Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Mexico
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Distr.: General
28 June 2018
English
Original: Spanish
Human Rights Council
Thirty-ninth session
10–28 September 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Note from the Secretariat
The report examines the situation of indigenous peoples in Mexico based on the information received by the Special Rapporteur on the rights of indigenous peoples during her visit to the country from November 8 to 17, 2017 and an independent investigation.
The Special Rapporteur observes that, since the official visit made by the previous Special Rapporteur Rodolfo Stavenhagen in 2003, and despite the commitments made subsequently by Mexico in the area of human rights, indigenous peoples continue to face serious challenges in the exercise of their human rights. .
Current development policies based on megaprojects (extractive, energy, tourism, real estate, agriculture, for example) constitute a major challenge for the enjoyment of human rights of indigenous peoples. In addition to the lack of self-determination and prior, free, informed and culturally appropriate consultation, there are territorial conflicts, forced displacement, criminalization and violence against indigenous peoples who defend their rights.
All these problems are developing in a context of deep inequality, poverty and discrimination against indigenous peoples that limit their access to justice, education, health and other basic services.
Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Mexico *
Index:
introduction
II. Identification of indigenous peoples
III. Legal and institutional framework
IV. Main concerns
A. Lands, territories and natural resources
B. Development priorities, mega-projects, consultation and consent
C. Self-determination and political participation
D. Violence, impunity and access to justice
E. Economic, social and cultural rights
V. Conclusions and recommendations
Annex: Allegations received
I. introduction
1. This report examines the situation of indigenous peoples in Mexico and makes recommendations in this regard, based on the information received by the Special Rapporteur on the rights of indigenous peoples during her visit to the country from 8 to 17 November 2017, and independent investigation. The visit of the Special Rapporteur had the dual objective of examining the implementation of the recommendations made by the previous Special Rapporteur after his visit to the country in 2003 [1], and assessing how Mexico has incorporated its international commitments on the rights of peoples. natives.
2. The Special Rapporteur held meetings with institutions of the federal government and the federal entities of Mexico City, Guerrero, Chihuahua, and Chiapas. He held meetings in Mexico City, the city of Tuxtla Gutiérrez, the indigenous community of La Candelaria, Chiapas, the city of Chihuahua, and the indigenous community of Tlatzala, Guerrero. More than 200 indigenous representatives participated in these meetings, belonging to 23 indigenous peoples from 18 states, with an equal presence of indigenous women. He also met with human rights organizations, civil society organizations, representatives of the private sector, the United Nations country team and other relevant actors.
3. The Special Rapporteur would like to thank the Government of Mexico for its cooperation and for allowing her to carry out her visit freely and independently. He also wishes to thank the team of the United Nations High Commissioner for Human Rights (OHCHR) in Mexico for the invaluable support provided during his visit. Finally, she expresses her deep gratitude to the indigenous peoples and communities who received her in their lands and territories and to those who traveled from afar to share their stories with her.
II. Identification of indigenous peoples
4. The Constitution establishes that “[t] he awareness of their indigenous identity should be a fundamental criterion for determining to whom the provisions on indigenous peoples apply” (art. 2). However, several indigenous peoples denounced the denial of the right to self-registration by government authorities.
5. National statistics use different criteria to determine the indigenous population, which has affected the development of relevant policies and programs and impeded their access to housing, health or food, among others. According to official statistics that use the linguistic criteria, the indigenous population is 6.5% of the total population. However, under the criterion of self-enrollment, the indigenous population amounts to 21.5% of the population.
6. The use of different criteria by state institutions may result in a denial of justice when peoples and communities that are not formally recognized as indigenous but who self-ascribe as such, turn to national authorities to protect their rights. For example, the Otomí people of San Francisco Magú in the state of Mexico are not included in the indigenous state law or in the federal catalog of indigenous localities, so they have not been able to participate in programs aimed at indigenous peoples nor have they been able to influence decisions of municipal authorities related to development plans and elections of authorities.
7. In the case of the O'odham (Papago) of Sonora, the use of linguistic criteria by federal and state authorities has resulted in reduced population numbers. This has led to the invisibility of its population that self-describes as indigenous peoples and of their human rights situation. In the case of San Salvador de Atenco, a community of indigenous origin affected by the construction of the new international airport in Mexico City and that filed judicial appeals against the project to demand respect for their territorial rights and prior consultation, reported that it has yet to be judicially determined whether the community will be recognized as indigenous.
III. Legal and institutional framework
8. Article 2 of the Constitution establishes that “[t] he Nation has a multicultural composition originally based on its indigenous peoples, which are those who descend from populations that inhabited the current territory of the country at the beginning of colonization and who conserve their own social, economic, cultural and political institutions, or part of them ”.
9. Article 27 of the Constitution and the agrarian laws recognize different forms of land tenure for peasants, such as agrarian lands for collective use, known as ejidos.
10. Indigenous peoples continue to demand that they be recognized in the Constitution as subjects of public law, and not as entities of public interest.
11. In 2013, a constitutional reform on energy was adopted, and several laws for its implementation that provide, without recognition of the regulations on the rights of indigenous peoples, the possibility of awarding contracts to private companies in the field of hydrocarbons, and that facilitates the exploitation of natural resources, many of which are found within the territories of indigenous peoples.
12. The 2014 reform of the Federal Law to Prevent and Eliminate Discrimination expanded the definition of discrimination and established additional remedial measures.
13. Mexico has taken important steps to incorporate international human rights law through the reform of article 1 of the Constitution in 2011. According to this reform, the international human rights obligations contracted by Mexico are directly applicable at all levels of the federal structure and must be respected and guaranteed in legislation, public policies and judicial decisions. These obligations include international human rights treaties to which Mexico is a party; the Convention on Indigenous and Tribal Peoples, 1989 (No. 169), of the International Labor Organization (ILO), ratified by Mexico in 1990; the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Mexico in 1975;
14. Mexico played a leading role in the preparation of the Declaration and in its adoption in 2007 by the General Assembly. Likewise, during the 2014 United Nations World Conference of Indigenous Peoples, the President of Mexico reaffirmed his country's commitment to the implementation of the Declaration. However, indigenous representatives expressed that there is no coherent application of the recent constitutional reform and of these international commitments.
