Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

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

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

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.

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

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.

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

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.

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

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

2. Article 7 of the Convention (development plans). The Committee regrets to note that Bill No. 12032 on the autonomous development of indigenous peoples has been shelved. The Committee requests the Government to consider other alternatives of an administrative or legislative nature to permit the economic, social and cultural development of indigenous peoples with the direct participation of the indigenous groups concerned in the formulation, implementation and evaluation of the corresponding policies. The Committee requests the Government to keep it informed in its next report of any progress achieved.

3. Articles 14 and 18 (land). The Committee notes the Government’s indication that of the total indigenous population in Costa Rica (63,876 persons), 42 per cent live in indigenous lands, 18 per cent live on the periphery of these lands and 40 per cent in the rest of the country. In its previous comments, the Committee noted the Government’s indication of the existence of large areas of indigenous lands in the possession of non-indigenous persons and it requested the Government to indicate the progress achieved in returning these lands to their indigenous owners, and on the procedures that currently exist within the national legal system so that indigenous peoples can reclaim land which they have lost, or of which the possession or status as "reservations" has still not yet been determined.

4. The Committee notes the Government’s indication in its report that the National Commission for Indigenous Affairs commenced transferring lands within its responsibility to the indigenous reservations of Boruca, Térraba and Curré and that it will continue doing so for other communities. It also notes the information provided by the Government on the various procedures through which indigenous peoples can reclaim land. The Committee trusts that the Government will continue providing information on the recovery of indigenous lands in the possession of non-indigenous persons, particularly in reservations in which the indigenous population is in the minority, and on the measures taken for the establishment of new reservations.

5. The Committee reiterates its previous comment in which it requested the Government to provide information on the amount of indigenous lands which are still in the possession of non-indigenous persons.

6. Article 15 (natural resources). The Committee notes the Government’s indication in reply to its previous direct request that indigenous peoples have the rights over the use and management of the natural resources existing in their lands. It notes in particular Decree No. 27800 of 16 March 1999 (supervision of forest resources) and the training of indigenous persons as inspectors and guards in reservations. It also notes the content of Communiqué No. DM-1426-2003, dated 14 July 2003, of the Ministry of the Environment and Energy, specifying that Act No. 7788 respecting biodiversity envisages the participation of indigenous persons in all matters relating to the conservation of biodiversity and the sustainable use of natural resources. The Committee hopes that the Government will provide additional information in its next report on the application of this legislation in practice.

7. Article 16 (relocation). In its previous observation, the Committee referred to the Government’s indication that the Electricity Institute of Costa Rica (ICE) is investigating the possibility of displacing indigenous populations in order to construct a hydroelectric dam. The Committee requested the Government to provide information on the proposed project and the persons affected, with an indication of their number, the size of their territories and how much of these lands the ICE wished to appropriate. It also requested information from the Government on the procedures existing for consultations with the peoples affected and for their effective representation in any relocation processes that are under consideration. The Committee notes the ICE’s information referred to in the Government’s report that the future energy needs of the country make it necessary to construct a new hydroelectric plant in Boruca. The ICE adds that studies have been undertaken for this purpose for 30 years to evaluate the technical, economic, environmental and social perspectives. The ICE emphasizes that the investment will promote the development and well-being of Costa Rican society and refers to the need to reach an understanding with the Brunca, Teribe, Cabécar and Bribri peoples which inhabit the area through dialogue, understanding and compliance with the legislation and the Convention. The ICE adds that those principally affected will be 3,000 members of the indigenous Teribe and Brunca peoples as a result of the flooding of 14.7 per cent of the total 332.8 km² belonging to Indian reservations. The ICE states that it will be necessary to remove approximately 500 indigenous persons and that negotiations will be held in accordance with the provisions of the Convention. The Committee trusts that the Government will provide detailed information on the nature of the information, participation, consultation and negotiation processes engaged in with the representatives of the indigenous communities affected directly or indirectly by this project.

8. The Committee is addressing a request directly to the Government on certain points.

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

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.

