UNSR Victoria Tauli-Corpuz

Presentation by the United Nations Special Rapporteur on the rights of indigenous peoples of her Report on her mission to Mexico Print

vtcmexico2018

Presentation by
the United Nations Special Rapporteur on the rights of indigenous peoples,
Victoria Tauli-Corpuz, of her Report on her mission to Mexico
Mexico City, Mexico (15 October 2018)


Introduction

Dear ladies and gentlemen present,

I would like to express my gratitude for this opportunity to speak today and present my report on my official visit to Mexico which I undertook on 8 to 17 November 2017.

I would like to give my respect to the indigenous peoples of this country whose rights were the subject of my visit and of this report, and whose societies, cultures and traditions have contributed greatly to the rich history, culture and diverse fabric of this nation.

My visit to Mexico had a two-fold purpose: to assess the implementation of the recommendations that my predecessor Special Rapporteur Rodolfo Stavenhagen made in 2003, and to evaluate how Mexico has implemented its international human rights commitments related to indigenous peoples.

To this end, I held meetings in Mexico City and in the states of Guerrero, Chihuahua and Chiapas with indigenous peoples' representatives and representatives of federal, state and municipal governments. I also met with representatives of human rights institutions, civil society organizations, private sector and the United Nations system in Mexico.

I am grateful for the opportunity to have met various indigenous representatives during my visit, and for those who received me in their territories and travelled far to share their stories with me. It was inspiring for me to see their strength and determination to continue defending their rights and those of others.

During my visit, I found that indigenous peoples continue to face great challenges in the exercise of their human rights. There is a great implementation gap with respect to the recommendations made by Special Rapporteur Stavenhagen and Mexico's international commitments, which include the United Nations Declaration on the Rights of Indigenous Peoples – a landmark international human rights instrument in which Mexico played a pivotal role in its development and approval by the General Assembly.

A major conclusion in my report, is that a new relationship between indigenous peoples and the State has to be created that is based on equality, respect and non-discrimination. Dialogue and trust are necessary conditions for this new relationship and to address the issues identified in the report. The mission report contains a series of observations and recommendations related to the following thematic areas: reforms in the legal and institutional framework; lands, territories and natural resources; self-determination and political participation; violence, impunity and access to justice; and concerns related to economic, social and cultural rights.

Actions in these particular thematic areas are necessary since they are intricately related to current issues and concerns that indigenous peoples face. The concerns repeatedly expressed by indigenous peoples included the current development model focused on megaprojects (for example: extractive, energy, tourist, real estate, agro-industrial and other projects). A closely related area of concern is the lack of implementation of State obligations on prior and culturally adequate consultation and free, prior and informed consent. Other major concerns raised during my visit were territorial conflicts, forced displacements, criminalization and violence faced by indigenous peoples defending their rights. Indigenous peoples face this situation within an already existing context of profound inequality, poverty and discrimination which limits their access to justice, education, health and other basic services.

Observations and Recommendations

I would now like to give an overview of the observations and recommendations in the mission report with regards to these thematic areas.

Legal and institutional framework

Effective and coordinated action is needed within all of the federal, state and municipal structure to address each of the previously mentioned thematic areas, and issues and concerns identified by indigenous peoples, through legal, policy and institutional reforms.

Regarding the national legal framework, I concur with Special Rapporteur Stavenhagen's recommendation that the debate on the constitutional recognition of indigenous peoples as subjects of public law be reopened. This recognition is something that indigenous peoples repeatedly demanded along with the respect of the right to self-identification in accordance with the national constitution and international standards. The rights of comunidades equiparables, as mentioned in the constitution will need to be understood and respected in this same sense.

This increased recognition of indigenous peoples' rights would also need to be reflected through amendments and reforms of legislation and policies in cross-cutting areas such as agrarian land matters; energy and mining development; water and food production and sovereignty; justice administration, and others. Said reforms need to be implemented in consultation with indigenous peoples.

