United Nations A/HRC/39/17/Add.2* General Assembly 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 Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Mexico Note by the Secretariat This report examines the situation of indigenous peoples in Mexico. It is based on 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 on independent research. The Special Rapporteur notes that, since the official visit made in 2003 by the former Special Rapporteur, Rodolfo Stavenhagen, and despite the commitments subsequently made by Mexico in the field of human rights, indigenous peoples continue to face serious challenges in the exercise of their human rights. Current development policies, which are based on megaprojects (in mining, energy, tourism, real estate and agriculture, among other areas), pose a major challenge to indigenous peoples’ enjoyment of human rights. Lack of self-determination and prior, free, informed and culturally appropriate consultation are compounded by land conflicts, forced displacement, and criminal accusations and violence against indigenous peoples who defend their rights. All these problems are taking place against a backdrop of profound inequality, poverty and discrimination faced by indigenous peoples that restricts their access to justice, education, health and other basic services. * Reissued for technical reasons on 8 August 2018. GE.18-10617 (E) 030918 040918 A/HRC/39/17/Add.2 Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Mexico** Contents Page I. Introduction ............................................................................................................................. 3 II. Identification of indigenous peoples ........................................................................................ 3 III. Legal and institutional framework ........................................................................................... 4 IV. Principal concerns .................................................................................................................... 5 A. Lands, territories and natural resources ........................................................................... 5 B. Development priorities, megaprojects, consultation and consent .................................... 6 C. Self-determination and political participation ................................................................. 9 D. Violence, impunity and access to justice ......................................................................... 11 E. Economic, social and cultural rights ............................................................................... 13 V. Conclusions and recommendations .......................................................................................... 16 Annex Alegaciones recibidas ....................................................................................................................... 21 ** Circulated in the language of submission and English only. The annex to the present report has been reproduced as received, in the language of submission only. 2 GE.18-10617 A/HRC/39/17/Add.2 I. Introduction 1. The present report examines the situation of indigenous peoples in Mexico and sets forth recommendations in that regard, based on 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 on independent research. The twofold purpose of the Special Rapporteur’s visit was to assess the measures taken to give effect to the recommendations made by the previous Special Rapporteur after his visit to the country in 2003 1 and to evaluate the efforts made by Mexico to fulfil its international obligations with respect to the rights of indigenous peoples. 2. The Special Rapporteur held meetings with representatives of federal government institutions and the federative entities of Mexico City, Guerrero, Chihuahua and Chiapas. She 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. These meetings were attended by over 200 representatives of 23 indigenous peoples from 18 states, with equal representation of indigenous men and women. She also met with representatives of human rights bodies, civil society organizations, the private sector and the United Nations country team, as well as other relevant actors. 3. The Special Rapporteur wishes to thank the Government of Mexico for its cooperation and for permitting her to conduct her visit freely and independently. She would also like to thank the Office of the United Nations High Commissioner for Human Rights (OHCHR) team in Mexico for its invaluable support during her visit. Lastly, she is profoundly grateful to the indigenous peoples and communities who welcomed her to their lands and territories and to those who travelled long distances to share their stories with her. II. Identification of indigenous peoples 4. According to article 2 of the Constitution, “awareness of indigenous identity shall be a fundamental criterion for deciding to whom the provisions governing indigenous peoples apply”. However, several indigenous peoples claim to have been denied the right to self- identification by government authorities. 5. For the purposes of national statistics, a number of different criteria are used to identify the indigenous population; this has affected the development of relevant policies and programmes and prevented some indigenous persons from gaining access to housing, health care and food, among other things. Official statistics based on the criterion of language indicate that the indigenous population accounts for 6.5 per cent of the total population. However, if the criterion of self-identification is used, this proportion rises to 21.5 per cent. 6. The use of different criteria by state institutions can result in the denial of justice when peoples and communities that identify as indigenous, but are not officially recognized as such, appeal to national bodies to protect their rights. For example, the Otomi people of San Francisco Magú in Mexico State is not included in the state law on indigenous peoples or the federal list of indigenous places and has therefore been unable to participate in programmes aimed at indigenous peoples or to influence the municipal authorities’ decisions about development plans and elections. 7. The size of the O’odham (Pápago) population in Sonora has been underestimated, owing to the use of the language criterion by the federal and state authorities. Consequently, those who identify as members of this indigenous people have been rendered largely invisible, as has their human rights situation. In the case of the indigenous community of San Salvador Atenco, which was affected by the construction of the new international airport of Mexico City and took legal action against the project, invoking its 1 E/CN.4/2004/80/Add.2. GE.18-10617 3 A/HRC/39/17/Add.2 land rights and its right to prior consultation, the courts have not yet decided whether the community is to be recognized as indigenous. III. Legal and institutional framework 8. Article 2 of the Constitution states that “the nation has a multicultural composition, originating in its indigenous peoples, who are descended from peoples who lived in the current territory of the country at the beginning of colonization and who have their own social, economic, cultural, and political institutions or some of these”. 9. Various types of land tenure for campesinos, including communal landholdings known as ejidos, are recognized under article 27 of the Constitution and agrarian law. 10. Indigenous peoples continue to call for recognition in the Constitution as subjects of public law rather than entities of public interest. 11. In 2013, a constitutional amendment relating to the energy sector and the necessary implementing laws were adopted, without due regard for existing legislation on the rights of indigenous peoples; these new provisions allow for contracts to be awarded to private companies in the hydrocarbon sector and facilitate the exploitation of natural resources, many of which are located in indigenous territories. 12. In 2014, the Federal Act on the Prevention and Elimination of Discrimination was amended to broaden the definition of discrimination and establish additional measures of reparation. 13. With the amendment of article 1 of the Constitution in 2011, Mexico took an important step forward in its implementation of international human rights law. As a result of this amendment, the international human rights obligations that are incumbent on Mexico are directly applicable at all levels of the federal structure and must be respected and upheld in legislation, public policies and judicial decisions. These obligations include those set forth in the international human rights treaties to which Mexico is a party; the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), ratified by Mexico in 1990; the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by