthening of inter-institutional collaboration for the reproductive health of the indigenous population.

7. Articles 2 and 3 of the Convention. The Committee emphasizes that forced sterilization constitutes a serious violation of the Convention. The Committee draws the Government’s attention to its obligation under Article 2 of the Convention to guarantee respect for the integrity of indigenous peoples and their rights. This requires the immediate adoption of effective measures to investigate and punish rapidly these acts, when they occur. The Committee, therefore, requests the Government to provide information on any measures adopted in cooperation with indigenous peoples to prevent these intolerable practices as alleged in this case, and, where appropriate, to identify and punish those responsible, and to guarantee remedies for victims.

8. Articles 2, 25(2) and 33. Coordinated and systematic action with the participation of indigenous peoples and cooperation in health services. The Committee recalls that, in accordance with Article 25(2) of the Convention, “health services shall, to the extent possible, be community-based. These services shall be planned and administered in cooperation with the peoples concerned and take into account their economic, geographic, social and cultural conditions as well as their traditional preventive care, healing practices and medicines.” Moreover, Articles 2 and 33 refer to coordinated and systematic action in cooperation with the peoples concerned in the policies and programmes affecting them. For many years, the Committee has been reiterating the need to institutionalize the participation of indigenous peoples in policies which affect them, in accordance with Articles 2 and 33, as an essential framework for the proper application of the other provisions of the Convention. The Committee requests the Government to promote community-based health services for indigenous peoples with their full participation and to provide information in this respect. The Committee requests the Government, with the representative organizations of indigenous peoples, to strengthen consultation and participation bodies so that they can effectively participate in the public policies which affect them, from their design to their evaluation. It particularly requests the Government to include indigenous peoples in reproductive health programmes at the national and local levels so that these complex questions can be addressed and resolved in the country through the bodies and procedures prescribed by the Convention. The Committee asks the Government to keep it informed on this subject.

9. Communication from the Mexican Union of Electricians (SME). The Committee notes the allegations contained in this communication of violations of the rights of consultation and participation of indigenous peoples in the case of the hydroelectric project “Presa La Parota”. The Committee will examine this communication in detail at its next session, together with any comments that the Government may consider it appropriate to make. When making comments, please indicate in particular the manner in which, when giving effect to Article 15(2) of the Convention in this case, account was taken of the provisions of Article 13(2) of the Convention.

10. The Committee requests the Government in its next report, in addition to its comments on the issues addressed by the Committee in this observation, to reply to the comments made by the Committee in 2005 and 2006. The Committee requests the Government to accord special attention to the comments made by the Committee to follow up the recommendations of the Governing Body in relation to three representations: (1) the Governing Body report adopted in March 2004 (GB.289/17/3): the Committee expects the Government to address the issues of consultation, constitutional reform and land rights, as well as other matters raised in the allegations by SITRAJOR; (2) the Governing Body report adopted in June 2006 (GB.296/5/3): the Committee is awaiting the Government’s first report on the follow-up measures taken in relation to the recommendations made by the Governing Body; and (3) the Governing Body report adopted in June 1998 (GB.272/7/2): the Committee examined a communication in 2005 from the National Union of Education Workers (SMTE) alleging failure to comply with the recommendations made by the Governing Body in the above report, which essentially relate to the lands of the Huichol. The Committee requests the Government to provide detailed information on these matters.

11. Noting that a large proportion of the representations and communications addressed by the Committee refer to consultation and participation, the Committee requests the Government to provide information on the specific measures adopted to set up appropriate bodies and machinery for consultation and participation, to seek solutions that are inclusive of the various interests at stake on the basis of dialogue, to prevent the recurrence of disputes relating to the issue of consultation and participation and to keep the Committee informed in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. In 2004, the Committee noted 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) and the Trade Union of Workers of the National Autonomous University of Mexico (STUNAM), which was adopted by the Governing Body in March 2004 (document GB.289/17/3). Following up that report, the Committee requested the claimants to provide information in relation to paragraph 139(g) of the report (forced sterilization). In 2005, the Committee noted that the requested information had not been provided. The Committee notes the comments made by the Independent Union of Workers of La Jornada (SITRAJOR) on the subject, received on 16 March 2006 pursuant to article 23 of the ILO Constitution, which were forwarded to the Government on 13 April 2006.

2. The Committee noted that according to paragraph 126 of the report referred to above, in its reply to the allegations made by the trade union organizations concerning the practice of the forced sterilization of indigenous men and women, the Government stated that, should a person believe that his or her right to decide freely, responsibly and in an informed manner on the number of children that he or she wants has been infringed, he or she may lodge a complaint with the National Committee for Human Rights. Furthermore, in paragraph 135, the tripartite committee considered that it “does not have sufficient information to draw any conclusions. It considers, nevertheless, that the fact that these allegations have been made highlights the climate of suspicion and distrust created by the existing hostility with regard to the issue of indigenous rights in the country, and emphasizes the need for the Government to investigate these allegations and to punish severely all those who might be implicated in such actions”.

3. The Committee notes the reports of the Commission for the Defence of Human Rights (CODDEHUM-GUERRERO) and the National Human Rights Commission, provided by SITRAJOR, which refer to complaints, investigations, observations and recommendations regarding cases in which members of public health institutions, both state and federal, carried out vasectomies on indigenous men and placed intra-uterine devices in indigenous women as a birth control method without their free, informed and shared consent, in the States of Guerrero and Oaxaca. It also notes the report on a specific local study alleging that the health system for indigenous communities is precarious, and referring to the inhumane and discriminatory treatment provided for indigenous persons in health-care centres and the practice of forced contraception of women by tying their fallopian tubes without their consent. It notes the report of the Committee on the Elimination of Racial Discrimination (CERD) on the 15th periodic report of Mexico (CERD/C/473/Add.1), dated 19 May 2005, which refers in paragraphs 153-155 to the action taken by the National Human Rights Commission regarding allegations of the trade union organization concerning forced sterilization, and the document submitted to CERD by the Rapporteur designated by the previous report of Mexico. While noting that the Government has not challenged the comments of SITRAJOR, the Committee nevertheless observes that in an annex to its report in 2005, the Government reported on the various activities in the field of training, awareness raising and dissemination on free choice, informed consent and sexual and reproductive rights carried out by the Inter-Institutional Reproductive Health Group (GISR) and the National Centre for Gender Equity and Reproductive Health (CNEGSR) targeting indigenous peoples and health-care providers, particularly in the State of Guerrero, and the training measures adopted with a view to preventing any recurrence of the alleged practices. The Committee requests the Government to provide its comments on this communication, to supply information on the investigations conducted into the existence of the alleged practices, on the measures adopted to address these practices, such as providing compensation and imposing penalties, where appropriate, and on other action taken to prevent the recurrence of such practices.

4. The Committee notes that in June 2006 the Governing Body adopted the report of the tripartite committee set up to examine the representation made under article 24 of the Constitution of the ILO by the Union of Metal, Steel, Iron and Allied Workers (document GB.296/5/3). The Committee asks the Government to provide information in its next report, together with the information requested by the Committee in its comments in 2005, on the action taken as a result of the recommendations of the Governing Body.

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

General policy

1. Article 1 of the Convention. Identification and self-identification. Linguistic requirements and physical location. In its previous comments, the Committee noted that article 2 of the constitutional reform provides that awareness of indigenous identity shall be a fundamental criterion in determining the persons to whom the provisions on indigenous peoples apply. It also noted that according to article 2, paragraph 5, "recognition of indigenous peoples and communities shall be provided for in the constitutions and laws of the federative entities which shall take into account ethno-linguistic criteria and physical location, in addition to the general principles set out in the previous paragraphs of this article". The Committee notes that, according to the Government’s report, Mexico’s indigenous population is numerically the largest in Latin America, that the National Population Council (CONAPO) estimated the size of the indigenous population to be 12.7 million in 2000 and that it is made up of 62 indigenous peoples. The CONAPO survey included questions about the indigenous languages spoken and membership of indigenous groups of at least one member of the household. The Committee notes that according to Annex 16 of the Government’s report (Socio-economic indicators for indigenous peoples of Mexico, 2002), "the ‘de-indianization’ process led many indigenous persons to abandon their communities of origin, contributing to a significant loss in their indigenous languages and their ethnic identities". It also notes that in the above annex, there are six categories in answer to the questions on language and membership of an indigenous group, the fourth of which is "Do not speak an indigenous language and belong to an indigenous group". The Committee further notes that, since formal censuses were first introduced in 1895, language has been the main criterion used for identifying the indigenous population. Since, as noted in the annex sent by the Government, "de-indianization" has led to many indigenous people losing their language, the Committee would be grateful if the Government would state whether the persons in the fourth category ("Do not speak an indigenous language and belong to an indigenous group") enjoy the protection afforded by the Convention, so that the application of Article 1 is not limited, as it does not include language as a criterion for defining the peoples protected by the Convention. With regard to paragraph 5 of article 2 of the constitutional reform, which makes the federative entities responsible for the recognition of indigenous peoples and communities, taking into account ethno-linguistic criteria and physical location, the Committee would be grateful for information on the manner in which these entities apply such criteria.

2. Articles 2 and 33. Administration. In its 2004 observation, the Committee noted the establishment of the National Commission for the Development of Indigenous Peoples (CDI), which replaced the National Indigenous Institute. The Committee notes that the focus of the CDI for the development of indigenous peoples requires public policy to be recast so that institutional activities undertaken in conjunction with the indigenous peoples promote the necessary changes in their living conditions; that comprehensive development is the fundamental goal of the policy the CDI will implement in order to reduce the backwardness and inequalities besetting indigenous peoples and communities; and that this task will be carried out with the participation of indigenous peoples and communities through a system of consultation to ensure that policy is guided by their various options and points of view. The Committee would be grateful if the Government would give its assessment of how, in practice, the CDI is pursuing these objectives and has secured the participation of indigenous peoples. The Committee further noted that the CDI has a consultative council, whose membership includes 123 indigenous councillors, who are to be appointed in accordance with regulations to be issued by the Government, and that their legitimate representation is to be guaranteed (section 12 of the Act on the National Commission for the Development of Indigenous Peoples). The Committee requests the Government to provide information on the manner in which such representation is guaranteed and whether it is proving satisfactory for the indigenous peoples.

3. Coordinated and systematic action. In its previous direct request, the Committee asked the Government for information on how it ensures full and uniform application of the Convention by the federative entities. The Committee notes that, according to article 133 of the Federal Constitution, state constitutions and congresses must adapt their legislation to international instruments, including ILO Convention No. 169. Please provide information on the manner in which the various federative entities have developed, in law and in practice, participation by indigenous peoples as required in Articles 2 and 33 of the Convention.

4. Indigenous communities and peoples as public law persons or entities. The Committee asked the Government previously to provide clarification of the legal effect of recognizing indigenous peoples as "public law entities". It notes with interest that, according to the report, "the capacity to benefit from and exercise the rights that the letter and spirit of the Constitution confers on indigenous peoples and communities gives them real legal personality as real legal subjects and public law persons or entities". The Committee notes that there appears to be a contradiction between this statement and the information contained in paragraph 9 of the present direct request according to which the indigenous communities lack the capacity to take legal action in defence of their rights. The Government also indicates that, in accordance with the above and with article 2 of the Political Constitution of the United States of Mexico, the constitutions and/or laws of the federative entities must make a provision for the explicit recognition of indigenous peoples and communities as public law entities or persons. The Government adds that such recognition is instrumental in ensuring that indigenous peoples and communities exercise effective self-determination and autonomy. The Committee would be grateful if the Government would provide information on the extent to which the federative entities accord such recognition and the scope of the recognition in the various federative entities.

5. Consultation. The Committee noted previously that the Government’s report states that one of the objectives of the National Programme for the Development of Indigenous Peoples (2001-06) was to carry out a far-reaching institutional reform and that nationwide consultation on indigenous peoples, public policy and institutional reform was held for this purpose in July and August 2002. According to the Government, one of the fundamental conclusions of the consultations was that the consultation process was seen as central to the new relationship with indigenous peoples in terms of defining policies, institutions and programmes relating to their life as peoples, and that they are recognized as key players in the transformation of the institutions of the present State. The Committee notes with interest that, according to section 2(IX) of the Act on the National Commission for the Development of Indigenous Peoples, the CDI’s main functions will include devising and operating, within its consultative council, a system for the consultation and participation of indigenous people, establishing technical procedures and methods to promote the participation of authorities, representatives and communities of indigenous peoples in the framing, implementation and evaluation of development plans and programmes. The Committee would be grateful if the Government would provide information on the practical outcome of applying this provision, and particularly on the technical procedures and methods referred to in the provision. Please also provide information on the results achieved through the application of section 2(XVI) of the Act.

6. The Committee notes that indigenous peoples were consulted in 2004 about the forms of their development and their aspirations in this regard, and that human and financial resources for the consultations were contributed by bodies concerned with indigenous peoples in the federative entities, the Secretariat of Foreign Affairs, the United Nations Development Programme and the World Bank. The Committee also notes that a project, "Guidance for the Indigenous Affairs Committee of the Senate of the Republic", is being implemented with a view to holding consultations with members of the communities on the reform of the constitutional laws. The Committee would be grateful if the Government would keep it informed of the results of this project.

7. The Committee refers to the report by the committee that examined the representations made by the Union of Academics of the National Institute of Anthropology and History (SAINAH), the Union of Workers of the 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). In paragraph 108 of the report, the Governing Body asked the Government to: make additional and ongoing efforts to overcome the feeling of exclusion that is so apparent in the complainants’ allegations; and, when developing, specifying or implementing constitutional reforms, to ensure that Article 6 of the Convention is fully applied; and in so doing, to establish clear representativity criteria, to take into account as far as possible the proposals made by the complainants as to the characteristics that consultations should have in order to be effective; to determine a suitable consultation mechanism taking into account the values, ideas, times, reference systems and even ways of conceiving consultation with indigenous peoples. Noting the efforts made by the Government (see paragraphs 5 and 6 of this request), the Committee would be grateful if the Government would continue to provide information on the progress made or planned in accordance with these recommendations.

Administration of justice

8. Articles 8 to 12. The Committee notes that the CDI is developing a project to promote the recognition, dissemination, exercise and enjoyment of the rights of indigenous women, the project to strengthen the leadership and social representation of indigenous peoples and the programme to promote agreements pertaining to justice. The Committee would be grateful if the Government would provide information on the results of the above projects. It also notes the provisions which give effect to Article 9 of the Convention, such as section 51 of the Federal Penal Code, section 52(V) of the same Code, sections 159, 220, 220bis of the Federal Code of Penal Procedure and section 24 of the Act on indigenous rights and culture in Baja California, which provide for anthropological and cultural expert opinions to be used in procedures. As to the obligation to give preference to penalties other than imprisonment, the Government says that section 24 of the Penal Code establishes 18 penalties and security measures, but that no specific measures exist for convicted indigenous persons, except where indigenous justice is recognized, as in the Act on indigenous justice of the state of Quintana Roo.

9. The Committee notes that according to the report, article 2 of the Federal Constitution, as reformed in 2001, recognizes indigenous communities as public interest entities, which prevents them from taking collective action to defend their rights, because they lack legal personality, being entitled only to benefit from rights. The Committee notes that it is difficult to make this information tally with the information in paragraph 4 above. It asks the Government to state whether, in asserting that they have legal personality, it is referring to the possibility of gaining such personality once they have been recognized by the respective federative entities, where such recognition is provided for, and whether the Government envisages the possibility of indigenous peoples and communities being represented in legal proceedings by their representative bodies in the future. The Committee notes, however, that indigenous communities are covered by agrarian law in their capacity as ejidos or agrarian communities, which have legal personality, which makes their collective representation possible. The Committee further notes that section 14 of the General Act on the linguistic rights of indigenous peoples provides that the federal authorities shall ensure that in proceedings undertaken by indigenous persons, the latter shall have provided free of charge assistance from interpreters and legal counsel who know their language and culture. Please provide information on the effect given in practice to this provision, indicating for example the percentage of indigenous persons tried or convicted since the above Act entered into force who have benefited from this provision.

