Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

1. The Committee notes the detailed information provided in the Government’s report, including statistics and judicial rulings, as well as the various annexes.

2. Article 1, paragraph 2, of the Convention (scope of application). In its previous comment, the Committee asked the Government whether it was considering amending section 1 of Indigenous Act No. 6172, which provides that "persons are indigenous who constitute ethnic groups descended directly from pre-Colombian civilizations and who conserve their identity", with this provision of the Convention which, in the same way as the criteria developed by the Attorney-General and ruling No. 1786-93 of the Constitutional Court, considers that it is the indigenous communities themselves that determine who are their members, applying their own criteria and not those established by the legislative authority. The Government has not provided a reply in its report. The Committee trusts that the Government will consider bringing its legislation into conformity with this provision of the Convention, particularly in view of the fact that Bill No. 12032, which in section 4 recognized the right to self-identification, has been shelved.

3. Article 2 (Government action). The Committee notes with concern the information contained in the document of the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/60/CO/3) of 20 March 2002 indicating that indigenous people living in remote regions suffer, inter alia, from lack of health care, education, drinking water and electricity. The Committee notes the information provided by the Government on the presentation of the National Plan for the Development of Indigenous Peoples (PNDPI) on 16 October 2000, which had been submitted for consultations with indigenous peoples through the National Indigenous Affairs Commission (CONAI). The Committee would be grateful if the Government would provide detailed information in its next report on the activities carried out under this Plan to protect and guarantee the recognized rights of indigenous peoples, especially in relation to the shortcomings referred to in the CERD report.

4. The Committee notes the report on the work of the Office of the Ombudsman (2000-01) in relation to the protection of the indigenous population, which was attached to the Government’s report, recognizing the efforts made by the municipality of Talamanca with a view to establishing channels of coordination and contact with indigenous communities in the region covering, among other activities, commerce, transport, the construction of public buildings and housing. The Committee requests the Government to provide further information on the activities carried out in other regions with the participation of representatives of indigenous peoples to improve the living and working conditions of indigenous communities.

5. Article 5 (indigenous values and institutions). The Committee requests the Government to keep it informed of any administrative or legislative initiatives taken for the recognition in law of the traditional forms of organization, social representation and administration of indigenous lands.

6. Article 6 (consultation and participation). The Committee requests the Government to provide information in its next report on the consultations held with the peoples concerned in relation to legislative or administrative measures which may affect them, and particularly on the participation of indigenous communities in the implementation and evaluation of the action taken in the context of the National Plan for the Development of Indigenous Peoples, to which the Committee refers in relation to the application of Article 2 of the Convention.

7. Article 7 (environmental conservation). The Committee notes the information contained in the report on the work of the Office of the Ombudsman (2000-01) denouncing the Boruca hydroelectric project. It also notes the establishment of "biological corridors" in indigenous lands. The Committee requests the Government to provide detailed information on the consultations held with the participation of the representatives of the communities affected to evaluate the impact of these projects, including information on the characteristics of the "biological corridors". The Committee also notes the Government’s indication that environmental impact studies are not kept. The Committee would be grateful if the Government would take the necessary measures for the conservation of these studies.

8. Articles 8, 9 and 10 (customary laws). The Committee notes that there is currently significant recognition in the legislation of Costa Rica, both in statutory law and in the judicial system, of the customary laws of indigenous peoples. The Committee requests the Government to take into account the contents of Circular No. 20-2001 of 5 March 2001 of the Supreme Court of Justice on the duty to consult indigenous communities concerning the scope of disputes affecting them. The Committee requests the Government to provide information in its next report on the application in practice of this Circular. With reference to its previous comments, the Committee requests the Government to envisage the possibility of imposing methods of punishment other than prison sentences on members of indigenous peoples.

9. The Committee notes with interest that, according to the report on the work of the Office of the Ombudsman (2000-01), an indigenous tribunal has been established to deal with internal disputes in the indigenous lands of Cabagra and Talamanca. The Committee would be grateful if the Government would provide information on the establishment of the tribunal and on the assistance afforded to it for its operation.