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

1.  The Committee notes the detailed report submitted by the Government.

2.  Articles 13 and 14 of the Convention.  In view of the Government’s statement in its previous report that there are large areas of indigenous lands in the possession of non-indigenous persons and that it does not have sufficient resources to compensate these persons upon their removal from those lands, the Committee requests the Government to indicate the progress made in returning the lands to the indigenous peoples concerned. The Committee also requests information on the extent of the indigenous territories still in non-indigenous possession and on the procedures that currently exist within the national legal system so that indigenous peoples can claim land which they have lost, or of which the ownership has not yet been determined. The Committee again requests the Government to supply information on the action brought against the State for alleged violations of indigenous rights as well as information on whether there are any lands occupied by indigenous peoples which have not yet been declared as indigenous reservations.

3.  Article 16.  The Government’s report states that the Electricity Institute of Costa Rica (ICE) is inquiring into the possibility of displacing indigenous populations in order to construct a hydroelectric dam. The Committee recalls that Article 16 of the Convention provides for various mechanisms to ensure the security of indigenous peoples within their territories and provides that where the relocation of indigenous peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only through following appropriate procedures, established by national laws and regulations, including public hearings where appropriate, which provide the opportunity for effective representation of the peoples concerned. The Committee asks the Government to supply information on the proposed project and the peoples involved, including their numbers, the size of their territories, and how much of these lands ICE is considering appropriating. The Committee also requests information on what procedures exist for consultations with the peoples concerned and for providing for their effective representation in any relocation processes that are being considered.

4.  The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes the report sent by the Government. It notes also that no copy has been received of the documentation on the Special Commission on indigenous populations which, according to the report, is attached. It also notes with interest that in 1998 the Government informed the United Nations Committee on the Elimination of Racial Discrimination that a Bill for the autonomous development of the indigenous peoples was currently before the Legislative Assembly (see CERD/C/338/Add.4, paragraph 34). The Committee would be grateful if the Government would send copies of the documentation relating to the Special Commission and to the Act referred to as soon as it has been adopted.

2. Articles 1(2) of the Convention. The Government indicates that the concept of "indigenous" contained in the Indigenous Act No. 6172, includes self-identification as indigenous as provided in the Convention. The Committee notes that the definition of the concept of "indigenous" in section 1 of Act No. 6172 lays down that persons are indigenous who constitute ethnic groups descended directly from pre-Colombian civilizations and who conserve their own identity. The Committee also notes the judgement handed down by the Constitutional Court that "it is the indigenous communities themselves which determine who are their members, applying their own criteria and not those followed by statute law" (Judgement No. 1786-93) (CERD/C/338/Add.4, paragraph 37).

3. Article 2. The Committee notes the examples cited by the Government of participation by indigenous peoples in certain programmes of benefit to them such as the "Housing" and "Land distribution" programmes in which indigenous development associations take part, as they do in certain "infrastructure" projects. The Committee requests the Government to supply specific information on the nature of the programmes in which said associations participate and to indicate the type and extent of their participation in the development and application of the projects mentioned.

4. The Committee notes the Government's statement in its 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 the 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, paragraph 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.

5. 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 the indigenous peoples (see under Article 6 below). The Committee would be grateful if the Government would supply information on any special measures taken to apply the provisions of Article 3, if such exist.

6. Article 4. The Committee notes the Government's statement that indigenous lands are designated as community lands and inalienable and that they cannot therefore be used to obtain agricultural credit. The Government indicates that credit for indigenous persons is restricted chiefly because of the disadvantaged economic situation in which they live and that it is necessary to implement a mechanism to promote the granting of loans to indigenous persons, incorporated in a training programme on the management of community and family economics. The Committee also notes that Act No. 5652, transitional to 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. The Committee also notes the statement in the report that, in view of this transitional provision, some indigenous persons have succeeded in obtaining bank loans. The Committee requests the Government to indicate any special measure which has been taken in this direction and suggests that the Government could accept technical assistance from the Office in this area.

7. Article 5. The Committee notes the Government's indications in its report that Decree No. 21475-G of 1993 has not been applied in practice as the indigenous councils envisaged in the Decree have not been created in any indigenous community.

