COR Point 32 Indigenous Peoples Rights

Who Should Determine “Traditional Land” in the “Indigenous Peoples Basic Law”

116. In its response to the Concluding Observations and Recommendations for the first State report (Paragraphs 89-90), the CIP states that when government or private parties intend to engage in development plans, they should first consult with and obtain the consent from indigenous people as mandated by Article 21 of the IPBL to ensure the guarantees for the land rights of indigenous peoples. Nevertheless, the decisive point is how the “traditional lands” of indigenous peoples land should be determined and by whom? During a meeting convened by the Executive Yuan on August 1, 2013 to resolve the “Hsiang Shan (Hsiang Mountain) BOT” dispute between the Thao people over a government-sponsored BOT (build, operate and transfer) project earmarked for their lands in the Sun Moon Lake area, the responsible state minister (minister without portfolio) and the Ministry of Justice submitted a joint resolution which declared that the traditional lands of indigenous people must be officially designated and promulgated before they could be considered under the scope of application of the IPBL’s Article 21. The tone struck by the government on the question of traditional land itself has sparked a series of land disputes.⁴²

117. The meaning of the term “native title” is based on an appreciation of the linkage between indigenous peoples and their land and, from the standpoint of cultural pluralism, sets aside the notions of land derived from officialdom, Han Chinese or science and affirms that indigenous people can meld a relationship between humans and land based on the knowledge of their ancestors that predates the intervention of the state or colonialism.⁴³ After the IPBL was promulgated in February 2005, the State on one hand affirmed the traditional territorial rights of indigenous peoples, but on the other hand mandated that “official designation” as the basis for such rights without apparent realization of the mutual contradiction between these positions.

118. In terms of administrative affairs, the CIP as early as 2002 began to gradually carry out surveys of indigenous peoples traditional territories. Subsequently, after repeated demands by indigenous peoples organizations and individuals, the CIP finally in April 2013 disclosed the results of these surveys on the CIP website. Afterward, CIP officials during related meetings only used the term “make known” when asking development agencies or responsible agencies to comply with related regulations and specifically avoided using the term “promulgate” a term which has legally binding significance. This State report did not explain what considerations or difficulties the CIP had regarding this difference in usage.

119. In order to respond to the difficulties actually faced by indigenous peoples, we urge that the government should take action to “promulgate” the scope of indigenous peoples traditional land as soon as possible and demand that all agencies and private development parties strictly respect the provisions of Article 21 of the IPBL. At the same time, we also strongly call on the government to as soon as possible conduct an inventory and disclose all laws and regulations that are in conflict with the IPBL and the two covenants and immediately launch efforts to amend such laws and regulations in order to avoid indigenous people being put in a situation in which they are unable to effectively receive complete guarantees for their basic rights due to disorder in the domestic legal system.

Identity determination of the Pingpu indigenous peoples

120. At present, the government has officially recognized 16 tribes of indigenous peoples.⁴⁴ However, there are 10 tribes of indigenous people who belong to the Austronesian linguistic family that have not yet been officially recognized by the central government, including the Ketagalan, Taokas, Papora, Pazeh, Babuza, Kavalan, Hoanya, Siraya, Makatau and Taivoan peoples. The above tribes, whom are usually referred to as Pingpu indigenous peoples, originally inhabited plains and low-lying hills on Taiwan’s west and east coasts. However, beginning in the 16th century, Taiwan was occupation by successive regimes of the Dutch, Spanish and the Qing Empire and experienced massive Han Chinese immigration. Subsequently, the distribution and cultural patterns of these people underwent huge transformations and they faced cultural extinction. Since the 1990s, the Pingpu indigenous people have actively launched movements for identification and restoration of their names and have struggled for recognition of their individual and national identity through lobbying and administrative legal action as well as street protests.⁴⁵

     Nevertheless, due to the government’s erroneous imposition of a “plains/mountain compatriots” identification for indigenous peoples in the 1950s,⁴⁶ even if the Pingpu indigenous peoples have made major gains in language, culture, rites and community rebuilding and have an intense sense of identity, their status as indigenous peoples still not been recognized by the State.

121. In its response to the Concluding Observations and Recommendations to the first State report, the State report (Paragraph 97) stated that the government had acknowledged the historical facts supporting the existence of the Pingpu peoples and was willing to offer full support on the cultural and historical aspects to help the Pingpu peoples restore their cultures and languages. However, the State report also said that “not undermining the existing benefits of indigenous peoples” be a precondition to the recognition and rights proposals for the identity of Pingpu peoples based on the “differential principle.” This kind of position obviously cannot respond to the demands by Pingpu people to have the same identity and collective rights as other indigenous peoples and clearly contravenes the provision for self-determination of Article 1 Paragraph 1 in both the ICCPR and ICESCR. At the same time, the government’s response also entails a misconception that “restoring the national identity of the Pingpu peoples will affect the rights of the existing 16 indigenous tribes” that is divisive and also open to doubt of possibly contravening the prohibition against discrimination in Article 2 Paragraph 1 of the ICCPR.

