Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

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

1.  The Committee notes with interest the Government’s detailed third report on the application of the Convention. It regrets that once again the report arrived shortly after its previous session, and hopes that the Government will send its next report in a timely manner.

2.  The Committee has received a copy of Bill No. 12032 for the Autonomous Development of Indigenous Peoples, which has been prepared by the Permanent Commission on Social Issues and which is to be presented before the Legislative Assembly. The Committee hopes that the Government will keep it informed of the status of this legislation and provide it with a final copy once it is adopted.

3.  Article 1(2) of the Convention.  The Committee notes that section 4(a) of Bill No. 12032 provides that each indigenous people will define autonomously who they recognize as indigenous. The Committee hopes that the Government will provide additional information on the practical application of this provision once the Bill has been adopted. The Committee notes also that the Government’s report refers to several criteria under Costa Rican law for defining "indigenous". First, section 1 of the Indigenous Act No. 6172 states that "persons are indigenous who constitute ethnic groups descended directly from pre-Columbian civilizations and who conserve their identity". Second, the criterion of self-identification found in Article 1(2) of the Convention is directly applicable, given that article 7 of the Constitution of Costa Rica conveys on international treaties ratified by that country a rank superior to its domestic laws. Lastly, the criteria formulated by the Republic’s General Prosecutor in the Action of Unconstitutionality No. 6433-95, provides that the concept of identity is interrelated with that of "community". The Committee recalls that self-identification as indigenous shall be regarded as a fundamental criterion for determining the groups to which the provisions of the Convention apply. The Committee requests the Government to indicate whether it plans to harmonize section 1 of the Indigenous Act No. 6172, the criteria formulated by the General Prosecutor and the Constitutional Court’s Judgement No. 1786-93, which states that "it is the indigenous communities themselves that determine who are their members, applying their own criteria and not those followed by statutory law", with Article 1(2) of the Convention.

4.  Article 2.  The Committee previously noted the examples cited by the Government of participation by indigenous peoples in certain programmes to benefit them such as the housing and land distribution programmes in which indigenous development associations take part, as well as certain infrastructure projects. The Committee recalls its request that the Government supply specific information on the nature of the programmes in which these associations participate and indicate the kind and extent of their participation in the development and application of the projects mentioned.

5.  The Committee regrets that the Government’s third report contains no reply to the following comments made in the Committee’s last direct request:

The Committee notes the Government’s statement in its 1998 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 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, paragraphs 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.

The Committee hopes to receive detailed information on this matter in the Government’s next report.

6.  The Committee notes the information provided by the Government concerning legislative texts, namely Bill No. 12032, as well as other legal instruments to establish mechanisms for eliminating socio-economic gaps that exist between indigenous and other members of the national community. The Committee would appreciate any specific information the Government could provide concerning social, educational, and economic programmes undertaken to assist indigenous peoples in this regard.

7.  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 indigenous peoples (see under Article 6 below). The Committee hopes the Government will continue to keep it informed of any special measures adopted to apply the provisions of this Article.

8.  Article 4.  Further to its previous request, the Committee notes that Act No. 5652, which follows 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, in spite of the fact that the inalienability of these lands makes access to mortgages difficult. The Committee also notes that, in view of this provision, some indigenous persons have succeeded in obtaining bank loans. The Committee requests the Government to indicate any special measures which have been taken in this direction and suggests that the Government could accept technical assistance from the Office in this area.

9.  The Committee notes that sections 33 to 37 of Bill No. 12032 seek to facilitate indigenous peoples’ access to credit through the creation of a National Fund for Indigenous Development [Fondo nacional de desarrollo indígena]. The Committee hopes the Government will send additional information on this matter, in particular with respect to the practical application of the new policy and progress achieved in meeting the objectives laid down under section 34 of the Bill.

10.  Article 5.  The Committee notes that Bill No. 12023 (sections 39, et seq.) would provide for the establishment of Territorial Management Councils [Consejos directivos de los territorios] to represent indigenous communities. The Committee also notes that section 3(a) of the Bill provides that the State will recognize traditional forms of organization, social representation, and administration of indigenous territories. The Bill also provides, in section 4(d), that indigenous peoples may create whatever type of organization they deem convenient for developing the functions of the Councils and that they may register them under customary law or establish other forms of organization included in existing legislation. The Committee requests the Government to provide information on the structure, organization, and operation of these councils, once they are set up, including information on the compatibility of these councils with the traditional governing institutions of the peoples concerned. The Committee requests particular information on whether any indigenous peoples have chosen to organize and register forms of governance and administration, including their traditional practices, other than the Councils referred to in the Bill, and whether such institutions have been recognized as valid.

