Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

With regard to the issues it raised in its comments of 2009, the Committee notes the Government’s detailed reply in the reports received in July 2010 and September 2013. The Committee also notes the observations made by the Confederation of Workers Rerum Novarum (CTRN) and transmitted to the Government in September 2013. The Committee recalls that the Office transmitted to the Government in September 2012 the observations made by the International Organisation of Employers (IOE). The Committee invites the Government to include in its next report any comments it deems appropriate on the observations made by the CTRN and the IOE. It also invites the Government, in preparing its next report, to consult the social partners and indigenous organizations on the measures to give effect to the Convention (Parts VII and VIII of the report form).

Article 1 of the Convention. Scope of application. The Committee notes with interest the information provided by the Government in the report received in September 2013, on the Xth National Population Census and VIth Housing Census conducted in May and June 2011. The Government indicated that throughout the process there was support and participation from organizations involved in indigenous matters, especially indigenous organizations such as the National Indigenous Committee and the National Indigenous Board. The Committee notes that out of a total population of 4,301,712, the ethnic and racial self-identification results show that 45,228 persons identified themselves as black or as of African descent and 104,103 persons identified themselves as indigenous.

Articles 2, 6 and 7. Legislation relating to indigenous peoples and on consultation. In its previous comment, the Committee referred to the Autonomous Development of Indigenous Peoples Bill (Legislative Assembly file No. 14352). According to the information supplied by the Government in the report received in September 2013, the Bill is now before the Legislative Assembly’s Social Affairs Committee, a consultation process having been launched in 2006. The CTRN expresses concern at the delay in the enactment of the Bill and considers that if it were adopted, it would remedy the lack of protection that the indigenous peoples of Costa Rica are facing. Referring to the consultation requirement laid down in Articles 6, 7, 15 and 16 of the Convention, the IOE likewise expresses concern that failure on the part of States to meet the requirement could adversely affect projects implemented by public as well as private enterprises. The Government indicates that in January 2013 a forum for ongoing dialogue was set up, composed of various representatives of indigenous peoples, particularly from the south of Costa Rica. The forum meets once a month, the aim being that the State should take concrete steps towards the effective implementation of international obligations pertaining to indigenous rights. The Government states that the open dialogue under way in the country aims not only to overcome the historical difficulties met by the State in dealing with indigenous peoples, but also to find a formula to govern or regulate the right to prior consultation, which as such has not as yet been regulated in Costa Rica. The Committee invites the Government to make every effort to secure completion of the legislative process of the Autonomous Development of Indigenous Peoples Bill. It also asks the Government to indicate in its next report the results of the work of the forum for dialogue on the prior consultation requirement. Please include information on any use made of the existing mechanisms for consultation and participation pending the adoption of new and appropriate procedures.

Articles 6, 7, 15 and 16. El Diquís (Puntarenas) hydroelectric project. In reply to the previous comments on the El Diquís hydroelectric project, the Government indicates that it was decided to rectify the procedure so as to secure a suitable consultation process that meets the relevant international standards. As examples of the effects the project is having on indigenous peoples, the Government cites the Térraba area, where the dam and plant affect 792.93 hectares of the territory of the Teribe people; and China Kichá, where the dam affects 97.37 hectares of the territory of the Cabécar people. The Government also mentions Resolution No. 6045-2009, issued in April 2009, in which the Constitutional Chamber of the Supreme Court of Justice found the amparo (protection of constitutional rights) action brought against the Costa Rican Electricity Institute (ICE) for breach of Article 6 of the Convention to be premature on grounds of factual uncertainty because, being in its initial, feasibility stage, the project pertains to the future. The Constitutional Chamber also found that the authority under challenge had made efforts to approach the indigenous inhabitants of the Térraba community despite the fact that there was still no final determination to build the dam. It also pointed out the need to remember that, in the event of a decision to carry out the project, effective participation by the indigenous peoples in the process and in decision making would have to be ensured. The Government indicates that as a result of the decision by the Constitutional Chamber, the ICE sought a suspension of the deadline for submitting the environmental impact study, and this was granted in September 2012 by the National Technical Secretariat for Environment (SETENA). The Committee notes the Government’s statement that no relocation of indigenous peoples has been planned; the Government nonetheless indicates that the ICE is aware that should future studies produce different results, the corresponding consultation will have to be held, in accordance with Article 16 of the Convention. The Government states that the information process launched in Boruca and Curé was halted because of actions by the Agrarian Development Institute (IDA) contesting the constitutionality of the Indigenous Act; this initiative prompted reservations on the part of some of the peoples involved. The Committee notes that a High-Level Committee was set up and a forum was established for a standing dialogue between representatives of the Government and representatives of the indigenous peoples of Buenos Aires and Pérez Zeledón; and that the ICE is awaiting the outcome of the discussions in that forum. The Committee invites the Government to include in its next report information on the activities of the forum for dialogue and the result of the studies conducted in the context of the El Diquís hydroelectric project (Article 7(3) of the Convention).

In a direct request, the Committee invites the Government in its next report to provide information allowing an assessment of progress made in the area of the lands, natural resources, agrarian programmes and conditions of work of the indigenous workers.

[The Government is asked to reply in detail to the present comments in 2015.]