122. In its response to the Concluding Observations and Recommendations to the first State report, the State report (Paragraph 98) relates the results of numerous policy measures, but the State reports all lack more detailed statistical data on further progress of these measures. We request that the government provide full information on the results and implementation scale of “Pingpu Peoples Settlement Revitalization Plans” and “Pingpu Peoples Language and Culture Recovery Plans” and disclose the research results for “Survey of the Current Status of Pingpu Peoples Settlement” and “Survey on the Distribution of Pingpu Peoples Settlements” for the review and utilization by the Pingpu people.

123. Even more importantly, even if the government has begun to promote the above-mentioned plans, there is still no comprehensive and standing policy direction or clear legal institutional grounding for the task of cultural recovery and development of the Pingpu indigenous peoples. Since each plan is supported by short-term expenditures of a competitive and supplementary character, the cultural continuity and development policies for Pingpu indigenous people remain one-sided and scattered and protection for the implementation of their cultural rights remains incomplete. This state of affairs contravenes Article 27 of the ICCPR and Article 15, Paragraph 2 of the ICESCR.

124. In order to promote work regarding the identity recognition of Pingpu people, we propose the following:

     1. The government should disclose the progress of “Letters of Intent to Register Status” and the proceedings of various task force meetings and public hearings regarding Pingpu peoples identity recognition work so that Pinppu people can review the content and progress of such efforts and participate in the decision-making process.

     2. The government should immediately collect statistics on the population of Pingpu indigenous peoples and, using the Japanese colonial government era household registration data as the foundation, allow all local governments to accept registration by the people to facilitate subsequent identity recognition and resource distribution planning. In fact, local governments have already leaped ahead of the central government in terms of identity recognition for Pingpu indigenous people. For example, the former Tainan County (which was incorporated into Tainan City in 2012) took the lead in recognizing the Siraya people as a “county designated indigenous people” in 2005 and initiated a complete system for status registration including notification and publicity measures. As of April 15, 2009, 12,478 persons had registered as Siraya indigenous people in Tainan City, thus providing the only case of a Pingpu indigenous people with contemporary population reference data.⁴⁷

     3. The government should immediately propose concrete policies and budgets for the restoration of the Pingpu peoples indigenous status. The Executive Yuan should guide the CIP and other related ministries and agencies in promoting necessary legal revisions, legislative work and other measures and must restore the national and individual status and complete national rights of the Pingpu indigenous people.⁴⁸ The State report relates that the government has already ensured indigenous peoples rights through indigenous tribal meetings and corporation of tribes, however, such measures cannot be realized for Pingpu people given the lack of government recognition of the Pingpu indigenous people. The government should promptly realize transitional and historical justice in order to avoid yet another abrogation of the right of self-determination of indigenous peoples.

42. The Hsiang Shan BOT dispute between the Thao people involved the “Sun Moon Lake Hsiang Shan Tourist Resort BOT Project” to be carried out by the Sun Moon Lake National Scenic Area Administration with the authorization of the MOTC. In January 2009, the contract signing ceremony took place between the Sun Moon Lake Administration and Hong Kong’s Bond Group and officially announced that the project had completed the bidding process. However, this process did not secure the consent of the Thao tribe who owned the land in question as required by the IPBL’s Article 21. in November 2012, Thao tribe members held a protest outside of the Legislative Yuan against the Sun Moon Lake National Scenic Area Administration’s Hsiang Shan Cable Car Station Project and the Hsiang Shan Tourist Resort BOT project and calling for the return of their land. See Lee I-chia, “Resort project gains approval, despite protests,” Taipei Times, August 31, 2013.
43. See Lo Yung-ching, “Practice and Application of Digitalisation Methods for Surveys of Traditional Lands of Taiwan Indigenous People” (in Chinese), Taiwan’s Indigenous People Resource Center, No.3, September 2007.
44. A list of “the Tribes in Taiwan” can be found at the Council of Indigenous People website: http://www.apc.gov.tw/portal/cateInfo.html?CID=5DD9C4959C302B9FD0636733C6861689.
45. For more information on the process of the restoration of the names of the Pingpu tribes, see Hsieh Jolan (2011), “The Challenge of the Pingpu Indigenous Peoples Identity Movement and Official Identity Determination,” (in Chinese), Taiwan Journal of Indigenous Studies, 4(2), pp.121-142. For information on the loss of the identity of indigenous peoples in the 1950s, see Yap Ko-hua, “Exclusion of Renunciation? Identification of Plains Tribes and Mountain Compatriots,” Taiwan Historical Research, Vol 20, No.3 pp.117-206, September 2013. Institute of Taiwan History, Academia Sinica, Taipei, Taiwan (in Chinese).
46. Statistics (in Chinese) collected by the Tainan City Ethnic Affairs Committee can be found at http://www.tainan.gov.tw/nation/page.asp?nsub=H2A2A0.
47. New President Tsai Ing-wen announced her policy commitment regarding indigenous peoples during the campaign for the January 16, 2016 election on August 1, 2015. Details (in Chinese) can be seen at http://iing.tw/posts/46/. See also: Loa Iok-sin, “Tsai promises to fight for Pingpu legal recognition,” Taipei Times, August 2, 2015.