Land

10. In paragraph 139(e) of the report it adopted in March 2004 (document GB.289/17/3), the Governing Body urges the Government to look for appropriate solutions to the issue of land in order to avoid a repetition of the situation in Agua Fria, and requests it to inform the Committee of Experts: (i) of the functioning in practice of the procedures to resolve the land claims of the peoples concerned; (ii) of the manner in which these procedures recognize the rights 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.

11. The Committee notes that, in connection with this matter, the Government refers to the Regulations of the Agrarian Act of 4 January 1996 on the Rural Ownership System and the Agreement of 19 March 2003 laying down the operating rules of the programme to address disputes in rural areas. The Committee observes that the information supplied does not respond fully to the points raised by the tripartite committee that examined the representation. It reminds the Government that the tripartite committee expressed concern that situations like the one in Agua Fria might be repeated because of the tensions surrounding the ownership and possession of land. The Committee accordingly asks the Government to supply the information requested, including information of a practical nature such as the length of the proceedings, together with the relevant parts of any judicial or administrative decisions regarding traditional occupation, the criteria used to define traditional occupation, and an assessment of the effectiveness of the proceedings.

12. The Committee also notes that, with regard to participation, the Government’s report states that the incapacity of institutional procedures to address agrarian disputes has made it necessary to develop a special strategy to resolve them. The CDI, in collaboration with the federal agrarian authorities, have promoted a mechanism to secure wide-ranging coordination with state governments and municipal authorities, and consultation with farmers’ organizations and groups in dispute, focusing on conciliation as the most suitable means of dispute settlement. The Committee notes with interest that, as a result of the work undertaken, the federal Government has settled in nine of the 14 problem areas recorded in 2003. As to settlement in the most serious problems (focos rojos), the Government refers to the case of Chimalapas in the state of Oaxaca, where a development programme for indigenous peoples has been implemented with the participation of the indigenous peoples of the region. The Committee refers to the report on the representation (GB.289/17/3) and hopes that the mechanisms to deal with agrarian disputes will also cover the people of Zolontla in the municipality of Ixhuatlan de Madero, state of Veracruz, and that the Government will continue to provide information on this subject and on the activities of these mechanisms and the new cases dealt with. Please also provide information on the action that is being taken in relation to the situation of the lands of the following communities, referred to in the communication of the Trade Union of Telephone Operators of the Republic of Mexico: the Ñahñù community of San Pedro de Atlapulco, the Suave community of San Francisco del Mar, the Zoque communities of Chimalapas, the Mazahua community of San Antonio de Laguna (pages 65-83 of the communication).

Recruitment and employment conditions

13. The Committee notes that programmes have been set up through the Ministry of Labour and Social Welfare to address two aspects of the issue: (i) indigenous issues; and (ii) agricultural day labourers, and the programmes implemented for this purpose. It also notes that, in response to the Committee’s request of 2001 to consider the possibility of adopting special practical measures to ensure effective protection for indigenous peoples in relation to hiring practices, the Government considers that migrant indigenous day labourers are protected effectively by the legislation applying to workers in general. The Committee also takes note of the information on labour inspection. Further to paragraph 139(f) of document GB.289/17/3, referred to above, the Committee would be grateful if the Government would continue to provide information on the results of labour inspections relating to the situation in practice of indigenous day labourers, and particularly indigenous children and internal migrants, and on how Article 20 of the Convention is applied in practice to these categories of workers.

14. With regard to labour issues in the export processing zones (maquilas) in the garment industry in the indigenous areas of Tehuacan, Teziutlan and Atlixco, referred to in the communication by the Trade Union of Telephone Operators of the Republic of Mexico (chapter 49) and other trade unions, the Committee notes the information supplied by the Government to the effect that workers belonging to indigenous peoples, including those employed in the maquilas, are protected by the legislation under the same terms as workers in general. With regard to agricultural day labourers in Huasteca working at the Los Compadres estate in the state of Chihuahua, alleged by the above organizations as being subject to bad working conditions and ill-treatment, the Government repeats that it has taken steps to ensure that indigenous workers have effective protection and that, as the unions themselves concede, the demands of the former workers have been met and the matter has therefore been resolved, as a result of which the Government considers that the matter is closed due to its intervention. Please indicate any aspects of Article 20 which the Government considers should be better applied in respect of workers belonging to indigenous peoples.

15. Articles 21 to 23. Vocational training, handicrafts and rural industries. The Committee notes the information supplied by the Government and requests it to continue to provide particulars of the participation by the peoples concerned in the studies envisaged in Article 22, paragraph 3. Please also indicate the programmes for which the peoples concerned have assumed responsibility, in accordance with this paragraph.

16. Social security and health. The Committee notes that the National Health Programme for 2001-06 contains an item entitled "improvement of the health and nutrition of the members of indigenous peoples". It also notes the Programme for the Health and Nutrition of Indigenous Peoples of the Secretariat of Health, the project to provide specialized medical care for indigenous patients of few means, and the project on traditional indigenous medicine. It further notes from the Government’s report that in Mexico, 86 per cent of the indigenous peoples have no institutional coverage by health services. It also notes the World Bank’s study Indigenous peoples, poverty and human development in Latin America: 1994-2004. According to this study, in virtually every basic health indicator, indigenous people exhibit the worst health outcomes. Among these, one of the most important gaps to emerge from this report may be the fact that indigenous children continue to exhibit extremely high malnutrition rates, one of the likely factors constraining learning outcomes. According to the report, this problem exists on a major scale in countries such as Mexico, where overall malnutrition rates are low, except for indigenous people, signalling a particular failure in addressing this basic need of the indigenous population. According to the same study, the percentage of the population with health insurance coverage, according to data for 2000, is 43 per cent for non-indigenous people and 17 per cent for indigenous people. The Committee would be grateful if the Government would provide up-to-date information on the health coverage of indigenous people, and on the manner in which effect is given to Article 25, paragraph 2, of the Convention, according to which health services shall, to the extent possible, be community-based and shall be planned and administered in cooperation with the indigenous peoples concerned. Please provide information on the measures adopted to overcome the situation described in the above report.

Education and media

17. The Committee notes with interest that the main education performance indicators show an improvement in the provision of indigenous primary education. With regard to completion rates, there was an improvement of 9.3 per cent in 2003-04 over 2000-01. It also notes the activities of the General Coordination of Bilingual Intercultural Education, including the publication in May 2004 of the Formal Frameworks for Bilingual Cultural Education and the diploma in bilingual cultural education awarded to 1,500 teachers throughout the country. It also notes that, according to the socio-economic indicators referred to, out of 2,492,471 indigenous children between 6 and 14 years of age, 87 per cent attend school. Please indicate the percentage of these children who receive bilingual education and indicate the priority the Government gives to the training of bilingual teachers in the 62 recognized languages and the budgets for indigenous schools to ensure that indigenous children receive education of a high quality. The Committee also notes from the World Bank study referred to above that, despite a narrowing of the education gap, the results for Mexico show an increase in the earnings gap between the indigenous and non-indigenous populations. In 1989, the monthly earnings of the indigenous population amounted to approximately one-third of those of the non-indigenous population. In 2002, indigenous earnings fell to only one-quarter of non-indigenous earnings. The narrowing education gap may not be yielding higher earnings for indigenous peoples, in part because of the quality of the education that they receive. The Committee requests the Government to supply information on the efforts made to improve the quality of the education received by indigenous people. It would be grateful if the Government would 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. Please also provide information on the application of Article 27, paragraph 3, of the Convention.

18. Article 32. The Committee notes that, on the northern border, the migration authorities facilitate border crossing by the P’apago, Kikapoo and Yaqui indigenous peoples so that they may attend traditional ceremonies, while on the southern border, particularly the border between Chiapas and Guatemala, where there is a strip of land which is permanently settled, no special bilateral agreements have been necessary to facilitate contacts and cooperation between the indigenous peoples. The Committee would be grateful to be informed whether remittances from abroad have an impact on the earnings of indigenous peoples, as a significant number of indigenous workers appear to work in neighbouring countries.

19. Part VIII of the report form. In view of the fact that the Convention is first and foremost an instrument to promote dialogue and participation, the Committee wishes to remind the Government that this part of the report form for the Convention, approved by the Governing Body, provides that "Although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application." The Committee would be grateful if the Government would indicate whether consultations are planned with these social actors, as well as with employers’ and workers’ organizations.

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.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the Government’s report received in October 2004 and its numerous annexes. The Committee notes that the Government has published much legislation related to the Convention, including: the Federal Act to Prevent and Eliminate Discrimination of 2003; the Act on the National Commission for the Development of Indigenous Peoples of 2003; the General Act on the Linguist Rights of Indigenous Peoples of 2003; and the Act on the National Institute of Indigenous Languages. It also notes the National Programme for the Development of Indigenous Peoples (2001-2006).

2. The Committee notes the report of the committee set up to examine the representations made by the Union of Academics of the National Institute of Anthropology and History (SAINAH), the Union of Workers of the Autonomous University of Mexico (STUNAM), the Independent Union of Workers of La Jornada (SITRAJOR) and the Authentic Labour Front (FAT), which was adopted by the Governing Body in March 2004 (document GB.289/17/3). Paragraphs 108, 139 and 149 of this report contain a mandate to follow up the various aspects of the Convention, which are examined by the Committee of Experts. Due to the large quantity of materials to be examined on the application of the Convention in Mexico, the Committee will confine its comments during the current session to matters directly related to the representation, and will refer to other issues in subsequent sessions. It requests the Government to send, in time for it to be analysed by the Committee at its next session (no later than 1 September 2005) replies to the present comments and any more recent information that may emerge to update the detailed report it sent this year.

3. Article 6 of the Convention. Consultations. In paragraph 108 of the report, the Governing Body called upon the Government to made additional and ongoing efforts to overcome the feeling of exclusion that is so apparent in the allegations and to develop, formulate and implement reforms for the full application of Article 6 of the Convention, based on clear representativity criteria, taking into account as far as possible the proposals of the authors of the representation with regard to the characteristics that consultations should have to be effective and establishing an appropriate consultation mechanism taking into account the values, ideas, times, reference systems and even the ways in which indigenous populations conceive of consultation.

4. The Committee notes the indication in the Government’s report that one of the objectives of the National Programme for the Development of Indigenous Peoples (2001-06) is to achieve deep-rooted institutional reform, for which a national consultation was held on indigenous peoples, public policies and institutional reform in July and August 2002. According to the Government, one of the fundamental conclusions reached in this consultation was to consider the consultation mechanism as the centrepiece of a new relationship with indigenous peoples in the determination of policies, institutions and programmes related to their life as peoples, thereby acknowledging their role as fundamental actors in the transformation of the State’s current institutions. The result was the establishment of the National Commission for the Development of Indigenous Peoples (CDI), which replaced the National Indigenous Institute. The Act establishing the CDI provides that its functions include developing, within the framework of the Commission, a system of consultation and participation, as section 3 provides that the Commission shall hold consultations whenever the Executive promotes reforms, measures and programmes which have an impact on the conditions of life of indigenous peoples. The Committee also notes that the Commission has established an Advisory Council consisting of 123 indigenous advisers. Please indicate the representativity criteria used for the selection of the 123 indigenous counsellors in the country, the 32 counsellors representing the governments of federated entities, the 12 counsellors representing social organizations, the six counsellors representing academic and research institutions and the seven counsellors from the members of the officers of the Indigenous Affairs Commissions of both Chambers of the Congress of the Union.

5. The Committee recalls that the report of the Governing Body requested the Government to establish consultation methods for the implementation of constitutional reforms at both the federal and state levels. As the constitutional reforms have given rise to specific situations in respect of which detailed implementation measures still have to be adopted, at both the federal and state levels, the Committee hopes that the Government will provide detailed information on both the consultation methods used (paragraph 108(b) of the report of the Governing Body) and the results achieved.

6. The Committee notes that a second consultation was held as from November 2003 concerning the forms of development and aspirations of indigenous peoples and it notes that it has received the report of this consultation. It hopes to be provided with information on the follow-up to this consultation, the manner in which the development plans and programmes have been formulated and implemented, including information on the manner in which indigenous peoples participated in the various stages of formulation, implementation and follow-up.

7. In paragraph 139 of its report, the committee set up to examine the representation indicates that the extent and general nature of the allegations (which concern principally the following matters: general framework of discrimination, lands, rights and justice, forced sterilization, indigenous children and migrant indigenous workers) have given rise to an unprecedented situation which requires particular treatment and it requests the Committee of Experts to examine the information submitted in the context of the representation and to request further information from the Government and the authors of the representation. The Committee notes that the late arrival of the report has not allowed a detailed analysis of the content of the allegations and the replies thereto, both of which are extremely voluminous, for which reason they will be examined in 2005. It further requests the Government to provide precise information on the points raised in paragraph 139 of the report of the committee set up to examine the representation and asks the authors of the representation to provide the information requested in point (g) of that paragraph.

Content of the reforms

8. In paragraph 141 of its report, the Governing Body requested the Committee of Experts to carry out a thorough study of the compatibility of the constitutional reforms relating to indigenous matters with Convention No. 169 and requested the Government to provide a detailed report in 2004 containing replies to the 2001 comments of the Committee of Experts. In those comments, the Committee of Experts referred essentially to the following matters: definition and self-identification, lands and administration.

9. Definition and self-identification. Linguistic requirements and physical occupation. Section 2(5) of the reforms provide that ethno-linguistic criteria and those relating to physical occupation shall be taken into account. The impact of these two criteria, which are not included in the Convention, is unclear. Section 2, paragraph V, of the reforms sets out the responsibility of federated entities for the recognition of indigenous peoples and communities and indicates that they shall take into account, inter alia, ethno-linguistic criteria and criteria of physical occupation. The Committee asks the Government to indicate how it will ensure that the law and practice of all the federated entities are compatible with the Convention and coherent amongst themselves with a view to securing equal protection for all the indigenous peoples in Mexico (Articles 2 and 33 of the Convention). The Committee requests it to ensure, when implementing the reforms, that the various states do not include criteria relating to coverage and definition different from those at the federal level which restrict the definition set out in Article 1 of the Convention and to provide detailed information on this subject.

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.

12. Furthermore, the Committee notes the detailed information contained in the report on the measures adopted to resolve specific important disputes relating to land, including matters regarding the issues covered by the representation. The Committee requests the Government to provide full information on any developments in this respect in its next report so that the Committee of Experts can carry out a detailed examination of this matter subsequently.

13. Administration. Article 2 of the Convention establishes the obligation of the Government to develop "coordinated and systematic action" to protect the integrity of the indigenous peoples in the country. The Committee notes that some provisions of the reforms delegate the responsibility for regulating these matters to federated entities. For example, section 2 provides that "recognition of indigenous peoples and communities shall be granted in the constitutions and laws of federated entities, which shall take into account, in addition to the general principles established in the previous paragraphs, ethno-linguistic criteria and criteria of physical occupation". The Committee requests the Government to take the necessary measures to ensure, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of indigenous peoples and to guarantee that, when adopting the relevant legislative and administrative measures, both at the level of the federal Government and of state assemblies, the rights set forth in the Convention are guaranteed as a minimum common denominator, taking into account the considerations expressed by the Committee set up to examine the representation relating to identity, lands and territories, autonomy and natural resources. The Committee asks the Government to keep it informed on this matter.

