Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes a communication from the Trade Union Delegation of Radio Education, section XI, of the National Union of Education Workers (SNTE), of 7 November 2007, and the Government’s reply of 18 August 2008. The SNTE alleges that the Government of Mexico failed to comply with the recommendations in a Governing Body report concerning a representation it made (Governing Body document GB.272/7/2, June 1998). The Committee notes that in a communication dated 26 August 2008, the Mexican Government stated that the preparation of the report was complex because various complaints had to be addressed. It indicated that consultations were under way for this purpose and requested an extension of the deadline for the report. The Committee notes that it received the full report from the Government on 25 November 2008. Due to the late arrival of the report, the Committee will not be able to examine the report fully at this session, though it will examine the information relevant to the trade union communication.

Background. The subject of the representation was a claim filed by the Union of Huichol Indigenous Communities of Jalisco, through the SNTE, for the return to the Huichol community of San Andrés de Cohamiata of 22,000 hectares adjudicated by the federal Government to agrarian communities in the 1960s. The land in question included Tierra Blanca, El Saucito, in the State of Nayarit (which includes the villages of El Arrayán, Mojarras, Corpos, Tonalisco, Saucito, Barbechito and Campatehuala) and Bancos de San Hipólito, in the State of Durango, which, according to the complainant organizations, also belonged to San Andrés de Cohamiata.

In paragraph 45 of the abovementioned report, the Governing Body: (a) urged the Government to take measures in appropriate cases 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, in accordance with Article 14 of the Convention; (b) requested the Government to inform the Committee of Experts, through the reports to be submitted on this Convention under article 22 of the ILO Constitution, on: (i) the decision to be handed down by the Third Collegial Court of the Twelfth Circuit concerning the appeal for protection of constitutional rights lodged against the decision handed down by the Agrarian Tribunal in the particular case of Tierra Blanca; (ii) the measures which have been taken or which could be taken to remedy the situation of the Huicholes, who represent a minority in the area in question and have not been recognized in land censuses, which might include the adoption of special measures to safeguard the existence of these people as such and their way of life, to the extent that they wish to safeguard it; (iii) the possible adoption of appropriate measures to remedy the situation which has given rise to this representation, taking account of the possibility of assigning additional land to the Huichol people when they do not have the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers, as provided in Article 19 of the Convention.

The Committee re-examined the matter in 2001 and 2006 after receiving a communication from the SNTE stating, inter alia, that the Presidential Decision granting title for the land to San Andrés de Cohamiata had recognized only a part of its land, removing from San Andrés 43 per cent of its ancestral lands; and it was precisely on these lands in which the community of Bancos lived which were given to San Lucas de Jalpa. The SNTE added that a forestry exploitation concession had been granted to San Lucas de Jalpa, which was unlawful because the land involved was currently the subject of litigation.

Communication from the SNTE of 2007 and the Government’s reply. The SNTE states that despite the nine years that have lapsed since recommendations were made concerning the representation in question, the Government has still not taken the necessary measures to deal with the situations that gave rise to the representation. The agrarian situation of the community of Bancos had become worse, and there was a real danger that the “legal dispossession” of its land would become definite. It also pointed out that the Agrarian Tribunals had handed down a ruling along the lines of the Presidential Resolution of 1981, contested by the Huichol community. Under this Decision, the title of the lands of the Bancos community had been conceded to the agrarian community of San Lucas de Jalpa. The SNTE states that on 10 August 2007, the community had filed a claim for constitutional rights (amparo) against the decision of the Higher Agrarian Tribunal, which in this matter would be the final judicial procedure available. The SNTE also indicates that the indigenous community of Bancos proposed to the Government, among other things, that the Secretariat for the Agrarian Reform should critically review the legality and correctness of the acts resulting in the illegitimate granting of titles on the lands of the Bancos community of San Lucas since the Secretariat had at its disposal technical information collected by the Secretariat itself which proved the ancestral possession of the Bancos community. The SNTE states that this could contribute to the solution of the dispute without affecting the separation of powers.

The SNTE states that, for the time being, the agrarian legislation does not provide for adequate procedures referred to under Article 14(3) of the Convention to recognize land traditionally occupied by indigenous peoples, and that for the judges, only the official documents are valid. They basically uphold the decisions confirming the validity of the titles given to San Lucas de Jalpa, to the detriment of the Huichol community, on the basis that the titles of 1981 and 1985 were legal. It was precisely these titles that the indigenous community protested against, because they failed to recognize their traditional occupation of the land. According to the trade union, the traditional occupation should already have been recognized in accordance with Article 11 of the Indigenous and Tribal Populations Convention, 1957 (No. 107), which specifies that “the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised”. It points out that the Higher Agrarian Court considered that Convention No. 169 had not entered into force when the Presidential Decision was issued on 28 July 1981 and the negative decision of the agrarian advisory body was passed down on 20 June 1985.

