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83 This is not to say, however, that the Taroko peoples must sit back and simply accept that they cannot manage or access their traditional lands. A former co-management committee member believes that Taroko peoples should continue to fight to change their rights within the co-management agreement and the Park itself.82 He stated that they must continue to protest to take back their hunting rights and their traditional lands, but he did not seem to feel that co-management committee would be effective in doing either of these paramount tasks.83
Relatedly, a present committee member argues that engaging younger generations in the fight for Taroko rights may be an effective way to make their voices heard.84 He promotes the
involvement of young Taroko peoples and other organizations in collaborating to represent the needs of Taroko peoples and put pressure on the government to devolve decision-making power and rights to Taroko peoples over their traditional territories, including those contained within Taroko National Park.85 Therefore, while the Taiwanese legal system does not seem to offer many means by which Taroko peoples can contest the infringement on their traditional land rights, social activism and community collaboration seem to offer some alternatives.
In sum, there appear to be large gaps between the state level governance and local
enforcement in the case of Taroko National Park’s co-management committee. Additionally, the committee seems to have very little power or rights by which it can effectively represent the needs and concerns of Taroko indigenous peoples. In the following section, I will apply the same criteria as before to the case of the Taiwan Forestry Bureau and the Rukai indigenous peoples in their emerging co-management initiative.
II. Taiwan Forestry Bureau-Rukai Indigenous Peoples Co-Management Initiative
1. Land Tenure Regime:
When discussing the issue of land tenure regime with regard to the Forestry Bureau and Rukai indigenous peoples case, the concept is somewhat more ambiguous than in the case of Taroko National Park. This is primarily because in the case of Taroko National Park, the lands
82 Interview conducted by the author with Tian Guifang on May 21, 2017.
83 Ibid.
84 Interview conducted by the author with Teyra Yudaw on May 21, 2017.
85 Ibid.
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84 in question were entirely contained within the Park’s boundaries and currently controlled by the National Park Bureau and MOI. In the case of the Taiwan Forestry Bureau and the Rukai peoples, however, discussions about establishing a co-management agreement have taken place across nine different communities, many of which have been displaced from their traditional territories, as introduced in chapter four. Regardless, it is pertinent to address the question:
within the emerging co-management agreement (namely the discussions about such), how has land ownership over the Rukai traditional territory been defined?
At present, because any formal or official co-management agreement has yet to be established between the Taiwan Forestry Bureau and the Rukai indigenous peoples, those forested lands that were once Rukai territories are still controlled and managed by the Forestry Bureau. As previously mentioned, in forming the Rukai tribal assembly, representatives conducted “nearly two decades of field research and interviews with elders” that resulted in the identifications of “96,114 hectares of Rukai lands… about 77 percent of which are currently controlled by the Forestry Bureau under the Cabinet-level Council of Agriculture” (Taiwan Today Rukai assembly 2017). Thus, those lands within the proposed co-management agreement would include the 77 percent of identified Rukai lands that are presently controlled by the Forestry Bureau. In terms of ownership of these lands, the Rukai assembly aims to collaborate with the Forestry Bureau to “facilitate the establishment of a joint management mechanism for these areas” (Taiwan Today Rukai 2017).
Another pivotal factor in determining ownership of the lands in question within this emerging co-management regime is the publication on the draft regulations returning public lands to their respective indigenous tribes. As discussed during the previous section I.1., the Council of Indigenous Peoples proposed draft regulations for returning 800,000 hectares of public land to indigenous peoples (Taipei Times land 2017). Should these regulations be passed and the articles of the 2005 Basic Law stipulating indigenous ownership and control of
traditional territories be upheld, then the Rukai people would gain ownership of the 77 percent of identified lands to be managed under the co-management mechanism. Therefore, while the lands are currently recognized as public lands under the jurisdiction of the Forestry Bureau, they would then be owned by the Rukai indigenous peoples to be jointly managed between the Rukai
peoples (likely by way of the Rukai assembly) and the Forestry Bureau.
