Update 2011 - Costa Rica

Almost 6% of Costa Rica’s geographical area is covered by 24 indigenous territories, accounting for some 3,344 km2 of the country. With an indigenous population of little more than 60,000 people, this territorial provision might seem sufficient. However, since the Indigenous Law was enacted in 1977, the territorial rights recognised in this law have never been respected and the indigenous peoples have been forced to adopt forms of representation that are alien to their traditional power structures. Ratification of ILO Convention 169 has likewise brought about no changes to the protection and exercise of their rights as individuals or peoples. Quite the contrary, public policy continues to be set without regard to the country’s cultural diversity, the indigenous territories remain in the possession of non-indigenous individuals and the state is reluctant to accept the right to consultation, to name but a few of those actions that illustrate the discrimination being practised by public institutions.

Eight different peoples inhabit these 24 indigenous territories, seven of them of Chibchan origin (Huetar in Quitirrisí and Zapatón; Maleku in Guatuso; Bribri in Salitre, Cabagra, Talamanca Bribri and Kekoldi; Cabecar in Alto Chirripó, Tayni, Talamanca Cabecar, Telire and China Kichá, Bajo Chirripó, Nairi Awari and Ujarrás; Brunca in Boruca and Rey Curré, Ngöbe in Abrojos Montezuma, Coto Brus, Conte Burica, Altos de San Antonio and Osa; Teribe in Térraba) and one of Mesoamerican origin (Chorotega in Matambú). In the 2000 population census,1 63,876 people (1.7% of the total population) self-identified as indigenous and, of these, 33,128 (42.3%) live on these territories, 18.2% in nearby areas and 39.5% in the rest of the country.

Most of Costa Rica’s indigenous peoples, with the exception of the Bribri and the Cabecar, populate their territories in very low densities. This, added to the continuing dispossession of their lands and natural resources, makes them highly vulnerable from cultural, economic and social points of view. These minority peoples are at high risk of ethnocide and they thus require special protection measures to enable them to develop and strengthen their cultures and their forms of social and political organisation.

Territorial vulnerability as a state policy

here has historically been a great deal of doublespeak involved in recognising the territorial rights of Costa Rica’s indigenous peoples. Areas of land described as “indigenous reserves” have been established since at least 1956. The 1977 Indigenous Law improved the legal status of these lands and set out the state’s obligation to provide funds to recover properties within these areas that were in the hands of non-indigenous settlers. Then, in 1992, ILO Convention 169, updating Convention 107 already in force since 1959 as an international human rights instrument recognised in Costa Rica, gained constitutional status by law and, at the same time, the category of “indigenous territories” was established, replacing the concept of “reserve”. Not only did the funding provision never materialise, however, or at least not in sufficient or timely form, but the invasions also continued, in full view and with the full knowledge of the state, despite repeated and constant complaints from the indigenous organisations themselves. The state’s inability to ensure that the laws it enacts and adopts are enforced means that the situation can but be described as a “systematic failure to apply the law”. In June 2011, a preliminary presentation of the Land Survey and Registry Regularisation Programme’s investigation into “areas under special regime”, which includes indigenous territories, showed that the situation was even worse than had been thought.2 Although the study is still ongoing, partial data from 15 territories shows that there are legally registered plans from state institutions and private owners, many of them superimposed, with only a minority in the names of the indigenous communities.