11.  Article 6.  The Committee notes with interest the Government’s statement 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 specific information on the manner in which indigenous representation is ensured in practice. The Committee also notes with interest that the Special Commission on Indigenous Populations has completed a national consultation on Bill No. 12032. The Committee also notes the Ad-hoc Commission on indigenous populations which met in May 1999 and requests the Government to supply additional information on the methods used to consult the indigenous peoples and on the practical means used to implement conclusions which resulted from the consultations and which are mentioned in the Government’s report

12.  Article 7.  The Committee once again asks the Government to send copies of the studies on the impact on indigenous peoples of planned development activities which were mentioned in its first report. Specifically, the Committee would like to know how indigenous peoples were involved in the preparation and execution of these studies, and would appreciate receiving information on any measures taken or envisaged to protect and conserve the environment in these lands.

13.  Articles 8 and 9.  The Committee takes note of the Constitutional Court Judgements Nos. 3003-92, 1786-93, and 1867-95, which confirm the possibility of invoking indigenous peoples’ customs and customary laws in the Costa Rican legal system. The Committee asks the Government to supply information on any judicial, legislative, or administrative actions through which such customs and customary laws have been invoked.

14.  The Committee notes with interest sections 54 to 57 of Bill No. 12032 which would recognize the validity of the customary law of indigenous peoples, and asks the Government to provide information on the application of these provisions once the Bill is adopted. The Committee would be grateful for information on cases where indigenous customary laws conflict with the national legal order, but not as far as matters of fundamental rights are concerned. The Committee also requests the Government to send information on specific procedures for resolving conflicts which may arise in the application of Article 8(2) of the Convention, in particular with respect to the referral of cases to Development Associations, Councils of Elders, or Indigenous Civil Associations. The Committee also requests the Government to provide a copy of the updated Penal Code which, pursuant to Bill No. 12032, will include a chapter explicitly recognizing the customary laws of indigenous peoples.

15.  Article 10.  The Committee notes that the Government’s report contains no reply to the following statement made in its last direct request:

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

The Committee hopes that the Government will provide the requested information in its next report.

16.  Article 12.  The Committee notes with interest the information provided by the Government concerning the legal provisions establishing the safeguards of legal advice and interpreters for indigenous persons in legal proceedings, noting in particular sections 14, 126, 130, 131, 215, 265, 333, 336, and 341 of the Code of Criminal Procedure. The Committee also takes note of section 57 of Bill No. 12032, which provides for translation and interpretation services in legal proceedings involving indigenous peoples. The Committee hopes that the Government will provide additional information on the practical application of the provisions of the Code of Criminal Procedure mentioned and of section 57 of Bill No. 12032, once it is adopted.

17.  Articles 13 and 14.  The Committee notes that Bill No. 12032 contains provisions on the identification of indigenous lands (section 5), collective ownership of land (section 9), and the resolution of land claims (sections 13 and 14). The Committee hopes that the Government will provide additional information on the practical application of these provisions once the Bill has been adopted. The Committee noted in its previous request that the removal of non-indigenous persons with rights in land located on indigenous reservations was carried out subject to payment of compensation, and asked the Government to indicate the progress made in the restoration of indigenous lands. The Committee also requests the Government to keep it informed of developments concerning the creation of registries of indigenous lands and to provide detailed information on the amount of land that has been repurchased and/or returned to indigenous peoples.

18.  The Committee also notes that section 5 of Bill No. 12032 recognizes the right of indigenous peoples over sites of ceremonial, spiritual, and cultural or medicinal interest and requests the Government to provide information concerning the inclusion of such places in the registries of indigenous lands. The Committee also requests information concerning measures taken to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, including sites of cultural, ceremonial, spiritual, or archaeological importance, as well as sites used for gathering medicines and other materials and conducting subsistence activities.

