What is Problematic About the Indigenous Traditional Lands Regulations

By Mata Taiwan, a Taiwan-based indigenous issues media site. Translated by Kimberly Lee. For the original at Mata Taiwan, click here. 

On February 14, the Council of Indigenous Peoples issued the Regulations for Delimiting Indigenous and Tribal Range Land, which serves as the legal basis for defining traditional indigenous lands within Taiwan. An estimated 800,000 hectares of land will be delimited as indigenous territory under the new regulations. According to the Council’s official press release, the regulation is “a milestone on the pathway of realizing indigenous land justice.”

However, there is a growing controversy over the fact that the regulations only apply to public lands and exclude private lands, against the wishes of dozens of indigenous groups.

Indigenous groups protested outside of the Council on the day of the announcement, claiming that the regulations will split apart indigenous lands. Indigenous legislators Chen Ying (陳瑩, DPP), Kawlo Iyun (高潞．以用, NPP), and Sra Kacaw (鄭天財, KMT) all voiced opposition.

The Atayal National Assembly announced in a public statement that it will not attend the preliminary meetings of the traditional territory delimitation commission. A demonstration by indigenous groups begain on the 228 Memorial Day on Ketagalan Boulevard.

Yet, non-indigenous people find the issue confusing: Why should indigenous peoples have rights over how private land is used? Some netizens claimed, “If all lands were to be returned to the indigenous people, should the rest of us jump into the ocean?”

Not Just About Returning Land

First, indigenous land rights is about sovereignty, not ownership.

According to the convener of Indigenous Youth Front Savungaz Valincinan, all private property are at the same time part of the sovereign territory of the Republic of China. Within the sovereignty of the Republic of China, people are entitled to private ownership and are allowed to freely use and trade the land in accordance with the law.

Therefore, returning sovereignty to the indigenous peoples still allows private property holders their ownership rights. When the land is considered within traditional indigenous territories, private rights are governed by indigenous or tribal laws. If sovereignty conflicts with private ownership, then privately held lands would be outside of national jurisdiction, which is just absurd.

If one has to ask why isn’t President Tsai Ing-wen’s historic apology enough, one hasn’t heard the saying “if apoogies were enough we wouldn’t need cops.”

There is a derogatory Taiwanese term gong-huan, meaning “dumb savage.” Most indigenous people were unfamiliar with the Han languages, so they often unknowingly handed their lands over to the later-coming immigrants.

In the last 400 years, lands were taken from the indigenous peoples by the rulers and other private owners, oftentimes without the consent or even knowledge of the indigenous owners.

As National Chengchi University’s assistant professor in Ethnic Studies Guan Da-wei (官大偉) said in an interview, much of the Pangcah (Amis) traditional lands were forcifully taken by sugar companies owned by the Japanese colonial authoritIes, which were then taken over by the ROC government’s state-owned enterprises. “If private lands are not defined as indigenous lands, the injustice to the Pangcah people cannot be restituted.”

In this way, much of the “private lands” today were first taken by foreign colonial regimes, and then transferred to individuals or private companies. President Tsai in her campaign said “indigenous peoples and the national government enjoy de facto state-to-state relations,” and established a special committee for transitional justice for indigenous peoples. But returning sovereignty over traditional lands is fundamental to justice for indigenous peoples. If sovereignty is not returned, why apologize in the first place?

Runaway resort development? （by T. Yeh, CC BY-ND 2.0)

Unregulated Private Development 

Excluding private lands against the wishes of indigenous communities will lead to serious consequences for runaway development without consulting the indigenous communites that lived on those lands.

Controversial development cases in recent years such as the Shanyuan Bay resorts included at least 70% private lands. Before the regulations, indigenous groups can at least claim to be a stakeholder, but current regulations clearly fenced out the voice of the indigenous groups.

In response, Commissioner of the Council of Indigenous Peoples Icyang Parod explained in a press release that private development within traditional indigenous areas are still subject to environnmental, water, or construction regulations. But the Council could have very well have included private lands into the definition of indigenous lands, to avoid relying on other laws to protect indigenous rights.

Dispute Resolution Exclusively by Central Government 

One additional controversy is over the resolution of traditional indigenous nations’ overlapping claims and other disputes, should be mediated by the central government (assumably the Council). This regulation has stirred up concerns as well, because the track record of the government in meddling or “assisting” in tribal matters often led to greater conflict and weakened the indigenous peoples’ methods of mutual dispute resolution.

During the press conference on February 14, Commissioner Icyang said all the various opinions within the indigenous peoples will be taken into consideration, almost as a response to the protesters outside. But over the last year, whether on Pingpuzu recognition or the current land dispute, the authorities had not fully consulted the indigenous communities.

Perhaps the first question we need to ask is whether the Council of Indigenous Peoples is a temporary agency aiding in the process of indigenous self rule, or an apparatus for the state to rule over the indigenous peoples.

(Feature photo from the Council of Indigenous Peoples)