The case of Keköldi, near Puerto Viejo on the Caribbean Coast, is a clear example of the kind of procedure and chaos that is reigning as a result of the lack of care and political will to effectively establish the indigenous territories. The first territorial boundaries were set in 1977 on the basis of aerial photography, without any exploration on the ground, which meant that the cocoa farms of the Afro-descendant neighbours of the indigenous groups ended up inside the indigenous jurisdiction. Some years later, this led to conflict between the Afro-descendant and indigenous groups, although the Bribri and Cabecar of Keköldi realised the error and began working on a proposal that would remove the lands of the Afro-descendants from their territory and instead include some properties that had previously been left out. In 2001, without any consultation, the state decreed the current borders of the Keköldi territory, massively expanding it north-eastwards for no clear reason. The situation remained like this for several years and property transfers continued to take place in the area with no preventive action taken by the land registry officials; however, more recently, as some owners have begun to initiate legal proceedings aimed particularly at promoting tourism initiatives, the problem has finally been noted and restrictions established. Clashes have occurred with the indigenous population because, in the state’s confusion over the situation, it sent the police in to support these businessmen, leading to the arrest and prosecution of indigenous leaders. It is worrying that, in this kind of conflict, the state - without so much as a second thought - takes the side of those who hold economic power, despite itself having decreed the boundaries of these lands and declared the indigenous community the owner. Information from the Land Survey and Registry Regularisation Programme, which conducted the study on the Keköldi territory, clearly shows the inconsistencies in the state’s conduct as it reveals the existence of 180 registered plans within the territory’s jurisdiction, 76 of which have possessory information, 5 in the name of the Agricultural Development Institute (state-run) and 23 in the names of private individuals. The only plan actually in the name of the indigenous community corresponds to the first territory established in 1977, which was not even repealed when the 2001 reform was brought in.

Although the imprecision and confusion would still have been questionable, if we had been talking of an immense and isolated territory then the cadastral problems would at least have been more understandable; however, we are talking of a territory that measures 3,538 hectares (35 km2), lies close to large settlements and cities and is easily accessible by surfaced road. The state’s inability to guarantee the Keköldi territory has been such that one has to wonder whether there was actually a planned intention to try and divide the people and create suspicion with regard to the indigenous community.

Racism and discrimination

Almost two decades have passed since the draft “Law on Autonomous Development of Indigenous Peoples” (Legislative File 14,352) began its passage through Congress following its participatory drafting jointly with indigenous peoples. Approval of this law would mean implementing ILO Convention 169 and would require state recognition of indigenous peoples’ individual and collective rights, something that has been repeatedly challenged in Costa Rica. The text has been revised and approved by the Supreme Court of Justice and it has been demonstrated ad nauseam that it is not in contradiction with the Political Constitution of the Republic. In addition, it has passed through various congressional committees. The indigenous peoples, plus significant sectors of civil society and academia, have been calling for its enactment via different means, ranging from articles and letters to massive and regular popular demonstrations. And yet the law has still not been approved, perhaps perpetuating the Costa Rican state’s tradition of ignoring its cultural diversity and the rights of its native peoples. The current government, which took office in 2010, has done little to conceal its scant interest in and radical rejection of indigenous rights and both the government and the governing party’s members of congress have refused to place this draft bill on the legislative agenda.

The Costa Rican state does not recognise the multicultural nature of its population nor the rights that its own legislation, including ILO Convention 169, grants to indigenous peoples. The right to free, prior and informed consultation is one of the rights that has encountered the greatest resistance from state institutions. For this and other reasons, the UN Special Rapporteur on the rights of indigenous peoples, James Anaya, visited the country in 2011 and warned the authorities of their serious failure to comply with international legislation by not expediting approval of the law on the autonomous development of indigenous peoples and by tolerating the dispossession of their territories.3

 

Indigenous consultation on the El diquís hydroelectric project

The obligation to consult is clearly established in international legislation, notably in ILO Convention 169, ratified by the Costa Rican Congress in 1992. In 2004, the Costa Rican Ombudsman established an obligation on the part of the Costa Rican state to consult indigenous peoples on all state actions that could affect them, with the exception of those falling within the judicial sphere. The Ombudsman’s resolution is supported by rulings of the Constitutional Chamber of the Supreme Court of Justice. Inherent to such consultation is the right of indigenous peoples’ themselves to establish what issues are of concern to them and who should represent them in the consultation. From this angle, consultation is a public policy instrument that enables the state’s actions to be guided in a culturally-relevant way, ensuring respect for the rights of its indigenous citizens. However, this right is still questioned by some state authorities and the process of prior studies for a hydroelectric project was commenced without thinking to consult the indigenous peoples that might be affected. This action led, in part, to a complaint made to various international bodies, primarily by the Teribe tribe, with regard to the violation of their rights as enshrined in ILO Convention 169. These complaints, along with the Costa Rican government’s invitation to the Special Rapporteur, formed the immediate context for his visit in 2011, the focus of which was an analysis of this project and its relationship with the indigenous peoples.