19.  Article 15.  The Committee notes section 8 of the Code of Mines, which provides that all prospecting and exploitation of mineral resources in indigenous reservations must be approved by the Legislative Assembly, which, in doing so, should protect the interests and rights of indigenous communities. The Committee notes that, according to the Government’s report, no mining concessions in indigenous reserves have been approved in the past ten years. The Committee also notes that when the prospecting or exploitation is carried out directly by the State, the abovementioned legal protections do not apply. The Committee requests the Government to provide information on the legislation and procedures that apply to the prospecting and exploitation of natural resources other than mineral resources.

20.  In this connection, the Committee notes the indications of the Government to the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.4, paragraphs 41-42), regarding a case in the Boruc area involving deforestation carried out by the Costa Rica Petroleum Refining Company (RECOPE), to the effect that the State is making judicial remedies available to the indigenous communities so that they can proceed to obtain due compensation in cases where their resources have been affected. The Committee requests the Government to supply information regarding these judicial remedies, and to provide examples of any other cases in which indigenous peoples have sought compensation.

21.  The Committee again requests the Government to supply information on the participation of indigenous peoples in the use, management, and conservation of natural resources, including information on the participation of these peoples in the benefits from the utilization of these resources, as well as on the use of indigenous techniques and strategies for the conservation of the environment. The Committee also requests copies of any environmental study carried out in areas occupied by indigenous peoples, including any "impact studies" undertaken prior to a concession being granted for the prospecting or exploitation of resources.

22.  The Committee notes that section 5 of Bill No. 12032 provides that indigenous peoples can exploit the resources located in their territories in accordance with the relevant regulations. The Committee also notes that section 8 of the Bill provides that, prior to development projects being undertaken in indigenous territories, consultations with the inhabitants and studies required by law must be undertaken. The Committee requests the Government to provide information on the application of sections 5 and 8 of the Bill once it has been adopted, including detailed information on the nature of such consultations as well as the scope and content of the required studies.

23.  Articles 17 and 18.  The Committee notes the Government’s statement that provisions to prevent non-indigenous persons from invading indigenous lands are set forth in Indigenous Act No. 6172, in particular section 5. The Committee also takes note of the Government’s reference to Constitutional Court Judgement No. 6229-99 and requests the Government to provide more detailed information on this specific case. The Committee also requests the Government to provide information on the manner in which Indigenous Act No. 6172, in particular section 5, has been applied in practice and on any measures taken to guarantee the safety of the peoples concerned, including examples of specific cases in which punishment has been imposed on non-indigenous persons for invading indigenous lands and reservations.

24.  The Committee notes that section 9 of Bill No. 12032 ensures the creation of a land registry guaranteeing the transparency and legitimacy of transactions completed between members of indigenous communities. Please indicate whether this provision recognizes and guarantees the customary land conveyance procedures of the peoples concerned.

25.  Article 19.  The Government indicates that this Article is applied in conformity with Act No. 5251 creating CONAI and with the Indigenous Act No. 6172. The Committee again requests the Government to supply information on the practical application of this legislation, including any measures or programmes that have been undertaken to provide more land for these peoples when they do not have the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers, as well as information on whether any lands have been provided for this purpose

26.  The Committee notes that Bill No. 12032, in sections 10, 11, and 12, provides for the possibility of undertaking development projects adapted to the needs of the communities in indigenous territories, and that sections 33 and 34 of the Bill provide for the creation of a fund to finance, inter alia, the extension and development of indigenous territories. The Committee hopes that the Government will supply additional information on the practical application of these provisions once the Bill is adopted. The Committee also requests the Government to provide information concerning the practical application of the provisions for the extension and development of indigenous territories, including information regarding progress made in extending indigenous territories and the nature of development projects undertaken.

27.  Article 20.  The Government states that the Costa Rican legal system guarantees equality of employment conditions for indigenous and non-indigenous persons. The Government also states that the Department of Social Organizations has no registry list of specific indigenous trade unions, but that there is indigenous participation in existing workers organizations. While noting this information on the legal framework, the Committee recalls that this Article is oriented in particular to situations in which indigenous peoples may not in fact receive the protections available to other workers. The Committee hopes that the Government will be able to provide practical information in this regard in its next report.

28.  Articles 21 and 22.  The Government states that several vocational training programmes are being implemented in Huetar Norte, Huetar Atlántica, Brunca, and Central Oriental. Please provide more detailed information on these vocational training programmes, including the level of participation by the communities concerned and whether they are assuming responsibility for the organization and operation of these programmes; whether studies have been conducted to determine any special needs in regard to training of the peoples concerned; and how the peoples concerned were involved in such studies.