14. The Committee noted in 2001 various communications received under article 23 of the ILO Constitution concerning the application of the Convention by Mexico, made by the following organizations: the Independent National Trade Union of Colegio de Bachilleres (28 August 2001); the Telephone Workers’ Union, jointly with other workers’ organizations (7 September 2001); and the Mexican Electricians’ Union (28 September 2001), all of which were forwarded to the Government as from September 2001. Due to the late arrival of the Government’s report, the Committee will examine the content of these communications in 2005. The Government may provide any information that it considers appropriate on these communications.

15. Finally, the Committee requests the Government to provide a report in 2005 containing the information requested by the Committee in this observation and to continue providing the information requested in paragraphs 108, 139 and 141 of document GB.289/17/3 and information on the communications referred to in paragraph 14 of this observation.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee notes the detailed information provided by the Government in its report and refers to its observation under this Convention.

2. The Committee notes the various legislative initiatives enacted during the period covered by the report. In these comments it examines in particular the Constitutional reform relating to indigenous matters published in the Diario Oficial of the Federation on 14 August 2001. It notes the Government’s statement that the Constitutional reform respecting indigenous rights and culture amounts to a decisive legal change for the future of the country, and provides the basis for developing a country which recognizes cultural differences at the national level. The Committee notes that the legal initiative amends articles 1, 2, 4, 18 and 115 of the Political Constitution of Mexico and covers to a large extent the issues addressed by the Convention. The Committee is aware that these reforms have given rise to much controversy and that various sectors of Mexican society, including indigenous organizations and workers’ organizations, have expressed their concern at the impact that the above reforms may have on the social, economic and legal situation of indigenous peoples in Mexico. The report received by the Office shows that the concerns expressed by the indigenous peoples of the country concerning the reforms are focused on the following matters: the definition of indigenous peoples, the rights of indigenous peoples over land and natural resources, the power entrusted by the reforms to federative entities to define indigenous peoples in their state, and their rights to self- determination and autonomy, and the alleged lack of consultations during the discussion of the reforms in the Senate.

3. The Committee notes the prohibition of slavery and the addition of a third paragraph to article 1 of the Constitution, setting out a prohibition of discrimination, including discrimination on grounds of ethnic origin. It requests the Government to provide information on any measures which have been taken or are envisaged to ensure the application of these prohibitions in practice.

4. The Committee notes that the reforms have broadened the text of article 2 of the Constitution, to include a series of matters addressed in the Convention.

5. Definition and self-identification. The Committee notes with interest that article 2 of the reform provides that awareness of indigenous identity shall be a fundamental criterion in determining those persons to whom the provisions on indigenous peoples apply. Article 2 then defines the component communities of an indigenous people as "those which form a social, economic and cultural whole ... settled in a territory". The Committee also notes the fifth paragraph of article 2, which provides that "the recognition of indigenous peoples and communities shall be set out in the constitutions and laws of federative entities, which shall take into account, in addition to the general principles set out in the previous paragraphs of this article, ethno-linguistic criteria and physical location." The Committee would be grateful if the Government would provide information in its next report on the manner in which ethno-linguistic requirements and physical location are interpreted, and in particular on how recognition is ensured of the membership of those indigenous peoples or communities which have lost their ancestral land and have resettled in urban areas.

6. The Committee notes that paragraph A(VIII) of article 2 of the reform empowers the federative entities to establish the characteristics of self-determination and autonomy of indigenous peoples in each entity, and provides for the recognition of indigenous peoples as entities of public interest. The Committee requests the Government to indicate the manner in which the full and uniform application of the provisions of the Convention is ensured by federative entities, and to provide clarifications on the legal effects of recognizing indigenous peoples as "entities of public interest".

7. Land. Article 2 of the reform provides that these peoples shall have the right to "conserve and improve the habitat and reserve the integrity of their lands under the terms established in the Constitution" (subparagraph V) and that they shall have the right to "have access, in compliance with the forms and procedures for land ownership and holding established in the Constitution and respective laws, and the rights acquired by third persons or members of the community, to the use and preferential exploitation of the natural resources of the locations inhabited and occupied by the communities, with the exception of those which constitute strategic areas under the terms of the Constitution" (subparagraph VI). Article 27(VII) of the Constitution establishes that "the law shall protect the integrity of the lands of indigenous groups". The Committee notes that indigenous peoples have expressed their concern that these reforms weaken the protection of the integrity of their lands.

8. The Committee reminds the Government that the concept of indigenous territories covers the total environment of the areas which the peoples concerned occupy or otherwise use (Article 13, paragraph 2). Article 14, paragraph 1, also lays down the obligation to take measures to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. The Committee requests the Government to indicate the measure which have been taken or are envisaged to ensure the full application of the provisions of Articles 13 and 14 of the Convention.

9. The Committee notes that the right set out in article 2 of the reform "to the use and preferential exploitation of the natural resources of the locations that the communities inhabit and occupy" appears to make this right subordinate to the recognition of the "rights acquired by third persons" and to the "strategic areas" defined in the Constitution. It notes that if these provisions were to be applied in such a manner that the rights of indigenous peoples were made subordinate to the interests of third persons, this would be contrary to the provisions of the Convention. The Committee therefore requests the Government to provide information on the application of these provisions, including any regulations made thereunder. It also notes the "strategic areas" defined by the Constitution and requests the Government to indicate the measures which have been adopted or are envisaged to ensure that full effect is given to Article 15, paragraph 2, of the Convention in these cases.

10. Administration. The Committee recalls that Article 2 of the Convention lays down the obligation of the Government to develop "coordinated and systematic action" to protect the integrity of indigenous peoples in the country. The Committee notes that article 2 of the reform provides that "the Constitution and laws of federative entities shall establish the characteristics for the free determination and autonomy which best express the situations and aspirations [of the indigenous peoples] in each entity". In view of the fact that the Mexican Constitution establishes as exclusive spheres of federal competence issues which are of particular relevance to indigenous peoples, such as land, forests, water, mines and the environment, the Committee requests the Government to indicate the manner in which it will be ensured that the application of article 2 of the reform does not create a legal vacuum relating to fundamental aspects of the Convention.

11. The Committee notes that Part B of article 2 covers a series of actions by federal, state and municipal governments with the objective of improving the living conditions of indigenous peoples in relation, among other areas, to housing, access to education, health, equality of opportunity and treatment for indigenous women, productive activities and economic development. Please provide information on the manner in which it is envisaged to apply and coordinate these actions between the various federal, state and municipal governments with a view to ensuring the full application of the Convention, and on any measure adopted in this respect.

12. The process of the adoption of the constitutional reforms. The Committee notes the Government’s statement that the Senate heard the views of indigenous peoples when it adopted the reforms in question. Nevertheless, the Committee is aware that the indigenous and workers’ organizations contend that the Senate substantially modified the COCOPA initiative without holding adequate consultations with the indigenous peoples of the country on the modifications made by the Senate. The Committee would be grateful if the Government would provide its comments on this matter, as well as on the process of consultation that is being undertaken concerning the application of the reforms.

13. With reference to its previous comments, the Committee notes the information provided by the Government concerning the current situation of the dialogue between the Government and the Zapatista National Liberation Army (EZLN). The Committee notes with interest the action taken by the Government in response to the claims of the EZLN, including the suspension of over-flights and patrols in the conflict zone in Chiapas, the withdrawal of military positions requested by the EZLN, the release of prisoners held for causes related to the conflict and the meetings held between the federal Government and the COCOPA with a view to renewing the dialogue between the Government and the EZLN. The Committee also notes with interest the cooperation activities undertaken by the federal Government and the government of the state of Chiapas, and particularly the transformation in March 2001 of two military installations into centres for the development of indigenous communities. The Committee would be grateful if the Government would continue providing information in future reports on any developments in relation to these activities.

14. The Committee notes with interest the information provided by the Government on the adoption of regulations respecting indigenous affairs by various Mexican states. Noting the Government’s statement that, due to the enactment of the constitutional reforms on indigenous matters, the legislative process will have to be reviewed in accordance with the new legislation, the Committee requests the Government to keep it informed in this respect.

15. The Committee notes the Government’s statement that the assistance of the ILO Office is not necessary. Nevertheless, the Committee reminds the Government that, in the light of the far-reaching legal changes arising out of the constitutional reforms, the experience of the Office in relation to the application of the Convention could help in promoting the effective application of the provisions of the Convention in Mexico and that the Office remains ready to provide the Government with any assistance that the latter may consider appropriate.

16. Articles 8 to 12 of the Convention. The Committee notes with interest the series of measures taken by the Government, including the Programme for the Promotion and Access to Justice, under the responsibility of the National Indian Institute (INI), and notes in particular that it envisages the participation of the peoples and communities concerned in the development of the Programme. The Committee requests the Government to provide information on the manner in which the Programme secures the participation of these peoples. Please also indicate the progress achieved in promoting the creation of the conditions necessary for the effective access of the peoples concerned to the system for the administration of justice in the country. The Committee also notes the results of the programme for the release of prisoners, which resulted in the release of 2,214 indigenous persons between 1999 and June 2001, with the intervention of the INI. The Committee requests the Government to continue providing information on the efforts made in this respect.

17. Articles 13 to 19 of the Convention. The Committee notes the information provided by the Government in relation to the representation made by the Trade Union Delegation D-III-57, section XI, of the National Trade Union of Education Workers (SNTE) (final report adopted by the Governing Body, GB.272/7/2, June 1998), and particularly on the ruling denying the application for protection lodged by the members of the Huichol community in Tierra Blanca. In the light of the information provided, the Committee once again requests the Government to make the necessary efforts to remedy the situation which gave rise to the representation, taking into account the possibility of allocating additional land to the Huichol people, as provided in Article 19 of the Convention. It requests the Government to continue providing information on any progress achieved with regard to the situation of the Huichol people.

18. The Committee also notes the information provided by the Government with regard to the representation made by the Radical Trade Union of Metal and Associated Workers (final report adopted by the Governing Body, GB.276/16/3, November 1999) concerning the situation of a Chinantec community resettled in the Valle de Uxpanapa, Veracruz, as a consequence of the construction of a dam in 1972. The Committee notes with interest the activities undertaken by the National Indian Institute (INI) in the Valle de Uxpanapa, and particularly the establishment of funds to support productive activities, the active participation of the beneficiaries in the administration of the funds and the implementation of productive activities. It notes in particular the regional fund established for the women of Uxpanapa. It requests the Government to continue providing information in future reports on the activities undertaken to improve the situation of indigenous peoples in the Valle de Uxpanapa. The Committee notes the information provided by the Government concerning the legal situation of the Zamora González brothers. With reference to its previous comments requesting additional information on the alleged violation of Articles 5 and 13 of the Convention, the Committee notes the information provided by the Government concerning the issue of the compensation arising out of the various expropriations for the communities effected by the construction of the "Miguel Alemán" and "Cerro de Oro" dams. The Committee would be grateful if the Government would provide information on the final solution reached in this respect.

19. The Committee notes the Government’s explanations concerning the agrarian reform and the adoption of the Agrarian Act of 1992. The Government states that the Constitution of Mexico recognizes the legal personality of population groups in "ejidos" and communes and that it also protects the integrity of the lands of indigenous groups. The Government states that there currently exist 27,460 "ejidos" and 2,400 communes. With regard to the measures taken to impart agrarian justice, the Government indicates that in 1999 agrarian tribunals heard 30,664 cases of disputes concerning the possession of land in "ejidos" and communes involving indigenous populations and that 82 per cent of these were resolved in a satisfactory manner. The Committee requests the Government to provide information on the various types of disputes resolved by the agrarian tribunals up to the present. It notes with interest the collaboration between the Higher Agrarian Tribunal and the INI with a view to ensuring that these proceedings are more accessible to indigenous peoples. It would be grateful if the Government would provide information on any measure that has been taken or is envisaged to given effect to the second paragraph of article 27 of the Constitution, which provides that the State shall protect the integrity of indigenous lands.

20. With reference to its previous comments on the transformation of the National Indian Institute, the Committee notes with interest that the new policy of the Mexican Government concerning indigenous peoples envisages the creation of nine bodies, including the Representation Office for the Development of Indigenous Peoples of the Office of the President of the Republic (established in December 2000), the National Council for the Development of Indigenous Peoples (established in March 2001) and the Centres for the Development of Indigenous Communities (established in March 2001). The Committee requests the Government to provide information in its next report on the activities undertaken by these bodies.

21. In its previous comments, the Committee noted the observations transmitted by the Authentic Labour Front (FAT) concerning mining and logging activities in the Sierra Tarahumara, the exploitation of natural resources in the Chimalapas, the mega-project of the Tehuantepec isthmus and the development of 146 industrial projects. The FAT had indicated that there had been an absence of consultation with the indigenous peoples concerned. The Committee notes the Government’s statement indicating that no multinational enterprise has been exploiting the forests in the region since 1995. It notes the progress achieved following the enactment of the Forest Act in 1997 and its Regulations, as well as the establishment of the Chihuahua Forestry Trust and the Advisory Technical Forestry Council of Chihuahua. The Committee requests the Government to provide information on the participation of indigenous peoples in these organizations. Noting the 170 projects envisaged in the region of Tehuantepec, the Committee requests the Government to keep it informed of any developments in this respect, including the consultations held or envisaged with the indigenous peoples affected. With regard to the situation in the Chimalapas, the Committee notes the information provided by the Government on the action taken in the region and requests the Government to continue providing information on the solution achieved.

22. Article 20. Recruitment and conditions of employment. In its previous comments, the Committee noted the communication from FAT on the situation of migrant indigenous workers recruited under the so-called "enganche" system, as well as the working conditions of daily migrant workers, with particular reference to the frequent use of toxic pesticides in the fields in which they work. The Committee notes that, according to the report, Mexican legislation concerning recruitment and conditions of employment makes no distinction between indigenous workers and other workers. In view of the problems raised concerning recruitment and conditions of employment, the Committee requests the Government to consider the possibility of establishing special practical measures to ensure effective protection for indigenous peoples in this respect, in accordance with Article 20, paragraph 1,of the Convention. With regard to the labour inspectorate, the Committee notes that, during the period covered by the report, a total of 120,193 inspections were carried out. The Committee notes that the report does not contain information on the number and results of the inspections carried out in rural areas and in regions in which there are large numbers of indigenous workers. The Committee once again recalls that one of the most important means of ensuring effective compliance with the protective measures set out in Article 20 of the Convention is the establishment of adequate labour inspection services in regions in which workers belonging to indigenous peoples are employed. The Committee therefore requests the Government to continue providing information on the measures taken for this purpose.

23. The Committee notes with interest the training programmes that are being undertaken, with particular reference to the programmes for the training of indigenous women. The Committee also notes the translation and dissemination of the Labour Rights and Duties Charter for Indigenous Persons, which is principally intended for indigenous workers migrating to the urban areas of the country. The Committee would be grateful if the Government would provide a copy of the Charter in Spanish. Furthermore, noting the Government’s indication that it is estimated that 40 per cent of the national indigenous population is concentrated in Mexico City, it requests the Government to indicate the measures which have been adopted or are envisaged to assist members of indigenous peoples cope with the problems associated with migration to urban areas.

24. With regard to the situation of indigenous migrant workers, the Government states that the Secretariat of Labour and Social Insurance is participating in the development of an Inter-institutional Agreement, under the direction of the Office for Indigenous Affairs of the Office of the President of the Republic, with a view to responding to the demands concerning recruitment and conditions of employment, including the protection of wages and maternity for daily agricultural indigenous women workers, measures to prevent work by indigenous children, and the medical services and conditions of employment of migrant indigenous workers. The Committee requests the Government to continue providing information on any developments in this respect, including the implementation of the Employability and Integration Project for daily agricultural workers and indigenous communities. The Committee also notes that, during the year 2000, the National Programme for Daily Agricultural Workers (PRONJAG) was operational in 15 federative entities providing services to 753,285 persons, of whom approximately 42.1 per cent are members of indigenous peoples. The Committee notes with interest that, according to the report, in 2000 some 15,342 projects were undertaken for this category of workers, including indigenous peoples.

