COR Point 35 Rights of Indigenous Peoples
The Indigenous Peoples Basic Law has yet to be implemented
Since the first review of the State report on the two covenants in January 2013, the government has yet to clearly express its position or endorse the “United Nations Declaration on the Rights of Indigenous Peoples,” but has only passively stated that the Declaration has many common advocations with the Indigenous Peoples Basic Law. Nevertheless, the collective rights and right of self-determination stressed in the Declaration are not specifically guaranteed in the IPBL. We urge the government to officially and clearly express its position regarding the Declaration and revise and strengthen the IPBL through the incorporation of the provisions for indigenous peoples rights contained in the Declaration.
Article 34 Paragraph 1 of the IPBL states that “(t)he relevant authority shall amend, make or repeal relevant regulations in accordance with the principles of this law within three years from its effectiveness.” After the IPBL was promulgated in February 2005, a re-examination of other laws and regulations showed that 82 were in conflict with the IPBL. However, only 68 of these laws and regulations have been revised or enacted during the intervening 10 years. The CIP should clearly explain what the timetable is for the revisions of the remaining 16 laws and publically disclose a detailed list of the laws and regulations that have been revised. In addition, Paragraph Two of the same article mandates that before the completion of the amendment, enactment or repeal of such laws and regulations, “the central indigenous competent authority” shall interpret and implement the relevant laws and regulations in accord with the principles of this law. Based on this provision, the CIP should list laws and regulations that are not in accord with the IPBL and disclose the progress on discussions with other competent agencies for their revision or repeal.
For example, Article 15 of the Forestry Act mandates the Forestry Bureau of the Council of Agriculture and the CIP to jointly decide the rules for the use of forestry resources within the traditional territory of indigenous peoples. Nevertheless, since the revision of the Forestry Act in 2004, there has only been once case in which this provision has been utilized. In October 2007, the CIP issued a set of “Directions for harvesting forest products of indigenous peoples in the Yufeng and Xiuluan Villages, Jianshi Shiang, Hsinchu County” in the wake of the “Smangus Beech Tree Incident” in which three young men of the Atayal community of Smangus in Yufeng Village, Hsinchu County were indicted for stealing national property after moving part of a fallen tree after a typhoon in October 2005. Even though Articles 19 and 20 of the IPBL explicitly mandate that indigenous people have the right to use national resources on their own land, indigenous people who engage in the harvesting and use of natural resources in traditional domains can still be prosecuted and sanctioned by the State. Similar absurd situations occur with regard to other laws. From the standpoint of the indigenous peoples resistance movement it can truly be said that “a decade has passed like one day.”49 It is a matter of regret that the CIP did not say one word about this type of administrative sloth and dereliction in the State report but instead has touted its progress in revising laws and used the unwillingness of the legislative agencies to cooperate as an excuse for stalling. We call on the CIP to seriously face this issue and put forward concrete solutions.
In addition, the content touched up by the IPBL is not limited to questions related to land, but also includes self-governance, education, medical care, employment, judicial affairs, economics, environmental protection and women and gender affairs. However, the CIP, the Ministry of the Interior and the Ministry of Finance only respond to questions related to the issue of land. Concerned government agencies should submit supplemental material into the State report on the above-mentioned issues and explain the related progress and implementation of the IPBL.
Finally, we also recommend that the government consider promoting “the Special Constitutional Chapter for Taiwan’s Indigenous Peoples” and other feasible methods to directly incorporate the important content of the United Nations Declaration on the Rights of Indigenous Peoples and the IPBL directly into the main body of the Constitution and thus use the principle of a “constitutional mandate” to address the ills of the shirking of responsibility among government agencies and legislative sloth.50
- Regarding the demands of the indigenous peoples movement, see: Juan Chun-ta (2015), “The Trajectory of the Taiwan Indigenous Movement (1983-2014)” (in Chinese), M.A. thesis, Graduate Institute of Sociology, National Taiwan University, Taipei City, Taiwan. The three Atayal men were ultimately acquitted. See Loa Iok-sin, “CIP defines boundaries over Smangus,” Taipei Times, October 19, 2007 and Loa Iok-sin, “High Court acquits three Atayal in Smangus case,”Taipei Times, February 10, 2010.
- In the wake of the announcement by then President Chen Shui-bian in his May 20, 2004 second inaugural address that his government would promote the inclusion of a special chapter on indigenous peoples in the Constitution, the Committee of Indigenous Peoples convened forums of scholars and experts to formulate a draft “Special Chapter for Taiwan Indigenous Peoples.” Many of its provisions and values are still worth consideration today. See Shih Chung-shan, “The Constitutional Special Chapter for Indigenous Peoples in Taiwan’s new Constitution,” Taiwan Thinktank.