The SNTE adds that, although there was considerable evidence that the Huicholes had lived on the lands from time immemorial – as shown by the existence of titles granted by the Spanish Crown, as well as historical and anthropological studies – this was not enough because there were no procedures in national law to establish a link between the facts as presented and international standards. The Committee notes that, in its reply, the Government states that it is vital to find a solution to the ancestral disputes over rural land in order to maintain peace and social stability; and it is also of extreme importance to give effect to the decisions of the Judiciary and Agrarian Tribunals. It stresses that the community in question is a small community. It points out that on 30 April 2008, the Secretary of Agrarian Reform and the Governor of the state of Durango signed an agreement to settle the agrarian problem in this State (the dispute is between San Lucas de Jalpa and Bancos de Calitique o Cohamiata), and further added that injecting financial resources to reach a settlement was a priority. The Government is envisaging negotiations once all the legal means have been exhausted. It adds that, on 7 May 2008, a framework agreement was signed with the National Commission for the Development of Indigenous People (CDI), and that one of the objectives of this agreement is to preserve the land of indigenous peoples and communities.

Concerning the forestry areas granted under concession by the Secretary of the Environment and Natural Resources (SEMARNAT) to San Lucas de Jalpa, claimed by the indigenous peoples of Bancos as belonging to them (upon which the Committee made comments in 2005), the Government has undertaken to deal with this matter and cancel the forestry exploitation concession of San Lucas de Jalpa, even though the land involved was currently the subject of litigation.

The Committee notes with concern that the situation which gave rise to the representation remains unchanged. It notes, however, that the Government has expressed its determination to try to negotiate once the legal avenues have been exhausted. It also notes the Government’s intention to look into and even cancel the concession of the forestry land, which the Huicholes claim they have traditionally occupied. The Committee observes that the main issue at stake in this case is the way in which national law and the Convention regulate land rights. This is a matter of vital importance because indigenous peoples do not usually hold titles established in accordance with civil law, whereas under Conventions Nos 107 and 169, “traditional occupation” is, in itself, a source of law. Furthermore, the Committee recalls that, in another document (GB.276/16/3, paragraph 36), on a representation, the Governing Body considers that “the Convention does currently apply with respect to the consequences of the decisions taken prior to its entry into force”. Although the Government states that the procedures of the Agrarian Tribunals make it possible to give effect to Article 14, the trade union points out that these procedures failed to take account of the elements proving traditional occupation, because they gave precedence to the titles granted to San Lucas de Jalpa over the concept of traditional occupation.

Under Article 14 of the Convention, traditional occupation of land creates rights which the State is obliged to recognize. According to paragraph 1 of this Article, “the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized”. Under paragraph 2 of this Article, “Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession”. Finally, paragraph 3 of the same Article states, “adequate procedures shall be established within the national legal system to resolve land claims by the people concerned”. Article 14(3) refers to the rights laid down in paragraphs 1 and 2 of the same Article, and consequently the Committee infers that, in order to be adequate, procedures must enable indigenous peoples to settle their land disputes by proving that they have been traditionally occupying the land. If the indigenous peoples were unable to assert traditional occupation as rights of ownership and possession, Article 14 of the Convention would become a dead letter. The Committee is aware that it is difficult to capture this principle in the legislation, as well as to establish adequate procedures, but stresses that the recognition of rights and possession over land which people have traditionally occupied, by means of adequate procedures, is the cornerstone of the land rights system established under the Convention. The concept of traditional occupation may be reflected in various ways in national legislation, but it must be applied. For these reasons, the Committee requests the Government to do its upmost to guarantee the application of Article 14 in dealing with this case, including by means of negotiation and to provide information in this regard. The Committee also requests the Government to provide information on how it considers the proposal put forward by the indigenous community of Bancos regarding the possibility that the Government revises its acts granting land titles to the community of San Lucas, with a view to redressing the situation under examination. Similarly, it requests the Government to provide detailed information on the way in which this Article, and especially the concept of traditional occupation as being a source of rights of ownership and possession, is reflected in national law, and to indicate whether adequate procedures, as envisaged under Article 14(3) of the Convention, exist. Furthermore, given that there is a difference of opinion as to whether existing procedures are in conformity with Article 14 of the Convention and the length of these proceedings, the Committee suggests that the Government engages in consultations with the indigenous peoples on changes that might bring these procedures more in line with the Convention. The Committee asks the Government to provide information on the measures taken in this regard. Finally, the Committee requests the Government to provide information on the implementation of the recommendations contained in paragraph 45(a) and (b)(i), (ii) and (iii) of the above-mentioned representation, specifying those matters that have been settled and others that are still pending.

In the light of the information submitted by the Government on 25 November 2008, the Committee requests the Government to provide any additional information it may consider relevant for its examination at its next session in 2009.

[The Government is requested to reply in detail to the present comments in 2009].