This case study addresses the situation that indigenous peoples in Costa Rica are facing, regarding the application of the principle of Free Prior and Informed Consent (FPIC). It will focus specifically on the Diquís Hydroelectric Project in the Southern region of Costa Rica that may affect their indigenous territories and living conditions.
The analysis of this case study takes into consideration historical aspects of this evolving project, its potential impacts and the legal framework. The latter will focus on domestic norms and standards for the promotion and protection of indigenous peoples rights and international human rights mechanisms including, the United Nations Declaration on the Rights of Indigenous Peoples, International Labor Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries and the Inter-American Human Rights System.
The first section of the case study introduces Costa Rica and general information about indigenous peoples; the second describes the legal framework at national and international levels that is applicable to Costa Rica; the third analyses the historic evolution of the hydroelectric project and it’s relation to indigenous peoples; the fourth section addresses the application of FPIC and the consultation process for indigenous peoples in Costa Rica; the final section draws a series of concluding remarks and recommendations for the implementation of FPIC.
Indigenous Peoples in Costa Rica
Costa Rica is located in Central America bordering Nicaragua in the North and Panama in the South. It is considered one of twenty five biodiversity hotspots in the world2, with a land area of only 51100 km2 (0.03% of the planet’s surface) and 589.000 km2 of territorial waters.3
Eight indigenous peoples have been legally recognized in Costa Rica, these are: Teribe, Brunka, Ngöbe, Bribri, Cabécar, Maleku, Huetar and Chorotega.4 Each people has its own traditions and culture, although the degree of conservation of their culture and identity varies among them. According to the last census in 2000, the indigenous population of Costa Rica was 63876 persons (see Table 1), which represented 1.68% of the total population5, making indigenous peoples a minority group in Costa Rica.
Most indigenous territories are located in areas with the worst economic indicators, nonetheless, in terms of resources, these areas are among the richest in the country. Historically, indigenous peoples have been neglected in public policy and investment. This is the case of the Cabécar people in the indigenous territory of Ujarrás, Buenos Aires. This territory has provided the entire community of Buenos Aires with freshwater for over thirty years and to-date Ujarrás doesn’t have it’s own aqueduct to provide safe drinking water.
Table 1. Indigenous Population in Costa Rica6
|People||Population||Percentage of the total indigenous population (%)|
The Southern region of Costa Rica, which is the focus of this case study, became a strategic place for the Spanish during the colonial period, as they were establishing a route leading from Costa Rica to Panama. Due to the importance of this route, indigenous peoples were forced into “reductions” in the early XVII century when the route started being used. This forced relocation allowed the colonists to have a constant control over them since they were scattered throughout the region. The Brunka and Teribe people, that are the main subjects of this case study, were forced into these “reductions”. The latter were forced out of their lands from the Atlantic coast to the South Pacific into the same “reductions” as the Brunka people.
The history of the delimitation of indigenous territories began in the late 1950s with three territories in the South Pacific. Today indigenous peoples inhabit twenty four legally defined indigenous territories in different regions of the country, however, there is a greater concentration of indigenous peoples in the South-Pacific and South-Atlantic regions as it can be seen in Image 1. These twenty four territories have an extension of approximately 335000Ha.
International and Domestic Legal Framework
International law applicable to indigenous peoples in Costa Rica
Costa Rica has ratified a series of international human rights instruments that apply to indigenous peoples, among these: the Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified on January 4th 19697; the International Covenant on Economic, Social and Cultural Rights (CESCR), ratified on January 3rd 19768; the International Covenant on Civil and Political Rights (ICCPR), ratified on March 23rd 19769; the Convention on the Rights of the Child, ratified on September 20th 199010; International Labor Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, ratified on April 2nd 199311; the Convention on Biological Diversity (CBD) on August 26th 199412; finally, the UN Declaration on the Rights of Indigenous Peoples which was voted in favor by Costa Rica on September 13th 2007.
