When Indigenous groups ask for their land back, what does that mean?

After reading about the occupation near the presidential office by Indigenous activists asking for the return of their ancestral land reaching its 1000th day with little movement from the Tsai administration (other than law enforcement officers repeatedly clearing them out), I thought this would be a good time to write a little bit about what these activists want.

Plenty of reports on the issue state that the Indigenous groups are asking for about 1.8 million hectares of land, which is about half of the island of Taiwan, which has an area of approximately 3.6 million hectares.

You can also read about how the Tsai administration is willing to return all public land, but not privately-owned land. This comes out to offering about 800,000 hectares, or a little less than half of what was asked for. (I'm not sure why Kolas Yotaka told Reuters that they would be able to claim 90% of their land - that's clearly not the case.)

The casual reader, at this point, might turn against the Indigenous cause - they want half of Taiwan? That's insane! They want people who already privately own that land to just give it up? And they want this for half the country's territory, when they are only 2% of the population? They can't be serious! 

Yet few have reported on what exactly these Indigenous rights groups are asking for when they say "we want our land back" to head off such reactions.

To figure this out, I sat down with Kerim Friedman, an associate professor in the Department of Ethnic Relations and Cultures (within the College of Indigenous Studies), at National Dong Hwa University. Or, more accurately, I asked him over lunch one day to explain what exactly the goal of "returning land" meant. Do they really want all that privately-owned land to be taken from the current owners and handed to Indigenous tribes?

Apparently, the answer is: not exactly. 

The intention isn't to kick landowners off their land, or for 2% of the people to control 50% of the land.

Instead, it's to gain sovereignty over traditional Indigenous land, without taking away private property rights, which gives Indigenous people a say in how their traditional lands are used, much as the national government currently has the right to do over private property. 


Put another way by Mata Taiwan (in Ketagalan Media): 

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.

Questions over what to do with private land come up all the time - certain changes that owners want to make might need to be approved by the government. Certain sales and development projects may require that too. Just because you own the land doesn't mean you can do anything you want to it, and certain land or sites of cultural importance may garner greater protection. They would be better able to negotiate favorable terms with developers, as well.  It would probably also afford them hunting rights on those lands (though I'm not sure).


You might also call this a "seat at the table": 

Article 21 of the Indigenous Peoples Basic Act (原住民族基本法) states that: “When governments or private parties engage in land development, resource utilization, ecology conservation and academic research in indigenous land, tribe and their adjoin-land which owned by governments, they shall consult and obtain consent by Indigenous peoples or tribes, even their participation, and share benefits with Indigenous people.” [Emphasis mine]

What the Indigenous activists want is to be a part of those discussions, so that if someone who privately owns land that was once Indigenous wants to, say, build a bunch of luxury hotels or a factory on it without regard for the local environment or other Indigenous settlements that might be nearby, they have the ability to challenge or request an injunction on such plans, as the historic inhabitants of that land. In other words, exactly what the government already has the right to do.

Seems quite reasonable when it's explained clearly, doesn't it? So, why is the government refusing to consider this request? According to the government: 

According to the government’s wording, the exercise of the right to consent would violate private property rights guaranteed under the Constitution, and that is why privately owned land was excluded from the definition of traditional Aboriginal [sic] territory.

That doesn't make a lot of sense, though, when you consider that the ROC retains sovereignty over all of this privately-owned land already, with the ability to make laws governing its use as well as expropriation rights. Indigenous land rights probably wouldn't even go that far - I can't find anything that says that Indigenous groups are looking for any right to eminent domain/expropriation.

Mostly, it would mean that private landowners would have to consult with both the ROC government and a local Indigenous council before doing anything with their land. So - a seat at the table.

In fact, the Mata Taiwan/Ketagalan Media article above clarifies Indigenous groups have affirmed that "private development within traditional indigenous areas are still subject to environnmental, water, or construction regulations", meaning that the ROC would not lose all control of those lands.

It seems clear that living on such land would not be much different from living anywhere else in Taiwan now. The only change would be that the Indigenous group claiming the land would have a say in how it is developed. I fail to see how this is unreasonable in any way.

Why can't the ROC use legal tools that already exist to protect Indigenous interests when approving private property development projects? Well, because they haven't done a particularly good job of it before:

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

During [a] press conference on February 14, Commissioner Icyang [Parod] 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.

If you think that's bad, consider the Asia Cement debacle, on Truku land: 

Complainants say that the ACC [Asia Cement] plant, its operations, and the legislative processes that make this possible have been executed in violation of the Taiwan's Indigenous Peoples Basic Law. The local peoples have never been properly consulted regarding the use of their Indigenous lands. Certainly, they did not grant permission for the resulting land and social degradation. 

ACC claims that over half of its employees are locals. In addition to acquiring community approval signatures four decades ago — which the locals claim were forged and some included deceased people — this serves as what they claim is sufficient basis for free and prior informed consent.

Of course, no issue is simple. The Indigenous who are counted in that 2% number cited above are typically the descendants of 'Mountain Indigenous', an old designation of unassimilated Indigenous groups who had mostly moved to the mountains and not mixed as much with Chinese immigrants to Taiwan. 'Plains Indigenous', or Pingpu, have fought harder for recognition as they did tend to assimilate and intermarry with the Chinese settlers and are now often (though not always) culturally indistinguishable from them.

It's important to point out that the land that 'Mountain Indigenous' claim is more likely to be government land (being in sparsely-inhabited mountainous areas), which has led to some success. Plains Indigenous who want the same land-claim rights face a harder battle, as not only are they less likely to be recognized as Indigenous, but most of the land they would claim is private property on the densely-populated plains. As such, they've been less successful. (It's also worth noting that not all of the members of the former group necessarily want the latter group to gain recognition, for a variety of complex reasons that I don't feel qualified to tackle right now.)

In addition, according to Mata Taiwan/Ketagalan Media, some lands are subject to overlapping claims by different Indigenous groups.

That still doesn't really give Tsai a strong reasoning for not considering what the Indigenous people are asking for, however:

One additional controversy is over the resolution that 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.

These issues are solvable, if those in power are willing to talk to marginalized groups and take reasonable requests seriously.

After all, this land was stolen from Indigenous groups. In many cases, it was simply taken from them by various colonial powers, and once wrested from Indigenous inhabitants, it was passed through a series of state-owned enterprises or sold to private buyers - that's why a fair amount of this land is tied up in big corporate interests like Asia Cement. In other cases, settlers from China used the language barrier to their advantage to 'trick' Indigenous inhabitants into unknowingly giving up their land - a practice which hardly constitutes informed consent.

And yet, a proper solution doesn't seem to be happening here and I have to wonder why.