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

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

Article 1 of the Convention. Self-identification. The Committee notes that section 4 of the Autonomous Development of Indigenous Peoples Bill (No. 14352) will put indigenous peoples on a level with community structures. With reference to its previous comments, the Committee recalls that the concept of indigenous peoples as established in the Convention includes, but is not restricted to, that of community. There may be members of indigenous peoples located in other areas who may be entitled to the rights provided for by the Convention outside the scope of the community. The Committee notes that this article of the Bill states that “it is the indigenous communities themselves which determine who their members are according to their own criteria and not those laid down by the legislative authority”. The Committee requests the Government to ensure that the concept used in the draft Bill covers all those who are included in Article 1 of the Convention and to make the communities aware that, in the definition of such a concept, they may determine a sphere of personal application which goes beyond that of the community. The Committee requests the Government to provide information in this respect.

Articles 2 and 33. Coordinated and systematic action. Appropriate participatory bodies and mechanisms. In its previous direct request the Committee noted the claim made by the Office of the Ombudsperson on inhabitants that there was a lack of coordination between the institutions and authorities responsible for policies and programmes relating to indigenous peoples. The Government states that it acknowledges receipt of this statement with a certain reservation, since the National Commission for Indigenous Affairs (CONAI) establishes the relevant lines of communication and coordination. The Government refers to the mandate of CONAI contained in Act No. 5251; how CONAI and other bodies responsible for national policy in indigenous affairs, if any, implement coordinated and systematic action in practice, and also participatory programmes. Articles 2 and 33 of the Convention provide for coordinated and systematic action, with the participation of the indigenous peoples, to protect the rights of indigenous peoples and establish that programmes affecting indigenous peoples must include: (a) the planning, coordination, execution and evaluation, in cooperation with the peoples concerned, of the measures provided for in this Convention, and (b) the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in cooperation with the peoples concerned. This presupposes a gradual process for setting up suitable bodies and mechanisms for these purposes. The Committee requests the Government to supply information on the areas of competence and mode of coordination of the bodies referred to by Articles 2 and 33 of the Convention, including CONAI, and on the manner in which indigenous participation in these bodies is ensured.

Articles 6 and 7. Consultation, participation and development projects. The Committee notes from the Government’s report that on 11 September 2008 the Constitutional Chamber of the Supreme Court of Justice declared, by means of Decision No. 2008-013832, that the procedure relating to the last draft of the agenda for the implementation of the free trade agreement between the United States, Central America and the Dominican Republic was unconstitutional, since there had been a lack of consultation on matters relating to the rights of indigenous peoples as regards natural resources and their role in the preservation of the environment. The Committee requests the Government to state whether the abovementioned consultations were held subsequently and, if so, in what manner. Furthermore, with reference to its general observation of 2008, the Committee requests the Government to supply the information requested in the last paragraph of the observation referring to measures adopted in relation to:

(i)    establishing mechanisms for participation in the formulation of development plans;

(ii)   including the requirement of prior consultation in legislation regarding the exploration and exploitation of natural resources; and

(iii) establishing effective consultation mechanisms that take into account the vision of governments and indigenous and tribal peoples concerning the procedures to be followed.

Article 14. Lands. The Committee refers to its observation and notes the information supplied by the Government, particularly concerning the activities of the Agricultural Development Institute (IDA) and the Plan for the regularization of property rights in areas subject to special regimes (ABRE), whose objectives include a complete census of land registrations and the application of the right to consultation provided for in the Convention. The Committee requests the Government to continue to supply information on the activities of Plan ABRE with regard to indigenous territories.

Articles 15 and 16. Natural resources. The Committee recalls that the consultation provided for in Articles 15 and 16 of the Convention is not limited to the lands constituting indigenous reserves but, pursuant to Article 13, paragraph 2, includes the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use. The Committee requests the Government to supply information on the consultations held pursuant to the Articles and the manner in which the participation in benefits has been regulated, including information on the Oil Refinery of Costa Rica (RECOPE) project referred to by the Government.

Article 19. Agrarian programmes. The Committee notes that Bill No. 14352 provides for the establishment of four national indigenous development funds connected with agrarian matters and administrated by the respective indigenous territorial councils, subject to the control and inspection of the Office of the Comptroller-General of the Republic. The funds relate to the following four areas: (a) credit for indigenous peoples; (b) training grants for indigenous peoples; (c) recovery of indigenous lands; and (d) indigenous territorial councils. The Committee requests the Government to provide information on the progress of establishing these funds and to supply information on their activities.

Article 20. Employment. The Committee notes the information supplied by the Government on legislation regarding equality. The Committee requests the Government to supply information on the situation in practice as regards the employment of workers belonging to indigenous peoples, including statistics disaggregated by sector of employment, level of training, wages, etc.

Articles 24 and 25. Social security and health. The Committee welcomes the information supplied by the Government, particularly with regard to the basic teams for integral care, the implementation of agreements with the Costa Rican Social Security Fund, the National Commission for Indigenous Affairs and the Indigenous Medical Council. It also notes the development since January 2007 of the Indigenous Development Associations Network. The Committee requests the Government to indicate whether there are participatory arrangements for health coverage in all the indigenous territories, and to provide information thereon.

Article 32. Cross-border contacts and cooperation. The Committee notes from the Government’s report that there are substantial movements of temporary migrant workers, many of whom are indigenous persons living on both sides of the border. Major bi-lateral agreements with Nicaragua have been promoted and talks have been held with Panama with regard to the N’Bougle indigenous workers. The report refers to the adoption of the Davidl declaration of April 2007 aimed at improving the living and working conditions of indigenous families who participate in agricultural work in Panama and Costa Rica. The aim is to protect 12,000 indigenous workers who relocate to Costa Rica for the seasonal coffee harvest, and action to provide mobile health care has been implemented in coordination with the International Organization for Migration (IOM). Furthermore, with regard to joint strategies, undertakings have been made by both countries to tackle the issue of indigenous child labour, given that both countries have ratified the relevant ILO Conventions. The Committee requests the Government to continue to supply information on any new agreement concluded to facilitate the contacts and cooperation pursuant to Article 32.