8. Article 6. The Committee notes with interest the Government's affirmation 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 it specific information on the manner in which indigenous representation is ensured in practice.

9. Article 7. The Committee once again asks the Government to send it copies of the studies on the impact on indigenous peoples of planned development activities which were mentioned in its first report. The Committee also requests the Government to supply information on any measures taken or envisaged to protect and conserve the environment in these lands.

10. Articles 8 and 9. The Committee notes with interest that, pursuant to Bill No. 12032, the Penal Code will include a chapter explicitly recognizing the customary laws practised by indigenous peoples. The Committee would be grateful if the Government would supply a copy of this Act once it has been adopted.

11. Article 10. The Committee requests the Government once again to supply information on the measures taken to give effect in practice to this Article of the Convention, particularly in regard to the possibility of imposing methods of punishment other than confinement in prison on the members of the indigenous peoples.

12. Articles 12. The Committee notes the Government's statement that there is no legislation providing legal advice and interpreters for indigenous persons in legal proceedings but that the courts provide this guarantee where possible. Given the importance of this provision of the Convention, the Committee requests the Government to send information on the practical application of this section.

13. Articles 13 and 14. The Government indicates that removal of the non-indigenous persons who have rights within the reservations is effected against payment of compensation. The Committee requests the Government to indicate the progress made in returning lands to their indigenous owners in the light of the Government's statement in its previous report that there are large areas of indigenous lands in the hands of non-indigenous persons.

14. The Committee notes that the appeal against the constitutionality of Decree No. 8487-G submitted by the Sejekto Cultural Association against the State was declared unfounded. The Committee again requests the Government to supply information on the action brought against the State for alleged violations of indigenous rights as well as information on whether there are any lands occupied by indigenous communities which have not yet been declared reservations.

15. Article 15. The Committee notes the Government's statement that the clause on exploitation of resources promoted by the State in the indigenous reserves has not been applied by the national authorities. The Committee also notes the affirmation by the Government to the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/338/Add.4, paragraphs 41-42), that the State is making judicial remedies and means available to the indigenous communities so that they can proceed with the matter and obtain due compensation in cases where their resources have been affected. The Committee requests the Government to supply information on the participation of indigenous people in the use, management and conservation of natural resources, including information on the participation of these peoples in the benefits from utilization of these resources, and on the use of indigenous techniques in strategies for the conservation of the environment as well as copies of any study on the environment carried out in the areas occupied by the indigenous peoples.

16. Article 16. The Committee takes due note of the Government's affirmation in its report that the faculty of transferring indigenous populations so that natural resources can be exploited has not been exercised to date.

17. Articles 17 and 18. In addition to the information supplied under Articles 13 and 14, the Committee notes the Government's statement that provisions to prevent the penetration into indigenous lands by non-indigenous persons is laid down in Indigenous Act No. 6172 and other associated Acts. The Committee requests the Government to supply information on the manner in which this legislation has been applied in practice and on any measure taken to guarantee the safety of the peoples concerned, including examples of specific cases in which punishment has been imposed on non-indigenous persons who invade indigenous lands and reservations.

18. Article 19. The Government indicates that this Article is applied in conformity with the provisions of Act No. 5255 of the CONAI and Indigenous Act No. 6172. The Committee requests the Government to supply information on the application in practice of said legislation and to provide copies of all the measures taken to give effect to Article 19.

19. Article 20. The Committee notes the Government's statement that the Costa Rican judicial system guarantees equality of employment conditions for indigenous persons and non-indigenous persons and that in most cases indigenous persons are not part of the wage-earning labour force. It also notes that, according to the Government, the current legal system guarantees the principles of equality and equity. The Committee once again requests the Government to supply any available information on the existence of trade unions established by indigenous persons and whether the labour inspection services act in the agricultural sector where members of these peoples work.

20. Articles 21 and 22. The Committee notes the Government's statement that the indigenous communities are included in national education programmes. It requests the Government to indicate whether studies have been conducted to determine the special needs in regard to training of the peoples concerned.

