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End of mission statement by the United Nations Special Rapporteur on the rights of indigenous peoples, Francisco Calí Tzay at the conclusion of his visit to Costa Rica

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In my capacity as the United Nations Special Rapporteur on the rights of indigenous peoples, I have undertaken a visit to Costa Rica from December 6-17, 2021. I would like to thank the Government of Costa Rica for its invitation to the country and for its openness and cooperation before and during my visit, as well as with the mandate.

During the course of my visit, I met with the President as well as with high-level representatives of the Presidency of the Republic and various Ministries, the Human Rights Commission of the Legislative Assembly, representatives of the Judiciary, including a bilateral meeting with the Acting Attorney-General and his team, the National Council for Persons with Disabilities (CONADPIS) and the Ombudsman's Office, among others. I am also honoured to have met with indigenous authorities, including representatives of indigenous women's associations, human rights defenders, civil society organizations, trial lawyers, representatives of organizations of persons with disabilities, the United Nations system and representatives of the international community.

I was able to visit indigenous peoples' communities in person, where I held meetings attended by around four hundred people representing almost seventy different organizations, associations and networks, including community elders, women's organizations, representatives of development associations and youth, as well as people with disabilities from indigenous communities.

During my visit, I was able to analyse the progress made following the implementation of some of the recommendations proposed by my predecessor during his visit in 2011. I have also considered the recommendations issued by treaty bodies and other international and regional human rights mechanisms. I would like to highlight Costa Rica’s commitment to implementing the recommendations, and I am confident that the recommendations in my report to the Human Rights Council in September 2022 will constitute a road map for the incoming government, allowing for continuity of the efforts made to date by the current administration. It is important that the progress made by the current Government are extended in subsequent administrations.

At the international level, Costa Rica has played a crucial role in the protection and promotion of human rights and continues to play a role in the development of international environmental policy. An example of this is Costa Rica's role in the core group proposing the recent resolution adopted at the Human Rights Council on the human right to a safe, clean, healthy and sustainable environment. I hope that this will lead to the government of Costa Rica ratifying the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazu Agreement), and thus maintaining its leadership position, not only in the region but globally.

During my visit, I had the opportunity to listen to the sincerity with which the representatives of the three branches of government shared their concerns and the challenges they face in guaranteeing adequate protection of indigenous peoples' rights at national and local level, as well as their willingness to find solutions. It should be noted that these challenges are intrinsically related to the historical and structural injustices faced by indigenous peoples in Costa Rica.

Over the past 11 days, I have received an enormous amount of written and oral information that I will be reviewing over the coming months in preparation for my final report, which I will present to the Human Rights Council in September 2022. In anticipation of this report, I would like to take this opportunity to share some preliminary observations.

These observations include the identification of good practices as well as areas for improvement, based on relevant international instruments, especially the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in 2007 with an affirmative vote of Costa Rica, and the International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, which was ratified by Costa Rica in 1993.

I was particularly struck by the open attitude and spirit of collaboration of the different institutions of the Costa Rican State, which recognize the need for a reform process to advance the protection of the rights of indigenous peoples and are willing to accept my comments in a constructive manner.

I would like to begin by highlighting some positive aspects that I will be expanding on in my report, among which the following stand out:

The constitutional reform carried out in 2015 in which Costa Rica is recognized as a "democratic, free, independent, multiethnic and multicultural Republic"
The approval in 2018 of Executive Decree No. 40932 of the general consultation mechanism for indigenous peoples, following the recommendation made by my predecessor in 2011 and in line with international human rights standards on the matter.

The indefinite suspension in 2018 of the Diquis project of the Costa Rican Electricity Institute (ICE) for administrative reasons. I hope this decision indicates a first step by Costa Rican publicly owned companies to demonstrate leadership in respecting the human rights of indigenous peoples and thus lead by example.  

I would also like to highlight the importance of the inclusion for the first time of the ethnic self-identification approach in the national census, conducted in 2011, in which less than 3 per cent of the population considered themselves to be indigenous.

I would also like to highlight the promulgation in 2019 of the decree of officialization and declaration of public interest of the Bröran (Térraba) database concerning the determination of the genealogical patterns of the Bröran people, carried out with the technical support of the Supreme Electoral Tribunal (TSE).