15. The institution in charge at the national level of the coordination, promotion, monitoring and evaluation of programs, projects, strategies and public actions for the integral and sustainable development of indigenous peoples and communities is the National Commission for the Development of Indigenous Peoples. (CDI). There are also other institutions that play a role in the implementation of the rights of indigenous peoples.
16. At the state level, legal recognition of indigenous rights has occurred to varying degrees. As reported, the constitutions of 28 of the 32 states expressly recognize the rights of indigenous peoples, and 26 of them issued regulatory laws on this matter. In February 2017, Mexico City adopted a Constitution, which recognizes the rights of the city's “indigenous peoples and neighborhoods” and “resident indigenous communities”. The Constitution establishes the mandatory observance of the Declaration and other international instruments ratified by Mexico, and recognizes, among others, the rights to self-registration, self-determination and prior consultation.
IV. Main concerns
A. Lands, territories and natural resources
17. The Special Rapporteur agrees with her predecessor and stresses that the preservation and protection of the lands, territories and resources of indigenous peoples must be a priority issue that requires proper regulation [2], in accordance with international law. This is a critical critical issue that lies at the root of many of the human rights problems that the Special Rapporteur noted.
18. The agrarian regime of ejidos, community lands and private property, as well as the agrarian authorities and institutions that it establishes, does not respond to the needs of indigenous peoples and does not comply with current international obligations of Mexico, which recognize the right to indigenous peoples to the lands, territories and natural resources that they have traditionally owned, occupied, used or acquired.
19. The cases received indicate that the procedures available for the recognition of territorial rights are not simple or accessible and may involve lengthy legal processes. Effective recognition is also hampered when there are border conflicts with other communities or private owners and when agrarian and state authorities or third parties promote natural resource exploitation activities in indigenous territories. Likewise, limited results are obtained since the lands granted to indigenous peoples generally do not correspond to their concepts of territory and are unaware of their traditional territorial limits. In addition to difficulties in accessing agrarian justice, the long duration of the proceedings before it is of concern.
20. Another fundamental problem is that the ejido and agrarian authorities, a product of the Agrarian Law, do not necessarily coincide with the representative authorities of the indigenous communities and, in many cases, come into conflict with them. This causes uncertainty and conflicts when State agents supposedly consult the ejido authorities for the approval of measures or activities that affect indigenous lands in the ejidos.
21. The National Human Rights Commission (CNDH) in its recommendation no. 56/2016 also observed that the agrarian bodies do not represent all the members of an indigenous community, but rather those people who were recognized by the State as agrarian subjects. In several cases, it has been alleged that State agents and third parties have manipulated the agrarian regime to delegitimize and undermine indigenous authorities opposed to development projects on their lands.
22. In the Sierra Tarahumara, Chihuahua, for example, the imposition of the agrarian system did not reflect the land tenure systems of indigenous peoples. Numerous Rrámuri and Odami communities have undertaken legal proceedings before agrarian authorities, which last for years and even decades, to obtain recognition of their lands. Some communities have to wait for their lands to be declared national assets first, before being awarded and being able to buy them.
23. In many cases, their territorial claims are part of legal actions to challenge forest permits or agrarian rights granted to third parties without prior consultation. In some cases, the agrarian courts have ruled that territorial recognition can only be obtained through the figure of ejido or agrarian community. While awaiting the resolution of their requests and legal actions, many communities face retaliation, forced displacement and in the most serious situations murder by those who covet their lands and forests.
24. Cases have been reported in which state agents have convened agrarian assemblies or created lists of community members to facilitate the appropriation of communal lands for projects. In the case of the La Parota dam in Guerrero, although the agrarian courts annulled the results of the agrarian assemblies that approved the project, the state and federal governments maintain their intention to carry it out, despite the fact that it would cause displacement and impacts on lands and natural resources. traditional traditions of the affected indigenous communities.
25. The Otomí community of San Francisco Xochicuautla, state of Mexico, challenged the results of agrarian assemblies that approved the Toluca-Naucalpan highway project before agrarian and judicial authorities, but the judgments favorable to the community have not been complied with. The creation of a registry of community members by state authorities generated divisions, and people opposed to the project have suffered attacks, criminalization and destruction of their property.
26. Another worrying issue is the lack of recognition and protection of the natural resources of indigenous peoples. For example, the indigenous inhabitants of the La Candelaria ejido, Chiapas, reported on their efforts to protect their sacred lagoon from tourism, highway and other projects that would affect the integrity of the lagoon and the continuation of its cultural practices.
27. The creation of protected areas has led to violations of indigenous land rights and forced evictions. Restrictions on access to land and the traditional use of natural resources have been reported within protected areas decreed in indigenous territories without prior consultation. In several protected areas, state authorities have approved tourism, agro-industrial, mining and forestry concessions.
28. In Baja California, the situation of the Cucapá people, highlighted by the Special Rapporteur in 2003, continues to be worrying. Their traditional fishing activities were seriously restricted by the creation of a protected area in their ancestral territory, and the presence of illegal fishermen in the region has inhibited traditional fishing, necessary for the continuation of their culture.
29. Although it is appreciated that the Ministry of Agrarian, Territorial and Urban Development is developing several programs to contribute to the regularization of agrarian property and the solution of agrarian conflicts through courts and mediation processes, that the Agrarian Attorney's Office provides training and advice to agrarian subjects, and that the agrarian courts privilege the protection of indigenous lands when settling agrarian conflicts, these efforts are insufficient. The fundamental problem lies in the disparity between the agrarian legal regime and international standards on the rights of indigenous peoples.
B. Development priorities, mega-projects, consultation and consent
30. Indigenous peoples expressed their desire to define and pursue, in accordance with international standards, their own economic, social and cultural development, as a fundamental expression of their self-determination. However, they denounce the limitation of this right due to the development models imposed in their territories, and in particular, the rise of extractive and energy projects and investment projects as a result of legislative reforms and economic policies that have had negative impacts on their territories. rights and interests. They denounce that these megaprojects are carried out without prior, free and informed and culturally appropriate consultation without obtaining the consent of the affected indigenous peoples, even in the face of judicial suspensions.
