Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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

1. The Committee notes the report sent by the Government. It notes also that no copy has been received of the documentation on the Special Commission on indigenous populations which, according to the report, is attached. It also notes with interest that in 1998 the Government informed the United Nations Committee on the Elimination of Racial Discrimination that a Bill for the autonomous development of the indigenous peoples was currently before the Legislative Assembly (see CERD/C/338/Add.4, paragraph 34). The Committee would be grateful if the Government would send copies of the documentation relating to the Special Commission and to the Act referred to as soon as it has been adopted.

2. Articles 1(2) of the Convention. The Government indicates that the concept of "indigenous" contained in the Indigenous Act No. 6172, includes self-identification as indigenous as provided in the Convention. The Committee notes that the definition of the concept of "indigenous" in section 1 of Act No. 6172 lays down that persons are indigenous who constitute ethnic groups descended directly from pre-Colombian civilizations and who conserve their own identity. The Committee also notes the judgement handed down by the Constitutional Court that "it is the indigenous communities themselves which determine who are their members, applying their own criteria and not those followed by statute law" (Judgement No. 1786-93) (CERD/C/338/Add.4, paragraph 37).

3. Article 2. The Committee notes the examples cited by the Government of participation by indigenous peoples in certain programmes of benefit to them such as the "Housing" and "Land distribution" programmes in which indigenous development associations take part, as they do in certain "infrastructure" projects. The Committee requests the Government to supply specific information on the nature of the programmes in which said associations participate and to indicate the type and extent of their participation in the development and application of the projects mentioned.

4. The Committee notes the Government's statement in its report to the Committee on the Elimination of Racial Discrimination that the complaints made by indigenous persons to the Office of the Ombudsman are principally concerned with their systematic exclusion from decision-making directly concerning them, such participation being recognized as their right by the law in force (CERD/C/338/Add.4, paragraph 35). In the same report, the Government indicates that the Ombudsman has concluded that the National Indigenous Affairs Commission (CONAI) has not achieved the goals set out in the Act establishing it, namely Act No. 5251 of 20 July 1973 (CERD/C/338/Add.4, paragraph 38-39). The Committee requests the Government to supply information on the activities of the Ombudsman and on endeavours made by the Government to ensure that the goals of CONAI are achieved, particularly that of ensuring respect for the rights of the indigenous peoples, and to encourage action by the State to guarantee indigenous peoples the right to their land.

5. Article 3. The Committee recalls that in the Government's first report it indicated that there was a need to secure full enjoyment of human rights and fundamental freedoms for indigenous and tribal peoples and to promote knowledge of the laws which protect these peoples. The Committee notes the information supplied by the Government on the consultations held with the indigenous peoples (see under Article 6 below). The Committee would be grateful if the Government would supply information on any special measures taken to apply the provisions of Article 3, if such exist.

6. Article 4. The Committee notes the Government's statement that indigenous lands are designated as community lands and inalienable and that they cannot therefore be used to obtain agricultural credit. The Government indicates that credit for indigenous persons is restricted chiefly because of the disadvantaged economic situation in which they live and that it is necessary to implement a mechanism to promote the granting of loans to indigenous persons, incorporated in a training programme on the management of community and family economics. The Committee also notes that Act No. 5652, transitional to Act No. 5251, stipulates that special credit systems should be provided so that indigenous persons can obtain credit for the proper utilization of their lands. The Committee also notes the statement in the report that, in view of this transitional provision, some indigenous persons have succeeded in obtaining bank loans. The Committee requests the Government to indicate any special measure which has been taken in this direction and suggests that the Government could accept technical assistance from the Office in this area.

7. Article 5. The Committee notes the Government's indications in its report that Decree No. 21475-G of 1993 has not been applied in practice as the indigenous councils envisaged in the Decree have not been created in any indigenous community.

8. Article 6. The Committee notes with interest the Government's affirmation in its report that within the consultation process and in the Legislative Assembly account has been taken of indigenous representation and of the National Indigenous Affairs Commission in connection with all matters involving the peoples concerned. The Committee requests the Government to send it specific information on the manner in which indigenous representation is ensured in practice.

9. Article 7. The Committee once again asks the Government to send it copies of the studies on the impact on indigenous peoples of planned development activities which were mentioned in its first report. The Committee also requests the Government to supply information on any measures taken or envisaged to protect and conserve the environment in these lands.

10. Articles 8 and 9. The Committee notes with interest that, pursuant to Bill No. 12032, the Penal Code will include a chapter explicitly recognizing the customary laws practised by indigenous peoples. The Committee would be grateful if the Government would supply a copy of this Act once it has been adopted.

