Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Mexico (Ratification: 1990)

The Committee notes the observations of the State and Municipal Services Workers’ Union of Tabasco, received on 28 April 2016, and of IndustriALL Global Union (IndustriALL), received on 1 September 2017. It also notes the observations of the Confederation of Employers of the Republic of Mexico (COPARMEX) and the Confederation of Workers of Mexico (CTM), transmitted by the Government attached to its report. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which include general comments on the application of the Convention.

Articles 2 and 33 of the Convention. Coordinated and systematic action. National Indigenous Peoples Institute. The Committee notes with interest the creation of the National Indigenous Peoples Institute (INPI) by the Act adopted on 4 December 2018, which replaces the National Commission for the Development of Indigenous Peoples. The Government indicates in its report that the INPI is a decentralized body, under the authority of the federal executive authorities, responsible for defining, setting standards, designing, implementing, following up and evaluating policies and programmes for indigenous and Afro-Mexican peoples and for ensuring respect for their rights. In the exercise of its functions, the INPI is required to take action for collaboration and coordination with the departments and institutions of the federal public administration, the governments of federated entities and municipal authorities; ensure the participation of indigenous and Afro-Mexican peoples; and engage in dialogue with the social and private sectors, as well as with international organizations. The Committee notes that, within the structure of the INPI, the National Indigenous Peoples Council has been established as a body for participation, consultation and building relations with indigenous and Afro-Mexican peoples. The Council is composed of representatives of indigenous and Afro-Mexican peoples, academic institutions specializing in indigenous subjects, indigenous organizations, the migrant indigenous population resident abroad, the officers of the indigenous affairs commissions of the Congress of the Union, the governments of federated entities and international organizations (sections 11 and 18 of the Act). The Committee welcomes the establishment of the National Indigenous Peoples Institute as the national institution responsible for indigenous affairs and trusts that it will contribute to the implementation of coordinated and systematic action by government institutions and bodies at all levels, with the participation of indigenous and Afro-Mexican peoples, with a view to the effective implementation of the Convention. The Committee requests the Government to provide information on the means and resources available to the Institute for the full discharge of its functions, with an indication of the manner in which in practice the National Indigenous Peoples Council participates in the design and monitoring of the policies and programmes for which the Institute is responsible.

Articles 2(2)(b) and 7. Development. National Programme for Indigenous Peoples. In its previous comments, the Committee requested the Government to provide information on programmes and projects for the promotion of the economic and social rights of indigenous peoples. The Committee notes the detailed information provided by the Government on the action taken within the framework of the various programmes for the social and economic development of indigenous peoples, and particularly the Indigenous Infrastructure Programme (PROII) and the Programme for the Improvement of Indigenous Production and Productivity (PROIN). It also notes the information provided on the allocation of the budget approved for these programmes. The Government indicates that, between 2014 and 2018, through the PROIN, a total of 52,899 men and 53,299 women received support for productive community projects, and that 67,230 men and 51,858 women benefited from climate change adaptation and mitigation measures. However, the Committee notes that, according to the statistics published in 2018 by the National Council for the Evaluation of the Social Development Policy (CONEVAL), 2.2 million people speaking an indigenous language were subject to food shortages. The Committee notes that, in its observations included in the Government’s report, the Confederation of Employers of the Republic of Mexico (COPARMEX) emphasizes the broad legal framework for the protection of the rights of indigenous peoples and the progress made in the specific public policies covering them. However, the COPARMEX observes that there are still shortcomings and, according to CONEVAL data, 71.9 per cent of the indigenous population, that is 8.3 million people, were living in poverty in 2016, and the figure rises to 77.6 per cent among the population speaking an indigenous language, which is greatly above the national average (43.65 per cent).

The Committee welcomes the adoption of the National Programme for Indigenous Peoples 2018–24, which aims of strengthening the processes of independence and the organization of indigenous and Afro-Mexican peoples, and their effective participation in the design, implementation and evaluation of public policies and programmes that affect them. The objectives of the Programme include the development of comprehensive regional development plans in coordination with indigenous and Afro-Mexican peoples, the strengthening of productive projects with a gender perspective, employment generation, the improvement of communication infrastructure and the promotion and implementation of the rights of participation and consultation. The Committee trusts that the Government will take the necessary measures to achieve the objectives set out in the National Programme for Indigenous Peoples 2018–24 and requests the Government to provide information, including statistical data, on the impact of the measures and programmes adopted in this framework for the realization of the economic, social and cultural rights of members of indigenous and Afro-Mexican peoples. The Committee also requests the Government to indicate the manner in which indigenous and Afro-Mexican peoples participate in the design, implementation and evaluation of development initiatives undertaken in the context of the Programme at the federal level and in the various federated entities.