25. Article 25. The Committee notes that in the field of health, the IMSS Solidarity Programme has an infrastructure of 3,540 rural medical units and 69 rural hospitals in 17 federative entities. It notes that, up to June 2001, the Programme had provided services to 2,275,123 members of indigenous peoples. The Committee would be grateful if the Government would continue providing information on the measures which have been adopted or are envisaged in relation to the application of this Article of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee notes the detailed report submitted by the Government. It notes that at its 282nd Session (November 2001), the Governing Body declared receivable two representations under article 24 of the ILO Constitution, alleging non-observance of the Convention by Mexico. They were submitted by the Academic Trade Union of the National Institute of Anthropology and History (SAINAH), and by the Union of Workers in the National Autonomous University of Mexico (STUNAM) together with the Independent Union of Workers of La Jornada (SITRAJOR), respectively. The Committee notes that the tripartite committee which will be responsible for the examination of these representations will not be established until the next session of the Governing Body in March 2002. The Committee will therefore examine the Government’s report at its present session.

2. The Committee also notes various communications received under article 23 of the ILO Constitution concerning the application of the Convention by Mexico, made by the following organizations: the Independent National Trade Union of the Colegio de Bachilleres (28 August 2001), the Telephone Workers’ Union, jointly with other workers’ organizations (7 September 2001) and the Mexican Electricians’ Union (28 September 2001), communicated to the Government in September 2001. Noting that the Government has not yet had sufficient time to comment on these observations, the Committee will defer its examination of them to its next session.

3. The Committee also notes the observations by the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN), and by the Confederation of Workers of Mexico (CTM), which were sent with the Government’s report. CONCAMIN states that the employers’ sector has made efforts to generate employment in the Chiapas area. The CTM has indicated the need to develop legislation to apply and develop the constitutional mandates in force.

4. The Committee notes the various legislative initiatives adopted during the period covered by the report, particularly the constitutional reforms on indigenous questions, published in the Official Bulletin of the Federation on 14 August 2001. An initial analysis of these reforms indicates that they cover a large part of the subjects covered by the Convention. Nevertheless, the Committee is aware that these reforms have generated a great deal of controversy and that some sections of Mexican society, including indigenous and workers’ organizations, have expressed concern that these reforms will have a negative impact on the social, economic and legal situation of the indigenous peoples of Mexico.

5. The Committee is examining the constitutional reforms in a more detailed way in a request being sent directly to the Government, which raises the following questions.

-           Definition and self-identification: How the Government is ensuring that the constituent federal units are respecting the provisions of the Convention and applying them in a uniform and coordinated manner following the grant to the states of the right to establish the definitions and the power of self-determination of the indigenous peoples within their territories.

-           Lands: Protection of rights to the natural resources and other land rights, particularly when third parties have acquired rights to the lands.

-           Administration: How development of "coordinated and systematic action" for the protection of the integrity of the indigenous peoples of the country is assured (Article 2), in the light of the devolution to the constituent states of the power to legislate on a certain number of questions.

-           Process of adoption of the constitutional reforms: Additional information on the participation of representatives of the indigenous peoples in the process of adoption of the constitutional reforms and in drawing up laws and regulations for the practical application of the reforms.

6. The Committee notes that the request being addressed directly to the Government follows up the representation submitted by the trade union delegation, D-III-57, section XI of the National Trade Union of Educational Workers (SNTE), Radio Education (final report adopted by the Governing Body in document GB.272/7/2, June 1998) and the representation submitted by the Radical Trade Union of Metal and Associated Workers (final report adopted by the Governing Body in document GB.276/16/3, November 1999). The request also follows up the observations submitted by the Authentic Labour Front (FAT) under article 23 of the Constitution of the ILO and the Government’s reply to them.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes the latest information sent by the Authentic Labour Front (FAT) in August 1999, which was transmitted to the Government in September 1999, and the comments of the Radio Education Trade Union Delegation (SNTE), of May 1999, which were sent to the Government in June 1999. It also notes the Government's observations on the FAT's communication and the detailed annexes which were received shortly before the Committee's session.

2. Article 2. The Committee previously noted with interest the broad-based process of consultation on the rights and participation of indigenous peoples and the documentation sent by the Government on these consultations. It also noted the constitutional reform initiatives submitted to the Federal Congress on indigenous matters. The Committee furthermore noted that one of the communications sent by the FAT referred to the peace agreement concluded between the Government and the Zapatista National Liberation Army (EZLN) in San Andrés in February 1996. The Committee requested the Government to continue providing information on any developments in the situation with regard to the practical implementation of the agreements concluded in the negotiations. The Committee also requested the Government to continue providing information on the nature of the constitutional initiatives which had been submitted and on the stage which they had reached in the Congress. The Committee would be grateful to be provided with detailed information on the current situation of the dialogue. The Committee is still awaiting the information requested.

3. The Committee notes that, in its latest communication, the FAT alleges that, even though consultations were held on indigenous culture and rights, the Government ended up ignoring their outcome and that the constitutional reforms submitted in March 1998 prejudiced the application of the Convention, since they made the application of indigenous law subject to the Mexican legal system which, without modification, would prevent the application of the internal laws of indigenous peoples. Furthermore, they limited the right to collective ownership, deleted the term "territory" from the draft reform and replaced the term "people" by "communities". With regard to the reforms of the State Constitution, the FAT alleges that they are more of a response to political interests and the pressure of the federal and state Governments than to the demands made by the indigenous movement, and that only two of the 17 states which have reformed their own constitutions have issued regulations applying them (Oaxaca and Quintana Roo). The Committee notes the information provided by the Government in its reply on the constitutional reform initiatives in certain states of the Republic and on the laws respecting indigenous rights which, according to the Government, demonstrate a growing interest in the recognition of indigenous rights and an effort by the federal and state Governments to ensure that the Mexican legal system provides effective protection for these rights. On this subject, please also see point 8 below.

4. The Committee requests the Government to provide the texts of the reforms and the laws adopted, as well as information on any progress achieved in issuing regulations to apply the local constitutional reforms. It also requests information on the participation of indigenous peoples in these processes and the progress made in the above constitutional reform initiatives in the Congress of the Union.

5. With regard to the National Indian Institute (INI), the Committee once again requests the Government to provide information on the proposals made to transform the above Institute with a view to transferring its operational programmes, budgets, personnel and assets to the states of the Federation and promoting the participation of indigenous peoples in both the management and planning of its policies and activities.

6. Articles 8 to 12. Administration of justice. The FAT's comments contain allegations that a series of practices violate the human rights of indigenous detainees, including torture, the absence of translators in criminal trials and the failure in such trials to take indigenous legal customs into account. The comments also indicated that numerous violations of individual rights against indigenous people continued to be reported in the various states of the Republic, and provided examples. The Committee noted that legislative reforms in certain states (Campeche, Chiapas, Chihuahua, Durango, Guerrero, Hidalgo, Jalisco, México, Nayarit, Oaxaca, Querétaro, Quintana Roo, San Luis Potosí, Sonora and Veracruz) have been introduced requiring the presence of interpreters to assist indigenous persons in trials and establishing that indigenous customs should be taken into consideration during the trial and in sentencing. The Committee also noted that the Attorney-General's Office had paid particular attention to trials involving indigenous people, and particularly to 311 criminal cases, offering legal advice and ensuring that the rights of the defendants were respected. It also noted that the Inspectorate for Indigenous Affairs continued to cooperate with public defenders in district courts in all the states of the Republic and noted the creation in February 1998 of the Fourth General Inspectorate with the aim of guaranteeing effective access to justice for members of indigenous peoples and the full exercise of their human rights.

7. The Committee once again requests the Government to continue taking the necessary measures for the effective protection of the rights of indigenous peoples, in both law and practice, as required by Article 12 of the Convention. It requests the Government to continue providing it with information on any progress achieved in this respect and on the activities of the Fourth General Inspectorate in cases involving the detention of indigenous persons in prison.

8. The Committee noted previously the adoption of an Act in the state of Chiapas respecting the economic development of the state, which is one of the legislative texts incorporating the element of custom, which is also included in various state constitutions and regulations. The Committee notes the detailed information provided by the Government in its report on the situation of indigenous peoples in the state of Chiapas, and particularly the entry into force of the Act respecting indigenous rights and culture in July 1999, which in section 5 "recognizes within the competence of the state the right of indigenous peoples and communities in Chiapas to free determination and autonomy, in its full political, economic, social and cultural sense, thereby strengthening sovereignty, democracy and the three levels of government, within the framework of the General Constitution of the Republic and the Constitution of the state". The Committee requests the Government to provide information on the application in practice of this section of the Act respecting indigenous rights and culture.

9. Articles 13 to 19. Land. The Committee noted in previous comments the report presented to the Governing Body by a tripartite committee set up to examine a representation made by the Trade Union Delegation, D-III-57, section XI, of the National Trade Union of Education Workers (SNTE), alleging non-observance by the Government of Mexico of certain provisions of the Convention. The Committee requests the Government to inform it of any decision handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection by the organization which made the representation, the Union of Huichol Indigenous Communities, against the decision of the Agrarian Unitary Tribunal in the particular case of Tierra Blanca. It also requests the Government to inform it of the measures taken or contemplated to provide redress for the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in any agrarian census, and on the adoption of any suitable measures to remedy the situation which has given rise to this representation, taking into account the possibility of allocating additional land to the Huichol people when their own land ceases to be sufficient to provide the essentials of a normal existence or for any possible increase in their numbers, in accordance with Article 19 of the Convention.

10. The Committee also notes the comments of the Radio Education Trade Union Delegation (SNTE), of May 1999, which indicate that the Collegial Court of the Twelfth Circuit ordered in December 1998 that the sentence be reviewed due to procedural flaws, and that the Agrarian Tribunal of District XIX of the city of Tepic is currently evaluating the evidence. It also notes the information provided by the Government that the new sentence has not yet been decided upon due to the lack of the technical documentation requested, which was submitted to the court in October 1999. The Committee awaits developments on this aspect of the case, and particularly on the appeal for protection by the concerned groups in Tierra Blanca.

11. With regard to the measures which have been taken or are envisaged to resolve the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in agrarian censuses, the SNTE maintains that, in relation to the situation of the Huicholes, who also include the Tonalisco, Mojarras, Barbechito, Corpos, Saucito and Campatehuala peoples of Tierra Blanca, the Government has taken no action to resolve the grave situation of the Huicholas living in these areas and that the national legislation does not establish any legal procedure which could reunify the settlements of San Andrés. It maintains that, although an inter-secretarial commission was established, it has never addressed the subject of the reunification of the settlements of San Andrés.

12. The Committee notes the Government's indication, based on the information provided by the Single Information System of the Delegation of the Agrarian Inspectorate of the state of Nayarit, that the persons concerned have not yet applied for communal membership of the above settlements, even though the Government has invited them to do so. Furthermore, the Government states that the Agrarian Inspectorate requires a petition by a total of 20 per cent of the members of the commune to convene a communal assembly, but that this has not yet been the case. In this respect, the Committee recalls that in its previous observation it noted that meetings had been convened to update the agrarian censuses and that advice and arbitration had been made available to the complainants, which does not appear to have been the case more recently. In this respect, the Committee recalls that under Article 14 steps shall be taken as necessary to identify the lands which the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession. The Committee urges the Government to make the necessary efforts to resolve the situation which gave rise to this representation, taking into account the possibility of allocating additional land to the Huichol people when their own land ceases to be sufficient to provide the essentials of a normal existence or for any possible increase in their numbers, in accordance with Article 19 of the Convention. Please provide information on any progress achieved in relation to the specific matters raised in the above representation.

13. The Committee also notes the report submitted to the Governing Body in November 1999 by the tripartite committee set up to examine the representation made by the Radical Trade Union of Metal and Associated Workers alleging non-observance by the Government of Mexico of certain provisions of the Convention. In line with the recommendations made by the Governing Body in the context of this representation, the Committee suggests to the Government that, in the quest for solutions to the problems that still appear to affect the relocated Chinantec communities, it carry out a dialogue to enable both parties to seek solutions to the situation facing these peoples in the Uxpanapa Valley; that it provide information concerning developments in the situation, particularly as regards the establishment of new channels of communication with the peoples affected, and on any progress or development made in the judicial proceedings being brought against the indigenous leaders, the Zamora Gonzáles brothers. With regard to the alleged violation of Articles 5 and 13 of the Convention, and in view of the contradictory information and assertions submitted on this point in the representation, the Governing Body requests the Government and the complainants to provide the Committee of Experts with additional information to allow it to give an informed opinion on this matter with a greater knowledge of the facts.

14. In the comments communicated by the FAT in September 1998, which the Committee was not able to examine due to the fact that a representation had been made on related matters, it is alleged that by the amendment of article 27 of the Federal Constitution, the essential characteristic that indigenous lands may not be alienated or subject to prescription or distraint is lost, leaving these communities without any protection. The FAT indicates that it is possible to privatize commonly owned indigenous lands and that the special cultural importance which binds these peoples to the land is being lost. The FAT also alleges that the amendment of article 27 is contradictory since, on the one hand, it recognizes the right of indigenous peoples to the land and, on the other hand, its regulations make it possible to privatize, commercialize and alienate the communal lands which represent the basis of the life and culture of these peoples. Furthermore, the FAT states that the ineffectiveness of the Agrarian Reform Secretariat and the General Agrarian Inspectorate is leading to major difficulties in the allocation of land, including the allocation of the same land to two different communities (ejidos), thereby leading to disputes between them. The FAT adds that this does not happen to major landowners, who receive rapid responses to their land claims. A manifest example is the case of the change of status from agricultural to pastoral land in Chiapas, which happens almost immediately for landowners, while indigenous communities have to wait between 20 and 50 years to obtain ownership. The Committee recalls that guaranteeing their land rights is fundamental to ensure the continuity, viability and sustainable existence of indigenous peoples. The effective recognition of the rights of possession and ownership also presupposes the existence or establishment of rapid and effective procedures for the settlement of conflicts and the delivery of legal recognition to the lands of indigenous peoples. This implies recognition and rea and effective protection of these rights. The Committee requests the Government to provide information on the application of article 27 of the Constitution in practice and to transmit a copy of the Act applying this provision.

15. Furthermore, the Committee noted previously the comments of the FAT concerning mining and logging activities of multinational companies in the Tarahumara range and in the state of Chihuahua, which have had an impact on the environment and placed the survival of the Rarámuri people in jeopardy. Similarly, in the Chimalapas, in the state of Oaxaca, the FAT indicated that the exploitation of natural resources in the region had affected indigenous communities and led to confrontations between them. The communication also referred to the mega-project of the Tehuantepec isthmus, which includes the construction of a superhighway and a "bullet train" railway and the development of 146 industrial projects, without the indigenous peoples in the region having been invited to assess jointly the social, spiritual, cultural and environmental impact that this project may have on their land and way of life, as required by Article 7 of the Convention.

16. In its latest comments, the FAT provides additional information and contends that in 1995 the International Paper Company obtained contracts in the Tarahumara range, through local landowners, the authorities responsible for communal land and a forestry official, for the purchase of 75 per cent of the timber and cellulose from communal lands, since Mexican legislation does not establish restrictions on direct contracts between private enterprises and authorities responsible for common lands. The Committee notes the information provided by the Government concerning the deforestation of the Tarahumara range to the effect that the National Indian Institute (INI) held a national meeting on the forest rights of indigenous peoples in the various regions of the country, which was attended by over 250 representatives of indigenous communities, including the Rarámuri community from Cusárare, non-governmental organizations and competent institutions. It also notes that the Programme for the Agrarian Conciliation of the Chimalapas Communities has undertaken various activities and has persuaded the different communities involved to recognize that the problem consists of an environmental agrarian issue and not a border dispute between the states of Oaxaca and Chiapas, which in many cases has facilitated the resolution of the land-related problems of various communities in the area.