11. Article 10. The Committee requests the Government once again to supply information on the measures taken to give effect in practice to this Article of the Convention, particularly in regard to the possibility of imposing methods of punishment other than confinement in prison on the members of the indigenous peoples.

12. Articles 12. The Committee notes the Government's statement that there is no legislation providing legal advice and interpreters for indigenous persons in legal proceedings but that the courts provide this guarantee where possible. Given the importance of this provision of the Convention, the Committee requests the Government to send information on the practical application of this section.

13. Articles 13 and 14. The Government indicates that removal of the non-indigenous persons who have rights within the reservations is effected against payment of compensation. The Committee requests the Government to indicate the progress made in returning lands to their indigenous owners in the light of the Government's statement in its previous report that there are large areas of indigenous lands in the hands of non-indigenous persons.

14. The Committee notes that the appeal against the constitutionality of Decree No. 8487-G submitted by the Sejekto Cultural Association against the State was declared unfounded. The Committee again requests the Government to supply information on the action brought against the State for alleged violations of indigenous rights as well as information on whether there are any lands occupied by indigenous communities which have not yet been declared reservations.

15. Article 15. The Committee notes the Government's statement that the clause on exploitation of resources promoted by the State in the indigenous reserves has not been applied by the national authorities. The Committee also notes the affirmation by the Government to the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.4, paragraphs 41-42), that the State is making judicial remedies and means available to the indigenous communities so that they can proceed with the matter and obtain due compensation in cases where their resources have been affected. The Committee requests the Government to supply information on the participation of indigenous people in the use, management and conservation of natural resources, including information on the participation of these peoples in the benefits from utilization of these resources, and on the use of indigenous techniques in strategies for the conservation of the environment as well as copies of any study on the environment carried out in the areas occupied by the indigenous peoples.

16. Article 16. The Committee takes due note of the Government's affirmation in its report that the faculty of transferring indigenous populations so that natural resources can be exploited has not been exercised to date.

17. Articles 17 and 18. In addition to the information supplied under Articles 13 and 14, the Committee notes the Government's statement that provisions to prevent the penetration into indigenous lands by non-indigenous persons is laid down in Indigenous Act No. 6172 and other associated Acts. The Committee requests the Government to supply information on the manner in which this legislation has been applied in practice and on any measure taken to guarantee the safety of the peoples concerned, including examples of specific cases in which punishment has been imposed on non-indigenous persons who invade indigenous lands and reservations.

18. Article 19. The Government indicates that this Article is applied in conformity with the provisions of Act No. 5255 of the CONAI and Indigenous Act No. 6172. The Committee requests the Government to supply information on the application in practice of said legislation and to provide copies of all the measures taken to give effect to Article 19.

19. Article 20. The Committee notes the Government's statement that the Costa Rican judicial system guarantees equality of employment conditions for indigenous persons and non-indigenous persons and that in most cases indigenous persons are not part of the wage-earning labour force. It also notes that, according to the Government, the current legal system guarantees the principles of equality and equity. The Committee once again requests the Government to supply any available information on the existence of trade unions established by indigenous persons and whether the labour inspection services act in the agricultural sector where members of these peoples work.

20. Articles 21 and 22. The Committee notes the Government's statement that the indigenous communities are included in national education programmes. It requests the Government to indicate whether studies have been conducted to determine the special needs in regard to training of the peoples concerned.

21. Article 24. The Committee notes the Government's statement that there is full cover for social security benefits with the sole condition that the persons are truly indigenous according to the definition of Indigenous Act No. 6172.

22. Article 25. The Committee takes note of the Government's affirmation that the health policy promoted in the indigenous communities involves the establishment of health centres and clinics as well as recognition of traditional medicine. The Committee requests the Government to supply information on the manner in which traditional medicine is incorporated in said health centres.

23. Articles 26, 27, 28, 29 and 30. The Government indicates that the bilingual and bicultural education programme applies only in some indigenous communities because there are not enough qualified indigenous teachers. The Committee requests the Government to indicate the measures taken or envisaged to train members of the peoples concerned as well as to promote and ensure their participation in the development and application of this programme and to provide additional information on the curriculum formulation, training provided for teachers, the percentage of teachers belonging to the peoples concerned and the numbers of the student population. It also requests the Government to indicate the measures taken or envisaged to ensure that the peoples concerned have the opportunity to learn the national language as well as to conserve their indigenous languages.

24. Article 31. The Committee observes that the Government's report does not reply to the Committee's previous comments on this point. The Committee reiterates its request to the Government to supply information on any measures that have been adopted or are envisaged to eliminate prejudices that may be harboured in respect of the indigenous peoples in Costa Rica.

25. Part IV of the report form. The Committee would be grateful if the Government could send copies of any decisions handed down by the judicial or administrative courts in regard to the application of the Convention.