29.  The Committee notes that section 53 of Bill No. 12032 provides that the National Indigenous Institute will promote vocational training programmes for public officials working in indigenous communities. Please indicate how this provision is given practical effect.

30.  Article 23.  The Committee requests the Government to supply information on measures taken to implement this Article, including any measures that have been taken to guarantee and promote the rights of indigenous peoples to hunt, fish, trap, gather, and pursue other subsistence activities.

31.  The Committee notes that section 45 of Bill No. 12032 provides that the Indigenous Territorial Councils will ensure the creation of social security institutions. Please provide information on the practical application of this provision once the Bill has been adopted, including information on the administration of these institutions and the type and extent of coverage which is provided through them.

32.  Article 25.  The Government states that it has adopted a policy seeking a complete and non-discriminatory response to the health needs of the Costa Rican population and is promoting the optimization of public resources in this respect. The Committee would be grateful if the Government could provide detailed information on this policy in its next report, including information on specific measures taken to eliminate any inequality which may exist in the delivery of health services to indigenous peoples, and on the amount of funding which the Government spends on indigenous health care relative to that spent on the population of the country as a whole.

33.  Concerning medical services offered to indigenous peoples, the Government states that communities in less accessible areas receive visits from health care teams every two months. The Government’s report also refers to several programmes established by the Health Ministry to focus on the social and environmental aspects of the health of indigenous communities. The Committee notes the Government’s recent training of 16 indigenous health leaders at Costa Rica University and the pending evaluation of the programme. It requests the Government to supply more detailed information regarding the programmes on the social and environmental aspects of the health of indigenous communities, and whether the Government intends to extend this programme to other areas of the country.

34.  The Committee notes with interest the agreement of 5 February 1999 between the Costa Rican Social Security Fund [Casa Costarricense del Seguro Social (C.C.S.S.)] and the Regional Indigenous Association of Dikes (ARADIKES) and the participation of indigenous peoples in the programmes established in this agreement. The Committee requests that the Government provide information on the practical application of this agreement, including the implementation and administration of the programmes and the success achieved in attaining the objectives set forth in the agreement. The Committee also requests copies of any studies done under the auspices of this agreement and information on whether such agreements are being pursued in other regions of Costa Rica.

35.  The Committee also takes note of sections 16 to 20 of Bill No. 12032, which respond to many of the issues addressed under Article 25 of the Convention. The Committee requests the Government to provide information on the practical implementation of these provisions once the Bill has been adopted.

36.  Article 26.  The report states that education centres are increasingly being set up in indigenous communities at the preschool, primary school, and secondary school levels, as are rural colleges, permitting greater access to education for indigenous peoples. The Committee requests information on the number of these schools that have been established, as well as information on the curricula and on the involvement of indigenous peoples in the formulation of the curricula.

37.  In response to the Committee’s comments in its 1998 direct request, the Government states that, though there are no exact statistics, the illiteracy rate among adult members of indigenous groups is high. The Committee notes that the Government has initiated education and literacy programmes for adults in hopes of improving this situation. Please supply information on the progress made by these programmes and the number of adults who have access to and are enrolled in these programmes. The Committee also requests the Government to provide statistics on the literacy rate of adult members of indigenous groups as they become available.

38.  Article 28.  In its report, the Government states that 60 per cent of schools in indigenous territories employ teachers for indigenous language courses, indicating that the bilingual and bicultural education programme applies only in some indigenous communities because there are not enough qualified teachers. Please 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.

39.  Article 30.  The Government’s report refers to activities and meetings, as well as to workshops organized in indigenous communities by the Ministry of Education, to inform the peoples concerned about their rights and duties in regard to labour, economic opportunities, education and health matters, social welfare, and their rights deriving from the Convention. The Committee would be grateful if the Government could supply samples of documentary material used in these meetings and workshops.

40.  Article 31.  The Committee notes that the Government’s report does not reply to the Committee’s previous comments on this point. It reiterates its request to the Government to supply information on any measures that have been adopted or are envisaged to eliminate prejudices that other sectors of the national population may harbour towards the indigenous peoples of Costa Rica.