I was pleased to receive information about the approval in 2019 of Law No.9710 on the protection of the right to Costa Rican nationality for cross-border indigenous persons, which guarantees nationality to the border people of Ngäbe-Buglé. I was pleased to learn that the process was subject to consultation with representatives from this community.

In the spirit of collaboration with state institutions, I would like to share with you information received in my various conversations with different actors on the situation of indigenous peoples' rights in Costa Rica. I have been informed repeatedly about the absence of an organic legal framework and a coherent policy to ensure the effective protection of the collective rights of indigenous peoples, in particular the right to self-government, land, territory and resources.

I was also concerned about the attacks on indigenous leaders and defenders of indigenous peoples' rights, especially those defending indigenous land.

I was informed of the presence of structural and systematic racism and racial discrimination against indigenous peoples that hinders the enjoyment of collective and individual rights, especially for indigenous women, children and adolescents, and persons with disabilities.

In addition, I received information about the obstacles they face in accessing justice and reparation mechanisms.

I would like to address these issues preliminarily and in more detail below:

Self-determination, self-government and participation

As I noted earlier, the 2015 constitutional reform in which Costa Rica legally recognized its status as a multi-ethnic and pluricultural state was a major step forward. However, indigenous peoples and their collective rights are still not explicitly recognized in the Constitution.

During my visit, I received information reiterating the lack of representativeness of the Integral Development Associations (ADIs), which is the institution elected by regulation to govern the twenty-four indigenous territories. I received several allegations indicating that the ADIs are imposed state institutions and not suitable to guarantee the representation of indigenous peoples' communities, which are governed by their own system of governance. This is leading to a weakening of the traditional structures of representation particularly in the south of the country.

Some indigenous peoples raised the need to participate in legal reform that would provide protection for indigenous territories and also recognise and protect indigenous peoples' own institutions of self-government.

I would like to request the Government, in accordance with what was raised during my visit by the various indigenous peoples, to promote a constructive dialogue with the peoples in order to develop a comprehensive, participatory legislative reform in accordance with relevant international human rights standards. This should guarantee self-determination and the recognition of self-government of each people in accordance with their specific characteristics.

During my visit, I was informed and was able to ascertain that indigenous peoples are under-represented at all levels of state institutions at both national and local level. For example, in Costa Rica's history, there has never been an indigenous deputy in the legislature and there have been no indigenous judges in the judiciary. 

Positive action is needed to enable the inclusion, representation and participation of indigenous peoples at all levels in these State institutions as well as in political parties.

Rights to lands, territories and natural resources

Despite the legislative advance of the Indigenous Law No. 6162 of 1977 in which the State declared indigenous territories as "inalienable and imprescriptible, non-transferable and exclusive to the indigenous communities that inhabit them", I have received allegations of serious violations of the rights of indigenous peoples over their lands, territories and natural resources.   

According to the information received, a large number of these territories are mostly inhabited by non-indigenous people and have not even been cleaned up as has been repeatedly recommended by international and regional human rights mechanisms and the United Nations High Commissioner for Human Rights during her visit in 2019.

I would like to recall that, for indigenous peoples, their land represents the place where they reproduce their identity, their culture and their social system. Because of this relationship that indigenous peoples have with their territory, I have received worrying information about the loss of their identity, knowledge, language, food sovereignty, affecting their fundamental rights due to more than 40 years of occupation of their lands by non-indigenous people. The presence of non-indigenous people has undermined the social fabric of indigenous peoples, creating divisions and conflicts within the same people.

I recognize that Costa Rica since 2016 initiated a plan to recover the lands of indigenous peoples, which is an example of land titling. However, it is very worrying that in the various meetings with indigenous peoples, they brought up the existence of several obstacles that prevent this plan from guaranteeing the effective, fair and equitable restitution of their territories, which for reasons of time I will detail in my report.

The communities I met with informed me that, in 2011, due to the lack of political will on the part of state institutions for the regularization of their lands, demonstrated, inter alia, by the lack of approval of the draft law on the autonomous development of indigenous peoples, they were forced to initiate de facto recovery of their lands. They also noted that land repossessions were the only source of livelihood for many indigenous families during the Covid 19 pandemic.