State institutions require adequate capacity-building and resources in order to address indigenous peoples' needs in the areas of human rights and access to justice. Regarding social and economic development, Government institutions must substitute assistentialist-focused programs and policies with those that are human rights-based and that promote indigenous peoples' empowerment, self-determination and their priorities and proposals.

The judicial system needs to continue its incorporation of international standards on the rights of indigenous peoples within its decisions and jurisprudence. In addition, the Supreme

Court of Justice and other tribunals need to step up existing mechanisms to ensure enforcement of judgments in favor of indigenous peoples. Greater attention must be paid to cases presenting the possible incompatibility of national laws and policies with international standards on indigenous peoples' rights.

Lands, territories and natural resources

In line with what Special Rapporteur Stavenhagen noted, land rights are a fundamental critical issue at the root of many of the human rights problems indigenous peoples experience. Attention must be paid to limitations that the current agrarian regime presents to the effective enjoyment by indigenous peoples' of their rights to lands, territories and natural resources, their representative authorities and self-determination. Therefore, a comprehensive reform of the agrarian legal framework is recommended to ensure consistency with current international standards on the rights of indigenous peoples, which include the UN Declaration on indigenous peoples, the jurisprudence of the Inter-American Court of Human Rights and Convention 169 on indigenous and tribal peoples. This entails capacity-building for agrarian authorities, tribunals and other institutions. In addition, I concur with Special Rapporteur Stavenhagen's previous recommendation that resolution of land claims brought by indigenous peoples could be undertaken through interdisciplinary task groups composed of indigenous, civil society and government representatives.

Development priorities, megaprojects, consultation and consent

During my visit, indigenous peoples expressed their desire to pursue their own economic, social and cultural development, which is essential for their right to self-determination. They stated that these aspirations are undercut by current development models being imposed in their territories, especially the rise of extractive, energy and other investment projects brought about by legislative and policy reforms that were not consulted with them. I received numerous complaints about mining, hydroelectric, oil and gas, wind, solar, agro-industrial, infrastructure and tourism projects that were approved and implemented without prior and culturally adequate consultation and without obtaining their free, prior and informed consent. Indigenous peoples informed about efforts to legally challenge mining and other sectorial legislation as well as the authorization of these projects, with very limited success. Even when court ordered injunctions are in place, these are not effectively enforced.

I received information about different normative developments such as institutional protocols, judicial rulings and sectorial legislation that have incorporated consultation requirements. Some states have adopted laws on consultation and I learned of legislative initiatives on consultation at the federal level. While institutional protocols and secondary legislation on energy have been used to carry out consultations related to specific projects, these in general have not complied with international standards. In many cases, because they were not "prior", but carried out after project permits and authorizations were already granted. Additionally, the element of "free" was not met when threats, criminalization and violence occur during consultation processes, or where the dire socioeconomic conditions of a community (which the State is obligated to address regardless of the existence of a proposed development project) could bring about undue pressure to approve a project.

As in other countries, there are also debates over the need to approve a consultation law. About this issue, I have emphasized that the absence of a national consultation law does not excuse the Mexican State from implementing consultation processes in accordance with the UN Declaration on indigenous peoples, the jurisprudence of the Inter-American Court of Human Rights, Convention 169 and other international sources. I would like to encourage indigenous peoples, the State and other actors to consider other options for implementing consultation standards such as indigenous peoples' own autonomous consultation protocols. Whatever mechanism is chosen, should itself be the result of dialogue and consultation with indigenous peoples based on international standards.

There are other matters related to the issue of consultation and consent that require attention:

  • The development priorities and proposals of indigenous peoples need to be included in the formulation and execution of laws, policies and programs on agrarian, energy, agroindustrial, tourism and other development.
  • The private business sector also has to take increased steps to exercise due diligence and make prior assessments of real and potential impacts of their activities on the rights of indigenous peoples, using current international standards on indigenous peoples' rights as point of reference. The State also has the obligation to ensure business enterprises exercise their due diligence and also remedy damages they cause. Due diligence in this sense would need to include awareness and respect of international standards on indigenous land, territorial and natural resource rights, consultation and consent, culture and religion and other human rights.
  • Government institutions in charge of overseeing private business enterprise activities and of investigating and sanctioning environmental and health damages caused by business activities need to be strengthened in order to ensure protection of indigenous peoples lands, territories and natural resources.

