Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (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.