31. In the last two decades, Mexico has encouraged greater foreign investment for mining, considered a preferential activity of public utility. The constitutional energy reform of 2013 has generated concern that the State will force indigenous communities to rent or sell their lands to companies, impose legal easements to facilitate hydrocarbon or energy projects, and also that the risk of dispossession, confrontations and forced displacement due to the growing interest in natural resources in indigenous territories, many of which have not been legally recognized. In addition, national targets to generate 35% of electricity from renewable resources by 2024 have accelerated the approval of large-scale commercial wind projects in indigenous regions.
32. There are different regulatory developments on prior consultation, such as institutional protocols, judicial decisions and legislation that incorporate consultation requirements. In 2013, the CDI published a protocol with guidelines for the implementation of consultations with indigenous peoples that has served as a reference guide for various State agencies, although it is not binding [4].
33. The secondary legislation derived from the energy reform contains provisions on prior consultation regarding projects in the hydrocarbon and energy sectors, which is the responsibility of the Ministry of Energy. The Secretariat develops ad hoc consultation protocols for specific projects based on the CDI protocol, and with the support of other relevant federal and state entities. In the forestry sector, the National Forestry Commission reported on mechanisms for the participation and consultation of indigenous peoples regarding plans and programs in this sector, including a process of consultation at the national level on the National Strategy for the Reduction of emissions derived from the deforestation and forest degradation (REDD +).
34. The states of Durango and San Luis Potosí adopted laws on prior consultation and there are legislative proposals in other states. The state of Chihuahua reported on activities carried out to consult indigenous peoples on constitutional and legislative reforms on this issue.
35. Federal courts have examined several cases on prior consultation, indigenous peoples and megaprojects. In some cases, the Supreme Court of Justice has ordered the suspension of unconsulted projects, although it has been denounced that said judgments are not complied with by state agents and the private sector, and have not yet generated binding jurisprudence, in the sense of legal tradition. mexicana [5]. This has generated that the effects of these projects are maintained and that the conflict in the communities has increased.
36. The CNDH has ruled on this issue [6] and some specific cases [7]. The Special Rapporteur agrees with the CNDH on some problematic practices in the consultations that have been held in Mexico. In many cases, these are not “prior” since authorizations and permits for projects are issued before consulting indigenous peoples. Situations of threats, harassment and criminalization of members of indigenous peoples during the consultation processes undermine their "free" character. This character can also be reduced due to the state of necessity in which indigenous peoples find themselves when they do not fully enjoy their basic rights. The implementation of economic, social and cultural rights cannot be conditioned on the result of a consultation, nor be considered as a form of compensation or profit sharing; it is an obligation of the State regardless of whether or not a project is carried out in an indigenous community. Deficiencies also persist in the provision of clear, precise and complete information on the impacts of the projects, which is not presented in a culturally appropriate way, nor does it consider the times and other cultural factors of the peoples consulted [8].
37. Various actors pointed to the lack of clarity on who should be consulted, who were the representative indigenous authorities, or on the level of capacity and resources of the institutions in charge of the consultations. The lack of trust and mutual understanding between the parties due, for example, to previous development projects that have generated conflicts due to the inadequate application of consultation processes, seriously complicates the current consultation processes.
38. Environmental and energy legislation requires companies that develop projects to prepare social and environmental impact assessments approved by the environmental authority and the Ministry of Energy, respectively. However, these evaluations are approved before the consultations are carried out, and they present deficiencies in the identification of the true impacts on the rights of indigenous peoples. As the Working Group on the issue of human rights and transnational corporations and other companies pointed out in its visit to Mexico report, there is limited capacity of the competent authorities to examine the evaluations submitted by companies, as well as to carry out a true control of their activities [9].
39. The Special Rapporteur received repeated complaints about mining, hydroelectric, wind, solar energy, hydrocarbon, agro-industrial, infrastructure, tourism projects, and the granting of forest permits, among others, that reflect the problems outlined above.
40. Sometimes consultations are made but afterwards. In the municipality of Muna, Yucatán, the ejido and environmental authorities authorized a solar park that would involve the construction of more than one million solar panels in indigenous territories, without previously consulting the affected Mayan communities. It is alleged that the previous contracts signed between the ejido and the company have affected the free nature of the consultation and caused divisions and conflict in the community. Indigenous community members who have questioned irregularities in the process have suffered threats, defamations and attacks.
41. In Oaxaca, the federal and state governments have promoted large-scale wind projects without the participation or consultation of indigenous peoples and through contracts between companies and ejidal authorities, which do not necessarily coincide with the representative authorities of indigenous communities, in the that serious irregularities are alleged. There have been impacts on indigenous land tenure, the environment, traditional economic activities and community coexistence, in addition to criminalization and attacks on opposition voices. The Zapotec community of Juchitán, affected by the Eólica del Sur project, filed amparo appeals to suspend the project, and a judgment from the Supreme Court of Justice is pending.
42. There are serious concerns about the lack of prior consultation with indigenous peoples that could be affected by a second phase of expansion of wind projects in the Isthmus of Tehuantepec, to which would be added mining projects, a gas pipeline and the establishment of special economic zones. . It is alleged that the law that created these zones should have been consulted, since it contemplates the creation of areas with special development regimes including transportation, communications, energy, hydraulic infrastructure, among others, that would generate social and environmental impacts in the region. State authorities assured that the proposed zones in Oaxaca and Chiapas will not affect indigenous lands.
43. The planting of transgenic corn and soybean crops affects indigenous peoples in their biocultural heritage, food security, traditional economy and territorial rights. The Mayan communities of Campeche continue to be impacted by the planting of genetically modified soybeans, which has had a notable expansion in recent years, resulting in deforestation and impacts on their water, health, and ancestral agricultural and beekeeping activities. Despite a ruling by the Supreme Court of Justice ordering the suspension of the planting of transgenic soybeans in Campeche while the Mayan communities are consulted, deforestation and planting continues. Furthermore, during the consultations carried out in 2016 and 2017,
44. In some cases, indigenous peoples have tried to challenge laws on mining, hydrocarbons and energy because they were not consulted and because of the impacts they entail. The Me'phaa community of San Miguel del Progreso, Guerrero, challenged mining concessions in their territory as well as the constitutionality of the Mining Law. The case was dismissed after the cancellation of the concessions, which prevented the Supreme Court of Justice from ruling on the Mining Law. Since their territories can be re-concessioned, the community has once again brought legal recourse.