In 1948 Costa Rica ratified the Charter of the Organization of American States13 agreeing to the jurisdiction of the Inter-American Commission of Human Rights (IACHR). Within the Inter-American system Costa Rica ratified the American Convention on Human Rights on February 3rd197014, this Convention is the framework which defines the human rights which the ratifying States have agreed to respect and ensure, it also creates the Inter-American Court of Human Rights and defines the functions and procedures of both the Commission and the Court.
For the analysis in the following section, it is important to understand the hierarchy of Costa Rican Law. The first and highest level corresponds to the Political Constitution of the Republic of Costa Rica, which enshrines the legal foundations of the legal system. On the second level international treaties are found, which according to the Article 7 of Costa Rican Political Constitution are above national laws:
Public treaties, international agreements and concordats duly approved by the Legislative Assembly shall have a higher authority than the laws upon their enactment or from the day that they designate.15
On a third level are the laws emitted by the Legislative Power and on the fourth level are the decrees and regulations emitted by the Executive Power.
The domestic legal system and its relationship to indigenous peoples in Costa Rica has undergone a constant evolution. The following laws and decrees correspond to the sixty years where most of the legal recognition of indigenous peoples in Costa Rica has taken place.
In 1939, Decree #13 declared the territories that indigenous peoples inhabited as their exclusive and inalienable property16. This decree was implemented by the Board for Protection of the Aboriginal Races which had amongst its objectives to define the boundaries of the indigenous reserves.
In 1956, the Board of Protection created the first three indigenous reserves (territories) in Costa Rica, specifically in the Southern region of the country. These reserves were: Ujarrás-Salitre-Cabagra, China Kichá and Boruca-Térraba, the latter shall be the focus of the following section. These three indigenous reserves were administered by the Institute of Lands and Colonization (ITCO) created in 1961. It is important to note that when the Board of Protection created these territories in 1956 they were registered in the Public Registry of Costa Rica as private property owned by each indigenous people. When ITCO was established in 1961, it took over the property of these territories.
ILO Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries was ratified by Costa Rica in 1959 by Law #233017 covering a wide range of issues such as land; recruitment and conditions of employment; vocational training, handicrafts and rural industries; social security and health; and education and means of communication.
In 1973 Law #5251 created the National Commission of Indigenous Affairs18 (Comisión Nacional de Asuntos Indígenas) as a governmental institution to coordinate the work of all public institutions and indigenous peoples.
The Indigenous Law #6172, which is in force, upgraded the legal status of indigenous reserves created by Decree between 1956 and 1977; furthermore, this law established indigenous reserves as inalienable, imprescriptible, non-transferable and exclusive to the indigenous communities that inhabit them.19
A regulation to the Indigenous Law by Decree #8489 was established in 1978 which substitutes traditional indigenous structures (recognized in Law #6172) with the Integral Development Associations (Asociación de Desarrollo Integral, ADI). These ADIs are official governmental structures established to represent judiciary and extrajudicially each indigenous territory; contradicting what was established in Article 4 of Indigenous Law #6172.
In 1982 another modification was made to the Indigenous Law through the Mining Code, established by Law #6797. This law modified Article 6 and removed the co-ownership that indigenous peoples and the State had with the subsoil resources20. This made the State the sole owner of all subsoil resources in the country, including the ones in indigenous territories. This modification to the Indigenous Law was not consulted with indigenous peoples in Costa Rica.
On March 29th, 1982, the ITCO was transformed into the Institute of Agrarian Development (Instituto de Desarrollo Agrario), with the same prerogative constituent.21
Due to the integrationist approach of ILO Convention 107, its law was voided when Costa Rica ratified ILO 169 with Law #7316 in 199222.
In 1999 a constitutional reform was made to Article 75, which now states that Spanish is the official language but also recognizes indigenous languages. This recognition is a very important legal precedent, as indigenous languages are recognized at the highest level of Costa Rica’s legal system.
The latest legal mechanism regarding indigenous peoples is the Bill for Autonomous Development of Indigenous Peoples (Proyecto de Ley de Desarrollo Autónomo de los Pueblos Indígenas) which has been in negotiation for over 15 years. Indigenous peoples are seeking a law that regulates ILO Convention 169 and establishes the procedures for the relations between indigenous peoples and the State. In section 5 the procedures for the elaboration of this bill are analyzed in further detail.