Prior consultation processes also should ensure that indigenous peoples obtain culturally adequate and accessible information about the social, environmental and cultural impacts of projects or activities that may affect them, and about possible mitigation and compensation measures and benefits. These impact assessments must be carried out by independent bodies, in accordance with international standards, and also incorporate indigenous peoples' own knowledge. This information should be presented to indigenous peoples before the State makes commitments with respect to said activities.

Based on international standards, I recommend that development or other activities that could impact indigenous peoples' rights not proceed without these safeguards and without the free, prior and informed consent of the indigenous peoples concerned.

Self-determination and political participation

Indigenous peoples still face numerous challenges in exercising their constitutionally and internationally recognized right to self-determination and autonomy. During my visit, I learned of numerous proposals developed by indigenous peoples to promote their autonomy, self-determination and political participation.

Recognition of these rights vary from state to state. State legislation and federal electoral court decisions have reaffirmed the rights of indigenous peoples in states like Oaxaca, Michoacan, Morelos and Guerrero to elect local and municipal authorities according to their usages and customs. In Chiapas, various initiatives such as autonomous governments and good-governance councils have contributed to the realization of health, education and other rights without creating dependence on government aid. These actions taken by indigenous peoples have also helped reduce crime in their communities.

Indigenous community-based police in Guerrero and Michoacan have contributed to the administration of justice where federal and state authorities have not been present or been efficient. However, recent efforts in Guerrero to undercut these advances could increase incidents of criminalization of these community-based practices.

The recommendations in my report point to the need to promote and strengthen indigenous autonomy, self-government and juridical systems. As article 4 of the Declaration states, indigenous peoples have the right to ways and means for financing their autonomous functions.

I recommend avenues of dialogue, coordination and collaboration between State authorities and indigenous autonomous institutions (such as community police, indigenous courts, good governance councils and autonomous municipalities) in all areas of mutual interest.

I also recommend strengthened recognition of the right of indigenous peoples to elect their own authorities in municipal elections according to their usages and customs, and further measures to promote indigenous political participation in electoral processes through indigenous electoral districts, independent candidacies and access to electoral justice. These measures need to ensure greater participation by indigenous women.

Violence, impunity and access to justice

In each of the regions I visited during my mission, I received a large number of complaints regarding the grave situation of violence that indigenous peoples face due to land disputes, the expansion of development projects and the presence of organized crime. Impunity, lack of access to justice and criminalization are factors that add to this situation.

There are emblematic cases, such as the massacre of 46 people in Acteal, Chiapas in 1997, which disproportionately affected indigenous women. Survivors and relatives of the victims of this massacre still demand justice. Another emblematic case is of the 43 students who disappeared in Ayotzinapa, Guerrero in 2014. I met with parents of the students from indigenous communities who still demand effective investigations about the whereabouts of their children. In these cases, there must be prompt investigations to provide justice and reparations. In the case of Ayotzinapa, the recommendations from international bodies, such as the Interdisciplinary Group of Independent Experts and the Special Follow-up Mechanism of the Inter-American Commission on Human Rights, should guide the investigations.

In Guerrero, Chiapas and Chihuahua, there are serious cases of indigenous families and communities being forcibly displaced due to threats and violence perpetrated by criminal groups that fight over their territories. This has caused a rise of displaced indigenous persons in urban areas that require attention through differentiated policies. The situation of violence and impunity is also aggravated by corruption and alleged collusion between organized crime and some federal, state and municipal authorities.

I also received complaints about abuses committed against indigenous persons during military operations undertaken as part of government efforts against organized crime. There is alleged impunity in various cases of arbitrary deaths of indigenous individuals caused by excessive use of force by military officers and also of sexual violence against indigenous women.
In my report, I call for protection measures for indigenous peoples. In the case of indigenous individuals and peoples at risk because of their human rights defense work, collective and culturally appropriate protection measures need to be developed in consultation with them. The underlying causes of risk need to also be addressed through coordinated institutional actions.

