Indigenous Land Justice and Traditional Territories in Taiwan

Land is the foundation of indigenous cultural, economic, and social organization. However, from the Dutch-Spanish colonial period to the establishment of modern state systems, indigenous land rights in Taiwan have undergone multiple dramatic transformations. In recent years, with the rise of transitional justice awareness, Taiwan has begun to confront historical violations of indigenous land rights and attempt to restore indigenous land justice through legal systems and policy measures.

Historical Context: The Process of Land Loss

Traditional Land Use and Spatial Concepts

In traditional society, Taiwan's indigenous peoples developed complex and sophisticated land use systems. Different ethnic groups formed distinctive spatial organizations based on ecological environments and lifestyles.

The Bunun people practiced a "slash-and-burn rotation" system, clearing agricultural land on the gentle slopes of the Central Mountain Range with 3-5 year rotation cycles to allow natural land recovery. Their traditional territories included hunting areas, farming areas, residential areas, and sacred spaces, each with strict usage regulations and taboos.

The Tao people's (Yami) spatial concepts were even more refined. Orchid Island was divided into different marine and terrestrial spaces, with each family having specific fishing grounds and forest use rights. They developed a "flying fish season" temporal system, managing marine resources according to different seasons.

The Amis matrilineal social system was reflected in land inheritance, where agricultural and residential land was usually inherited by women, and men moved to their wives' tribes after marriage. This system ensured the continuity of land within the ethnic group.

Colonial Land Policies

The arrival of the Dutch East India Company in the 17th century marked the first systematic violation of indigenous land rights by foreign regimes. The Dutch colonial government implemented the "revenue farming system" (jianshe 贌社), leasing indigenous villages' hunting, fishing, and trading rights to Han Chinese merchants, beginning to alter traditional land use patterns.

During the Qing Dynasty, the "mountain pacification" (kaishan fufan 開山撫番) policy encouraged Han Chinese immigration and cultivation of indigenous lands. The government established "indigenous boundaries" (fanjie 番界) prohibiting Han entry, but enforcement was lax, leading to massive illegal Han settlement. Qing government land policies essentially did not recognize indigenous land ownership, treating indigenous lands as "ownerless land."

The Japanese colonial period had the most profound impact on indigenous land rights. After 1895, the Japanese government conducted an island-wide land survey and established a modern cadastral system. During this process, indigenous traditional lands were reclassified and registered, with most lands designated as "state-owned" or "public lands."

In the 1930s, the Japanese government promoted the "indigenous administration policy" (riban seisaku 理蕃政策), forcibly relocating indigenous peoples to the lowlands and concentrating them in "group resettlement" (shudan iju 集團移住) areas. This policy thoroughly destroyed indigenous traditional spatial organization and land use patterns. Many tribes were forced to leave ancestral lands, losing generations-old farmlands and hunting grounds.

Post-War Nationalist Government Land Policies

After the Republic of China government took over Taiwan in 1945, it essentially continued the Japanese-era land system. Most indigenous traditional territories were designated as state-owned, with only a few private lands receiving recognition.

The 1950s land reform policies primarily targeted plains agriculture and had limited impact on indigenous areas. However, the establishment of the "mountain reserved land" system did preserve some land rights for indigenous peoples. The 1960 "Mountain Reserved Land Development and Management Regulations" stipulated that indigenous peoples could apply for usage rights to reserved lands, though ownership remained with the state.

However, mountain reserved lands covered far less area than indigenous traditional territories. According to statistics, current mountain reserved lands cover approximately 260,000 hectares, while indigenous peoples claim traditional territories of 1.8 million hectares—a nearly seven-fold difference. This gap became the focus of contemporary land justice issues.

Evolution of Legal Framework

Constitutional Amendments and Indigenous Peoples Basic Act

After democratization in the 1990s, indigenous rights gradually gained attention. The 1994 Constitutional Amendments first explicitly guaranteed indigenous rights, establishing constitutional values of multiculturalism.

The 2005 enactment of the Indigenous Peoples Basic Act was a major breakthrough. Article 20 explicitly states: "The government recognizes indigenous peoples' land and natural resource rights," while Article 21 requires the government to "establish systems for demarcating, registering, protecting, restoring, and providing remedies for indigenous peoples' lands and maritime areas."

This law first recognized indigenous collective land rights in Taiwan's legal history and established the principle of "Free, Prior, and Informed Consent" (FPIC). Any development activities on indigenous lands must receive indigenous consent.

Legal Process of Traditional Territory Demarcation

After passage of the Indigenous Peoples Basic Act, the key question was how to specifically demarcate traditional territories. This process was full of controversy and challenges.

In 2017, the Council of Indigenous Peoples announced the "Regulations for Demarcating Indigenous Peoples' Land or Tribal Territory Land," but these regulations only covered "public lands," excluding private lands, sparking strong protests from indigenous groups. Protesters argued that traditional territories should not be arbitrarily divided due to subsequent land privatization.

After years of discussion and revision, the 2019 amended demarcation regulations expanded the scope but retained some restrictive clauses. The demarcation process requires tribal meeting consent and applications by ethnic group representatives.

Several tribes have now completed traditional territory demarcation, including multiple Taroko tribes in Hualien County and Paiwan tribes in Daren Township, Taitung County. Each demarcation case reflects that ethnic group's special relationship with and use of the land.