Article 3. Human rights. Reproductive health. In its previous comments, the Committee requested the Government to provide information on the manner in which the informed consent of members of indigenous peoples is ensured in family planning and contraception programmes. The Government indicates that, since 2013, family planning and contraception programmes have been implemented adopting an intercultural approach targeting young persons in indigenous populations. The Government adds that “intercultural links” have been organized in 11 federated entities, which consist of persons from indigenous communities who have been trained in maternity and neo-natal care, and who serve as interpreters between health professionals and indigenous women, thereby strengthening the trust and credibility of health services among the indigenous population. The Committee takes note of General Recommendation No. 31/2017 of the National Human Rights Commission (a decentralized governmental body empowered to issue recommendations on human rights to the public authorities), which indicates that midwives, in the same way as indigenous pregnant women, are subject to cultural and social ill treatment in reproductive health, and recommends the adoption of the necessary measures to strengthen the process of developing closer relations between traditional birth-giving and the national health system. The Committee requests the Government to provide detailed information on the manner in which indigenous young persons participate in the design and implementation of family planning and contraception programmes, taking into account their cultures and ways of life. The Committee also requests the Government to take the necessary measures to prevent ill treatment of indigenous and Afro-Mexican women who have recourse to obstetrical care and to continue promoting respect for traditional birth-giving within the framework of the national health system.

Article 6. Consultation. In its previous comments, the Committee noted the protocol for the implementation of consultations with indigenous peoples and communities, approved in 2013 by the National Commission for the Development of Indigenous Peoples, and requested the Government to continue providing information on the progress made in the adoption of legislation on consultation. The Government indicates that the protocol is a general document establishing principles and methodological and technical procedures applicable to a range of situations. Based on the protocol, the INPI prepared and published in March 2019 a specific protocol on the consultation of indigenous and Afro-Mexican peoples on the National Development Plan 2019–24, which envisages a phase of information, discussion, consultation and agreement, and follow up. The Committee notes that, in accordance with the Act establishing the National Indigenous Peoples Institute, the INPI will be the technical body in prior, free and informed consultation processes on legislative and administrative measures at the federal level (section 4); and that the National Programme for Indigenous Peoples 2018–24 envisages the preparation of a legislative initiative on free, prior and informed consultation of indigenous peoples.

The Committee refers to its 2018 general observation, in which it recalled the importance of engaging in prior consultation with the peoples covered by the Convention before the adoption of legislation or the establishment of consultation machinery. Under these conditions, the Committee requests the Government to provide information on the progress made in the process of the adoption of legislation on consultation, with an indication of the measures adopted to ensure that full and informed consultations are held with indigenous peoples and the Afro-Mexican people in this regard. While legislation is being adopted, the Committee requests the Government to continue providing information on the consultation processes undertaken on the basis of the protocol for the implementation of consultation with indigenous peoples and communities and their results, with an indication of the manner in which the peoples concerned participate through their representative institutions, as well as the difficulties encountered in the implementation of such processes and the measures taken by the INPI to resolve them. Please also provide information on the implementation of the agreements concluded within the framework of the consultation process on the National Development Plan 2019–24.

Consultation on the constitutional and legislative reform on indigenous and Afro-Mexican rights. The Committee notes with interest the process of dialogue and consultation on constitutional and legislative reform on indigenous and Afro-Mexican rights held between June and August 2019, through 54 regional round tables, covering 68 indigenous peoples and the Afro-Mexican people. The process, under the responsibility of the Ministry of the Interior and the INPI, had the objective of gathering views and proposals on the constitutional reform initiative and the corresponding regulations from indigenous peoples and the Afro-Mexican people. Based on the consultations, proposals were made which include the constitutional recognition of indigenous peoples as subjects of public law, as well as the recognition of the special relationship of indigenous peoples with their lands, their right to political participation, representation and consultation, and the rights of displaced indigenous persons. The proposals were delivered to the President of the Republic in August 2019 as a basis for the preparation of constitutional and legislative reform process. The Committee requests the Government to provide information on the manner in which the proposals made by indigenous and Afro-Mexican peoples during the dialogue and consultation process on the constitutional and legislative reform on indigenous and Afro-Mexican rights have been taken into account in the constitutional and legislative reform process in relation to their rights and to measures that directly affect them.

Articles 14 and 18. Land disputes. Incursions. The Committee previously noted various disputes relating to the occupation of lands involving indigenous communities and requested the Government to provide information on the measures adopted to ensure the effective protection of the rights of indigenous peoples to the lands that they have traditionally occupied and to resolve claims in this regard. The Government provides various examples of land disputes between communities that have been resolved through the intervention of the Office of the Agrarian Prosecutor. The Committee notes that in March 2017 the Inter-American Court of Human Rights adopted provisional measures in favour of the members of the Choréachi indigenous community of the Sierra Tarahumara in the State of Chihuahua in view of the situation of violence caused by attempts by criminal organizations to occupy the community’s lands. It also notes that, in her report on Mexico in 2018, the United Nations Special Rapporteur on the rights of indigenous peoples referred to the situation of the Cucapa people in Baja California, whose traditional activities have been restricted by the creation of a protected area and the presence of illegal fishing (A/HRC/39/17/Add.2, paragraph 28). The Committee requests the Government to intensify its efforts to safeguard the possession by indigenous peoples of the lands that they traditionally occupy; to safeguard their rights to use lands to which they have traditionally had access for their traditional activities and subsistence; and to prevent and sanction any intrusion in the lands of the peoples concerned. The Committee requests the Government to provide information on the results of the measures adopted in this regard, particularly in relation to the situation of the indigenous community of Choréachi in the State of Chihuahua and the Cucapa community in the State of Baja California. The Committee also requests the Government to provide updated information on the measures adopted for the definitive resolution of the land dispute relating to the community of San Andrés de Cohamiata, to which it referred in its previous comments.

The Committee is raising other matters in a request addressed directly to the Government.