21. Article 24. The Committee notes the Government's statement that there is full cover for social security benefits with the sole condition that the persons are truly indigenous according to the definition of Indigenous Act No. 6172.

22. Article 25. The Committee takes note of the Government's affirmation that the health policy promoted in the indigenous communities involves the establishment of health centres and clinics as well as recognition of traditional medicine. The Committee requests the Government to supply information on the manner in which traditional medicine is incorporated in said health centres.

23. Articles 26, 27, 28, 29 and 30. The Government indicates that the bilingual and bicultural education programme applies only in some indigenous communities because there are not enough qualified indigenous teachers. The Committee requests the Government to 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 and to provide additional information on the curriculum formulation, training provided for teachers, the percentage of teachers belonging to the peoples concerned and the numbers of the student population. It also requests the Government to indicate the measures taken or envisaged to ensure that the peoples concerned have the opportunity to learn the national language as well as to conserve their indigenous languages.

24. Article 31. The Committee observes that the Government's report does not reply to the Committee's previous comments on this point. The Committee reiterates its request to the Government to supply information on any measures that have been adopted or are envisaged to eliminate prejudices that may be harboured in respect of the indigenous peoples in Costa Rica.

25. Part IV of the report form. The Committee would be grateful if the Government could send copies of any decisions handed down by the judicial or administrative courts in regard to the application of the Convention.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that the Government's report has not been received. It understands nevertheless that a new Act on the integral development of indigenous peoples is being considered and that a consultation with indigenous peoples has been undertaken in this respect. The Committee requests the Government to provide information on the status of this new Act, as well as information on the consultation process undertaken. It therefore hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. The Committee notes the detailed first report provided by the Government. It also notes that the information contained in the report provides a broad picture of the manner in which the situation of indigenous peoples is being addressed in law and, in some areas, in practice. Nevertheless, there are a number of matters on which no clear idea is given of the real situation of these peoples.

2. Article 1, paragraph 2, of the Convention. The Committee notes that the definition of the concept of "indigenous" contained in section 1 of the Indigenous Act, under which "persons are indigenous who constitute ethnic groups descended directly from pre-Columbian civilizations and who conserve their own identity", does not include self-identification as indigenous or tribal as one of the criteria for the definition of the peoples to which the Act applies. Please state how effect is given to this requirement of the Convention.

3. Article 2. The Committee requests the Government to provide additional information on practical examples of the participation of the peoples concerned in the development and implementation of programmes which benefit these communities.

4. Article 3. The Committee notes the statement in the Government's report that there is a need to secure full enjoyment of human rights and fundamental freedoms and it therefore requests the Government to indicate in its next report the measures that have been taken or are envisaged in this respect.

5. Article 4. The Government attaches to its report an advisory opinion of the Supreme Court of Justice, prior to ratification, which states that indigenous peoples cannot obtain agricultural credit because the lands belong to the community and are inalienable and there is no legal formula for providing guarantees on communal properties. The Committee requests more information in this respect and notes that if a solution to this problem has not been found, the Government could consider requesting the technical assistance of the Office to examine the formulas used in other countries which have ratified the Convention and have met with the same problems.

6. Article 5. The Government is requested to provide additional information on the activities of the Indigenous Councils in practice, since the report makes no reference to Decree No. 21475-G of 1993 establishing Indigenous Ethnic Councils.

7. Article 7. The Committee requests copies of the studies referred to in the report on the impact on indigenous peoples of planned development activities in order to obtain an idea of the manner in which they are carried out in Costa Rica. Please see also under Article 15.

8. Articles 8 and 9. The Committee notes the Government's statement in its report that the customs and customary laws of indigenous peoples are not applicable as regards the implementation of national law, but that it also states that with regard to penal affairs, indigenous groups apply customary law to resolve disputes within the group. Since penal offences are of a public nature, the Committee requests additional information on the manner in which this apparent duality of systems is applied in practice and the cases in which indigenous persons may or may not opt for their customary law.

