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.