The El Diquís Hydroelectric Project, in the south of the country, affects seven indigenous territories of the Teribe, Cabecar, Bribri and Brunka peoples. In the case of the Teribe, the dam may flood almost ten per cent of their territory along with 60 hectares of that of the Cabecar; the Brunka and Bribri territories would suffer different impacts. In conversation with the Special Rapporteur, the public body responsible for the project - the Costa Rican Electricity Institute - acknowledged the need for consultation and produced a draft document covering the basic conceptual, technical and instrumental requirements for the participatory design of the consultation method. It sent this to the Rapporteur prior to his visit. The Institute’s proposal emphasises the fact that the consultation process must take place under the terms laid down by Convention 169, respecting the characteristics of each people and culture, and recognising their representative organisations. The design of the consultation itself is part of the same process and must form part of the general consensus reached between the state and the indigenous peoples. The following principles are included in the consultation: i) transparency and free availability of information; ii) balance between interlocutors and their representation, iii) recognition of indigenous systems for conflict management and consensus building, iv) participatory design of the consultation process; v) a commitment to respect the agreements; and vi) participation by external observers.

Although the 1977 Indigenous Law established that the indigenous territories were to be governed by each people’s traditional system, a subsequent regulation delegated territorial representation to Indigenous Integral Development Associations, a model that is alien to all of the country’s indigenous peoples’ decision-making systems. This has led to decades of socio-political conflict, governance problems, clientelism and corruption, among other things. Faced with this situation, the Special Rapporteur emphasised the importance of the fact that the consultation should take place with the participation of the communities’ representative organisations.

The Special Rapporteur’s report highlights the need and obligation for consultation, emphasising that it is still possible to achieve this even though it should have been implemented before the prior studies stage. He has therefore proposed involving a team of independent facilitators to ensure its implementation. This proposal was accepted by the indigenous organisations and government institutions involved in the process. It is hoped that the rapporteur will put together a group of facilitators and send them to the country so that the first stage in the process, namely the consultation on the consultation process, can commence in 2012.

 

Multiculturalism: a strategy to avoid a real indigenous education?

The decision to mainstream multiculturalism that led to the dismantling of the Department for Indigenous Education and its absorption into the Ministry of Public Education, noted last year, has led to a marginalisation of indigenous education in the country. The situation that occurred at the start of this school year (February 2012) clearly illustrates this, as indigenous teaching staff were not appointed to a school within the Térraba indigenous territory despite recognised and proven Teribe teachers being available. With the support of much of the community, the indigenous teachers took over the Térraba High School buildings to demand the appointment of indigenous staff to the school’s administration, along with improvements to its buildings, which were in such a state that they were a danger to the pupils’ health. A similar incident had occurred the previous year in the Brunca community school in Boruca. Although, in the end, the indigenous movement was partially successful in both cases with regard to its demands for indigenous staff appointments, this led to clashes with non-indigenous neighbours upset by the situation, despite the existence of an order to prevent confrontations from the Prosecutor for Indigenous Affairs this year.

Given the ambiguity of the public authority’s decisions and its lack of appropriate action, one is again forced to wonder whether it is perhaps more a question of a lack of political will to address these basic issues in the indigenous communities, and whether this failure to apply the law and these avoidance tactics are not perhaps established state policy in this regard. The situation of all schools and colleges in the country with indigenous students is, unfortunately, similar: a lack of investment in infrastructure, limited budgets for appointing culturally-qualified teachers and, worse still, improper questioning of the capacity of indigenous elders and individuals grounded in their culture to lead discussions and provide classroom support due to their lack of any official qualification. The scant progress that had been made in the indigenous education plans in previous years has been virtually reduced to nothing now that “language and cultural teachers” can no longer be appointed from among community members fluent in the indigenous language unless they meet the absurd requirement of having a formal qualification. The supposed mainstreaming of multiculturalism within the school and college curriculum has only served to subsume, yet again, the specific and the particular within the desire to achieve a nationalising and uniform education.