17. With regard to the exploitation of the forests of the Tarahumara range, the Committee recalls that under Article 17 persons not belonging to indigenous peoples shall be prevented from taking advantage of their customs or lack of understanding of the laws to secure the ownership, possession or use of land belonging to them. The Committee requests the Government to provide information on the consultations held, if any, with indigenous communities before the conclusion of contracts to exploit the forests and to inform it whether environmental impact studies of such exploitation in the area concerned were undertaken. It also recalls that, under Article 15 of the Convention, the rights of indigenous peoples to the natural resources pertaining to their lands shall be specially safeguarded and that these peoples must have the right to participate in the use, management and conservation of these resources. Furthermore, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking any programmes for the exploration or exploitation of such resources pertaining to their lands. It requests the Government to provide information on the mega-project in the Tehuantepec isthmus and its possible impact on the environment, lands and way of life of the indigenous peoples liable to be affected by it. The Committee also requests the Government to keep it informed of developments in the situation in the Chimalapas.

18. Article 20. Recruitment and conditions of employment. The Committee noted previously the report provided by the FAT entitled "Slavery in Mexico: Rural migrant workers ... their human rights", which describes the situation of migrant indigenous workers, among others, recruited under the so-called "enganche" system through intermediaries who in most cases deceive workers as to their terms and conditions of employment and take a percentage of their wages. The report also alleged the existence of deplorable working conditions due to the absence of individual contracts, since only collective contracts are concluded by the so-called official trade unions, without the knowledge or consent of the workers. The FAT's communication also referred to the conditions of work of daily migrant Huichol workers in the tobacco plantations of Nayarit, the use of toxic pesticides, including by workers under 14 years of age, without any monitoring or control by the health or environment authorities. It also referred to wage discrimination between indigenous and other workers. The FAT indicated that these daily indigenous workers are not provided with any medical assistance and that the Social Security Act only entitles them to medical care for the duration of their contracts, on condition that they present a "pass" to the medical services, which is in many cases difficult to obtain where a worker does not have a birth certificate and because control over "passes" by the employer has become another source of abuse. These daily workers do not have access to independent trade unions and the unions which have started to organize agricultural workers have been systematically denied the right to register.

19. In its additional comments, the FAT indicates that the programmes announced by the Government as the National Programme for Agricultural Daily Labourers (PRONJAG) and the programmes of legal training and information carried out in the states of Baja California, Sonora and Sinaloa, which have the greatest number of migrant daily agricultural workers of indigenous origin, have not improved the deplorable working conditions of indigenous migrant labourers. The FAT indicates that, according to the official data of the National Epidemiological Surveillance System, the number of cases of poisoning by pesticides in the first 14 weeks of 1999 increased in relation to the same period in 1998 from 1,161 to 1,429 workers. In the particular case of the state of Nayarit, in which indigenous Huichol, Cora, Mexicanero and Tehuantepeco labourers work, the figures are stable in relation to the previous year (174 cases of poisoning in 1999 compared with 176 in 1998). The FAT refers to a joint study carried out by a foreign institute and the Mexican Institute of Health, Environment and Labour, which reports damage to the health of workers in the Nayarit tobacco area caused by the intensive and indiscriminate use of pesticides, particularly among rural workers cultivating common land and in sources of drinking water. With regard to the programmes of legal training and information in the states of Baja California, Sonora and Sinaloa, the FAT states that they have had little impact in the area. It adds that in Baja California, the Independent Central Organization of Agricultural Labourers and Rural Workers (CIOAC) denounced in December 1998 the exploitation of daily labourers in five ranches in the agricultural valley of San Quintín, where armed guards prevent free movement between the various camps. The FAT's communication provides details of various denunciations of forced labour in that valley, which have been investigated by the Directorate of Labour and Social Insurance of Baja California. Furthermore, it is alleged that indigenous children from the Yaqui, Bacum and Quetchehueca peoples in the Yaqui valley were covered by a study published in June 1998 which revealed chronic and multiple exposure to pesticides.

20. The Committee notes the information provided by the Government in reply, and particularly that in the draft Mexican Official Standard NOM-003-1998 was issued in January 1999 respecting "agricultural activities, the use of phytosanitary inputs or pesticides and vegetable nutrition inputs: safety and health conditions", the objective of which is to restore health and safety conditions to prevent the risks to which agricultural workers are exposed in the storage, transport and handling of phytosanitary inputs or pesticides and vegetable nutrition inputs. Comments are currently being received on the above standard, which is being revised before its adoption. The Committee also notes that, in the field of health, the INI currently has 100 operational units at the regional level (indigenous coordinating centres), 23 state delegations and one subdirectorate of health and social welfare and that their activities benefited 467,041 indigenous persons in 1998. In 1999, activities are planned which will benefit 246,051 indigenous persons in marginal areas. A guide is also being prepared to promote preventive action in the agricultural sector and a health and safety diagnostic form for agricultural work is being examined by the PRONJAG. The Committee also notes that the INI is currently carrying out an integrated programme for the migrant indigenous population intended to defend the human, labour, economic, political and cultural rights of migrant indigenous persons in the areas of greatest intensity of indigenous workers. The Government also indicates that an inter-agency programme will be undertaken for the registration and identification of migrant indigenous workers in the population registry system (CURP).

21. In view of the serious allegations and the Government's responses to some of the points raised, the Committee recalls once again that, under Article 20 of the Convention, governments are required to adopt special measures to ensure effective protection for indigenous peoples with regard to recruitment and conditions of employment. The Convention also states that governments must do everything possible to prevent any discrimination between indigenous and other workers, in particular with regard to equal remuneration for work of equal value, medical care and health at work, and to ensure that workers belonging to the peoples in question are not required to work in conditions which are hazardous to their health, particularly as a result of their exposure to pesticides or other toxic substances. In this regard, the Committee requests the Government to continue providing information on the effect given in practice to the measures indicated above, and their effectiveness, particularly with regard to the protection of wages and maternity protection for indigenous agricultural daily labourers, on the measures which have been taken or are contemplated to prevent child labour among indigenous peoples and on medical services and the general conditions of employment of these migrant indigenous workers.

22. The Committee wishes to emphasize that one of the most important means of ensuring effective protection of fundamental labour rights is frequent and effective inspections of workplaces where indigenous workers are employed. The Committee notes that information is not supplied on the activities of the labour inspectorate in relation to the conditions of work of indigenous workers and it urges the Government to intensify the efforts made up to now to improve the labour situation of indigenous workers, and to provide detailed information on the number and results of inspection visits, if any, covering indigenous workers in rural areas and in areas with a large number of indigenous migrant workers.

23. Furthermore, the Committee notes the organization in May 1999 of a seminar on labour inspection in rural areas, which was attended by some 100 participants and various governmental organizations. The Committee hopes that this type of activity will in future include the participation of representatives of the indigenous workers concerned.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes the Government's comments received in reply to its previous observation. Nonetheless, there are still questions outstanding on the application of the Convention, which are being taken up in detail in a request addressed directly to the Government. In the present observation it will refer to some of the questions raised in the direct request, recalling that it hopes to receive more detailed information in the Government's next report on the points raised.

2. The Committee recalls that the Governing Body adopted in June 1998 the report of a tripartite committee established to examine a representation under article 24 of the Constitution on questions concerning the land rights of a Huichol Indian community (Articles 13 to 19 of the Convention). The Committee asked in its previous comments what steps the Government had taken to remedy the situation which had given rise to this representation in application of Article 19 of the Convention. Additional information has now been received from the Trade Union Delegation for Radio Education in this regard. The Committee hopes the Government will provide detailed information in its next report.

3. The Committee notes that the report of another tripartite committee which dealt with a second representation under Article 24 was adopted at the November 1999 session of the Governing Body, concerning a representation submitted by the Radical Trade Union of Metal and Similar Workers. This representation also concerned land rights, on this occasion of indigenous communities in the Uxpanapa Valley. The complainants had alleged a continuing lack of resolution of land claims arising from the displacement of indigenous communities following the construction of a dam beginning in 1972. In this case, as in the one referred to in the previous paragraph, the Government was asked by the Governing Body to inform the Committee of Experts of the measures taken to resolve the situation in which these indigenous peoples are now living. Both these representations resulted in concern being expressed by the Governing Body over an apparent lack of real dialogue between the Government and the indigenous communities to discuss their situation and to find answers to their problems in the consultative spirit on which this Convention is based.

4. The Committee also has before it information submitted by the Authentic Workers' Front (FAT) in September 1998 and August 1999 under article 23 of the Constitution, and comments made by the Government on this information. These communications from FAT dealt in part with land rights, in particular what was described as the loss of a right of inalienability of indigenous lands making these peoples more vulnerable to losing their land rights. Furthermore reference is made to the conclusion of agreements with multinational enterprises allowing exploitation of mineral and forestry resources on indigenous lands, without the kinds of protection of indigenous involvement contemplated in the Convention. They also contained allegations that, although the Government had carried out consultations with indigenous representatives on constitutional reforms which would affect them, it had ignored the results of such consultations. In addition, they submit allegations of serious labour abuses against indigenous migrant workers. The Government has supplied partial information relating to most of these points, indicating work undertaken in relation to these subjects. The Committee is concerned, however, by the apparent lack of a dialogue between the Government and the indigenous peoples which would contribute to resolving the problems affecting them.

5. The Committee therefore asks the Government to re-examine the measures it is taking in regard to the problems encountered by the indigenous peoples of the country, and to submit detailed information on them in its next report. It suggests that the Government could request the technical assistance of the International Labour Office in establishing a dialogue, and in examining in depth the problems being raised by indigenous communities, and by workers' organizations, in the application of the Convention. One measure that could be explored would be a workshop at the national level, involving the Office, all the concerned government entities, the social partners, and representatives of the indigenous peoples of the country to examine all the questions raised on the application of the Convention and to establish modalities of working on them which would meet the expectations of all parties.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee takes note of the detailed information provided by the Government in its report.

2. Articles 24 and 25. Social security and health. The Committee notes the other comments sent by the Frente Auténtico del Trabajo (FAT) in its report entitled "Informe sobre los Derechos Indígenas en México", which contains statistical data on alleged violations of individual and collective human rights in a number of indigenous communities. The report also indicates that the states with the largest indigenous populations are Oaxaca (52.72 per cent), Yucatán (52.48 per cent), Quintana Roo (36.71 per cent), Chiapas (35.19 per cent), Hidalgo (26.39 per cent, Campeche (25.40 per cent), Peubla (19.87 per cent), Veracruz (18.82 per cent), Guerrero (17.17 per cent), San Luis Potosí (13.78 per cent) and Sonora (11.97 per cent). Of the 2,403 municipalities in the Republic, 803 have indigenous populations accounting for more than 30 per cent of the total population, most of these are in rural areas. In communities with a high density of indigenous people (70 per cent or more), 68 per cent of households have no running water and 90 per cent have no drainage. In Chiapas, malnutrition affects 66.74 per cent of the population, in Oaxaca 66.67 per cent, in Guerrero 64.65 per cent, in Quintana Roo 64.12 per cent, in Campeche 63.12 per cent and in Yucatán 62.48 per cent. More than 12 per cent of overall mortality is accounted for by the indigenous regions, and the three states with the highest number of deaths from infectious and intestinal diseases, pneumonia and influenza are Guerrero, Chiapas and Oaxaca. The indigenous infant mortality rate in the states of Chiapas, Oaxaca, Puebla, Durango, Guerrero and San Luis Potosí is 54 per 1,000 births, compared to a national figure of 24 per 1,000 births. The FAT considers that these data give a clear picture of the degree of marginalization affecting the indigenous peoples of Mexico.

3. The Committee notes with interest the information provided by the Government concerning the resources that have been made available to combat poverty in the states of Chiapas, Guerrero, Oaxaca, Puebla and Veracruz. It also notes that the Health Sector Reform Programme 1995-2000 aims, among other things, to extend the coverage of its services, especially to marginalized rural areas. This programme is being implemented with help from the Programme for Indigenous Areas (PAZI), and the population for which these programmes are intended is marginalized, vulnerable or deprived of access to health care services. The PAZI is intended to help indigenous communities which are not covered by other health programmes, and its objectives are to extend coverage, improve services and raise the health indicators of the indigenous population. The Committee draws the Government's attention to the fact that, according to Article 25 of the Convention, indigenous communities should participate in the planning and provision of health services, or that these should be under the responsibility and control of the communities themselves. The Committee requests the Government to keep it informed of any progress made in the matter of health and social security for indigenous peoples.

4. Articles 26-31. Education and means of communication. The Committee notes the information provided by the FAT to the effect that, according to the 1990 census, the indigenous peoples are the most marginalized in terms of social indicators, given that 83 per cent of indigenous municipalities in the country show high levels of marginalization and an illiteracy rate of 43 per cent, which is three times higher than the rest of the population. The Committee also notes that, according to the FAT, official figures show that, in 1995, 48.4 per cent of the country's indigenous people over 15 years of age were illiterate, the corresponding figure for non-indigenous people being 8.5 per cent. The 1998 education budget has been cut and this has affected school building projects which had been planned for that year, as well as the production of textbooks, and resulted in a reduction in per capita funding in secondary schools. Bilingual education has fallen behind and many indigenous communities lack schools; as a result, the conditions needed to ensure that children complete primary education have deteriorated and the situation is aggravated by the premature entry of indigenous people to the labour market.

5. The Committee notes that, according to the Government's information, basic education has grown at an average annual rate of 3.7 per cent and that provision was made in 1997 to allocate large sums for the purpose of providing economic incentives to 320 supervisors and 1,400 teachers in order to encourage them to settle in rural and indigenous areas suffering extreme marginalization. The Committee also notes that basic education for the indigenous population was expanded in the school year 1997-98 to provide places for 1,056,861 students in 18,383 schools with 44,205 teachers, and that the National Indigenous Institute (INI) is carrying out a programme entitled "Promoting Development for Marginalized Areas and Groups" whose main objectives are to renovate, operate and equip school hostels for 59,137 school students from 52 ethnic groups in receipt of the 12,000 scholarships that are awarded every year. The Committee hopes that the Government will continue to supply information on progress made in this area and that it will take into consideration the wishes of the indigenous peoples themselves in developing and implementing the educational programmes intended specifically for these peoples.

6. Article 32. Contacts and cooperation across borders. In a previous direct request, the Committee noted with interest the information concerning the Mexican Commission for Assistance to Refugees (COMAR) which has a specialized organization for looking after the needs of Guatemalan refugees on Mexican territory. The Committee notes the detailed information on progress made in the repatriation to Guatemala of more than 70 per cent of the refugees who entered Mexico more than 15 years ago and on the situation of those refugees still living in Mexico.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee takes note of the Government's substantial and detailed report and of the information supplied by the Authentic Labour Front (FAT) on a number of occasions.

2. Article 2. The Committee previously noted with interest the broad-based process of consultation on the rights and participation of indigenous peoples, launched by the Government with a view to drawing up, revising and promoting a programme of constitutional and legislative reform in the area of indigenous rights and culture. The Committee is grateful for the full report on this nationwide consultation process and the other relevant documents. The Committee notes that, as a result of these consultations, constitutional reform initiatives concerning indigenous matters have been submitted to the Federal Congress by the Federal Executive, by two political parties. It must be emphasized that there is also a bill that has been presented by the Commission on Reconciliation and Peacebuilding (COCOPA) of the Federal Legislature. Similarly, it notes the fact that, at the federal level, specific provisions relating to indigenous issues have been included in the Copyright Act, the Forestry Act and the General Act respecting environmental balance and protection. The Committee also notes the fact that some of the communications transmitted by the FAT draw attention to the peace accord signed by the Government and the Zapatista National Liberation Army (EZLN) in San Andrés on 16 February 1996. Bearing in mind that the Convention was used as a reference document in these negotiations, the Committee requests the Government to continue to provide information on any developments in the situation with regard to the practical implementation of the agreements reached during the negotiations. The Committee also requests the Government to continue to provide information on the nature of the constitutional initiatives that have been submitted and on the stage which they have reached in the Federal Congress.

