Solicitud directa (CEACR) - Adopción: 1999, Publicación: 88ª reunión CIT (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.