9. Article 10. The Government's report indicates that no distinction is made between indigenous and non-indigenous people when imposing penalties and penal sanctions on indigenous persons. In this respect, the Committee requests fuller information on the question of whether, when imposing penalties on members of indigenous peoples, account is taken of their economic, social and cultural characteristics and whether the possibility exists of imposing methods of punishment other than confinement in prison on the members of these peoples.

10. Article 12. The Committee requests the Government to transmit copies of legal provisions establishing the safeguards of legal advice and interpreters for indigenous persons in legal proceedings.

11. Articles 13 and 14. In view of the Government's statement that there are large areas of indigenous lands in the hands of non-indigenous persons and that it does not have sufficient resources to compensate these persons, the Committee requests the Government to provide information on the manner in which it intends to apply the Indigenous Act with regard to the removal of these persons, as well as the other legal measures available to return these lands to their ancestral owners. It also requests the Government to state whether adequate procedures exist within the national legal system so that indigenous peoples can claim areas which have been removed from them or of which the ownership has not been determined.

12. The Committee requests the Government to keep it informed of the result of the appeal against the constitutionality of Decree No. 8487-G issued under the Indigenous Act, which was submitted on 3 October 1996 by the Sejekto Cultural Association, as well as on the action lodged against the State for alleged violations of indigenous rights. The Committee would also be grateful to be provided with information on whether there are any lands occupied by indigenous communities which have not yet been declared reservations.

13. Article 15. The Committee requests additional information on the consultation procedures of indigenous communities when the State decides to exercise its right to exploit resources pertaining to reservations and when the Legislative Assembly decides to accord a concession to a private individual. It also requests information on whether there are cases in which "impact studies" have been undertaken prior to a concession being accorded for the exploration or exploitation of resources and whether arrangements exist for the sharing of benefits from the exploitation of these resources with the communities concerned.

14. Article 16. The Committee requests further information on the current situation with regard to the transfer of indigenous populations in view of the fact that the Government has the power to exploit resources pertaining to indigenous lands where it is in its interest to do so. The Government replied to a question raised in a direct request on Convention No. 107 in 1978 that no cases had occurred of the transfer of indigenous populations.

15. Articles 17 and 18. In addition to the matters raised under Articles 13 and 14, the Committee requests information on the possibility of establishing policies to prevent the penetration into indigenous lands by non-indigenous persons. It also requests the Government to describe practical examples in which transfers have been carried out and damages paid to any indigenous communities. Furthermore, it requests the Government to provide information on the penalties imposed upon invaders of indigenous reservations, if such penalties exist, and on whether they are adequate to prevent invasions.

16. Article 19. The Committee would be grateful if the Government would provide detailed information in its next report on the manner in which this Article is applied.

17. Article 20. The Committee notes the Government's statement that the national labour legislation does not guarantee indigenous workers greater protection than that afforded to any other citizen. In this connection, it wishes to recall that this provision of the Convention only requires the adoption of special measures to bring indigenous and tribal peoples to a position of equality with the population in general and only in so far as they are not protected by the general labour laws. The Committee therefore requests additional information on whether the conditions of work of indigenous persons are the same as those of other workers, whether trade unions have been established for indigenous persons, whether collective agreements have been concluded, whether there have been cases of forced recruitment, whether casual indigenous workers benefit from any type of protection and whether they enjoy equal opportunities, particularly in agriculture, where most indigenous people work.

18. Article 20, paragraph 4. The Committee requests the Government to provide detailed information on the establishment of adequate labour inspection services in areas where indigenous peoples work and on the activities of the Labour Inspectorate in these areas.

19. Articles 21 and 22. The Committee requests the Government to keep it informed of the development of vocational training initiatives.

20. Article 24. The Government's report briefly states that indigenous peoples are covered by social security. Please indicate the conditions that have to be met for indigenous persons to benefit from such coverage and whether they are covered in all cases or only where they are employees. Please also indicate the types of benefits that apply to them.

21. Article 25. The Committee requests additional information on the training programme on indigenous health techniques and on whether it is intended to extend it to other parts of the country, as well as information on the planned activities with regard to the indigenous health policy.

