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.