Diquís Hydroelectric Project
Background of the project
The Grand Terraba river is 160km23 long. It is the longest river and is among the rivers with the largest flow in the country. The river basin covers an area of 5079km2 which represents 53.3% of the Brunka region.24 The Terraba river basin is divided into two main valleys which are crossed by Terraba’s two main tributaries: General and Coto Brus rivers, the conversion of these two rivers creates the Grand Terraba River which flows into the Pacific Ocean.
The Brunka region has the worst poverty indicators in the country, for instance in the year 2007 the percentage of households in extreme poverty was 19.3% in comparison to 3.3% in the rest of the country25. Within this region, specifically in the municipality of Buenos Aires, the six indigenous territories of Ujarrás, Salitre, Cabagra, Boruca, Térraba and Rey Curré are found. The Terraba river basin contains the six territories mentioned above plus the indigenous territory of China Kicha and Coto Brus (see Image 3)
Table 2. Area of Indigenous Territories in the Terraba River Basin26
|Indigenous Territory||Area (km)|
The Costa Rican Institute of Electricity
The Instituto Costarricense de Electricidad (ICE) is an autonomous governmental institution in Costa Rica created by the enactment of a Law by the Founding Junta of the Second Republic.
The ICE was entrusted with the national development of power sources, specially hydraulic resources. Its fundamental responsibility is to direct the use and exploitation of hydroelectric power with the objective to promote the greatest welfare of the Costa Rican people27. Among its responsibilities the ICE operated and controlled all the services regarding telecommunications in Costa Rica, until the ratification of the Central American Free Trade Agreement which opened the telecommunications market.
The importance of ICE in the framework of this case study is that this institution is the sole representative of the government in all matter relevant to the construction of the Diquís Hydroelectric Dam.
The Boruca-Cajón Project
In the early 70’s the Costa Rican government announced the possibility of building a hydroelectric dam in the Terraba river. During this period the project had the support of Aluminum Company of America, ALCOA, which had found important bauxite sources in the Southern region28. The processing of Bauxite is an energy intensive process, thus, the support for the hydroelectric project became a priority for ALCOA. In 1974 the company abandoned the bauxite project due to the opposition from different sectors in society. This caused the hydroelectric dam project to lose importance.
The first initiative of the Costa Rican government, through the ICE was named the Hydroelectric Project of Boruca (Boruca-Cajón). This project required the construction of the dam in a location known as Cajón right on the boundary of two indigenous territories: Boruca and Curré. The magnitude of social and environmental impacts of this project were very large. Among the biggest concerns was the relocation of various communities including Curré, an entire community of the Brunka people which inhabits the surrounding areas of the Térraba River.
In the early 90’s the ICE the project gained momentum due to the ratification of the Framework treaty of the Central American Electrical Market, which offered an opportunity for the ICE to sell energy to other countries in Central America through the Electrical Interconnection System of Panama and Central America (SIEPAC).29
The Boruca-Cajon project had chain development plans, which according to ICE meant “sets of hydroelectric projects in cascade, which exploit the hydroelectric potential of the river and its main tributaries, within the frame of a river basin”.30 Each of the stages of this cascade meant different impacts to the indigenous territories and communities.
The Diquís Project
Due to technical, environmental and social issues, a re-evaluation of the Boruca Project was carried out in 2004 to determine the feasibility of the entire project and to study other alternatives which reduced its social and ecological impacts. As a result of the Environmental Impact Assessment and the Feasibility Study of Boruca Hydroelectric Project a new alternative by the name of Veraguas Hydroelectric Project was considered. This new project was to be located in the main tributary of the Térraba river, known as the General river.
This new scheme offered a series of advantages in comparison to the Boruca-Cajón project, therefore the ICE decided to carry out a more thorough technical study to determine its feasibility. This allowed the institute to have preliminary results of its social, ecologic and infrastructural impacts. These results led to the decision of discarding the Boruca-Cajón project for the Veraguas project.
