Solicitud directa (CEACR) - Adopción: 1996, Publicación: 85ª reunión CIT (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.

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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.

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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.

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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.

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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.