22. Articles 26, 27, 28, 29 and 30. The Committee requests more detailed information on the application in practice of the programme of bilingual and bicultural education. Please describe its current status, the number of indigenous persons who have access to education facilities and the percentage of illiterate persons. This educational policy would appear to comply to a certain extent with the objective of teaching the indigenous communities concerned the national language, their rights and duties and the services to which they can have access, all of which is subject to consultation with the communities concerned. However, the Committee would be grateful to receive information on the manner in which these programmes are carried out in practice.

23. Article 31. The Committee requests information on the measures that have been adopted or are envisaged to eliminate prejudices that may be harboured in respect of these peoples.

24. Point VIII of the report form. The Committee recalls that the report form under this Convention, which was approved by the Governing Body, indicates that although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the Convention and in preparing reports on its application. In view of the fact that the above-mentioned information has not been provided by the Government in its first report, please indicate whether such consultations have been held.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

1. The Committee notes the detailed first report provided by the Government. It also notes that the information contained in the report provides a broad picture of the manner in which the situation of indigenous peoples is being addressed in law and, in some areas, in practice. Nevertheless, there are a number of matters on which no clear idea is given of the real situation of these peoples.

2. Article 1, paragraph 2, of the Convention. The Committee notes that the definition of the concept of "indigenous" contained in section 1 of the Indigenous Act, under which "persons are indigenous who constitute ethnic groups descended directly from pre-Columbian civilizations and who conserve their own identity", does not include self-identification as indigenous or tribal as one of the criteria for the definition of the peoples to which the Act applies. Please state how effect is given to this requirement of the Convention.

3. Article 2. The Committee requests the Government to provide additional information on practical examples of the participation of the peoples concerned in the development and implementation of programmes which benefit these communities.

4. Article 3. The Committee notes the statement in the Government's report that there is a need to secure full enjoyment of human rights and fundamental freedoms and it therefore requests the Government to indicate in its next report the measures that have been taken or are envisaged in this respect.

5. Article 4. The Government attaches to its report an advisory opinion of the Supreme Court of Justice, prior to ratification, which states that indigenous peoples cannot obtain agricultural credit because the lands belong to the community and are inalienable and there is no legal formula for providing guarantees on communal properties. The Committee requests more information in this respect and notes that if a solution to this problem has not been found, the Government could consider requesting the technical assistance of the Office to examine the formulas used in other countries which have ratified the Convention and have met with the same problems.

6. Article 5. The Government is requested to provide additional information on the activities of the Indigenous Councils in practice, since the report makes no reference to Decree No. 21475-G of 1993 establishing Indigenous Ethnic Councils.

7. Article 7. The Committee requests copies of the studies referred to in the report on the impact on indigenous peoples of planned development activities in order to obtain an idea of the manner in which they are carried out in Costa Rica. Please see also under Article 15.

8. Articles 8 and 9. The Committee notes the Government's statement in its report that the customs and customary laws of indigenous peoples are not applicable as regards the implementation of national law, but that it also states that with regard to penal affairs, indigenous groups apply customary law to resolve disputes within the group. Since penal offences are of a public nature, the Committee requests additional information on the manner in which this apparent duality of systems is applied in practice and the cases in which indigenous persons may or may not opt for their customary law.

9. Article 10. The Government's report indicates that no distinction is made between indigenous and non-indigenous people when imposing penalties and penal sanctions on indigenous persons. In this respect, the Committee requests fuller information on the question of whether, when imposing penalties on members of indigenous peoples, account is taken of their economic, social and cultural characteristics and whether the possibility exists of imposing methods of punishment other than confinement in prison on the members of these peoples.

10. Article 12. The Committee requests the Government to transmit copies of legal provisions establishing the safeguards of legal advice and interpreters for indigenous persons in legal proceedings.

11. Articles 13 and 14. In view of the Government's statement that there are large areas of indigenous lands in the hands of non-indigenous persons and that it does not have sufficient resources to compensate these persons, the Committee requests the Government to provide information on the manner in which it intends to apply the Indigenous Act with regard to the removal of these persons, as well as the other legal measures available to return these lands to their ancestral owners. It also requests the Government to state whether adequate procedures exist within the national legal system so that indigenous peoples can claim areas which have been removed from them or of which the ownership has not been determined.