The Veraguas project has a 13km long tunnel through the Brunka Mountain Range that leads to an underground powerhouse with a generation capacity of 608MW. Additionally a 23MW generation plant will be installed with the compensation flow, totaling a power generation of 631MW, making it the largest hydroelectric plant in Central America31.
In 2006 a regional contest was carried out by ICE in collaboration with the Ministry of Education to name the project. The result of the contest named the project as the Diquís Hydroelectric Project which makes reference to the social, cultural, geographical and historical background of the region32.
On September 7th2006, the Cost Rican government declared the initiative “Peace with Nature” of public interest, where Costa Rica committed to become a Carbon Neutral Country for the year 2021.33 This initiative promotes the use of renewable energies such as hydroelectric power for satisfying the energy needs of the country.
Project comparison: Boruca-Cajón vs Diquís
The two projects provided different conditions with varying impacts, especially with the relocation of indigenous peoples and the flooding of indigenous territories. With the Diquís project flooding is reduced to approximately one fifth of the original project (See Table 3). Regarding the area of the reservoir there is a noticeable difference being the Diquís reservoir almost half of the Boruca-Cajón project which didn’t compromise the generating capacity of the project.
Table 3. Technical Specifications of Boruca-Cajón and Diquís Projects34
|Total area of the reservoir||10700 Hectares14691*||5494 Hectares|
|Approximate cost||$1425 million||$931,3 million|
|Indigenous territory flooding||3559 Hectares||726 Hectares|
|Total population relocation||1943||1068|
|Relocation of indigenous population||839||0|
|Relocation of non-indigenous population||1104||1068|
|Affected archaeological sites||146||108|
|Area of flooded forests||2500 Hectares||600 Hectares|
* In an official map of the ICE it states that the reservoir will have an extension of 14691Ha35, which is significantly different to the data submitted in the Complementary Studies of the Diquís Hydroelectric Project presented to the Inter-American Development Bank36.
Image 4 and Image 5 show the variation of flooded indigenous territories as well as the magnitude of the project. The maps show the boundaries of the indigenous territories with a light green line. It can identified that with the Boruca-Cajón project the following territories could be affected, depending on the development plan: Boruca, Cabagra, Curré, Salitre and Térraba whereas in the Diquís project the following territories are affected: Térraba and China Kichá. The selection of the Diquís project over the Boruca-Cajón project shows a significant improvement in environmental and social impacts. There are issues to be solved in terms of indigenous territories, nonetheless, these were minimized specially with the relocation of the entire community of Curré.
Current state of the Diquís Project
On February 6th 2008, Decree #34312 was signed which declared of National Convenience and Public Interest the studies and works of the Diquís Hydroelectric Project and its transmission works, which will be built by the Costa Rican Institute of Electricity37. This Decree will allow the project to have a high priority in issues regarding permits and any other arrangements needed by the ICE.
Currently ICE has stated that the Diquís project is undergoing a series of studies in order to complete the feasibility study and final environmental impact assessment, parallel to these studies the ICE is informing the communities which are related directly or indirectly to the project about its impacts. The ICE expects to offer previous support to the communities for their effective consultation in order to strengthen and improve the capacities of the communities for eventually reaching agreements.38
Free, Prior and Informed Consent
Principle of Free, Prior and Informed Consent (FPIC)
The UN Declaration on the Rights of Indigenous Peoples enshrines the principles of FPIC. Six articles in the Declaration make direct reference to the principle of FPIC.39 In the context of this case study, the following articles address the situation that indigenous peoples are facing in the Southern region of Costa Rica:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them40.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.41
As stated by the United Nations Permanent Forum on Indigenous Issues (UNPFII) the elements of common understanding of FPIC are42:
Free – should imply no coercion, intimidation or manipulation;
Prior – should imply consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes;
Informed – should imply that information is provided that covers (at least) the following aspects: The nature, size, pace, reversibility and scope of any proposed project or activity; the reason/s or purpose of the project and/or activity; the duration; the locality of areas that will be affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle; personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others) and procedures that the project may entail.
Consent -Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women is essential, as well as participation of children and youth as appropriate. This process may include the option of withholding consent.