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85 2. Territorial Recognition:
Also discussed in section I.2. of this chapter is the idea of indigenous territory as defined in the ILO Covenant 169. Once more, indigenous territory refers to those lands which are occupied or otherwise used by indigenous peoples (International Labor Organization C169 1989). This concept has proven to be a particularly contentious issue in discussions of forging a co-management agreement for Rukai lands because at present, the Forestry Bureau requires Rukai peoples to show proof of continuous land ownership, use, or occupation, elsewise the Forestry Bureau claims ownership of said lands. Therefore, in assessing the potential for territorial recognition through a co-management agreement between the Forestry Bureau and Rukai indigenous peoples, one must answer: will the co-management agreement recognize the Rukai territories about which the agreement is being made in a way that corresponds with the idea of indigenous territory?
Should the co-management agreement discussed between the Forestry Bureau and the Rukai peoples be carried out in such a way that the Forestry Bureau recognizes the historic and present ownership of the land by the Rukai peoples, then the criterion for territorial recognition would be satisfied. However, this type of recognition would require that the Forestry Bureau no longer necessitate Rukai peoples to provide proof of continuous land use in these territories.
Instead, the Forestry Bureau must recognize the historical occupation and continued cultural significance of these lands to the Rukai peoples. In identifying their traditional territories, the Rukai assembly has already claimed these lands as being indigenous territories.86 Additionally, Article 2 of the 2005 Basic Law defines “indigenous lands” as being “the traditional territories and reserved land/lands, that is, land/lands reserved for indigenous peoples and generally deemed as well as officially recognized as belonging to indigenous peoples” (Indigenous Peoples Basic Law 2005). Furthermore, Article 20 also “recognizes indigenous peoples’ rights to land and natural resources” (Indigenous Peoples Basic Law 2005). Therefore, should the proposed co-management be carried out as discussed and the stipulations of the 2005 Basic Law be followed, using the ILO 169 as a form of guidance, then the co-management agreement would recognize Rukai territories in a way that corresponds with the idea of indigenous territory.
86 Information collected as a result of the author’s participation in the Walking Workshop 2017.
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86 3. Natural Resources Rights:
The question of natural resources rights is another pertinent matter in discussing the potential co-management agreement between the Taiwan Forestry Bureau and the Rukai indigenous peoples. As can be clearly seen in chapter three section IV of this thesis, one of the greatest concerns of Rukai communities is access to natural resources. Hence, in determining the foundation for a management agreement, access and rights to natural resources within the co-management agreement area must be a top priority. In order to determine how such rights would be assigned in an agreement between the two aforementioned entities, one must answer the question: how would the co-management agreement assign rights to the natural resources found within the specified territories?
On the one hand, Rukai peoples tend to view the resources contained within their
traditional territories as a living right, as they have long depended on these resources for physical and cultural survival.87 Somewhat contrarily, under the Taiwan Forestry Act, Article 3 state that
“forests principally belong to the nation” while Article 5 maintains that “the administrative management of the forestry industry shall be predicated on the primary goal of preserving the long-term integrity of national lands” (Forestry Act 2015). At present, it appears that while both the Rukai indigenous peoples and the Forestry Bureau are interested in maintain the integrity and ecological health of the forested lands in question, each party has differing long term goals. The Rukai peoples wish to conserve the forest and the resources therein contained so that they must be sustainably utilized over the coming years to continue Rukai practices. On the other hand, the Forestry Bureau has made the whole of Taiwan its top priority in conserving the integrity of the forest. Thus, for years, the Forestry Bureau and the Rukai peoples have been at odds with regard to the use of natural resources within these lands.