10. Article 12 (legal assistance). With reference to its previous comments, the Committee once again requests the Government to provide information on the application in practice of sections 14, 126, 130, 131, 215, 265, 333, 336 and 341 of the Code of Criminal Procedure in relation to members of indigenous communities who require various types of assistance.

11. Articles 13 and 14 (land). Noting the failure to adopt Bill No. 12032, the Committee requests the Government to keep it informed of the administrative and legislative measures adopted or envisaged for: the identification of indigenous lands; the regulation of collective land ownership; and the resolution of disputes arising out of applications for the recognition of land claims, with an indication where appropriate of the volume of lands returned to indigenous communities. In this respect, it notes the information contained in the report on the establishment of 24 Indian reservations, including two others since its last report.

12. The Committee reiterates its previous request to the Government to provide information on the measures adopted 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 medicinal plants and other materials. It also requests the Government to provide information in its next report on the inclusion of these sites in the registers of indigenous lands.

13. Article 15 (natural resources). With reference to its observation, the Committee regrets that the Government has not been able to provide information on the existence of procedures for compensation for the deforestation carried out by the oil refining company of Costa Rica (RECOPE) in the area of Boruca, to which reference was made in paragraphs 41 and 42 of the report of the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.4).

14. Article 17 (transmission of land rights). Noting the failure to adopt Bill No. 12032, section 9 of which provided for the establishment of a land register guaranteeing the transparency and legitimacy of transactions completed between members of indigenous communities, the Committee requests the Government to indicate the measures adopted or envisaged to recognize and guarantee the customary land transmission procedures of indigenous peoples outside recognized reservations.

15. Article 18 (protection against third parties). The Committee notes the Government’s statement concerning the convictions of non-indigenous persons in the jurisdiction of Turrialba for usurping lands belonging to an Indian reservation. However, it also notes with concern the information contained in the document of the Committee on the Elimination of Racial Discrimination (CERD/C/60/CO/3) of 20 March 2002 indicating that lands of indigenous peoples has reportedly been appropriated by migrants and transnational enterprises. It also notes the indication contained in the report on the work of the Office of the Ombudsman (2000-01), referred to above, according to which the area of the municipality of Buenos Aires has the highest incidence of land invasion by non-indigenous persons. The Committee trusts that the Government will provide further information on the manner in which section 5 of Act No. 6172, establishing measures to prevent non-indigenous persons from invading indigenous lands, is applied in practice. Please also provide information on any measures adopted to ensure the protection of indigenous peoples from this type of violation. With reference to its previous comments, the Committee notes that the Government has not provided more detailed information on Constitutional Court Judgement No. 6229-99 and it would be grateful if it would do so in its next report.

16. Article 19. The Committee notes the Government’s indication that in practice more land has not been provided to indigenous peoples when they do not have the area necessary for their normal existence, or for any possible increase in their numbers. In view of the failure to adopt Bill No. 12032, sections 33 and 34 of which provided for the establishment of a financing fund for, among other purposes, the extension and development of indigenous lands, the Committee requests the Government to provide information in its next report on the application of Act No. 5251 respecting special credit systems for indigenous peoples for the improved use of their lands.

17. Article 20 (employment). The Committee notes that the Government has not replied to its previous request in which it asked for information on any de facto inequalities which may exist in conditions of employment between indigenous and non-indigenous workers. The Committee hopes that the Government will be able to provide information on this matter in its next report. The Committee also refers to its comments relating to the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

18. Articles 21, 22 and 23 (vocational training, handicrafts and rural industries). The Committee notes the information provided by the Government in its report on the implementation of training activities in the indigenous communities of Quitirrisí, Zapatón, Altos de San Antonio, Térraba, Boruca, Curré, Cabagra, Yorkin, Kchabli and Namandí, some of which provide skills in organic agriculture, vegetable cultivation, organic fertilizers, pig and poultry raising. It also notes the development of indigenous craft training projects in the Maleku, Ujarrás, Salitre, Térraba, Cabagra, Rey Curré, La Casona, Abrojos Montezuma and Amubre communities. The Committee requests the Government to provide information in its next report on the impact of these activities on the social, economic and cultural development of the respective communities.