The principle of FPIC of indigenous peoples is being applied in a series of processes, especially in the international arena where it is considered an internationally guaranteed human right of indigenous peoples. This allows their full and effective participation as key stakeholders in the issues that could potentially affect them. This principle has enabled indigenous peoples to deal with issues at national levels improving their relations with States and practicing their right to self-determination, an underlying principle of FPIC.
Common article 1 of the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights spells out the rights of all peoples to self-determination, to freely pursue their economic, social and cultural development, to freely dispose of their natural wealth and resources and to be secure in their means of subsistence43:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
As stated in the second section of this case study, Costa Rica ratified ICCPR in 1976.
Free, Prior and Informed Consent in the Inter-American System
The Inter-American human rights system has a series of legal precedents which are of relevance to the study of the principle of FPIC.
In the context of resettlement of indigenous peoples, as early as 1984, for instance, the Inter-American Commission on Human Rights stated that the “preponderant doctrine” holds that the principle of consent is of general application to cases involving relocation of indigenous people.44 This reference provides a very strong argument in demanding the States to comply with existing human rights mechanisms such as ILO 169. In the following section a brief analysis is done on the situation faced by the Brunka people concerning the Boruca-Cajón hydroelectric project.
The Inter-American Commission has also held that inter-American human rights law “specially oblige[s] a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed consent on the part of the indigenous community as a whole. … [This is] equally applicable to decisions by the State that will have an impact upon indigenous lands and their communities, such as the granting of concessions to exploit the natural resources of indigenous territories.”45 Thus the Inter-American Commission has articulated a link between consultation resulting in full and informed consent, and protection of indigenous peoples’ property rights.46
In three recent cases, all involving indigenous rights over land and resources, the Inter-American bodies have articulated a requirement for states to obtain the prior consent of indigenous peoples when contemplating actions affecting indigenous property rights, finding that such property rights to arise from and are grounded in indigenous peoples’ customary laws and traditional land tenure systems.47
The extent to which indigenous peoples have managed to set the principle of FPIC is noticeable, for instance, the Inter-American Developmental Bank Strategies and Procedures on Socio-Cultural Development provides that IADB will not support projects affecting tribal lands and territories “unless the tribal society is in agreement.”
The Inter-American Court on Human Rights in several landmark cases affecting indigenous peoples, articulated linkages between protection of indigenous peoples’ property rights and consultation resulting in full and informed consent. In the Awas Tingni case, the Inter-American Court recognized indigenous peoples’ collective rights to land and resources on the basis of article 21 of the American Convention on Human Rights, which reads: “Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.”
In the case of the Saramaka People v. Surinam, the decision of the Inter-American Court of Human Rights adoptsan evolving principle of international law and makes it a bindingnorm in the Americas, including Costa Rica. The Court recognized that it is the Saramaka people, not the State, who must decide which person or group of persons will represent the Saramaka people in each consultation process…48 This duty to consult also includes:
- A duty on the state and those authorized by it to both accept and disseminate information, and constant communication between the parties;
- Consultations must be undertaken in good faith, through culturally appropriate procedures and with the objective of reaching an agreement;
- Indigenous and tribal peoples must be consulted, “in accordance with their own traditions, at the early stages of a development or investment plan, not only when the need arises to obtain approval from the community, if such is the case. Early notice provides time for internal discussion within communities and for proper feedback to the State;”
- The state must ensure that the indigenous and tribal peoples are aware of possible risks, including environmental and health risks, so that the proposed project is accepted knowingly and voluntarily; and,
- finally, consultation should take account of indigenous and tribal peoples’ traditional methods of decision-making49
For some projects, the state has a duty not only to consult with the Saramaka, “but also to obtain their free, prior, and informed consent, according to their customs and tradition.”50 In its interpretation judgment, the Court “emphasized that when large-scale projects could affect the integrity of the Saramaka people’s lands and natural resources, the state has a duty not only to consult with the Saramaka’s, but also to obtain their free, prior and informed consent in accordance with their customs and traditions.”51
Regarding the environmental and social impact assessments (ESIAs), the Court states that the prior ESIAs “must conform to the relevant international standards and best practices, and must respect the Saramaka people’s traditions and culture.”52 The associated footnote states that “One of the most comprehensive and used standards for ESIAs in the context of indigenous and tribal peoples is known as the Akwe:kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities.”53 The Akwe:kon Guidelines were developed by the states parties to the Convention on Biological Diversity to facilitate “the development and implementation of their impact-assessment regimes.”5455The guidelines apply “whenever developments are proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities.”56 Thus, this is the minimum standard that should conform with.