45. The Barrancas del Cobre tourism project has had a serious impact on the territories, natural resources, environment and health of the Rrámuri communities in Chihuahua. Residual discharges and garbage from hotels have contaminated water sources, and harmed the health of Rrámuri children and adults. Several communities filed lawsuits alleging the lack of consultation in the courts in this regard, as well as against the construction of a gas pipeline in that same region. The Supreme Court of Justice has ordered several measures of reparation and benefits for the affected communities. In the case of the gas pipeline, some communities accepted compensation, while others have legal actions against the project.
46. The original peoples of Mexico City denounced that different infrastructure and real estate development projects have affected their lands, water sources, economic activities and traditional practices. It is alleged that the General Urban Development Program proposed before the Legislative Assembly has not been consulted with the native peoples whose lands could be affected.
47. The Special Rapporteur is concerned about this development pattern and stresses that human rights are essential to achieve sustainable development and that, furthermore, development projects that do not have this human rights approach, including the rights of indigenous peoples , they cannot be sustainable. The 2030 Agenda for Sustainable Development is a commitment to ensure that no one, including indigenous peoples, is left behind. He also wishes to point out the importance of ensuring, within the framework of sustainable development, the participation in the benefits of the indigenous communities affected by the projects.
48. The defense of territories and natural resources in the context of megaprojects increases the risk of violence and criminalization, as has been indicated. In several cases, indigenous leaders suffer this situation despite judicial decisions ordering the suspension of projects or protection measures granted by international organizations. This has been the case of leaders of Juchitán, Oaxaca, opposed to the Eólica del Sur megaproject, and of the Yaqui people of Sonora opposed to the La Independencia aqueduct, despite being beneficiaries of precautionary measures from the IACHR.
C. Self-determination and political participation
49. Article 2 of the Constitution recognizes the right to self-determination and autonomy of indigenous peoples, but as noted above, the same article "encloses it with padlocks that make it difficult to apply in practice." According to this article, the constitutions and laws of the federative entities will establish the characteristics of self-determination and autonomy that best express the situations and aspirations of the indigenous peoples in each entity. [10]
50. The application of this right by states varies considerably, particularly with regard to the right to elect their own authorities in accordance with their own procedures and the application of their own legal and regulatory systems. According to state information, of the 624 indigenous municipalities in the country, 418 are governed by internal regulatory systems (417 in Oaxaca and 1 in Michoacán).
51. It should be noted, although it remains exceptional, that some proposals by indigenous peoples to develop their autonomy and self-government have been recognized by federal and state authorities. The Federal Electoral Tribunal [11] recognized the right of the Purépecha community of Cherán, Michoacán, to elect its authorities during municipal elections in accordance with their uses and customs. Indigenous communities in the municipality of Ayutla de los Libres, Guerrero, have taken legal action to achieve the same objective. In this municipality, the Electoral Court of the Federal Judicial Power [12] validated the consultation process held and allowed local authorities to be elected in the 2018 local electoral process under their uses and customs. In Amicingo, Morelos, a municipal assistant was chosen for uses and customs.
52. Faced with insecurity and lack of protection, indigenous organizations have developed various initiatives. Since 1995, the community police in Guerrero have carried out security, justice and reintegration tasks in accordance with indigenous customs and uses, which has reduced violence and impunity. The state of Guerrero legally recognized the existing community police in 2011, although it seems that there are currently legislative initiatives to ignore indigenous regulatory systems. However, numerous cases of criminal prosecution and criminalization of members of community police, accused of various crimes, were reported.
53. There are also other indigenous initiatives in Chiapas, such as the Movement in Defense of Life and Territory, made up of indigenous people from 11 Chiapas municipalities, which promotes the creation of autonomous indigenous governments for territorial defense. Likewise, the Special Rapporteur received information on the actions underway in the autonomous municipalities and the good government boards of Los Caracoles linked to the Zapatista Army of National Liberation, focused on productive, educational, health and justice programs for the affiliated communities, without depend on government support, and that has helped reduce criminal activities in those communities.
54. In relation to political participation, there have been some positive advances such as the possibility of registering independent candidacies and initiatives to facilitate the registration processes for federal, state and municipal elections. There are also initiatives to promote access to justice in political-electoral matters, such as the Protocol for Defenders of the Political-Electoral Rights of Indigenous Peoples and Communities or the Public Electoral Defender for Indigenous Peoples and Communities. However, undue pressure practices persist on indigenous people to influence their vote during electoral processes.
55. 28 indigenous electoral districts have been created at the federal level and 56 at the local level, made up of municipalities with 40% or more indigenous population, which will be used for the 2018 elections. Likewise, a new rule requires that political parties o Coalitions nominate indigenous candidates in at least 12 of the 28 federal indigenous electoral districts, taking into account the principle of gender parity.
56. Indigenous peoples have created autonomous representative institutions at the national level to increase their political participation and raise awareness of their rights. The Indigenous Government Council, for example, is made up of councilors from different indigenous peoples. This initiative of national representation presented its spokesperson as an independent candidate for the 2018 presidential elections.
D. Violence, impunity and access to justice
57. In each region visited, the Special Rapporteur was concerned by the large number of detailed complaints of individual cases relating to the extremely serious situation of violence suffered by indigenous peoples due to disputes over their territories, in the absence of adequate recognition, to the expansion of development projects and the presence of organized crime. Added to these factors are impunity, lack of access to justice and the criminalization faced by indigenous peoples.
58. Mexico is going through a serious crisis of violence and security with alarming levels of murders, displacements and disappearances. Links between organized crime and some authorities at the municipal, state and federal levels contribute to corruption and impunity.