3. In a previous direct request, the Committee requested detailed information on developments in practice with regard to the proposed changes to the National Indian Institute (INI) to increase participation by indigenous peoples. The Committee notes the information in the report to the effect that the resources intended for the indigenous peoples are channelled through regional funds for the development of indigenous peoples. The Committee requests the Government to provide information on the INI's proposals to transform itself in order to allow the transfer to the states of operational programmes, budgets, staff and assets and to promote participation by indigenous people in the management and planning of its policies and activities.

4. Articles 8 to 12. Justice. With regard to the administration of justice, the FAT states in its comments that torture is used to extract confessions and that criminal trials are held without any interpreters for the defendants and without any regard for indigenous customary laws. The comments of the FAT also indicate that numerous violations of individual rights against indigenous people continue to be reported in various states. For example, the communication alleges that in Oaxaca, following a campaign for the release of indigenous people carried out by the Human Rights Centre "Tepeyac", 229 indigenous prisoners were released between March 1994 and March 1995; of these, 163 (71 per cent) were acquitted, while the rest were released conditionally. According to the communication, this shows the high proportion of indigenous people who are unjustly prosecuted and incur damages therefor, for which they are never given just compensation.

5. The Committee notes the detailed information provided by the Government concerning this point of the observation, in which it indicates that legislative reforms have been introduced in certain states (Campeche, Chiapas, Chihuahua, Durango, Guerrero, Hidalgo, Jalisco, México, Nayarit, Oaxaca, Querétaro, Quintana Roo, San Luis Potosí, Sonora and Veracruz) in the form of provisions stipulating that interpreters must be present at trials of indigenous people and that indigenous customs should be taken into consideration during the trial and at the time of sentencing. The Committee also notes that the Attorney-General's Office has devoted particular attention to trials involving indigenous people, in particular 311 criminal cases, offering legal advice and ensuring that the rights of the defendants are respected. It notes further that the Inspectorate for Indigenous Affairs has continued to cooperate with public defenders in district courts in all states of the Republic, and notes also the creation in February 1998 of the Fourth General Inspectorate with the aim of guaranteeing effective access to justice for members of indigenous peoples and the full exercise of their human rights. The Committee notes that between February and May 1998, the Fourth General Inspectorate obtained the release from prison of 90 indigenous people who were eligible for early release.

6. The Committee recalls that indigenous peoples must have the same rights as other citizens in the country and must accept the corresponding obligations. In this case, the Committee notes that in certain cases, the fundamental rights of indigenous people were violated because they were given no chance to mount an adequate defence and were kept in ignorance of the offences of which they were accused by being denied access to an interpreter or public defender. The Committee points out that the objective of Article 12 of the Convention, in providing for special protection for these peoples is to compensate for the disadvantages they may be under in that they may not possess the linguistic or legal knowledge required to assert or protect their rights. The Committee regrets the large number of indigenous people held in prison in Oaxaca without having been convicted. It requests the Government to continue to take the necessary measures to provide effective protection of and respect for the rights of indigenous people both in legislation and in practice, in accordance with the Convention. The Committee requests the Government to inform it of any progress made in this matter and to continue to provide information on action taken by the Fourth General Inspectorate on cases involving the imprisonment of indigenous people.

7. The Committee also notes that, in the state of Chiapas, the Act respecting the economic development of the state has been adopted. The Government states that this Act will have a major impact on the indigenous population. The Committee also notes that provisions relating to the need to take into account indigenous customs have been introduced in a number of state constitutions and regulatory laws, such as the Agriculture Act, the Organic Act respecting the Federal Public Administration and the General Education Act, and that the work of establishing a legal framework appropriate to the nation's multicultural make-up is progressing. The Committee requests the Government to provide further information in this regard.

8. Articles 13 to 19. Land. The Committee notes the report presented to the Governing Body by a tripartite committee set up to examine a representation made by the Trade Union Delegation, D-III-53, section XI of the National Trade Union of Education Workers (SNTE), alleging non-observance by the Government of Mexico of certain provisions of the Convention. In this regard, the Committee requests the Government to inform it of any decision handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection by the organization which made the representation, the Union of Huichol Indigenous Communities, against the decision of the Agrarian Unitary Tribunal in the particular case of Tierra Blanca; to inform it of measures taken or contemplated to provide redress for the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in any agrarian census, measures 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 themselves wish to preserve it; and to provide information on the possible adoption of suitable measures to remedy the situation which has given rise to this representation, taking into account the possibility of allocating additional land to the Huichol people when their own land ceases to be sufficient to provide the essentials of a normal existence or for any possible increase in their numbers, in accordance with Article 19 of the Convention.

9. The Committee takes due note of the information provided the Government during its meeting to the effect that the agrarian tribunals are autonomous and independent. It notes also the establishment of the Agrarian Inspectorate, a decentralized body which is in the process of speeding up the proceedings in the various courts concerning the presentation made by the SNT. Similarly, it notes that meetings have been convened to update the agrarian censuses, and advice and arbitration is being made available to the complainants, and that an inter-institutional commission has been set up that has held a number of meetings with a view to resolving the questions raised. In this regard, the Committee requests the Government to keep it informed of any progress made with regard to the specific points made in the representation.

10. The Committee also notes the fact that the Radical Trade Union of Metal and Associated Workers made a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Mexico of a number of Articles of the Convention. The representation was declared receivable by the Governing Body at its 273rd Session (November 1998).

11. Further, the Committee notes that the FAT, in its comments, continues to allege that the mining and logging activities of multinational companies in the Tarahumara range in the State of Chihuahua have caused deforestation which in turn has led to an increase in drought conditions and placed the survival of the Rarámuri people in jeopardy. Similarly, in the Chimalapas, in the State of Oaxaca, exploitation of natural resources in the region has affected indigenous communities and led to confrontations between them. The communication of the FAT refers to the mega-project of the Tehuantepec isthmus which includes the construction of a super highway and a "bullet train" railway and the development of 146 industrial projects, without any consultations with the indigenous peoples in the region on the social, spiritual, cultural and environmental impact of this project on the land and the people's way of life.

12. The Committee notes the information provided by the Government on the measures which it has taken, in particular the advice on land questions provided by the Agrarian Inspectorate; on cases of land recognition and title that have been settled since August 1997; and on the Programme of Certification of Rights (PROCEDE) and the Programme of Regularization of Ownership of Land in Communities. The Committee also notes that during the period covered by the report, 860 cases pertaining to agrarian law and legal representation were concluded in municipalities of indigenous populations and 1,722 in municipalities of indigenous concentration. The Committee also notes the detailed information provided by the Government concerning the legal situation of los Chimalapas, particularly the commitment to seek consensus-based solutions through measures adopted under an agrarian conciliation programme with the participation of all the indigenous groups and communities involved in the dispute. In this regard, the Committee requests the Government to keep it informed of any developments in the situation in the Chimalapas.

13. As regards the mining and logging activities of multinational companies in the Tarahumara range and plans to develop the Tehuantepec isthmus, the Committee recalls that, under Article 15 of the Convention, the rights of indigenous peoples to the natural resources pertaining to their lands shall be specially safeguarded, and these peoples should have the right to participate in the use, management and conservation of these resources. Governments are also required to establish and maintain procedures for consulting the peoples concerned with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Committee requests the Government to make full use of appropriate procedures for consulting the indigenous communities who may be affected by any development projects on their lands or by the award of any concessions for the exploitation of natural resources on lands belonging to or traditionally occupied by those peoples. The Committee requests the Government to provide detailed information in its next report on measures taken for this purpose.

14. Article 20. Recruitment and conditions of employment. The Committee takes note of the report provided by the FAT entitled "Slavery in Mexico: Rural migrant workers ... their human rights", which describes the situation of indigenous migrant workers, among others, recruited under the so-called "enganche" system through intermediaries who deceive the workers recruited and take a percentage of their wages. The report also indicates that the employers sign collective agreements only with the official trade unions, rather than individual contracts, without the workers knowledge or consent.

15. The socio-economic and cultural situation of indigenous peoples, according to the FAT, has forced them to migrate to the cities where they suffer discrimination and violations of their labour rights. One example is that of the tobacco plantations of Nayarit employing Huichol migrant day labourers, whose working conditions have deteriorated owing to the use of toxic pesticides, without any monitoring or control by the health and environment authorities. The communication from the FAT states that the day labourers are not informed about the use of the pesticides, which are used even by children below the age of 14 years and adolescents without any protection, resulting in cases of severe poisoning including a number of fatalities. Furthermore, wages paid to indigenous workers are lower than those paid to other workers.

16. The communication also states that these workers have no access to timely medical care because the Social Security Act provides only for medical attention during the period of their employment, on condition that they present a "pass", which is in many cases difficult to obtain where a worker does not have a birth certificate and because control over passes by the employer has become another source of abuse. The workers only have access to trade unions which have shown no concern for their precarious situation, while independent organizations that have started to organize agricultural workers have been systematically denied the right to register. The FAT states that situations such as this have been notified to the appropriate authorities, but there has been no satisfactory response.

17. The Committee notes that according to the Government's report, a programme of legal training and information has been developed for migrant indigenous peoples in the states of Baja California, Sonora and Sinaloa, which have the greatest number of migrant agricultural workers of indigenous origin. The Committee also notes that the Government has established the National Programme for Agricultural Day Labourers (PRONJAG) which deals with problems in areas such as housing and environment, food and supplies, health and social security, education, culture and recreation, employment, training and productivity, and obtaining justice. This programme also includes workshops for indigenous migrant workers on indigenous rights, in particular on the Convention. The Committee observes that the Government has not replied to the specific comments sent by the FAT on recruitment and conditions of employment of migrant workers.

18. In the light of the allegations, the Committee recalls that, under Article 20 of the Convention, governments are required to adopt special measures to ensure effective protection for indigenous peoples in the area of recruitment and conditions of work. The Convention also states that governments must do everything possible to prevent any discrimination between workers that are members of indigenous peoples and other workers, in particular with regard to equal pay for work of equal value, medical care and health at work, and to ensure that workers belonging to the peoples in question are not required to work in conditions that are hazardous to health, in particular as a result of their exposure to pesticides or other toxic substances. In this regard, the Committee requests the Government to continue to keep it informed on the effect in practice of these measures, in particular with regard to protection of wages and maternity protection for indigenous agricultural day labourers, on measures taken or contemplated to prevent child labour among indigenous peoples and on medical services and the general conditions of employment of these migrant indigenous workers.

19. The Committee, while noting that the Government has entered into undertakings to collaborate with state governments to strengthen occupational safety and health inspection, wishes to point out that one of the most important means for ensuring effective protection of fundamental labour rights is frequent and effective inspections of workplaces where indigenous workers are employed. The Committee urges the Government to intensify its efforts to improve the labour situation of indigenous workers, and to provide detailed information on the number and the results of inspection visits covering indigenous workers in rural areas and in areas with a large number of indigenous migrant workers.

20. The Committee notes with interest the information provided by the Government during its meeting on its plans to hold a seminar in the first quarter of 1999 on labour inspection in rural areas. The Committee hopes that this seminar will take place with the participation of representatives of the indigenous peoples concerned.

21. A request regarding certain points relating to the application of the Convention is being addressed directly to the Government.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

1. The Committee notes the detailed information supplied in the Government's report in answer to some of the points raised in its previous direct request.

2. Article 6 of the Convention. The Committee notes the detailed information supplied by the Government on the consultation procedures established jointly with the indigenous communities as part of the broad consultation process set up under the 1995-2000 National Development Plan in order to secure the development of indigenous peoples and lay the foundations for a new relationship between the Government and such communities. In pursuit of these aims, a countrywide "National Consultation on Indigenous Rights and Participation" was conducted in 1995 under the aegis of the federal Legislature and Executive, whose main purpose was to gather the opinions, diagnoses and proposals of indigenous peoples and communities and of experts in the field so that the competent bodies could propose reforms to the relevant constitutional and legal framework. The Government also states that 56 ethnic groups were represented at these consultations which were held in 33 assemblies in different states. They were attended by 12,000 participants and 2,000 papers were given which contained nearly 9,000 different proposals. The Government provides a summary of the above proceedings and states that there were 18 other meetings involving visits to indigenous communities. When the consultations were over, the proposals were collated and it is now up to each government body concerned to analyse and implement them. The main conclusions are grouped together under the following topics: customs and usage in political and judicial organization; indigenous culture; political participation and representation; customary law and the administration of justice; development and social welfare, land and heritage. The Committee notes the Government's statement that one of the main results of the consultation is that a proposal for reforms is to be submitted to the national Congress at its next session, which will expressly establish and guarantee indigenous rights in the law and recognize indigenous customs and usage. The Committee asks the Government to keep it informed of the practical results of Congress's debates on these matters, particularly as concerns worker protection, and of the implementation of the proposals and the participation of indigenous groups in any other consultations that may have been held.

3. The Government also states that the National Indian Institute (INI) has proposed a reform whereby the Institute's operational programmes, budget, assets and staff would be transferred to the various states of the Federation and the local authorities would be required to encourage the integration of local bodies or councils with indigenous representation in the management and programming of INI policy and action. The Committee asks the Government to provide detailed information on practical developments in the proposed reform of the INI to increase the participation of indigenous peoples.

4. Article 8. The Committee asked the Government to keep it informed of any progress made with regard to the administration of the law of indigenous peoples and on any procedure for resolving conflicts between ancestral customs and statutory law. In this connection, the Committee notes the proposal that the indigenous peoples should be recognized as an entity under public law, which, in practice, would enable them to manage public funds, and would establish the presumption of legality and legitimacy of their acts. It also notes that the next session of Congress will have before it one of the main results of the consultations: a proposal for a reform which would expressly establish and guarantee indigenous rights in the law, recognize indigenous forms of social representation so that indigenous groups can be incorporated in municipal administration, and ensure the access of indigenous communities to the legal system by taking into account their language, customs and usage in all legal proceedings. The Committee hopes to receive the information which the Government promised to send in this connection in its report.

5. Article 14. The Committee noted with interest that the amendment of article 27 of the 1991 Constitution had led to a change in the procedure for the recognition and registration of title to communal property. With reference to the process of agrarian reform, the Committee recalled that the Act establishing agrarian tribunals and the Agrarian Act empower the above tribunals to decide upon recognition as a community of indigenous groups who had applied for such recognition before the coming into force of the new agrarian legislation. It noted that 273 rulings had been handed down confirming and recognizing communal property, as well as 168 denying such recognition. It also noted that the agrarian tribunals had issued 35 positive rulings for the same number of communities in the period 1992-94, granting secure legal title to 53,192,000 hectares of land to the benefit of 8,342 community members. The Committee pointed out, however, that the figures were not clear in the report. It again requests the Government to continue to supply information on this subject in future reports, particularly on how the law reconciles individual and community property rights.

6. Article 20. The Committee noted the Government's statement that the responsibility for inspecting and supervising conditions of work is entrusted to the labour authorities of the states of the Republic, which take action at the request of workers or employers. The Committee asked the Government to provide information on the kinds of complaints received from both parties in recent years, and the report of inspections carried out as a result. In reply, the Government states that, in 1996, the Ministry of Labour and Social Welfare started implementation of coordination agreements with state authorities for the purpose of collecting information generated locally by inspection visits. The Committee notes that the possibilities for indigenous workers to request intervention by the labour inspectors are minimal in practice, and asks the Government to send the information it said it would provide in this respect.