Free, Prior and Informed Consent in Costa Rica
Indigenous peoples in Costa Rica are seeking to establish the principle of FPIC in all decisions that may affect them, nonetheless there seems to be a contrast in the establishment of this principle.
As stated by José Carlos Morales57, indigenous peoples in Costa Rica are in the path to the full recognition of their right to self determination and to establish the principle of FPIC in all decisions that may affect them.
For the elaboration of the Bill for Autonomous Development of Indigenous Peoples, indigenous peoples participated in Assemblies in each of the twenty four indigenous territories. Only indigenous persons could elect their representatives who would be in charge of elaborating and negotiating the text of the bill. For legitimizing the election, the process was facilitated by an indigenous organization and organized with representatives of the Ombudsman, the Legislative Power and the Supreme Elections Court. The members of each territory were previously informed about the election process and all members above 18 years could vote58.
On a contrasting experience, the Boruca-Cajón Project which required the relocation of Curré, an entire community of the Brunka people. The Costa Rican government failed to comply with ILO 169, since they never sought the consent of the community. Article 16 para. 2 of this convention states:
Where the relocation of these 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 following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned59.
As a general principle, Article 6 states:
1. In applying the provisions of this Convention, Governments shall:
(a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
Community leaders from Curré denounced that the ICE failed to carry out consultations, since ICE was promoting assemblies for informing the community about the project and never carried out a formal and good faith consultation seeking their consent.
In May 2003 the Supreme Court of Justice sentenced the responsibility of the Cost Rican State to provide indigenous peoples the adequate instruments to guarantee their right to participate in decision-making processes and to organize in elective institutions, administrative organizations and others, responsible of policies and programmes of their concern…”60
With the Diquís Hydroelectric Project groups in Térraba are demanding the ICE to carry out consultation in the community, complying with ILO Convention 169. To-date no consultations have been done because -as stated by the spokesman of ICE- “during this stage the work done is to inform about the generalities of the project, the consultation, negotiation or other stage will be done eventually.”61
Another issue that has arisen in the Diquís Project is the representatives or representative institutions that the government shall reco
- Alancay Morales member of the Brunka people in Costa Rica is the Executive Director of Kus Kura S.C. an indigenous NGO based in Costa Rica. He has a Bachelors degree in Electrical Engineer from the University of Costa Rica. He has worked in the promotion and defense of indigenous youth and children rights, including the creation of the Central American Indigenous Youth Network and the empowerment of Indigenous Youth in Costa Rica and the rest of Central America. In 2008 he began working with local indigenous organizations as an advisor on the impacts of Hydroelectric Dams. Currently he is involved in national and international processes regarding indigenous peoples’ rights. ↩
- Conservation International, “The biodiversity hotspots”: http://www.conservation.org/explore/north_america/costarica/Pages/costarica.aspx ↩
- Instituto Nacional de Biodiversidad, INBIO, “Biodiversity in Costa Rica” http://www.inbio.ac.cr/en/biod/bio_biodiver.htm ↩