Concerted measures need to also be implemented for the protection of indigenous peoples affected by organized crime and armed groups in their territories. In that regard, there needs to be collaboration with indigenous community police or other indigenous institutions. It is important to remember, as stated under article 30 of the UN Declaration on indigenous peoples, that any military presence in indigenous territories shall be consulted with the indigenous peoples concerned. Measures need to be adopted to ensure that said military presence does not result in human rights violations.

There needs to be prompt investigation and criminal sanctions of persons responsible for threats, aggressions and deaths of indigenous peoples. This would also include crimes committed by police and military agents against indigenous civilians, which must be brought before civilian jurisdictions. Paramilitary and other armed groups committing human rights violations in indigenous territories should be dismantled, disarmed and criminally sanctioned.

In the area of access to justice, I noted that there are government programs that seek to safeguard due process and other rights of indigenous persons facing charges in the criminal justice system. These need to be strengthened and be provided with sufficient resources. In addition, particular attention must be paid to develop mechanisms that facilitate access to justice for indigenous peoples seeking protection of their lands, territories and natural resources in the context of megaprojects, agrarian conflicts and cases of environmental and health damages.

Furthermore, measures need to be adopted so that the criminal justice system is not used to criminalize indigenous peoples, or those that assist them, when engaging in the legitimate defense of their rights.

Economic, social and cultural rights

Indigenous peoples face great obstacles in the enjoyment of their economic, social and cultural rights. A major factor is the historical and structural discrimination resulting in marginalization, multidimensional poverty and lack of sufficient and culturally adequate basic services. This situation is reflected in the problems afflicting particular indigenous population sectors including women, children and youth, migrants, those affected by natural disasters and forcibly displaced populations.

In my report, I cited official data reflecting the disadvantaged situation of indigenous peoples with respect to poverty, educational, employment, health and life expectancy levels and other indicators. I heard consistent complaints about the limited impact of government programs because they were not developed with indigenous peoples' participation, were not culturally adequate and were assistentialist-focused. However, these same programs faced significant challenges due to a 51 percent reduction of the budget assigned to the National Development Commission for Indigenous Peoples (CDI), which was the main institution in charge of indigenous related policies. I understand that there are discussions towards the creation of a new institution to attend to indigenous peoples. It is my hope that priority will be given to providing sufficient financial, technical and human resources to this new institutional structure so that it can help fulfill Mexico's international human rights obligations with respect to indigenous peoples.

In my meetings with indigenous women, I was told of the various forms of discrimination they face due to ethnic and gender factors in and outside their communities. This hinders their access to property, justice, health services and other rights. The current reality in many indigenous communities, where men have migrated, requires changes that allow greater participation of indigenous women in social, cultural and political matters.

Access to justice for women is particularly serious given the rise of femicides in indigenous areas and the great level of impunity already existing in the country with respect to these crimes. Another big concern is obstetric violence. Indigenous women denounced cases of discrimination and negligence against them when seeking obstetric care which has resulted in cases of serious injury and deaths. The stigmatization, discrimination and prohibition against indigenous midwives was another concern, although I did learn of measures taken in several states and at the federal level to promote respect of these practices.

The situation of indigenous children and youth is very concerning. The lack of effective social policies and economic opportunities in areas controlled by organized crime and drug-trafficking, such as in Guerrero and Chihuahua, has led to situations where indigenous youth are forced to either join these groups, or be tortured, disappeared or murdered.
Taking into account the previously recommended security and protection measures and for guaranteeing access to justice and reparations for human rights violations, there is a clear need for gender factors and the situation of children, youth and other vulnerable indigenous sectors to be integrated into these measures.

