Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Costa Rica (Ratification: 1993)

The Committee notes that the Government's report has not been received. It understands nevertheless that a new Act on the integral development of indigenous peoples is being considered and that a consultation with indigenous peoples has been undertaken in this respect. The Committee requests the Government to provide information on the status of this new Act, as well as information on the consultation process undertaken. It therefore hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. The Committee notes the detailed first report provided by the Government. It also notes that the information contained in the report provides a broad picture of the manner in which the situation of indigenous peoples is being addressed in law and, in some areas, in practice. Nevertheless, there are a number of matters on which no clear idea is given of the real situation of these peoples.

2. Article 1, paragraph 2, of the Convention. The Committee notes that the definition of the concept of "indigenous" contained in section 1 of the Indigenous Act, under which "persons are indigenous who constitute ethnic groups descended directly from pre-Columbian civilizations and who conserve their own identity", does not include self-identification as indigenous or tribal as one of the criteria for the definition of the peoples to which the Act applies. Please state how effect is given to this requirement of the Convention.

3. Article 2. The Committee requests the Government to provide additional information on practical examples of the participation of the peoples concerned in the development and implementation of programmes which benefit these communities.

4. Article 3. The Committee notes the statement in the Government's report that there is a need to secure full enjoyment of human rights and fundamental freedoms and it therefore requests the Government to indicate in its next report the measures that have been taken or are envisaged in this respect.

5. Article 4. The Government attaches to its report an advisory opinion of the Supreme Court of Justice, prior to ratification, which states that indigenous peoples cannot obtain agricultural credit because the lands belong to the community and are inalienable and there is no legal formula for providing guarantees on communal properties. The Committee requests more information in this respect and notes that if a solution to this problem has not been found, the Government could consider requesting the technical assistance of the Office to examine the formulas used in other countries which have ratified the Convention and have met with the same problems.

6. Article 5. The Government is requested to provide additional information on the activities of the Indigenous Councils in practice, since the report makes no reference to Decree No. 21475-G of 1993 establishing Indigenous Ethnic Councils.

7. Article 7. The Committee requests copies of the studies referred to in the report on the impact on indigenous peoples of planned development activities in order to obtain an idea of the manner in which they are carried out in Costa Rica. Please see also under Article 15.

8. Articles 8 and 9. The Committee notes the Government's statement in its report that the customs and customary laws of indigenous peoples are not applicable as regards the implementation of national law, but that it also states that with regard to penal affairs, indigenous groups apply customary law to resolve disputes within the group. Since penal offences are of a public nature, the Committee requests additional information on the manner in which this apparent duality of systems is applied in practice and the cases in which indigenous persons may or may not opt for their customary law.

9. Article 10. The Government's report indicates that no distinction is made between indigenous and non-indigenous people when imposing penalties and penal sanctions on indigenous persons. In this respect, the Committee requests fuller information on the question of whether, when imposing penalties on members of indigenous peoples, account is taken of their economic, social and cultural characteristics and whether the possibility exists of imposing methods of punishment other than confinement in prison on the members of these peoples.

10. Article 12. The Committee requests the Government to transmit copies of legal provisions establishing the safeguards of legal advice and interpreters for indigenous persons in legal proceedings.

11. Articles 13 and 14. In view of the Government's statement that there are large areas of indigenous lands in the hands of non-indigenous persons and that it does not have sufficient resources to compensate these persons, the Committee requests the Government to provide information on the manner in which it intends to apply the Indigenous Act with regard to the removal of these persons, as well as the other legal measures available to return these lands to their ancestral owners. It also requests the Government to state whether adequate procedures exist within the national legal system so that indigenous peoples can claim areas which have been removed from them or of which the ownership has not been determined.

12. The Committee requests the Government to keep it informed of the result of the appeal against the constitutionality of Decree No. 8487-G issued under the Indigenous Act, which was submitted on 3 October 1996 by the Sejekto Cultural Association, as well as on the action lodged against the State for alleged violations of indigenous rights. The Committee would also be grateful to be provided with information on whether there are any lands occupied by indigenous communities which have not yet been declared reservations.

13. Article 15. The Committee requests additional information on the consultation procedures of indigenous communities when the State decides to exercise its right to exploit resources pertaining to reservations and when the Legislative Assembly decides to accord a concession to a private individual. It also requests information on whether there are cases in which "impact studies" have been undertaken prior to a concession being accorded for the exploration or exploitation of resources and whether arrangements exist for the sharing of benefits from the exploitation of these resources with the communities concerned.

14. Article 16. The Committee requests further information on the current situation with regard to the transfer of indigenous populations in view of the fact that the Government has the power to exploit resources pertaining to indigenous lands where it is in its interest to do so. The Government replied to a question raised in a direct request on Convention No. 107 in 1978 that no cases had occurred of the transfer of indigenous populations.

15. Articles 17 and 18. In addition to the matters raised under Articles 13 and 14, the Committee requests information on the possibility of establishing policies to prevent the penetration into indigenous lands by non-indigenous persons. It also requests the Government to describe practical examples in which transfers have been carried out and damages paid to any indigenous communities. Furthermore, it requests the Government to provide information on the penalties imposed upon invaders of indigenous reservations, if such penalties exist, and on whether they are adequate to prevent invasions.

16. Article 19. The Committee would be grateful if the Government would provide detailed information in its next report on the manner in which this Article is applied.

17. Article 20. The Committee notes the Government's statement that the national labour legislation does not guarantee indigenous workers greater protection than that afforded to any other citizen. In this connection, it wishes to recall that this provision of the Convention only requires the adoption of special measures to bring indigenous and tribal peoples to a position of equality with the population in general and only in so far as they are not protected by the general labour laws. The Committee therefore requests additional information on whether the conditions of work of indigenous persons are the same as those of other workers, whether trade unions have been established for indigenous persons, whether collective agreements have been concluded, whether there have been cases of forced recruitment, whether casual indigenous workers benefit from any type of protection and whether they enjoy equal opportunities, particularly in agriculture, where most indigenous people work.

18. Article 20, paragraph 4. The Committee requests the Government to provide detailed information on the establishment of adequate labour inspection services in areas where indigenous peoples work and on the activities of the Labour Inspectorate in these areas.

19. Articles 21 and 22. The Committee requests the Government to keep it informed of the development of vocational training initiatives.

20. Article 24. The Government's report briefly states that indigenous peoples are covered by social security. Please indicate the conditions that have to be met for indigenous persons to benefit from such coverage and whether they are covered in all cases or only where they are employees. Please also indicate the types of benefits that apply to them.

21. Article 25. The Committee requests additional information on the training programme on indigenous health techniques and on whether it is intended to extend it to other parts of the country, as well as information on the planned activities with regard to the indigenous health policy.

22. Articles 26, 27, 28, 29 and 30. The Committee requests more detailed information on the application in practice of the programme of bilingual and bicultural education. Please describe its current status, the number of indigenous persons who have access to education facilities and the percentage of illiterate persons. This educational policy would appear to comply to a certain extent with the objective of teaching the indigenous communities concerned the national language, their rights and duties and the services to which they can have access, all of which is subject to consultation with the communities concerned. However, the Committee would be grateful to receive information on the manner in which these programmes are carried out in practice.

23. Article 31. The Committee requests information on the measures that have been adopted or are envisaged to eliminate prejudices that may be harboured in respect of these peoples.

24. Point VIII of the report form. The Committee recalls that the report form under this Convention, which was approved by the Governing Body, indicates that although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the Convention and in preparing reports on its application. In view of the fact that the above-mentioned information has not been provided by the Government in its first report, please indicate whether such consultations have been held.