59. The case of the 43 students from Ayotzinapa, Guerrero, who disappeared in September 2014, is emblematic. The Special Rapporteur met with parents of students from indigenous communities and took note of the little progress made in the investigations into the whereabouts of their children. Another emblematic case is the massacre of 46 people in Acteal, Chiapas, which occurred in December 1997. The Special Rapporteur met with survivors and relatives of the victims who are still demanding justice and the clarification of this massacre, which disproportionately affected women natives.
60. In Guerrero, Chiapas and Chihuahua, forced displacements of indigenous families and communities continue to occur as a result of threats and violence perpetrated by criminal groups that dispute the territories for their activities. Faced with this situation, the main state response has been a greater military presence, which has not diminished violence. As the United Nations High Commissioner for Human Rights observed during his visit to the country in 2015, the militarization of public security is not the answer and work should be done to withdraw the army from its temporary public security functions, ensuring this liability to the civil sphere. In Guerrero, the presence of organized crime in areas where there are also mining interests increases the vulnerability of indigenous communities. In Chihuahua and Chiapas,
61. Allegations have been received of numerous cases of abuses committed during military operations in indigenous regions, including sexual violence against indigenous women and arbitrary deaths due to the excessive use of force, which remain unpunished.
62. Due to the murders and threats against the Rrámuri community of Choréachi, the Inter-American Court of Human Rights issued provisional measures to protect the life and integrity of the members of the community. The IACHR granted precautionary measures in favor of the El Manzano community, whose members suffered acts of violence and displacement. The government of Chihuahua has taken some steps to implement these measures and to develop an internal forced displacement protocol.
63. Drug trafficking, human trafficking and the increased military presence on the border between Mexico and the United States of America have caused serious damage, including the displacement of communities of the O'odham people in Sonora. Given their distrust of state authorities and allegations of links to organized crime, they request special protection measures that take into account the cross-border nature of this indigenous people.
Access to justice
64. Generalized problems of access to justice affect indigenous peoples. According to the Mexican authorities, impunity in the country is almost absolute. Likewise, there is a high “black number” of unreported cases due to mistrust in the authorities and their procedures. [13] For indigenous people, several factors limit access to the national judicial system to defend their rights. There are economic, cultural, linguistic, geographic, and racism and discrimination barriers.
65. The access to justice programs developed by government authorities have focused on the situation of indigenous people in the criminal justice system. Indigenous persons detained and prosecuted face violations of the rights of due process and adequate defense due to the shortage of interpreters, lawyers, defenders and justice operators who speak indigenous languages or know indigenous cultures. For example, the body of bilingual public defenders only has 25 members. They also face abuse during arbitrary detentions carried out by police and military agents. As the IACHR has pointed out, discrimination contributes to the fact that detained indigenous persons “are more likely to be victims of torture and other cruel, inhuman or degrading treatment” [14].
66. The CNDH, the CDI, the Federal Institute of Public Defense and other institutions have developed some programs to promote due process of indicted indigenous persons in the judicial system, the provision of interpreters and lawyers speaking indigenous languages, specialized public defenders, anthropological expert reports and pre-release measures for indigenous people in pre-trial detention. Likewise, there are programs in indigenous communities, such as the Itinerant Public Ministry in Chihuahua, which has increased the attention to criminal complaints filed by indigenous victims.
67. The misuse of criminal law against indigenous people who defend the rights of their peoples was repeatedly pointed out. The Special Rapporteur is concerned about the statements made by some representatives of the State and the private sector that delegitimize the work of these indigenous people and the organizations that assist them, even to file legal actions against development projects. This work to defend their rights increases the risk of reprisals and violence and highlights the need for appropriate protection mechanisms. Likewise, there is also concern about the denigration of the work of defenders of the rights of indigenous peoples, publicly labeled as "opposed to development."
68. Government authorities reported on the implementation of the Mechanism for the protection of human rights defenders and journalists, attached to the Ministry of the Interior, of which 58 indigenous people are currently beneficiaries, representing only a fraction of those who need it. Furthermore, it is necessary to adopt collective and culturally appropriate protection measures for indigenous peoples.
69. The amparo mechanism established by the constitutional reform of 2011 is an important advance. However, certain barriers persist, such as the high costs of these legal actions. No jurisprudence has yet been generated that comprehensively resolves the underlying factors behind the problems related to megaprojects without consultations. Failure to implement several favorable rulings also undermines the effectiveness of the justice system.
70. With regard to indigenous legal systems, some states have recognized community police, indigenous courts and other forms of conflict resolution. According to the National Code of Criminal Procedures, in cases of crimes that affect the legal rights of an indigenous people or person, and in which both parties accept the form of resolution proposed by the regulatory systems of the community, the federal criminal action is extinguished. Unless the dignity of persons, the rights of women and children are affected. There is no comprehensive mechanism for harmonization and coordination between indigenous and ordinary jurisdictions at the federal level.
E. Economic, social and cultural rights
71. Indigenous peoples face significant obstacles in the realization of their economic, social and cultural rights. Historical and structural discrimination has resulted in marginalization and multidimensional poverty and the absence of sufficient and culturally adequate basic services. This is manifested in the specific problems of certain indigenous sectors such as women, children and youth, migrants, victims or forcibly displaced persons. The lack of access to water and sanitation, the exploitation and contamination of water sources by megaprojects with health implications, and the restrictions on community water management also demonstrate this discrimination.
72. Official data confirm that indigenous peoples suffer clear socioeconomic disadvantages reflected in poverty rates, educational and employment levels, and other indicators. It is estimated that 71.9% of the indigenous population lives in poverty or extreme poverty, while the proportion at the national level is 40.6%. 55.5% of the indigenous population resides in municipalities considered to be highly or very highly marginalized and 87.5% of indigenous municipalities, those with 70% or more indigenous population, are in conditions of high or very high high marginalization [15]. Indigenous people have fewer opportunities to obtain formal employment, which excludes them from employment benefits and other benefits [16].
73. According to information from the Government, the life expectancy of indigenous people is seven years less than that of the general population, and infant, preschool, school and maternal mortality rates are higher than the national average, mainly due to preventable diseases, such as infectious diseases. and parasitic. It was reported that in the last 13 years the coverage of Seguro Popular has increased to more than 5 million indigenous people who can use it throughout the national territory. Likewise, measures were taken to increase health coverage with “cultural competence”. However, complaints persist about the lack of adequate facilities and medical personnel in indigenous communities and about cases of discrimination against indigenous people who go to health centers.