Indigenous peoples also complained of discrimination faced by indigenous youth in access to education through adequate educational facilities and staff. Discrimination is also evident in the lack of effective oversight of activities causing health and environmental impacts that produce serious illnesses and death to indigenous children, youth and women, such as the use agrochemicals in Sonora which have affected Yaqui communities. This is another area where strengthened institutional response in the area of education, health and environmental protection is critical.

Specific differentiated policies are needed to comprehensively address the situation of indigenous individuals, families and communities that, because of lack of economic opportunities or due to violence and displacement, have had to migrate to urban areas or work as day laborers in other regions of the country. Indigenous migrants from Mexico and Central America that transit through Mexican territory en route to the United States also require special attention. These sectors face multiple forms of discrimination and because they face barriers to access to justice, are vulnerable to discrimination, exploitation and marginalization. Special attention must be paid to the situation of women and children within these particular population sectors, as indicated in my report.

In my report, I also noted the differentiated impacts that natural disasters have had on indigenous peoples. This included the 2013 meteorological events in Guerrero and earthquakes in 2017 in Mexico City and the Isthmus of Tehuantepec. The Mexican State needs to provide culturally adequate attention to these population sectors affected by natural disasters, without discriminating or imposing conditions. Priority and support must be given to proposals made by indigenous peoples themselves to resolve the health, housing and food problems caused by these natural disasters.

Many of the displacements of indigenous peoples in the context of territorial or local political conflicts, the presence of organized crime and megaprojects have been prolonged and no effective and coordinated policies exist to guide efforts to help them return to their communities.

During my visit, I received information about serious cases of displacement that occurred in Chiapas due to political and territorial conflicts involving paramilitary groups. This included the case of more than 5,000 indigenous persons (including pregnant women, children and elderly) in the municipalities of Chenalhó and Chalchihuitán, who were forcibly displaced in November 2017.

I recommend that the situation of displaced indigenous peoples be given urgent attention through comprehensive and coordinated policies. In accordance with international standards, such as the Guiding Principles on Internal Displacement, State responses must ensure internally displaced people have an adequate standard of living through culturally adequate basic services. The State has the duty to create conditions and provide the means to allow displaced indigenous persons to return voluntarily, with safety and dignity.
Resolution of this issue also requires addressing the underlying factors that generate the situation of violence and conflict that leads to displacement. This includes decided measures to investigate and sanction those responsible for violence against indigenous peoples and to guarantee justice and reparation. In particularly grave situations, like the conflict affecting Chenalhó and Chalchihuitán, relevant authorities must ensure that measures adopted do not create more conflict between indigenous communities.

Conclusion

In my report, I recommend that indigenous peoples continue developing and strengthening their own legal, policy and self-determination initiatives, using international human rights standards as frames of reference. Indigenous peoples' efforts in this regard can contribute greatly to national debates and discussions on issues related to security, justice administration, development and governance.

Considering the incoming change of administration in the country, I believe there is an important opportunity to incorporate indigenous peoples' visions and proposals for the improvement of their current situation and reality as well as that of Mexican society in general. In this sense, it is important to remember the international human rights commitments and obligations that Mexico has assumed as a State in the area of indigenous peoples' rights. As mentioned before, Mexico has played a leading role in promoting the rights of indigenous peoples within the United Nations.

It is my hope that the observations, conclusions and recommendations contained in this report can be useful for indigenous peoples, civil society, State institutions and other actors, such as United Nations and international cooperation agencies, in the discussions and debates needed to address the human rights situation of indigenous peoples in Mexico.

I would like to encourage indigenous peoples to use my report in their advocacy efforts at the national and international levels. As recommended in the report, the UN system, in particular the Office of the High Commissioner for Human Rights, could collaborate with indigenous peoples and the Government to follow-up on these recommendations, taking into account indigenous peoples' proposals to that end.

I would like to conclude by again thanking everyone that made my visit possible, including indigenous peoples, the Mexican Government, civil society organizations, the Office of the High Commissioner for Human Rights in Mexico, and other UN and international agencies. I am hopeful and optimistic that Mexico can take a leading role in the promotion of indigenous peoples' rights both at the domestic level and the international level.

Thank you.

 

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