In this context, I am concerned about reported of forced evictions of indigenous families from their own lands in China Kichá and subsequent threats and violence, without respect for their rights and without, in some cases, adequate consideration or investigation of indigenous peoples' land ownership rights under indigenous law.

I am also concerned about the approach of the Patronato Nacional de la Infacia (PANI) to some cases in which indigenous children are involved in land reclamation processes.

Consultation and free, prior and informed consent

As noted above, I welcome the adoption by the Executive of a mechanism for indigenous consultation that seeks to guarantee indigenous peoples' right to free, prior and informed consent and the effective protection of their collective rights. While I welcome the fact that the other branches of Government have adopted this mechanism for specific processes such as Act No. 9710 and the institutional policy on access to justice for indigenous peoples, it is necessary for both the Legislative Assembly and the judiciary to develop their own consultation procedures with the participation of indigenous peoples. It is also necessary for companies to establish consultation mechanisms to guarantee the right to free, prior and informed consent.

With regard to the Executive's general consultation mechanism, during the meetings held with various stakeholders, concerns were raised to my attention over the need to strengthen the capacity of the Technical Unit for Consultation in order to adequately address the number of consultation processes requested, and to strengthen its staff's knowledge of indigenous peoples' rights. There is also concern about the lack of territorial bodies for the implementation of the consultation process.

Another concern expressed was the implementation of consultation processes with non-representative community actors, as is the case of the ADIs in some parts of the country. 

Protecting human rights defenders

During my visit, I received worrying information about the various attacks against human rights defenders, including indigenous leaders who suffer intimidation and death threats, including with firearms, burning of houses and crops in the context of defending their lands, territories and natural resources. In most cases, the underlying cause is the lack of land tenure security of indigenous communities. I want to highlight the killings of Sergio Rojas in 2019 and Jhery Rivera in 2020, beneficiaries of IACHR precautionary measures in 2015. I am especially worried about the lack of advances in the judicial processes.

I also received information on the lack of adequate protection measures, with an intercultural and gender perspective, duly consulted and agreed upon with the persons affected. The need to adopt collective protection measures for indigenous communities at risk was also raised with me.

I would like to point out the urgent need for the State to adopt a mechanism for the protection of human rights defenders, as has been repeatedly recommended by the IACHR and the United Nations human rights mechanisms, and by the High Commissioner for Human Rights in her visit in 2019.

In order to guarantee the protection of human rights defenders, it is also essential to make progress in the investigation, prosecution and punishment of the perpetrators and intellectual authors of the threats against indigenous leaders, as well as the murders of the aforementioned indigenous leaders. Impunity fosters a climate of violence and insecurity for indigenous peoples.

I am concerned about the information I received in China Kichá about the abuse of force by the police against indigenous land recuperators, in events that took place in March 2020.

I would like to underline the right of indigenous peoples to peacefully defend their rights to lands, territories and natural resources.

Protected areas

I would again like to congratulate Costa Rica for the important role it is playing at the international level in protecting the environment. I recognize that some state agencies are beginning to recognize the role of indigenous peoples in this area.

According to the information received, a total of 5,844 square kilometers of the national territory, including land and sea, is under the protection of the eight indigenous peoples, which means that their ecosystems are highly conserved. 1,728 square kilometers of protected wilderness areas such as national parks and refuges are located within indigenous territories.

However, I have received information on the lack of due consultation with indigenous peoples in the definition of protected areas and their management.  In cases where protected areas overlap with indigenous territories and lands, as in the case of  the Bribris and Cabecares in the Talamanca area or in the Maleku territory,  the communities informed me of obstacles to access their sacred sites and traditional activities and the lack of participation in the definition of conservation management plans, which in turn affects their collective rights.

According to the information received, although indigenous peoples have been taking care of the forests for centuries, some communities have not been able to access funds for payment for environmental services, and others have informed me of the discontinuation of these funds, endangering the continuity of the social projects financed with them.

Access to Justice

I would like to acknowledge the important progress made by the judiciary in guaranteeing access to justice for indigenous peoples, including the issuance of agreements and internal circulars that seek to protect the rights of indigenous peoples, such as the adoption in 2008 of the Brasilia Rules on Access to Justice for Persons in Conditions of Vulnerability.

