The UN Special Rapporteur on the Rights of Indigenous Peoples (SRIP), James Anaya, has recently (24 to 27 April 2011) concluded an official mission to Costa Rica. In his report of that mission he makes a series of observations and recommendations concerning the situation of indigenous peoples affected by the Diquis hydroelectric project.

The Special Rapporteur states, in his report, that “All parties agree on the need for a consultation process with the Indigenous Peoples in territories affected by the hydroelectric project El Diquís, prior to the approval of the project, and this process must be according to relevant international standards”.[1] He highlights that: “The consultation process on the hydroelectric project should have started prior to beginning the technical studies … allowing affected indigenous communities to participate in the initial decisions”, a process that did not occur. He notes that the lack of such a consultation process and a series of other decisions adopted by the State of Costa Rica over the past five years (without the hydroelectric project being finally approved), has resulted in “the capacity of Indigenous Peoples to exercise their right to self-determination and to establish their own development priorities has been undermined.”

The objective of the consultation process must be to obtain the free, prior and informed consent of the affected Indigenous Peoples, a position reaffirmed by the Special Rapporteur in his report. Specifically, he affirms that: “according to applicable international human rights instruments, the consultation with Indigenous Peoples that would be affected … should be made with the objective of obtaining their free, prior and informed consent … which must be established prior to the approval of the project … based on fair and equitable conditions.” Further: “This consultation should be adjusted to [indigenous peoples’] own forms of representation and organisation in relation to decision-making. Therefore, it is not up to the Costa Rican State or any of their agencies to define the representation modalities of indigenous peoples…”

The Special Rapporteur also proposes the establishment of an independent expert team to facilitate the consultation process, since it will be “very difficult to overcome the asymmetric conditions of power between the parties and ensure long-lasting results without any sort of facilitation by external actor(s).” This is an effort to build mutual trust among the parties and to ensure that the process complies with international human rights standards.

Finally, the Special Rapporteur recognises that there are substantial issues, beyond the Diquís Hydroelectric Project, that must be resolved. These include:

I) Restitution of lands: there are indigenous territories in Costa Rica where illegal encroachment by outsiders into legally recognised indigenous territories has made Indigenous Peoples minorities within their own territories, in places as low as 10% of the population;

II) Legislative reforms on indigenous issues and representation: the Costa Rican government has been discussing a bill on the autonomy of Indigenous Peoples for over fifteen years, but there has been no political will to adopt this bill.

Kus Kura and Teribe, indigenous organizations and FPP’s partners in Costa Rica, welcomed the report of the Special Rapporteur and hope that this will lead to solutions to the human rights violations that they have denounced on several occasions in the past.

[1] La situación de los pueblos indígenas afectados por el proyecto hidroeléctrico El Diquís en Costa Rica, 2011 (available in Spanish only), UN Special Rapporteur on the Rights of Indigenous Peoples, available at: http://unsr.jamesanaya.org English translations provided here are unofficial.