- Asamblea Legislativa de la República de Costa Rica “Expediente N° 14352 – Proyecto de Ley de Desarrollo Autónomo de los Pueblos Indígenas” Artículo 4(a). ↩
- Instituto Nacional de Estadística y Censos, INEC, “Costa Rica: Censo Nacional de Población y Vivienda 2000. ↩
- Instituto Nacional de Estadística y Censos, INEC, ibid. ↩
- Office of the High Commissioner for Human Rights, “Status of Ratifications of the Principal International Human Rights Treaties”. http://www.unhchr.ch/pdf/report.pdf. 9th of June 2009. (Hereinafter “Status of Ratifications”) ↩
- Status of Ratifications, ibid. ↩
- Status of Ratifications, ibid. ↩
- Status of Ratifications, ibid. ↩
- International Labor Organization, “Ratifications for Convention concerning Indigenous and Tribal Peoples in Independent Countries”. http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169 ↩
- Convention on Biological Diversity, “Parties – List of Parties”. http://www.cbd.int/convention/parties/list/ ↩
- Organization of American States, “A-41: Charter of the Organization of American States – General Information of the Treaty: A-41.” http://www.oas.org/juridico/english/sigs/a-41.html ↩
- Organization of American States, “General Information of the Treaty: B-32 – American Convention on Human Rights “Pact of San Jose”. http://www.oas.org/juridico/English/sigs/b-32.htm ↩
- Translation of the Political Constitution of Costa Rica available on the website of the United States Embassy in San José, Costa Rica. http://sanjose.usembassy.gov/engcons2.htm ↩
- Asamblea Legislativa de Costa Rica, “Ley General de Terrenos Baldíos – N° 13.” 10 de Enero enero de 1939 ↩
- Asamblea Legislativa de Costa Rica, “Ley N° 2330 – Aprobación del Convenio 107 de la OIT”. 1959. ↩
- Asamblea Legislativa de Costa Rica, “Ley N°5251. Ley de la Creación de la Comisión Nacional de Asuntos Indígenas, CONAI.” 9 de Julio de 1973. ↩
- Asamblea Legislativa de Costa Rica, “Ley Indígena. Ley N° 6172 de 29 de noviembre de 1977 y sus reformas”. Art. 3. (hereinafter “Ley Indígena”). ↩
- Asamblea Legislativa de Costa Rica, “Ley N°6797. Código de Minería”. 4 de Octubre de 1982. ↩
- Asamblea Legislativa de Costa Rica, “Ley N°2825. Ley de Tierras y Colonización”. 29 de Marzo de 1982. ↩
- Asamblea Legislativa de Costa Rica, “Ley N°7316. Convenio Internacional sobre Pueblos Indígenas y Tribales en Países Independientes” 3 de Noviembre de 1992. ↩
- Instituto Nacional de Biodiversidad, INBIO, “Generalidades, El Área de Conservación La Amistad Pacífico” http://www.inbio.ac.cr/ecomapas/ACLAP/generalidades.htm ↩
- Universidad Nacional – Sistema de Información Brunka para el Desarrollo Sostenible, SIBRUDES, “Cuenca del Río Grande de Térraba”. http://www.pz.una.ac.cr/sibrudes/ProTerraba/Caract_general.php ↩
- Estado de la Nación “Estadísticas Sociales. Pobreza 2006-2007” http://www.estadonacion.or.cr/Compendio/soc_pobreza06_07.html ↩
- Instituto Costarricense de Electricidad, “Diagnóstico Ambiental: Caracterización Cultural de la Cuenca del Río Grande de Térraba.” San José, Costa Rica, Junio 2000. ↩
- Junta Fundadora de la Segunda República de Costa Rica, “Ley N°449 – Reglamento para la Creación del Instituto Costarricense de Electricidad” ↩
- Asociación de Iniciativas Populares Ditsö, “El Proyecto Hidroeléctrico Boruca. Perspectiva histórica y análisis actual”. San José, Costa Rica. 2005. ↩
- Mónica Barboza, “Propuesta metodológica para conocer la posición de la comunidad de Potrero Grande ante el Proyecto Hidroeléctrico Boruca”. Universidad de Costa Rica, Facultad de Ciencias Económicas. San José, Costa Rica. 2002. ↩
- Instituto Costarricense de Electricidad, “Área de Influencia directa de cadenas de desarrollo en la cuenca del Río Grande de Térraba”. San José, Costa Rica. 2000. ↩