7. The Committee noted the training courses on labour law held in indigenous communities experiencing a high rate of job loss, so that workers could get to know their rights. It notes that, between June 1995 and June 1996, the Coordinating Committee for Indigenous Affairs organized training activities in various communities on human rights, for indigenous affairs groups and non-governmental organizations. It again asks the Government to provide information in its next report on the practical outcome of this training.

8. Articles 24 and 25. The Committee notes the detailed information sent by the Government on progress in the health programmes for indigenous communities.

9. Articles 26 to 31. The Committee hopes that the Government will continue to report on progress in extending the education system to indigenous communities.

10. The Committee notes that the Government has not replied to certain points raised in the previous direct request, which read as follows:

2. Article 2. The Committee notes with interest the Government's statement that the participation of indigenous communities in the INI will take the form of honorary and elected office in accordance with the regulations for each office, and that the mandate will be for two years with the possibility of being re-elected once only. Please indicate how this provision will be given effect in practice in accordance with the legislation.

...

5. Article 9. The Committee notes with interest the Government's statement that amendments have been made to penal legislation at the federal level requiring the judicial authorities to take into consideration the customs of the defendant (sections 146 and 220 bis of the Federal Code of Penal Procedure). It also notes that no such cases have yet reached the federal courts and requests the Government to indicate in its next report whether this has now occurred.

6. Article 10. With reference to its observation, the Committee requests the Government to provide copies in future reports of any sentences which apply this new type of penalty.

7. Article 12. The Committee notes with interest the Government's statement that it has organized fora for consultation concerning the content and scope of the Act to be adopted under articles 4 and 27(VII) of the Constitution and requests the Government to indicate the progress achieved in this respect in its next report.

...

10. The Committee would also be grateful if the Government would indicate the area of land traditionally occupied by indigenous peoples which has now been identified and the ownership rights recognized, in accordance with section 23(x) of the Agrarian Act.

11. Article 15. The Committee notes that the reference made in its previous comments to section 4 of the Agrarian Act of 23 February 1992 should have referred to section 5 of the Act.

12. The Committee notes the Government's statement concerning the conclusion of agreements with rural and agricultural communities and workers' organizations for the establishment, administration and management of protected natural areas and the provision of ecological advice on activities related to the rational use of natural resources. It also notes that joint action involving states, municipal authorities and urban and rural communities, as well as various social organizations, is being coordinated by the Social Development Secretariat for the preservation and improvement of the environment. The Committee requests the Government to provide information on these agreements and on how they are put into effect in practice. Please also supply the information requested previously on the incorporation of indigenous techniques into environmental conservation strategies.

13. The Committee notes the Government's statement that it does not envisage the adoption of a specific provision empowering indigenous communities to give their consent to the exploitation of minerals on their lands, but that a procedure is envisaged under section 23 of the Agrarian Act so that they can organize themselves to benefit from their property. It also notes the Government's statement that compensation will be paid prior to the exploitation of natural resources considered by the State to be of strategic value. The provisions of this legislation provide for a process of consultation, discussion and compensation which appears in general terms to be in conformity with the requirements of Article 15, paragraph 2. The Committee requests the Government to supply information in its next report on the manner in which the system operates in practice. It also requests the Government to provide reports on the compensation that has already been provided and to state whether exploration for minerals or their exploitation is permitted or whether other rights over the subsoil have been granted in cases in which the communities concerned were not in agreement.

14. Article 17. The Committee notes the Government's statement that protection is provided against the loss of indigenous lands as a result of amendments to the agrarian legislation by virtue of article 27(VII) of the Constitution, which provides that the law shall protect the integrity of indigenous lands, as well as the Agrarian Act, which guarantees that the lands of indigenous groups shall be inalienable, imprescriptible and unseizable. The Committee notes that in recent government programmes to grant and register common land rights, the inclusion of indigenous communities was not envisaged because they retain a form of land occupation which is different from community rights under the ejido system. It also notes that the Government is seeking a means of adapting this programme to the form of collective work on the land adopted by indigenous communities and requests it to supply information on any progress achieved in this respect.

...

17. Articles 21 to 23. The Committee requests the Government to supply information on the impact of the programmes established to promote vocational training, handicrafts and rural industries.

...

20. Article 32. The Committee notes with interest the information concerning the Mexican Committee for Assistance to Refugees (COMAR) established in July 1980, which includes a specialized organization to provide for the needs of Guatemalan refugees. It notes the activities undertaken by the COMAR in the various indigenous Guatemalan refugee camps and the repatriation of refugees to Guatemala, organized jointly with the United Nations High Commissioner for Refugees (UNHCR). The Committee requests the Government to keep it informed of progress in the repatriation of refugees to Guatemala and the situation of the refugees who remain in the Mexican camps.

21. The Committee refers to its observation and notes the numerous denunciations of violations of human rights against indigenous persons in the Chiapas region, including extra-judicial executions, torture, political assassinations, disappearances and murders. It requests the Government to provide detailed information on the situation of the indigenous communities in that region and on the measures which it intends to take in view of the situation.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

1. The Committee notes the Government's detailed report and the information that has been supplied in the course of the current year on the situation of the country's indigenous peoples and the action undertaken by the Government. It also notes that a national tripartite seminar was held on International Labour Standards with ILO participation, at which it was agreed that a workshop would be organized on the inspection and monitoring of labour standards which protect the living and working conditions of the indigenous peoples in rural areas. The Committee hopes that the Government will state in its next report whether such a workshop was held and, if so, that it will provide full information on its results.

2. The Committee notes with interest the nationwide process of consultation on the rights and participation of indigenous peoples, launched by the Government and involving almost 12,000 participants in 33 fora, which gave rise to some 9,000 proposals for promoting reforms of the relevant constitutional and legal framework; and the meetings with indigenous communities and peoples which involved approximately 11,000 people. The Committee would appreciate the Government supplying it with the full report of the national consultation and of any other relevant document. It also requests the Government to keep it informed of any action taken in the Congress on the draft initiative for reforms which are to be submitted to its next session. This draft initiative expresses and guarantees indigenous rights and recognizes in a wider way their traditions and customs.

3. One outcome of these consultations was the recommendation that the national legislation should be aligned with the Convention. The Committee asks the Government to keep it informed of the practical effects of the consultations and the number of proposals taken into account in the planned reforms.

4. Article 20 (in conjunction with Article 11) (Labour). In an earlier observation the Committee referred to comments from the National Indian Institute (INI) concerning serious abuses against workers in the rural sector, most of whom are indigenous. These included allegations of recruitment by "enganche" (a form of coercive recruitment), non-payment of wages, denial of the right to organize for indigenous workers and a near-total lack of labour inspection in these areas. The Committee notes that the Government's report gives information on a number of programmes which have begun, particularly the increase in training grants for unemployed workers to a total of 500,000 for 1996, 51 per cent of which are for the promotion of productive projects in the social and rural sectors, which has enabled indigenous groups to be incorporated. It also notes that 34 per cent of the resources of the Fund for Municipal Social Development have been allocated to the States of Chiapas, Oaxaca, Veracruz, Puebla and Guerrero, which have the highest poverty rates in the country.

5. The Committee trusts that the Government will keep it informed of the labour situation of indigenous peoples and the practical measures taken to improve it. It again recalls that one of the most important of these measures is frequent and effective labour inspection. Noting that the Government has not ratified the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Committee encourages the Government to continue the efforts it has already made to improve the labour situation; to provide detailed information on the number and results of inspection visits carried out among rural indigenous workers referred to in its report; and to have recourse if necessary to the technical assistance of the International Labour Office.

6. In this connection, the Committee recalls that it has suggested on earlier occasions that the Government might resort to the technical assistance of the International Labour Office to reinforce the protection of the rights of indigenous workers. It also recalls that, in June 1995, the Conference Committee on the Application of Standards urged the Government to envisage such a possibility as a means of improving safeguards for the labour situation of indigenous peoples in accordance with the Convention.

7. The Committee notes that, shortly before its session, it received comments from the Frente Auténtico del Trabajo alleging violation of the Convention due to conflicts associated with the construction of a hydroelectric dam in Oaxaca. This communication has been sent to the Government for any comments it may wish to make.

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

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. Article 1 of the Convention. The Committee notes the Government's statement that for the 1990 census of the population and housing the criterion of indigenous identity was not used to register the indigenous population, and that the only criterion adopted was the use of an indigenous language. It also notes that, following the reform of the Federal Code of Penal Procedure, which has been in force since 1991, defendants often state that they belong to a particular indigenous community, and sometimes support their statement by an anthropological certificate issued by the National Indian Institute (INI).

2. Article 2. The Committee notes with interest the Government's statement that the participation of indigenous communities in the INI will take the form of honorary and elected office in accordance with the regulations for each office, and that the mandate will be for two years with the possibility of being re-elected once only. Please indicate how this provision will be given effect in practice in accordance with the legislation.

3. Article 6. The Committee notes the detailed information provided on the process of consultation with indigenous communities on the measures which may affect them. It notes the Government's statement that the Regional Solidarity Fund promotes the participation of indigenous communities and the establishment of an association of organizations and communities in each indigenous region. It also notes that the above Fund acts as a partner in all the activities undertaken by the INI and other public sector bodies at both the federal and state levels. It notes the regular visits undertaken by the staff of the INI headquarters to the various regions to undertake joint reviews with the organizations and their administrative councils of their programme of work. It also notes the regional meetings for the purposes of evaluation and the exchange of experience held with the participation of members of the organizations, their administrative councils and the staff of coordinating centres, as well as headquarters coordinators and staff. It notes that during the period 1992 to 1994 government social institutions established various types of consultation procedures intended specifically for indigenous peoples. It notes that problems have been identified in the process of consulting the parents of indigenous children in schools, particularly related to the appointment of teachers who speak an indigenous language to communities which speak another language. There is also a lack of resources to build schools. The Committee requests the Government to keep it informed of the operation of this consultative system, and in particular of any evaluation undertaken by indigenous organizations.

4. Article 8. The Committee notes the Government's statement that article 4 of the Constitution in its new form is not in conflict with other constitutional guarantees, as it had suggested in its previous report, and that it will be taken into account within the limits set out in national legislation. It also notes the statement that indigenous customs do not have force of law in Mexico, but that they supplement the law, and that the INI has been promoting their use and recognition by the Mexican judicial system (with the exception of the Penal Act, which is treated separately). While noting these considerations, the Committee understands that the customs of indigenous communities in fields such as matrimony, inheritance and other family matters do not have force of law. The Committee requests the Government to keep it informed of any progress achieved in this respect and on any legal actions which contribute to resolving the conflict between ancestral customs and the law.

5. Article 9. The Committee notes with interest the Government's statement that amendments have been made to penal legislation at the federal level requiring the judicial authorities to take into consideration the customs of the defendant (sections 146 and 220 bis of the Federal Code of Penal Procedure). It also notes that no such cases have yet reached the federal courts and requests the Government to indicate in its next report whether this has now occurred.

6. Article 10. With reference to its observation, the Committee requests the Government to provide copies in future reports of any sentences which apply this new type of penalty.

7. Article 12. The Committee notes with interest the Government's statement that it has organized fora for consultation concerning the content and scope of the Act to be adopted under articles 4 and 27(VII) of the Constitution and requests the Government to indicate the progress achieved in this respect in its next report.

8. The Committee notes that the National Human Rights Commission (CNDH) has established a Directorate of Indigenous Affairs which monitors the human rights of indigenous persons in local, state and federal prisons and disseminates these principles by means of pamphlets, books, radio and television. The Committee requests the Government to supply information on the activities and programmes of this new Directorate.

9. Article 14. The Committee notes with interest that the amendment of article 27 of the Constitution in 1991 has led to a change in the procedure for the recognition and registration of title to communal property. With reference to the process of agrarian reform, the Committee recalls that the Act establishing agrarian tribunals and the Agrarian Act empower the above tribunals to decide upon the recognition as a community of indigenous groups who had applied for such recognition before the coming into force of the new agrarian legislation. It notes that 273 rulings have been handed down confirming and recognizing communal property, as well as 168 denying such recognition. It also notes that the agrarian tribunals have issued 35 positive rulings for the same number of communities in the period 1992 to 1994 granting secure legal title to 53,192,000 hectares of land to the benefit of 8,342 community members (though the Committee notes that these figures were not clear in the report). The Committee requests the Government to continue to supply information on this subject in future reports.

10. The Committee would also be grateful if the Government would indicate the area of land traditionally occupied by indigenous peoples which has now been identified and the ownership rights recognized, in accordance with section 23(x) of the Agrarian Act.

11. Article 15. The Committee notes that the reference made in its previous comments to section 4 of the Agrarian Act of 23 February 1992 should have referred to section 5 of the Act.

12. The Committee notes the Government's statement concerning the conclusion of agreements with rural and agricultural communities and workers' organizations for the establishment, administration and management of protected natural areas and the provision of ecological advice on activities related to the rational use of natural resources. It also notes that joint action involving states, municipal authorities and urban and rural communities, as well as various social organizations, is being coordinated by the Social Development Secretariat for the preservation and improvement of the environment. The Committee requests the Government to provide information on these agreements and on how they are put into effect in practice. Please also supply the information requested previously on the incorporation of indigenous techniques into environmental conservation strategies.

13. The Committee notes the Government's statement that it does not envisage the adoption of a specific provision empowering indigenous communities to give their consent to the exploitation of minerals on their lands, but that a procedure is envisaged under section 23 of the Agrarian Act so that they can organize themselves to benefit from their property. It also notes the Government's statement that compensation will be paid prior to the exploitation of natural resources considered by the State to be of strategic value. The provisions of this legislation provide for a process of consultation, discussion and compensation which appears in general terms to be in conformity with the requirements of Article 15, paragraph 2. The Committee requests the Government to supply information in its next report on the manner in which the system operates in practice. It also requests the Government to provide reports on the compensation that has already been provided and to state whether exploration for minerals or their exploitation is permitted or whether other rights over the subsoil have been granted in cases in which the communities concerned were not in agreement.

14. Article 17. The Committee notes the Government's statement that protection is provided against the loss of indigenous lands as a result of amendments to the agrarian legislation by virtue of article 27(VII) of the Constitution, which provides that the law shall protect the integrity of indigenous lands, as well as the Agrarian Act, which guarantees that the lands of indigenous groups shall be inalienable, imprescriptible and unseizable. The Committee notes that in recent government programmes to grant and register common land rights, the inclusion of indigenous communities was not envisaged because they retain a form of land occupation which is different from community rights under the ejido system. It also notes that the Government is seeking a means of adapting this programme to the form of collective work on the land adopted by indigenous communities and requests it to supply information on any progress achieved in this respect.

15. Article 20. The Committee refers to its observation on this point. It notes from the Government's statement that the Federal Labour Act provides that the general minimum wages apply to all types of workers and that it also recognizes the right to trade union membership, collective bargaining and to call a strike. The Committee also notes that the Act contains a chapter setting out the rights of agricultural employees. It notes that the Social Insurance Act provides for the inclusion of these workers under the social security scheme and that their coverage is strengthened by the IMSS Programme under which assistance and health care is provided to rural communities and a national solidarity programme is established for dependent daily agricultural workers. The Committee notes the Regulations of 1960 respecting the compulsory social insurance of agricultural workers, which covers daily agricultural workers. The Committee notes the Government's statement that responsibility for inspecting and supervising conditions of work is entrusted to the labour authorities of the states of the Republic, which take action at the request of workers or employers. The Committee requests the Government to supply information on the kind of complaints received from both parties over the past five years and the reports on the subsequent inspections.