19. Articles 24 and 25 (social security and health). The Committee notes with concern the information contained in the report on the work of the Office of the Ombudsman (2000-01) denouncing the existence of unhealthy conditions and the lack of health coverage for the Guaymí population in the Casona region. It also notes with concern the information contained in the document of the Committee on the Elimination of Racial Discrimination (CERD/C/60/CO/3) of 20 March 2002 indicating that infant mortality among indigenous communities is reportedly three times higher than the national average. The Committee trusts that the Government will take the necessary measures to improve the medical care made available to indigenous populations, taking into account traditional medicine and indigenous medical authorities. It also hopes that measures will be adopted to prevent discriminatory attitudes by members of the administrative and medical services towards those of indigenous communities.

20. The Committee notes the information provided by the Government that, according to report No. 18593 of 25 June 2003 of the Costa Rican Social Security Fund (CCSS), under the reform of the health sector the country has been divided into different regions with their corresponding basic teams for integral care (EBAIS), which have reached out to the whole of the population, including the indigenous population. The Committee notes with interest an agreement concluded between the CCSS and CONAI to ensure the provision of medical services to indigenous persons and another agreement between the Indian Medical Council and the CCSS for the training of young indigenous persons as health promoters. The Committee trusts that the Government will be able to provide information in its next report on the impact of the reform and the implementation of the above agreements in improving the health situation of indigenous peoples, and particularly on the training of members of indigenous communities so that they can form part of the health structure in the various regions.

21. Articles 26 to 29 (education). The Committee notes the information provided by the Government in its report on the opening of education centres covering the various levels, including the academic level, and the attached educational plans, which include in their curricula basic components to raise the awareness of the national community concerning the ethnic diversity in the country, including environmental education and indigenous languages and cultures. It also notes the statistical information on the distribution of education centres, which show that they cover 71 per cent of the indigenous population. It notes the professionalization of teachers of indigenous languages. The Committee also notes with interest the activities carried out by the Costa Rican Institute of Radiophonic Education for the education of the adult population. Noting the high percentage of illiteracy among the indigenous population (25.6 per cent), the Committee trusts that the Government will continue implementing an education policy for the reduction of this level. The Committee requests the Government to take the necessary measures for indigenous communities to be able to play an active role in the planning, implementation and evaluation of their educational activities.

22. The Committee notes with interest the adoption of Act No. 7878 of 27 May 2003 adding a provision to article 76 of the Political Constitution recognizing that, in addition to Spanish as the official language, there exist other indigenous languages of Indian origin which the State undertakes to maintain and cultivate. The Committee trusts that the Government will provide information in its next report on the application in practice of this constitutional provision.

23. Article 31 (means of communication). The Committee notes the information contained in the report on the existence of a programme entitled "A culture of peace" intended to place emphasis in all schools on respect for diversity, which is being carried out under Act No. 7711, for the "Elimination of racial discrimination in educational programmes and collective communication media". The Committee trusts that the Government will continue to provide information on the other activities carried out in future to give effect to the above Act.

24. Article 32 (borders). The Committee notes the Government’s indication concerning the absence of agreements with Panama concerning the movement of Guaymí indigenous persons between the countries. The Committee would be grateful if the Government would keep it informed of any measures that may be adopted to facilitate the cultural, social, economic and spiritual integration of the members of this people who are located in both countries.

25. Article 33 (administration). The Committee notes the information provided by the Office of the Ombudsman relating to the lack of coordination between the institutions and authorities responsible for the formulation of policies and the implementation of programmes related to indigenous peoples. The Committee requests the Government to provide information in its next report on the measures adopted or envisaged to resolve this situation and to give full effect to this provision of the Convention.