Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

Articles 2, 6 and 7 of the Convention. Indigenous legislation and consultation. The Committee notes that, according to the Government’s report, Bill No. 12032 for the autonomous development of indigenous peoples has been shelved and replaced by Bill No. 14352 on the same subject which is still before the Legislative Assembly. The Government states that the current Bill seeks the consolidation of self-determination rights entailing the right of indigenous peoples to negotiate with States on equal terms. The Government indicates that Bill No. 14352 was submitted for consultation with the indigenous peoples between 22 July and 9 September 2006 in the 24 indigenous territories and on 11 September 2007 it obtained the majority approval of the Standing Committee on Social Affairs of the Legislative Assembly. The Committee notes that the Government reiterates the political will and support for keeping this initiative alive in the Legislative Assembly. The Committee requests the Government to provide information on the manner in which consultations were undertaken, regarding the Autonomous Development of Indigenous Peoples Bill (No. 14352) including information on the representative institutions of the indigenous peoples which were consulted and the other requirements laid down in Article 6 of the Convention in the light of its general observation of 2008, and on the outcome of these consultations.

Article 14. Lands. The Committee notes sections 5, 6, 11, 12, 13 and 14 of Bill No. 14352 and that these sections govern a summary procedure for the reclaiming of lands. It notes that these sections provide that: (i) within this rapid procedure, if the lands being reclaimed were occupied by a party purchasing indigenous lands in good faith, the State will finance the recovery of such lands (section 12); (ii) as regards the possession of lands by indigenous peoples since time immemorial, the prevailing criterion will be that the burden of proof regarding legitimate possession will fall exclusively on non-indigenous parties claiming possession, who will be entitled to the payments to be made by the State (section 13(d)); and (iii) the corresponding Indigenous Territorial Council may participate and become involved at any time in the procedure, and the requirements regarding identification and written documentation are simplified, these being acceptable even in handwritten form. The Committee hopes that Bill No. 14352 will be adopted in the near future and requests the Government to provide information regarding the status of its adoption. In the absence of the adoption of the Bill, the Committee requests the Government to supply detailed information on the manner in which such matters are currently regulated, particularly the issue of lands reclaimed by indigenous persons which are owned or occupied by non-indigenous persons.

The Committee further notes that, according to data from the National Commission for Indigenous Affairs (CONAI) sent by the Government, the total surface area of indigenous territories in Costa Rica is 334,447 hectares, 38 per cent of which are still in non-indigenous hands. The Committee notes the information to the effect that lands have been bought by the Institute of Agrarian Development with a view to returning them to indigenous peoples. Taking account of the fact that indigenous peoples are currently in possession of 62 per cent of their lands, the Committee requests the Government to supply information in its next report on the increase in the percentage of indigenous lands resulting from the new initiatives for reclaiming land, in order to be able to evaluate developments in the recovery of traditionally occupied lands.

Articles 7 and 16. Development projects, participation, consultation and relocation. With regard to its previous observation and the issues relating to the Boruca hydroelectric project, which might give rise to the relocation of indigenous peoples, the Committee notes that the project has not yet been implemented and that its characteristics and name have changed, now being known as the “El Diquís” hydroelectric project. The Government indicates that the population has been kept informed but at the current stage of the project no formal consultation has yet been undertaken because the project is still in the feasibility study phase. The Government indicates that, according to Executive Decree 32966-MINAE, for projects involving indigenous peoples or any possibilities of dispute, a participatory and interactive process must be launched. The Electricity Institute of Costa Rica (ICE) has so far maintained a relationship of mutual respect with the communities, which in turn have remained open to dialogue and participation. In its previous comments the Committee noted that it was estimated that 3,000 persons of the Teribe and Brunca indigenous peoples would be affected by the flooding of 14.7 per cent of the total surface area of their lands.

The Committee notes that, according to information from CONAI attached to the Government’s report, the ICE initially approached the community of the indigenous territory of Térraba with a view to obtaining the community’s consent for conducting preliminary studies. The community gave its consent on condition that an agreement was signed between the ICE and the community setting out in detail the terms and conditions under which their permission was given. When no such agreement was forthcoming, the community launched a series of actions, including in the courts, to expel the ICE until such time as an agreement was reached in which the community would benefit from any implementation of the project. CONAI asserts that the Government issued a statement supporting the ICE, declaring that the construction of the dam was in the national interest. The community challenged this decision in the Supreme Court of Justice on the grounds that it violated their ownership and consultation rights.

Recalling that, with regard to development activities, the consultation and participation provided for in the Convention are closely linked and that Article 7 of the Convention provides that indigenous peoples must participate in the formulation of development plans (paragraph 1) and in studies which assess the social, spiritual, cultural and environmental impact on them of planned development activities (paragraph 3), the Committee requests the Government to ensure as soon as possible that the indigenous peoples concerned enjoy the right of participation provided for in this Article and to keep it informed in this respect. Furthermore, recalling that the results of these studies must be considered as fundamental criteria for the implementation of these activities, the Committee requests the Government to keep it informed of the results of such studies and on the consideration which has been given to them. Should provision be made for relocations, the Government is asked to ensure that this issue is the subject of further consultation pursuant to Article 16 of the Convention and the Committee requests the Government to keep it informed in this regard.

Article 28. Indigenous languages. The Committee notes the Government’s statement that Act No. 7878 of 2003 implies that the State has the obligation to guarantee the preservation of indigenous languages. It notes a 2007 decision of the Constitutional Chamber of the Supreme Court of Justice, according to which the protection of the aboriginal languages of Costa Rica not only helps to preserve the right of indigenous peoples to express themselves in their own language but also contributes to maintaining the cultural heritage of the nation. The Committee requests the Government to keep it informed of any educational measures adopted to preserve these languages, including the provision of bilingual education.

The Committee is raising other points in a request addressed directly to the Government.