The outlook is not much more positive for higher education, although there are some glimmers of hope. For some years now, the four public universities have had committees to address the demands of indigenous people wishing to gain professional qualifications. However, despite some laudable and innovative projects on the part of intellectuals who identify with the idea of interculturality, few if any adjustments have been made by the universities to their own admission rules and structures. An Indigenous Student Federation (FIE) was created at the end of 2011 by students from the state universities as a body to coordinate with (or confront, if necessary) the academic authorities. Attempts have already been made by the universities to co-opt this new body, given the interest in benefiting from World Bank funds available to academic bodies wishing to promote a rapprochement with indigenous peoples. Opportunism or opportunity? Doublespeak again. An indigenous coordination committee was established which, fortunately, came out in support of the FIE’s proposals, making its support conditional upon the universities really taking into account the specific features of indigenous peoples and their calls for access to a free university education that is appropriate to their needs.

Conclusion

Deep-rooted ideologies of identity have masked the existence of indigenous peoples in Costa Rica since the 19th century. The state, official history, legislation and the daily expressions of the population all conceive of the country as a homogeneous nation that exists only in fairytales. Members of Congress and the President of the Republic now refer to indigenous autonomy, cultural education, indigenous rights to land, free, prior and informed consent and constitutional recognition of diversity by claiming that they are not “national issues”. This is no less than unfettered racism and a violation of the human rights of the indigenous peoples, who have lived on the same territories for thousands of years. Costa Rica is perhaps the only country on the continent in which poverty, social exclusion and inequality have been increasing year on year, while it has been systematically dropping down the human development index for two decades. As we already know, these processes affect the most vulnerable sectors of society and minorities first and foremost, those who are least protected in the exercise of their rights. This is why this decline in the country’s social development indicators will affect its indigenous peoples disproportionately and, if immediate measures are not taken, such as approval of the Law on Autonomous Development of Indigenous Peoples, these unique peoples will continue to drift towards the irremediable loss of their identities and cultures. Moreover, Costa Rica will become consolidated as a paradise of racism, discrimination and violation of the fundamental rights of indigenous peoples. This policy of silence and concealment of the indigenous reality and indigenous problems is creating a situation which, despite current international legal instruments and despite Costa Rica’s international name as a country that is respectful of human rights, can only be described as systematic ethnocide. As the popular saying goes, “It’s not a question of having the right to be equal but of having an equal right to be different”. If we understand that, for an indigenous people, the exercise of freedom means enjoying the necessary conditions for their own social and cultural reproduction then we will understand why events in Costa Rica lead us to question whether the country should continue to be considered a free and exemplary democracy.

 

Notes and references

1 instituto Nacional de Estadística y Censos, 2001: IX Censo Nacional de Población y V de Vivienda Resultados generales. San José: Imprenta Lil; and Elizabeth solano salazar, 2000: La población indígena en Costa Rica según el censo 2000. San José: no publisher/date. In 2011, a national census was conducted but the results broken down by ethnic self-identification and associated variables have still not been published.

2 “Tenencia de la tierra y Territorios Indígenas de Costa Rica”, Instituto Interamericano de Derechos Humanos, San José, 28 June 2011. Part of the conclusions were picked up in the results document of Component II of the Land Survey and Registration Programme, 2012.

3    See the report of the UN Special Rapporteur on the rights of indigenous peoples, James anaya, 2011: La situación de los pueblos indígenas afectados por el proyecto hidroeléctrico El Diquís en Costa Rica. No publisher. 30 May 2011.

 

 

Marcos Guevara Berger is an anthropologist specialising in indigenous peoples and human rights issues. He has conducted ethnological studies on indigenous peoples in Costa Rica and Panama and in the Central American region in the environmental, legal and political fields. He is a staff lecturer at the University of Costa Rica.

Carlos Camacho Nassar is an anthropologist specialising in international development. He has conducted various studies on indigenous peoples, conflicts, indigenous refugees, displaced and returnees and intercultural public policies in Mexico, Belize, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica, Panama, Ecuador, Chile, Paraguay and Bolivia.