It also welcomed the willingness to carry out a process of drafting an institutional policy on access to justice with the participation of indigenous peoples, in accordance with international human rights standards and with the technical assistance of OHCHR. These advances represent an important step in the fulfilment of obligations to guarantee access to justice for indigenous peoples in accordance with international recommendations.

While I recognize that these efforts are being made at the central level, I must convey the concerns expressed by the indigenous peoples. According to information received, discriminatory and in some cases racist behaviour persists at the local level on the part of prosecutors, judges and OIJ investigators, particularly in the canton of Buenos Aires.

Also of concern is the enormous distrust in the judiciary due to impunity due to the aforementioned attacks against land defenders.

Indigenous peoples' effective access to justice includes both their access to the State legal system and to their own justice systems. However, it is unclear how these two justice systems interact and what collaborations exist. I have received information about the lack of recognition of their indigenous identity, as well as the incipient recognition of their own law and the lack of mechanisms for collective reparations.

It is worrying that, to date, the Costa Rican state has not contextualized the murder of the two indigenous leaders Sergio Rojas and Jehry Rivera within the conflict over the restitution of indigenous lands.

I also observed that there is resistance on the part of the judicial authorities to apply the legal framework of indigenous law established in the Costa Rican legal system and at the international level.

Indigenous women and participation

Indigenous women play a key role as defenders of their lands, territories and resources, as well as transmitters of their languages, cultures and scientific knowledge. The lack of a solution to the land issue has put enormous pressure on them in recent years. Throughout the visit, indigenous women and youth told me about the increased aggressions, intimidation and threats they have faced, affecting their social role in the transmission of indigenous scientific knowledge, the loss of food sovereignty and the possibility of developing their entrepreneurial skills.

Indigenous women also explained to me that they continue to face multiple discriminations for being women, for being indigenous, and often for being impoverished. They are even facing limitations in accessing education, water, electricity and culturally appropriate health care.

I was very moved during the meetings with indigenous women’s clear proposals for the state to build a pluricultural state. Women call for recognition of their fundamental forest stewardship role, the transmission of scientific knowledge, and biodiversity protection. They ask for funds for this activity and the security of their land tenure. I am also concerned about the obstacles women face to effective political participation and access to health care with an intercultural approach.

Economic, social and cultural rights

Statistical data show substantial inequalities in access to education in indigenous territories compared to the national average.

In addition, I received information about and experienced first-hand the inequality that indigenous peoples face about access to telecommunications, with indigenous peoples having a 15% internet connectivity rate compared to 63% of the non-indigenous population. Internet connectivity is essential for students in the wake of the Covid-19 pandemic, and also to ensure that indigenous peoples have access to a variety of public services.  In addition, there is still a long way to go to guarantee intercultural education where indigenous peoples can see their science and knowledge reflected as part of the country's cultural heritage.

In the different meetings, I observed the very incipient state in which the Government finds itself concerning the implementation of the UN Guiding Principles on Business and Human Rights. Considering the acceptance in 2019 of the recommendation in Universal Periodic Review to develop a national action plan on business and human rights, I invite the State to include indigenous peoples in the process of developing the Plan, as well as to consider the need to ensure that affected indigenous peoples have access to effective, adequate and timely remedies in case of human rights abuses related to business activities.

Particularly alarming are the poverty figures for indigenous peoples, particularly in the cantons of Buenos Aires and Talamanca.

To address the pandemic, indigenous peoples note the importance of promoting the empowerment of indigenous peoples, including through access to employment, support for entrepreneurship and access to land and credit.

It is of concern that there is no information nor have I received any disaggregated data on indigenous persons with disabilities.

I would also like to note that undocumented indigenous migrants such as the Misquitos suffer even more from lack of work, lack of adequate wages and lack of protection of their rights.

Conclusion

In conclusion, I would like to reiterate my appreciation to the Government of Costa Rica for the invitation and full cooperation extended to me, and for allowing me to conduct my visit freely and independently. I would also like to express my appreciation to the Office of the Resident Coordinator and to the United Nations system and the Office of the United Nations High Commissioner for Human Rights for their support in ensuring the success of the visit.

Finally, I offer my deep gratitude to the indigenous peoples who have welcomed me to their territories and to all those who travelled to share their stories and concerns with me. I am inspired by their strength and determination to continue defending their rights and seeking justice.