THE CONSERVATION FOREST IS NOT CONSERVED

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the members of the community. The corporations eventually emerge as the winner when the community is unable to unite against its common enemy. By providing limited employment, mining corporation has even been able to present itself as Nan’ao Township’s solution to poverty.

5.3 THE CONSERVATION FOREST IS NOT CONSERVED

Land area of Taiwan is now ‘conserved’ through state law, conserving the traditional territories of indigenous peoples, while many more impinge on areas claimed by other indigenous communities. Rather than protecting and encouraging customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable uses practices, the government lease the conservation land to the mining companies for development.

This 40-year-old Raka Quarry is the example in the Nan’ao case. The mining field is located in Yilan County, No. 2719, water conservation forest. The mine field is situated on the watershed of two river basins: Wulaukeng River and Nan’ao North river. The ecological benefits of the watershed are well-known for soil and water conservation, and weather moderators and repositories of biodiversity. Once the land had been dug out, it impacts severely the water conservation of two river basin.

Besides, the average slope of the mining development sites are up to 72.4% (36~37 degree). In this environmental situation, it should not be developed not to mentioned the mine is located on the water conservation forest.

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After approving the mining certificate, the application for the use of the state-owned forest as a mining land is granted by the Mining Bureau and the approval of the Forestry Bureau. The governments’ contradictory and conflicting stance around mineral exploitation and indigenous peoples emerged clearly in the discourse of the law. Mining in the conservation forest is not illegal; nevertheless, Article 31 of the Mining Act stipulates that the Ministry of Economic Affairs shall not dismiss the application for mining rights of the industry if there is no satisfied reason. If the loss of the industry is caused by the dismissal of other land management units (such as the Forest Bureau), the industry may seek compensation. The governing agency shall not dismiss an application for renewal of a mineral right. If the mining companies are rejected which leads to a loss, the mineral right holder may claim compensation equivalent to the loss incurred within the period of the validity of mineral right against the agency limiting exploration and mining or the one obliged for the compensation.

Article 24 of the Forestry Act stipulates: The management of conservation forests shall be predicated, regardless of ownership, on serving the public interest. All conservation forests shall be reasonably managed, cultivated, renewed and logged according to their individual characteristics. Article 30 strictly regulates any

development. If the above have been the laws in the book, why the mining can still be developed? It is because Forestry Act has proviso on the Conservation Forest

Management regulation. Articles 13~15 articulate as long as the competent authority agrees the company is able to initiate the mineral exploitation. The proviso offers the

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legal base for the exploration and exploitation. This is the main reason why the conservation forest is protected by law, but the hills are bare.

Furthermore, Article 9 of the Forest Ac stipulates: To carry out any of the

following actions in a forest, an application shall be filed with the government agency who shall, together with the relevant local agency, examine the specified area for its suitability for the proposed action. After the application is approved, the action may be undertaken within the designated boundaries. These undertakings are limited to those not impairing geological stability, national security and forestry. If there are concerns related to the environmental damage, the government agency shall oversee the party in question and shall perform due to water conservation measures or other necessary measures, and the party may not refuse. All development in these

conservation forests would be approved by the central government rather than by county and township authorities, as had been the case in the past.

Legality is not the only issue, of course. There are fundamental issues of imbalances of power and entrenched discrimination that have to be addressed if secure land rights are to be achieved. Analytically, in the contested development theory, Jon Altman claims that the triangulated power relations between the state, mining companies, and indigenous people that the study use to frame this chapter might be better reconsidered as a binary with the state and company. The binary relations have always been structural and strong, and remains so despite recent tensions over the issue of declaring traditional territory. (Altman, 2012)

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The discrimination of the law makes the Atayal communities in Nan’ao reluctant to even participate in the programs such as co-management program, and patroller program. They reflect that there is too “deep mistrust toward the Forestry Division, and Mine Bureau after decades of law imposition on their land which legitimize the development projects.”²⁴