74. With regard to government indigenous programs, indigenous representatives stated that most are developed without significant participation, that they are not culturally appropriate and that they have a welfare approach, which limits their impact. The Special Program for Indigenous Peoples was created to coordinate actions in areas related, among others, to access to justice, food, health, education and housing. However, in 2017, the budget of the CDI, the main entity in charge of indigenous policies, was reduced by 51.1%. The Special Rapporteur is concerned about the effects that such drastic budget cuts are sure to have.
Women
75. Indigenous women face serious problems of discrimination based on gender and ethnicity within and outside their communities, which hinders their access to property, justice, health services and other rights.
76. Discrimination with respect to land tenure is frequently due to internal cultural factors and the agrarian regime. The current agrarian structures are predominantly made up of men, and indigenous women do not have full access to the lands as these are inherited by men. Likewise, certain social changes in the communities have not been taken into account, such as migration, which makes women assume greater social, cultural and political responsibilities in the absence of men.
77. Access to justice is particularly problematic in relation to the increase in femicides in indigenous areas in a national context of high impunity for these crimes. Indigenous women pointed out the lack of diligence of the competent authorities in detaining, investigating and prosecuting those responsible, and in classifying these cases as femicides.
78. Another serious concern is obstetric violence. Women denounced negligence, indifference and discrimination by health personnel against indigenous women who require obstetric care, which has resulted in deaths and serious injuries. There is also concern about discrimination against indigenous TBAs by health authorities and medical personnel, including stigmatization and prohibition of these practices. The Special Rapporteur observes that, in states such as Chiapas, indigenous midwives have organized to demand the recognition and appreciation of their ancestral knowledge and a respectful collaborative relationship with the state health sector. They also reported on initiatives by the CNDH and the Supreme Court of Justice to promote the rights of indigenous midwives.
79. Likewise, indigenous women expressed concern about budget cuts that would affect CDI programs, as well as difficulties in accessing adequate health services, addressing violence against women, and access to justice.
Childhood and youth
80. Indigenous children and youth are seriously affected by the generalized situation faced by their peoples.
81. In Chihuahua and Guerrero, there is concern about the forced recruitment of children and young people by organized crime given the absence of prevention policies by the State and of economic opportunities. In regions affected by organized crime and drug trafficking, young people are left with few options, and they often must decide between joining these groups or being tortured, disappeared or killed.
82. Children are affected by the ineffective control of activities that generate environmental and health impacts. Serious illnesses, injuries and deaths of Yaqui children, youth and women have occurred in Sonora due to the indiscriminate use of agrochemicals by agroindustrial companies for more than 15 years.
83. Discrimination in access to education affects children. Many indigenous communities do not have educational centers because they do not meet the population requirements imposed by state authorities. In Guerrero, indigenous communities have taken legal action to demand the construction of schools or to obtain a sufficient number of teachers.
84. In the 2015-2016 school year, according to official figures, more than 1.2 million indigenous children were enrolled in preschool and primary school, and school performance rates improved. Educational programs and materials with cultural relevance have been developed, as well as various consultations at the national level with indigenous peoples to improve the indigenous educational model. However, these efforts are not enough, and the need to ensure an education with an appropriate cultural focus persists.
Migrants and day laborers
85. Indigenous people who emigrate from their communities, due to lack of economic opportunities or situations of violence and displacement, to reside in urban centers or work as day laborers are a sector that is not adequately recognized in public policies. The situation of indigenous Mexicans and Central Americans who transit through Mexican territory to migrate to the United States has not been sufficiently addressed either. These sectors face multiple forms of discrimination, their life and work are invisible, for fear they do not have access to complaint mechanisms, and they are extremely vulnerable to violence, exploitation and marginalization.
86. In Chiapas, Central American indigenous migrants suffer persecution, extortion and kidnapping by federal and state authorities and criminal groups. Despite some actions by the State, such as the training of immigration agents in non-discrimination, the use of racial profiling practices by various immigration agents generates abuses against indigenous Central American migrants and indigenous Mexicans residing in the border region. They are frequently arbitrarily detained and returned to their country of origin without legal advice.
87. Indigenous migrant women face additional risks from human trafficking in the border area. A large percentage of them, both from Mexico and Central America, obtain employment in Mexican territory as domestic workers. Violations of human and labor rights of indigenous domestic workers have been reported, due to working conditions, lack of benefits and cases of sexual abuse.
88. Indigenous day laborers, the majority from southern states who work in northern agricultural fields, face serious violations of labor and human rights. They suffer serious problems due to exposure to agrochemicals, the lack of social security and health services, and in the case of day laborers, sexual violence by employers. There is also concern about discrimination and inadequate care in health centers in the case of pregnant women or children who have suffered illnesses or accidents in agricultural fields.
Indigenous people affected and forced displacement
89. Indigenous people affected by natural disasters face particular problems. It was reported on the 16,000 indigenous families affected by meteorological phenomena that hit Guerrero in 2013. The indigenous peoples developed a comprehensive proposal that, with the provision of adequate resources, could provide food with cultural relevance and under the control of the communities themselves. However, state and federal authorities have not taken this proposal into account and continue to promote welfare programs without cultural relevance.
90. The earthquakes of September 2017 also affected indigenous peoples. Affected indigenous people in Mexico City underscored the need for more differentiated care. The loss of homes, schools and livelihoods dramatically affected the indigenous communities of the Isthmus of Tehuantepec. Allegations of corruption in the management of economic resources destined for the victims are worrying.
91. As noted above, indigenous families and communities have been forced to move from their communities to urban areas or to other communities due to organized crime, local territorial and political conflicts, or due to mega-projects. Many of the displacements are prolonged and in the absence of a comprehensive and coordinated policy, efforts to guarantee the return of displaced populations are insufficient.