12. The Committee requests the Government to keep it informed of the result of the appeal against the constitutionality of Decree No. 8487-G issued under the Indigenous Act, which was submitted on 3 October 1996 by the Sejekto Cultural Association, as well as on the action lodged against the State for alleged violations of indigenous rights. The Committee would also be grateful to be provided with information on whether there are any lands occupied by indigenous communities which have not yet been declared reservations.

13. Article 15. The Committee requests additional information on the consultation procedures of indigenous communities when the State decides to exercise its right to exploit resources pertaining to reservations and when the Legislative Assembly decides to accord a concession to a private individual. It also requests information on whether there are cases in which "impact studies" have been undertaken prior to a concession being accorded for the exploration or exploitation of resources and whether arrangements exist for the sharing of benefits from the exploitation of these resources with the communities concerned.

14. Article 16. The Committee requests further information on the current situation with regard to the transfer of indigenous populations in view of the fact that the Government has the power to exploit resources pertaining to indigenous lands where it is in its interest to do so. The Government replied to a question raised in a direct request on Convention No. 107 in 1978 that no cases had occurred of the transfer of indigenous populations.

15. Articles 17 and 18. In addition to the matters raised under Articles 13 and 14, the Committee requests information on the possibility of establishing policies to prevent the penetration into indigenous lands by non-indigenous persons. It also requests the Government to describe practical examples in which transfers have been carried out and damages paid to any indigenous communities. Furthermore, it requests the Government to provide information on the penalties imposed upon invaders of indigenous reservations, if such penalties exist, and on whether they are adequate to prevent invasions.

16. Article 19. The Committee would be grateful if the Government would provide detailed information in its next report on the manner in which this Article is applied.

17. Article 20. The Committee notes the Government's statement that the national labour legislation does not guarantee indigenous workers greater protection than that afforded to any other citizen. In this connection, it wishes to recall that this provision of the Convention only requires the adoption of special measures to bring indigenous and tribal peoples to a position of equality with the population in general and only in so far as they are not protected by the general labour laws. The Committee therefore requests additional information on whether the conditions of work of indigenous persons are the same as those of other workers, whether trade unions have been established for indigenous persons, whether collective agreements have been concluded, whether there have been cases of forced recruitment, whether casual indigenous workers benefit from any type of protection and whether they enjoy equal opportunities, particularly in agriculture, where most indigenous people work.

18. Article 20, paragraph 4. The Committee requests the Government to provide detailed information on the establishment of adequate labour inspection services in areas where indigenous peoples work and on the activities of the Labour Inspectorate in these areas.

19. Articles 21 and 22. The Committee requests the Government to keep it informed of the development of vocational training initiatives.

20. Article 24. The Government's report briefly states that indigenous peoples are covered by social security. Please indicate the conditions that have to be met for indigenous persons to benefit from such coverage and whether they are covered in all cases or only where they are employees. Please also indicate the types of benefits that apply to them.

21. Article 25. The Committee requests additional information on the training programme on indigenous health techniques and on whether it is intended to extend it to other parts of the country, as well as information on the planned activities with regard to the indigenous health policy.

22. Articles 26, 27, 28, 29 and 30. The Committee requests more detailed information on the application in practice of the programme of bilingual and bicultural education. Please describe its current status, the number of indigenous persons who have access to education facilities and the percentage of illiterate persons. This educational policy would appear to comply to a certain extent with the objective of teaching the indigenous communities concerned the national language, their rights and duties and the services to which they can have access, all of which is subject to consultation with the communities concerned. However, the Committee would be grateful to receive information on the manner in which these programmes are carried out in practice.

23. Article 31. The Committee requests information on the measures that have been adopted or are envisaged to eliminate prejudices that may be harboured in respect of these peoples.

24. Point VIII of the report form. The Committee recalls that the report form under this Convention, which was approved by the Governing Body, indicates that although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the Convention and in preparing reports on its application. In view of the fact that the above-mentioned information has not been provided by the Government in its first report, please indicate whether such consultations have been held.