In addition, chapter three section four of this thesis also identifies the ongoing concerns and conflicts surrounding the application process for use of natural resources, both timber and non-timber. Currently, Rukai peoples are required to submit an application for resource use through the District Council, an intermediary agency, to then be sent to the Forestry Bureau for consideration.88 While some Forestry Bureau representatives argue that they do not care how
87 Information collected as a result of the author’s participation in the Walking Workshop 2017.
88 Ibid.
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87 many resources are used so long as the numbers are reported to the bureau, this application process has proven to be a huge hindrance in Rukai peoples’ ability to access those natural resources that they so require. Therefore, in developing a co-management agreement, the Forestry Bureau and Rukai peoples would need to clarify how the timber and non-timber forest resources contained within these lands are to be managed and utilized. Should the
co-management agreement result in the creation of a committee whereby Rukai peoples and the Forestry Bureau have equal representation and decision-making power, it seems likely that the committee could then negotiate natural resources rights that would satisfy the needs of the Rukai peoples while still maintaining the integrity of the forest. However, this criterion will only be satisfied if Rukai peoples are given rights to the resources contained within the co-management agreement lands without having to jump through the long series of bureaucratic hoops to obtain access.
4. Tenure Security:
The fourth criterion, that of tenure security, once again bears a striking resemblance to criteria 1 and 2, regarding land tenure and territorial recognition. In this sub-section, however, the question is: how would Rukai indigenous title over the land within the co-management agreement be secured? Essentially, as deliberated in the analysis of the Taroko co-management committee case, this requires looking at how indigenous title over the forested lands in question is assigned. While this point once more requires us to examine Taiwan’s legal framework, in particular the 2005 Basic Law and the Forestry Act, the ability to respect indigenous title over the relevant lands may be less restricted as these lands are not contained within a national park.
Because I have already introduced the relevant articles of the 2005 Basic Law in section I.4. of this chapter, I will not repeat my analysis of them here. However, to reiterate, Article 20 discusses the government’s recognition of indigenous rights to land and resources and mandates the regulation and management of the land by laws (Indigenous Peoples Basic Law 2005).
Additionally, Article 21 requires that the government or other private parties obtain free and prior informed consent (FPIC) from the local indigenous peoples prior to developing the land or utilizing the resources therein contained (Indigenous Peoples Basic Law 2005). Essentially, should the emerging co-management agreement between the Forestry Bureau and the Rukai
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88 peoples come to fruition, these articles should serve as the legal foundation upon which the agreement is built, requiring outside parties to obtain consent from Rukai peoples before developing their traditional territories or utilizing the resources contained within such. By implementing these stipulations on a local level through the co-management agreement, the Forestry Bureau and Rukai peoples would jointly reiterate the Rukai peoples’ indigenous title to the lands defined within the co-management agreement.
One piece of legislation that may prove somewhat problematic in securing indigenous title in the relevant forested lands, however, is the Taiwan Forestry Act. Within this act, Article 3 states that “forests principally belong to the nation” and Article 7 allows for the appropriation of public and private forests to national ownership89 (Forestry Act 2015). Additionally, Article 13 requires that “forest management shall comply with the protection and management
regulations for water collection areas; these regulations shall be mandated by the Executive Yuan” and Article 14 states “national forest management plans shall be regulated by the relevant administrative agency, and shall be submitted to the central government agency for approval”
(Forestry Act 2015). Article 13 is particularly relevant due to the concerns voiced by several concerns about water collection, which is currently regulation by the central government.
Furthermore, Article 14 assigns all management powers to the central government as well.
Contrary to the 2005 Basic Law previously discussed, these articles do not recognize indigenous title to the land within the potential co-management area. In order for Rukai land tenure in these forested lands to be secured, the co-management agreement would need to work around these articles to identify the relevant lands as being indigenous lands and by assigning equal
management rights to the Rukai indigenous peoples.
5. Autonomy:
As was previously applied to the Taroko National Park case, this criterion assesses the degree of autonomy that Rukai indigenous peoples have with respect to their traditional forested lands. In discussing autonomy, once more this entails looking at land rights, legal recognition,
89 Accordingly, appropriation requires the central government to demonstrate that the forest provides important resources to the public, and that the previous owners are compensated appropriately (Forestry Act 2015). However, when the forested lands have not yet been recognized as Rukai indigenous lands, then the Rukai do not received proper compensation. For additional contents of the Forestry Act, please refer to Appendix II.