92. In Chiapas there are worrying cases of displacement caused by intercommunity conflicts for reasons of political power and territorial limits that involve paramilitary groups linked to the counterinsurgency policy against the Zapatista Army of National Liberation. A particularly serious case is the border conflict of more than 40 years between the municipalities of Chenalhó and Chalchihuitán, originally caused by agrarian authorities who were unaware of the traditional boundaries of the communities and aggravated by the presence of armed groups linked to the political power of one of the municipalities. . In November 2017, a serious humanitarian crisis occurred in these municipalities due to the displacement of more than 5,000 indigenous people, mostly women (including pregnant women), children and the elderly. Despite the ruling issued by an agrarian court in December 2017, the risk of violence persists. Some communities have been pressured by the authorities to return to their lands despite the absence of measures to guarantee their safety through the dismantling and punishment of paramilitary groups in that area.
V. Conclusions and recommendations
93. The current situation of indigenous peoples in Mexico reflects the considerable gap between the legal, political and institutional reality and the international commitments assumed by the country. This gap continues to grow, in particular due to the impetus of the development model promoted by the energy reform, which has a significant impact on indigenous territories. Sustainable development requires a human rights approach.
94. Effective and coordinated measures are required between institutions throughout the federal, state and municipal structures to address the serious problems exposed, including reforms of the legal, political and institutional framework aimed at applying the rights of indigenous peoples on key issues such as: lands , territories and natural resources, their own development priorities, self-determination, political participation and access to justice. Measures are also urgently needed to solve the problems of violence and insecurity, as well as poverty, marginalization and structural discrimination.
95. The Special Rapporteur considers that the conditions must be created for a sustained and inclusive dialogue with indigenous peoples that can generate the confidence necessary to address the issues presented in this report and create a new relationship between indigenous peoples and the State based on equality, respect and non-discrimination.
Legal, political and institutional framework
96. The constitutional debate on fundamental rights, such as the recognition of indigenous peoples as subjects of public law, must be reopened. This entails the modification or reform of federal and state legislation on indigenous matters. A first step to solve the problems mentioned in this report is to recognize the country's historical debt in this area and adapt the legislation and policies related to agrarian, territorial, energy development, mining, water, production and food security, governance and administration of justice, among others, with international obligations on the rights of indigenous peoples. The modification or reform of these norms must be carried out in consultation and with the participation of indigenous peoples in accordance with international standards.
97. Government institutions must have the capacity and resources necessary to respond to the needs of indigenous peoples in terms of human rights and access to justice, especially those such as the CDI. The programs and policies of these institutions should substitute a welfare approach for a human rights approach that promotes the empowerment and self-determination of indigenous peoples, and that respects their own proposals and priorities, ensuring the full participation of indigenous peoples in the elaboration and development of said programs.
98. The courts, including the Supreme Court of Justice, must streamline the existing mechanisms to ensure the implementation of the judgments handed down in favor of indigenous peoples. Greater attention is recommended to cases that present the possible incompatibility of national norms with international standards on the rights of indigenous peoples.
Lands, territories and natural resources
99. A comprehensive reform of the agrarian legal regime is recommended to incorporate current international standards on the rights of indigenous peoples. It is highlighted that the lack of respect for the right of indigenous peoples to their lands, territories and resources has a negative impact on the enjoyment of their other rights. This entails the training of community agrarian authorities, officials of institutions and agrarian courts.
100. Specialized attention is urgently required to the requests of indigenous peoples for the recognition and protection of their lands and territories, the resolution of territorial conflicts, and justice and comprehensive reparation for violations of their territorial rights. Interdisciplinary and representative working groups of indigenous peoples, civil society, and the government could be formed in order to propose adequate mechanisms for resolving these cases. [17] These measures must be developed in full cooperation with the indigenous peoples themselves and apply international regulations on indigenous peoples, including the jurisprudence of the inter-American system.
101. The Special Rapporteur reiterates her previous recommendations related to respect for the rights of indigenous peoples in the context of protected areas in their territories, including prior consultation and participation in the management, administration and control of said areas. Likewise, it reiterates the right of indigenous peoples to access natural resources for their subsistence and to the protection of their cultural and natural heritage. [18]
Development priorities, mega-projects, consultation and consent
102. Dialogues on an equal footing between indigenous peoples and government authorities on the concept of development are recommended, leading to joint decision-making on development in indigenous territories. The development proposals of indigenous peoples must have priority in their territories. In this regard, the particular circumstances and needs of native and indigenous peoples residing in urban centers must be taken into account.
103. Policies, laws and development plans in energy, agrarian, agro-industrial, tourism and other areas must take into account the proposals, priorities and concerns of indigenous peoples in relation to development in their territories or around them before resulting in concessions, licenses, permits and other authorizations that could affect their rights and generate conflicts.
104. Measures must be adopted so that indigenous peoples have studies of the impact on human rights that the projects proposed in their territories may cause, carried out by independent entities in accordance with international standards and taking into account the knowledge of the communities about their habitat in the preparation of the studies.
105. Likewise, the government institutions in charge of supervising the actions of companies and of investigating and punishing environmental and health damages that indigenous peoples may suffer should be strengthened.
106. Any consultation on activities or measures that could affect indigenous peoples must be prior and adequate information must be provided on the social, environmental and cultural impacts of said projects, and possible mitigation measures, compensation and benefits. It should not proceed without having implemented these guarantees and their free, prior and informed consent has been obtained. Indigenous peoples whose rights have been violated by these projects must obtain justice and comprehensive reparation.
107. The State has the obligation to protect the rights of indigenous peoples, and within this framework to guarantee that companies exercise due diligence and assume their responsibilities in the event of damage. Before signing contracts related to investment projects, the State must carry out studies on the presence of indigenous peoples in or around the proposed project sites, and on the rights to lands, natural resources and prior consultation that may correspond to the indigenous peoples under international standards.
108. The private sector must exercise due diligence and previously assess the actual and potential impacts of its activities on human rights in accordance with applicable international standards. [19]
109. In relation to the various initiatives to develop a law on prior consultation, it is necessary to underline that the absence of specific legislation does not exempt the State from the duty to consult indigenous peoples in accordance with its international obligations. The Special Rapporteur encourages indigenous peoples, the State and other actors to include additional options in their discussions, including self-consultation processes or protocols for relations with the State developed by indigenous peoples. Any mechanism used by the State to comply with the duty to consult must be, in itself, the result of dialogue and consultation in accordance with international standards.