16. The Committee notes the training courses on labour law held in indigenous communities experiencing a high rate of losing their jobs, workers so that they can get to know their rights. The Committee requests the Government to provide information in its next report on the impact that the above courses have had in practice and the other activities undertaken in this respect in the various communities.

17. Articles 21 to 23. The Committee requests the Government to supply information on the impact of the programmes established to promote vocational training, handicrafts and rural industries.

18. Articles 24 and 25. The Committee notes with interest the detailed information provided concerning health care for indigenous peoples. Emphasis should be placed on the substantial efforts being made in this respect and the important activities undertaken by the INI, taking into account the difficulties which arise in providing medical care for indigenous persons due to the fact that they are constantly migrating to urban areas. It notes in particular the detailed information concerning: (a) the establishment of various centres for the development of traditional medicine and the inauguration of 17 traditional medicine projects; (b) the inclusion of indigenous auxiliary health care personnel and other promotional health staff for indigenous communities; (c) the increased attention paid to the protection of maternity among indigenous mothers; and (d) the measures to combat malnutrition among indigenous children and to vaccinate them. The Committee hopes that the Government will continue to supply information in future reports on the measures taken to remedy the health situation in indigenous communities.

19. Articles 26 to 31 of the Convention. The Committee notes the textbooks for indigenous children, written in various indigenous languages, the information on the education of indigenous children and young persons and the statistics provided with the report. It hopes that the Government will continue to supply information in future reports on the progress achieved in expanding the educational system for indigenous communities.

20. Article 32. The Committee notes with interest the information concerning the Mexican Committee for Assistance to Refugees (COMAR) established in July 1980, which includes a specialized organization to provide for the needs of Guatemalan refugees. It notes the activities undertaken by the COMAR in the various indigenous Guatemalan refugee camps and the repatriation of refugees to Guatemala, organized jointly with the United Nations High Commissioner for Refugees (UNHCR). The Committee requests the Government to keep it informed of progress in the repatriation of refugees to Guatemala and the situation of the refugees who remain in the Mexican camps.

21. The Committee refers to its observation and notes the numerous denunciations of violations of human rights against indigenous persons in the Chiapas region, including extra-judicial executions, torture, political assassinations, disappearances and murders. It requests the Government to provide detailed information on the situation of the indigenous communities in that region and on the measures which it intends to take in view of the situation.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee refers to its observation, in which it requests further information from the Government in 1996. It therefore repeats its previous direct request, which read as follows:

1. Article 1 of the Convention. The Committee notes the Government's statement that for the 1990 census of the population and housing the criterion of indigenous identity was not used to register the indigenous population, and that the only criterion adopted was the use of an indigenous language. It also notes that, following the reform of the Federal Code of Penal Procedure, which has been in force since 1991, defendants often state that they belong to a particular indigenous community, and sometimes support their statement by an anthropological certificate issued by the National Indian Institute (INI).

2. Article 2. The Committee notes with interest the Government's statement that the participation of indigenous communities in the INI will take the form of honorary and elected office in accordance with the regulations for each office, and that the mandate will be for two years with the possibility of being re-elected once only. Please indicate how this provision will be given effect in practice in accordance with the legislation.

3. Article 6. The Committee notes the detailed information provided on the process of consultation with indigenous communities on the measures which may affect them. It notes the Government's statement that the Regional Solidarity Fund promotes the participation of indigenous communities and the establishment of an association of organizations and communities in each indigenous region. It also notes that the above Fund acts as a partner in all the activities undertaken by the INI and other public sector bodies at both the federal and state levels. It notes the regular visits undertaken by the staff of the INI headquarters to the various regions to undertake joint reviews with the organizations and their administrative councils of their programme of work. It also notes the regional meetings for the purposes of evaluation and the exchange of experience held with the participation of members of the organizations, their administrative councils and the staff of coordinating centres, as well as headquarters coordinators and staff. It notes that during the period 1992 to 1994 government social institutions established various types of consultation procedures intended specifically for indigenous peoples. It notes that problems have been identified in the process of consulting the parents of indigenous children in schools, particularly related to the appointment of teachers who speak an indigenous language to communities which speak another language. There is also a lack of resources to build schools. The Committee requests the Government to keep it informed of the operation of this consultative system, and in particular of any evaluation undertaken by indigenous organizations.

4. Article 8. The Committee notes the Government's statement that article 4 of the Constitution in its new form is not in conflict with other constitutional guarantees, as it had suggested in its previous report, and that it will be taken into account within the limits set out in national legislation. It also notes the statement that indigenous customs do not have force of law in Mexico, but that they supplement the law, and that the INI has been promoting their use and recognition by the Mexican judicial system (with the exception of the Penal Act, which is treated separately). While noting these considerations, the Committee understands that the customs of indigenous communities in fields such as matrimony, inheritance and other family matters do not have force of law. The Committee requests the Government to keep it informed of any progress achieved in this respect and on any legal actions which contribute to resolving the conflict between ancestral customs and the law.

5. Article 9. The Committee notes with interest the Government's statement that amendments have been made to penal legislation at the federal level requiring the judicial authorities to take into consideration the customs of the defendant (sections 146 and 220 bis of the Federal Code of Penal Procedure). It also notes that no such cases have yet reached the federal courts and requests the Government to indicate in its next report whether this has now occurred.

6. Article 10. With reference to its observation, the Committee requests the Government to provide copies in future reports of any sentences which apply this new type of penalty.

7. Article 12. The Committee notes with interest the Government's statement that it has organized fora for consultation concerning the content and scope of the Act to be adopted under articles 4 and 27(VII) of the Constitution and requests the Government to indicate the progress achieved in this respect in its next report.

8. The Committee notes that the National Human Rights Commission (CNDH) has established a Directorate of Indigenous Affairs which monitors the human rights of indigenous persons in local, state and federal prisons and disseminates these principles by means of pamphlets, books, radio and television. The Committee requests the Government to supply information on the activities and programmes of this new Directorate.

9. Article 14. The Committee notes with interest that the amendment of article 27 of the Constitution in 1991 has led to a change in the procedure for the recognition and registration of title to communal property. With reference to the process of agrarian reform, the Committee recalls that the Act establishing agrarian tribunals and the Agrarian Act empower the above tribunals to decide upon the recognition as a community of indigenous groups who had applied for such recognition before the coming into force of the new agrarian legislation. It notes that 273 rulings have been handed down confirming and recognizing communal property, as well as 168 denying such recognition. It also notes that the agrarian tribunals have issued 35 positive rulings for the same number of communities in the period 1992 to 1994 granting secure legal title to 53,192,000 hectares of land to the benefit of 8,342 community members (though the Committee notes that these figures were not clear in the report). The Committee requests the Government to continue to supply information on this subject in future reports.

10. The Committee would also be grateful if the Government would indicate the area of land traditionally occupied by indigenous peoples which has now been identified and the ownership rights recognized, in accordance with section 23(x) of the Agrarian Act.

11. Article 15. The Committee notes that the reference made in its previous comments to section 4 of the Agrarian Act of 23 February 1992 should have referred to section 5 of the Act.

12. The Committee notes the Government's statement concerning the conclusion of agreements with rural and agricultural communities and workers' organizations for the establishment, administration and management of protected natural areas and the provision of ecological advice on activities related to the rational use of natural resources. It also notes that joint action involving states, municipal authorities and urban and rural communities, as well as various social organizations, is being coordinated by the Social Development Secretariat for the preservation and improvement of the environment. The Committee requests the Government to provide information on these agreements and on how they are put into effect in practice. Please also supply the information requested previously on the incorporation of indigenous techniques into environmental conservation strategies.

13. The Committee notes the Government's statement that it does not envisage the adoption of a specific provision empowering indigenous communities to give their consent to the exploitation of minerals on their lands, but that a procedure is envisaged under section 23 of the Agrarian Act so that they can organize themselves to benefit from their property. It also notes the Government's statement that compensation will be paid prior to the exploitation of natural resources considered by the State to be of strategic value. The provisions of this legislation provide for a process of consultation, discussion and compensation which appears in general terms to be in conformity with the requirements of Article 15, paragraph 2. The Committee requests the Government to supply information in its next report on the manner in which the system operates in practice. It also requests the Government to provide reports on the compensation that has already been provided and to state whether exploration for minerals or their exploitation is permitted or whether other rights over the subsoil have been granted in cases in which the communities concerned were not in agreement.

14. Article 17. The Committee notes the Government's statement that protection is provided against the loss of indigenous lands as a result of amendments to the agrarian legislation by virtue of article 27(VII) of the Constitution, which provides that the law shall protect the integrity of indigenous lands, as well as the Agrarian Act, which guarantees that the lands of indigenous groups shall be inalienable, imprescriptible and unseizable. The Committee notes that in recent government programmes to grant and register common land rights, the inclusion of indigenous communities was not envisaged because they retain a form of land occupation which is different from community rights under the ejido system. It also notes that the Government is seeking a means of adapting this programme to the form of collective work on the land adopted by indigenous communities and requests it to supply information on any progress achieved in this respect.

15. Article 20. The Committee refers to its observation on this point. It notes from the Government's statement that the Federal Labour Act provides that the general minimum wages apply to all types of workers and that it also recognizes the right to trade union membership, collective bargaining and to call a strike. The Committee also notes that the Act contains a chapter setting out the rights of agricultural employees. It notes that the Social Insurance Act provides for the inclusion of these workers under the social security scheme and that their coverage is strengthened by the IMSS Programme under which assistance and health care is provided to rural communities and a national solidarity programme is established for dependent daily agricultural workers. The Committee notes the Regulations of 1960 respecting the compulsory social insurance of agricultural workers, which covers daily agricultural workers. The Committee notes the Government's statement that responsibility for inspecting and supervising conditions of work is entrusted to the labour authorities of the states of the Republic, which take action at the request of workers or employers. The Committee requests the Government to supply information on the kind of complaints received from both parties over the past five years and the reports on the subsequent inspections.

16. The Committee notes the training courses on labour law held in indigenous communities experiencing a high rate of losing their jobs, workers so that they can get to know their rights. The Committee requests the Government to provide information in its next report on the impact that the above courses have had in practice and the other activities undertaken in this respect in the various communities.

17. Articles 21 to 23. The Committee requests the Government to supply information on the impact of the programmes established to promote vocational training, handicrafts and rural industries.

18. Articles 24 and 25. The Committee notes with interest the detailed information provided concerning health care for indigenous peoples. Emphasis should be placed on the substantial efforts being made in this respect and the important activities undertaken by the INI, taking into account the difficulties which arise in providing medical care for indigenous persons due to the fact that they are constantly migrating to urban areas. It notes in particular the detailed information concerning: (a) the establishment of various centres for the development of traditional medicine and the inauguration of 17 traditional medicine projects; (b) the inclusion of indigenous auxiliary health care personnel and other promotional health staff for indigenous communities; (c) the increased attention paid to the protection of maternity among indigenous mothers; and (d) the measures to combat malnutrition among indigenous children and to vaccinate them. The Committee hopes that the Government will continue to supply information in future reports on the measures taken to remedy the health situation in indigenous communities.

19. Articles 26 to 31. The Committee notes the textbooks for indigenous children, written in various indigenous languages, the information on the education of indigenous children and young persons and the statistics provided with the report. It hopes that the Government will continue to supply information in future reports on the progress achieved in expanding the educational system for indigenous communities.

20. Article 32. The Committee notes with interest the information concerning the Mexican Committee for Assistance to Refugees (COMAR) established in July 1980, which includes a specialized organization to provide for the needs of Guatemalan refugees. It notes the activities undertaken by the COMAR in the various indigenous Guatemalan refugee camps and the repatriation of refugees to Guatemala, organized jointly with the United Nations High Commissioner for Refugees (UNHCR). The Committee requests the Government to keep it informed of progress in the repatriation of refugees to Guatemala and the situation of the refugees who remain in the Mexican camps.

21. The Committee refers to its observation and notes the numerous denunciations of violations of human rights against indigenous persons in the Chiapas region, including extra-judicial executions, torture, political assassinations, disappearances and murders. It requests the Government to provide detailed information on the situation of the indigenous communities in that region and on the measures which it intends to take in view of the situation.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. The Committee notes with satisfaction the Government's statement that, following the amendment of article 4 of the Constitution in 1991, the following provisions have been revised: (a) section 52 of the Federal Penal Code to provide that in cases in which action is being taken in a court of law against a person belonging to an indigenous ethnic group, "their customs and traditions shall be taken into account"; (b) sections 103, 104, 105, 128 and 220 bis of the Federal Code of Penal Procedure, as well as section 95 concerning the authorization to appoint an interpreter in cases where the defendant, the plaintiff, the witnesses or the experts do not understand Spanish to a sufficient level; (c) the General Education Act to provide that teaching shall be promoted in the national language (i.e. Spanish) without prejudice to the protection and promotion of the development of indigenous languages (section 7(IV)); and (d) section 27 of the Agrarian Act, which since 1991 has provided that indigenous lands must be protected and, in section 164, requires the agrarian tribunals to correct deficiencies in legal actions brought by indigenous persons.

2. The Committee also notes that up to June 1994 public consultations were held with the sectors concerned with the promotion of legislation on cultural diversity, but that there has not yet been any positive outcome. It hopes that the Government will provide information in its next report on this matter.

3. Articles 4 and 7 (environment and development). The Committee notes with interest that the hydro-electric project at San Juan Tetelcingo was cancelled on 13 October 1992 by the President of the Republic and the Governor of the state of Guerrero, on the grounds that it was not beneficial for the communities of the region. It notes that this action was taken as a result of a resolution adopted by the Council of the Nahuas Peoples of the Alto Balsas.

4. Article 20 (read with Article 11) (labour). The Committee recalls that in its first report the Government communicated comments by the National Indian Institute (INI), which reported serious abuses against workers in the rural sector, most of whom are indigenous. This included allegations of recruitment by "enganche" (a form of coercive recruitment), non-payment of wages, denial of the right to organize for indigenous workers, and a near-total lack of labour inspection in these areas. The Committee notes that the Government has provided information in its report on a number of programmes which have been begun in order to deal with these problems, but regrets that no information on the practical situation is included in the most recent report.

5. The Committee notes that the absence of basic protection for indigenous workers' rights and working conditions was one of the origins of the outbreak of violence among the indigenous peoples of Chiapas State beginning in early 1994. While it is aware that a situation of the kind outlined in the previous report will take time to correct, and while noting the encouraging information in the most recent report, the Committee hopes that the Government will keep it informed of the situation of indigenous workers in this region and elsewhere, and of the practical steps taken to improve the situation. Of these, one of the most important is frequent and effective labour inspection. Noting that the Government has not ratified the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Committee encourages the Government to continue the efforts it has already made to improve the working situation; to provide detailed information on the number and results of inspection visits carried out among rural indigenous workers; and to have recourse if necessary to the technical assistance of the International Labour Office.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee recalls that in its previous observation it took note of the situation in Chiapas, and suggested that the Government might wish to have recourse to the technical assistance of the International Labour Office in order to increase basic protection for indigenous workers' rights and to improve working conditions. It notes further the discussion which took place on this point during the Conference in June 1995, and that the Conference Committee on the Application of Standards urged the Government to pursue this possibility.

The Committee notes that a representative of the Director-General has held preliminary discussions on this point in Mexico, and that a request has been received during its session for the Office to work with the Government in this respect, by methods which are to be settled in the near future.

The Committee hopes that the Office's collaboration will assist the Government in overcoming obstacles to providing to the indigenous peoples the full protection of the national labour law, as required by the present Convention. It also hopes the Government will be in a position to provide information on the outcome of its consultations with the Office, in its next report.

Finally, the Committee hopes that the Government will provide detailed information in its next report on the points raised in its previous comments.

[The Government is asked to report in detail in 1996.]

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.