- Instituto Costarricense de Electricidad, “Una Mirada al Proyecto Hidroeléctrico el Diquís”. 2008 ↩
- Instituto Costarricense de Electricidad, “Una Mirada al Proyecto Hidroeléctrico el Diquís”. 2008 ↩
- Peace with Nature, http://www.peacewithnature.org/whoweare.php. ↩
- Banco Interamericano de Desarrollo, “Costa Rica, Estudios Complementarios Proyecto Hidroeléctrico El Diquís (Antes Boruca-Veraguas), CRT-T1017.” 2006 ↩
- Instituto Costarricense de Electricidad, “Ubicación del Proyecto Hidroeléctrico Boruca, Opciones de Embalse Cajón y Veraguas. SIG PH Boruca.” 2004 ↩
- Banco Interamericano de Desarrollo, ibid. ↩
- Presidencia de la República de Costa Rica, “Decreto N°34312. Declara de Conveniencia Nacional e Interés Público los estudios y las obras del Proyecto Hidroeléctrico El Diquís y sus obras de transmisión, en adelante el Proyecto, las que serán construidas por el Instituto Costarricense de Electricidad.” San José, Costa Rica. 2008 ↩
- Instituto Costarricense de Electricidad, “Una Mirada al Proyecto Hidroeléctrico el Diquís”. 2008 ↩
- United Nations General Assembly, “Declaration on the Rights of Indigenous Peoples” A/RES/61/295. (Hereinafter “The Declaration”) For further detail on the principle of FPIC the following articles may be consulted: Art. 10, Art. 11 para. 2, Art 19, Art. 28 para. 1, Art. 29 para. 2 and Art. 32 para. 2. ↩
- Id. Art. 19 ↩
- Id. Art. 32. para 2 ↩
- United Nations Permanent Forum on Indigenous Issues, “Report of the International Workshop on Methodologies Regarding Free Prior And Informed Consent and Indigenous Peoples.” February 2005. ↩
- Working Group on Indigenous Populations, “Standard Setting. Legal Commentary on the Concept of Free, Prior and Informed Consent” E/CN.4/Sub.2/AC.4/2005/WP.1. July 2005. ↩
- Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, doc.26. (1984), 120. ↩
- Maya Indigenous Communities and their Members (Case 12.053 (Belize)), Report No. 40/04, Inter-Am. C.H.R, 12 October 2004, at para. 142 ↩
- James Anaya, ibid. ↩
- James Anaya, “Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Land and Resources”, paper presented at American Association of Law Schools Conference, January 2005. ↩
- Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185 (hereinafter “Interpretation Judgment”). Available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_185_ing.pdf. ↩
- Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28 November 2007. Series C No. 172, at para. 194-96 (hereinafter “Saramaka People v. Suriname”). Available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf ↩
- Saramaka People v. Suriname, at para. 133 ↩
- Interpretation Judgment, at para. 17 ↩
- Interpretation Judgment, at para. 40 (footnote omitted) ↩
- See http://www.cbd.int/doc/publications/akwe-brochure-en.pdf. ↩
- Id. At para. 5. ↩
- Forest Peoples Programme, “Indigenous Peoples’ Rights and Reduced Emissions from Reduced Deforestation and Forest Degradation: The Case of the Saramaka People v. Suriname”. 1stMarch 2009. United Kingdom. ↩
- Id. ↩
- José Carlos is a Brunka from Costa Rica. Currently he is Member of the Expert Mechanism on the Rights of Indigenous Peoples and official delegate of Boruca for the elaboration and negotiation of the Bill for Autonomous Development of Indigenous Peoples. ↩
- José Carlos Morales, personal interview. July 2009. ↩
- International Labor Organization, ibid. ↩
- Sala Constitucional de la Corte Suprema de Justicia. San José, a las diez horas y catorce minutos del veintiuno de diciembre del dos mil siete. ↩
- Red Latinoamericana contra las Represas, “Indígenas piden consulta sobre proyecto hidroeléctrico Diquís”. 8 de Octubre del 2008. http://www.redlar.org/noticias/2008/10/8/Noticias/Indigenas-piden-consulta-sobre-proyecto-hidroelectrico-Diquís/ ↩