Self-determination and political participation
110. Indigenous autonomy and self-government systems, including their legal systems, should be promoted and strengthened, including the provision of the means to finance such autonomous functions, in accordance with article 4 of the United Nations Declaration on the Rights of Peoples. Natives.
111. It is recommended that channels of dialogue, coordination and collaboration be established between indigenous autonomous institutions, such as community police, indigenous courts, boards of good governance and autonomous municipalities, and the Government in all areas of mutual interest.
112. Initiatives that promote indigenous political participation in electoral processes, including indigenous electoral districts, independent candidacies and access to electoral justice, must be strengthened and increased.
113. The necessary legal and administrative measures must be adopted so that indigenous peoples can exercise their right to elect their own authorities in municipal elections in accordance with their uses and customs.
Violence, impunity and access to justice
114. It is necessary to develop collective and culturally appropriate protection measures for indigenous peoples and individuals in situations of risk due to the defense of their rights. These should be developed in dialogue with indigenous beneficiaries and contemplate coordinated measures with the relevant institutions to address the underlying risk factors.
115. Concerted measures to protect against organized crime and armed groups in indigenous regions should also be developed, including coordination measures with indigenous institutions such as indigenous community police or others. Any military presence in indigenous territories must be consulted with the affected indigenous peoples in accordance with international standards [20], and the necessary measures must be adopted to guarantee that such presence does not result in human rights violations.
116. Recognition of indigenous justice systems, including indigenous courts, community police, and other forms of conflict prevention, protection, and resolution should be strengthened, [21] and supported with adequate resources. Mechanisms should be developed for harmonization and coordination between the indigenous and ordinary jurisdiction at the national level.
117. The extremely high rate of impunity in the country is of concern. Government programs for access to justice aimed at indigenous peoples before the justice system must be strengthened and provided with sufficient resources. Likewise, greater attention should be paid to access to justice in cases related to the protection of lands, territories and natural resources in contexts of megaprojects, agrarian conflicts, cases of contamination and health problems.
118. It is recommended that education programs on the rights of indigenous peoples in indigenous languages be developed in indigenous communities.
119. It must be guaranteed that the criminal justice system is not used to criminalize indigenous peoples in the legitimate defense of their rights or the organizations that assist them.
120. It is necessary to expedite the investigations and criminal sanctions of persons responsible for threats, attacks and murders of indigenous human rights defenders, including crimes committed by police and military agents against indigenous civilians, which must be prosecuted in the civil jurisdiction, thus contributing to to guarantees of non-repetition. Paramilitary groups that commit human rights violations in indigenous regions must be dismantled, disarmed, and punished. [22]
121. The investigation, justice and reparation processes in the case of Acteal and other similar cases must be expedited. In the Ayotzinapa case, the investigations must proceed swiftly and in accordance with the recommendations of the Interdisciplinary Group of Independent Experts and the follow-up mechanism established by the IACHR and the recommendations of the international system.
122. Security and protection measures, as well as justice and reparation for human rights violations, must take into account gender factors and the situation of children, youth and other vulnerable indigenous sectors.
Economic, social and cultural rights
123. Efforts should be redoubled to obtain disaggregated information on the indigenous population in order to improve the provision of health, education and other services, taking into account gender, age and other relevant factors, and based on the criteria of self-enrollment. To this end, it is recommended that the institutions work together with indigenous representatives to develop adequate indicators.
124. The design and implementation of programs and policies for bilingual intercultural education and social services in indigenous territories and in areas with an indigenous presence must be carried out in consultation, coordination and collaboration with indigenous peoples, and incorporate their proposals. This includes programs that promote intercultural health and respect for traditional birth attendants, which could be expanded.
125. Financial resources should be increased so that indigenous peoples can develop and implement their own models of development and well-being in relation to food sovereignty, protection of biodiversity, community water management, cultural heritage and other pertinent issues.
126. Specific measures must be adopted to address the problems of discrimination faced by indigenous women in relation to access to land and access to justice, in cases of sexual and obstetric violence, femicides and others. The centers managed by indigenous women could be expanded, with the necessary resources for their operation.
127. In consultation and coordination with indigenous women's organizations and the respective communities, awareness-raising processes in indigenous communities on women's rights, discrimination and violence against women, and other relevant issues are recommended.
128. In relation to indigenous people in urban centers, migrants and day laborers, a comprehensive and adequate response is required to address the problems described. The recommendation is reiterated that a protection scheme be developed for these sectors, with special attention to women and children and indigenous Central American migrants. [23] Attention should be paid to the employment situation of indigenous day laborers and domestic workers in a culturally appropriate manner and in accordance with international labor and human rights standards.
129. Culturally appropriate measures of care are required for indigenous people affected by natural disasters that respect their rights, without conditions or discrimination. The proposals of the indigenous peoples themselves should be supported to overcome the health, housing and food problems generated by natural disasters.
130. The situation of the indigenous displaced requires urgent attention through comprehensive and coordinated responses. In accordance with applicable international standards, including the Guiding Principles on Internal Displacement, it must be guaranteed that indigenous displaced persons have the right to an adequate standard of living through culturally appropriate basic services. The State must create the conditions and promote the means that allow indigenous displaced persons to return voluntarily, with safety and dignity.
131. The authorities must resolve the underlying factors behind these displacements, such as territorial and political conflicts, the presence of organized crime and armed groups, through investigation, punishment, reparation and justice processes. In serious cases, such as the conflict between Chenalhó and Chalchihuitán, state, federal and agrarian authorities must guarantee that the measures adopted do not generate further conflict between indigenous communities.
Recommendations to indigenous peoples
132. The Special Rapporteur would like to encourage indigenous peoples to continue developing and strengthening their own legal, political and self-determination initiatives, taking into account international human rights standards, and thus contribute to national debates on reforms on issues security, administration of justice, development and governance.
Recommendations to the United Nations system
133. The specialized agencies of the United Nations system in Mexico must pay greater attention to the human rights situation of indigenous peoples in their areas of competence. OHCHR, in collaboration with indigenous peoples and the Government, is encouraged to follow up on these recommendations, taking into account indigenous peoples' proposals to that end.