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89 and the ability to utilize their traditional justice system, among other factors. The case of the emerging co-management agreement between the Forestry Bureau and the Rukai indigenous peoples differs from the case of Taroko indigenous peoples on this point, largely owing to the fact that the lands that are in question in Taroko National Park are completely under the control of the National Park Bureau, thus leaving the Taroko peoples with no land rights and no ability to use their traditional justice system in these territories because they have very limited access to such as it is. The Rukai case, however, is not concerned with national park lands, and thus may leave more room for indigenous autonomy. In order to analyze the probability of realizing such, one must answer: within the co-management agreement, to what extent do Rukai indigenous peoples retain autonomy over their own affairs (ie. Land rights legal recognition, ability to use traditional justice system)?
As has been previously stated numerous times, the Forestry Bureau has only released 15,000 to 20,000 hectares of land to indigenous peoples (not solely limited to Rukai peoples), and much of this land is unusable.90 In the remaining forested Rukai traditional territories, the Forestry Bureau retains sole control over the decisions being made therein, as guaranteed by the Forestry Act. While the 2005 Basic Law is intended to guarantee Rukai land rights within their traditional territories, these rights are seldom enforced at the local level. Additionally, although the Basic Law and the central government recognize the Rukai indigenous peoples as one of Taiwan’s sixteen officially recognized tribes, the government has yet to officially recognize the Rukai tribal assembly as a legal entity.91 As a result, the assembly is limited in its powers to dictate Rukai affairs, especially land rights and traditional justice issues. Though strides have been made in identifying traditional Rukai lands, the government and Forestry Bureau have yet to return these lands to Rukai control (Taiwan Today 2017).
In the coming years, however, it seems that Rukai autonomy and decision-making power may be apt to change through the establishment of a co-management committee with the
Forestry Bureau. In the case that the two parties should come to an agreement about
co-managing forested Rukai lands, this would mean that decision-making power and responsibility would be shared between the two.92 Although a co-management agreement such as this would
90 Information collected as a result of the author’s participation in the Walking Workshop 2017.
91 Ibid.
92 Ibid.
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90 not return full ownership of these lands to the Rukai peoples, it would open a space for them to better enforce their land rights and to attain more autonomy and decision-making rights over their own affairs. As the 2005 Basic Law states in Article 4, the central “government shall guarantee the equal status and development of self-governance of indigenous peoples and implement indigenous peoples’ autonomy in accordance with the will of indigenous peoples”
(Indigenous Peoples Basic Law 2005). The emerging co-management committee would help to realize this law on a local level by serving as a bridging mechanism between the central
government agency, the Forestry Bureau, and the Rukai indigenous peoples. As Fikret Berkes argues, “bridging platforms are necessary to provide the basis of partnership,” and in this case, the committee would also serve as the basis for the realization of a degree of Rukai autonomy in determining their own affairs (Berkes 2017).
6. Legal Recourse:
The final criterion of my conceptual framework is that of legal recourse. As discussed in the case of Taroko National Park, this refers to the types of legal actions that are available to Rukai indigenous peoples should their rights to land or resources be violated by another party.
Because the Forestry Bureau and Rukai peoples have yet to formalize a co-management
agreement for the 77 percent of Rukai lands that are forested, this sub-section analyzes the legal recourse that is available to Rukai peoples at present, as well as what types of legal actions might be made available through an official co-management agreement. In discussing these points, the primary question to be answered is: what types of legal recourse are available to the Rukai indigenous peoples to defend their rights to land within the scope of the emerging co-management agreement with the Forestry Bureau?
At the moment, almost all of the forested lands located within Rukai traditional territories are controlled by the Forestry Bureau. This means that when making decisions about the
At the moment, almost all of the forested lands located within Rukai traditional territories are controlled by the Forestry Bureau. This means that when making decisions about the