Work of the Indigenous Historical Justice and Transitional Justice Commission

Truth Investigation and Historical Reconstruction

In 2016, President Tsai Ing-wen officially apologized to indigenous peoples on behalf of the government and established the "Presidential Office Indigenous Historical Justice and Transitional Justice Commission" (IHTJC). This was Taiwan's first mechanism for systematic investigation of historical injustices against indigenous peoples.

The IHTJC established five thematic groups, with the "Land Group" specifically investigating historical changes in indigenous land rights. Through archival research, elder interviews, and field investigations, the group reconstructed the impact of land policies on indigenous peoples during the Qing, Japanese, and post-war periods.

Investigation results showed that indigenous peoples suffered systematic violations of land rights during different historical periods. The Japanese-era "group resettlement" policy affected 64 tribes and approximately 30,000 indigenous people were forced to relocate. Post-war "plainification" policies also caused many tribal relocations and cultural discontinuity.

Important Investigation Cases

The Taroko Liwu River Basin Investigation was one of the IHTJC's important achievements. The investigation found that the Central Cross-Island Highway built during the Japanese period and post-war tourism development seriously affected traditional Taroko living spaces. People were forced to move from mountains to river terrace areas, losing hunting grounds and sacred spaces.

The Seediq Lushan Tribe Investigation revealed violations of indigenous land rights through hot spring development. The Lushan Hot Springs area was originally traditional Seediq residential land, but during tourism development, tribal land rights were ignored and people were even forced to relocate.

The Tao Nuclear Waste Storage Investigation shocked society even more. The investigation found that during the 1982 nuclear waste storage facility establishment process, the government never obtained genuine Tao consent and even used deceptive means to obtain land use rights. This case became the most vivid symbol of indigenous land justice.

Policy Recommendations and Institutional Reforms

Based on investigation results, the IHTJC proposed multiple policy recommendations:

Establish Indigenous Land Rights Recovery Mechanisms: For historically improperly acquired lands, recovery or compensation mechanisms should be established.

Strengthen Legal Status of Traditional Territories: Traditional territory demarcation results should be incorporated into national spatial planning, ensuring development activities require indigenous consent.

Establish Indigenous Courts: Handle disputes involving indigenous land rights.

Promote Collective Land Rights Legislation: Amend current laws to recognize indigenous collective land ownership.

Contemporary Controversies and Challenges

Controversies in Traditional Territory Demarcation

Traditional territory demarcation faces complex technical and political challenges. The biggest controversy is "overlapping issues." Traditional territories of different ethnic groups may overlap—how to handle these disputes tests government wisdom.

Wanrong Township in Hualien County faces overlapping traditional territories between Taroko and Seediq peoples. Both groups claim the same mountain forest as ancestral territory, requiring multiple coordination meetings to reach preliminary consensus.

Another challenge is "evidence issues." Traditional territory boundaries often rely on oral history and traditional knowledge, lacking "objective evidence" recognized by modern law. How to establish legally recognized proof standards while respecting indigenous culture is a major difficulty.

Balancing Development and Protection

Even after completing traditional territory demarcation, handling conflicts between development needs and indigenous rights remains complex.

Asia Cement's mining controversy in Taroko National Park is a typical case. Asia Cement has quarried limestone in Taroko traditional territory for over 40 years, with 2017 mining rights renewal sparking fierce protests. Taroko people claim this land is their sacred mountain and should not be quarried; but Asia Cement argues they legally obtained mining rights and should receive legal protection.

Such disputes reflect conflicts between modern legal systems and indigenous traditional rights. Finding balance between protecting existing rights and achieving land justice requires more sophisticated institutional design.

Climate Change and Traditional Knowledge

Climate change brings new challenges to indigenous land rights. With frequent extreme weather events, traditional land use methods face testing. But simultaneously, indigenous traditional ecological knowledge may be important resources for climate adaptation.

After Typhoon Morakot, the government promoted "permanent housing" policies, helping disaster area residents relocate to safe areas. But this policy required residents to abandon mountain land use rights, sparking strong indigenous backlash. They believed leaving ancestral lands meant losing cultural roots.

How to respect indigenous emotional connections to land while ensuring safety is a key consideration for future policymaking.

Future Prospects and International Trends

International Indigenous Rights Developments

Taiwan's indigenous land justice movement is closely related to international trends. The UN adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, establishing indigenous land, territory, and resource rights. Although Taiwan is not a UN member, international standards still significantly influence Taiwan's policy development.

Experiences from New Zealand, Canada, Australia, and other countries regarding indigenous land rights provide references for Taiwan. New Zealand's Treaty of Waitangi settlement solutions and Canada's land claim procedures are institutional innovations worth learning from.

Integration of New Technology and Traditional Knowledge

Modern technology provides new tools for indigenous land rights protection. GIS geographic information systems can precisely record traditional territory boundaries, drone technology can monitor land use changes, and blockchain technology might even be used for land rights registration and transactions.

But technological applications must combine with traditional knowledge. The Tafalong tribe in Guangfu Township, Hualien County, collaborated with Academia Sinica to use GIS technology recording Amis traditional place names and land use methods, establishing digitized cultural maps.

This approach combining traditional knowledge with modern technology may be an important direction for future land rights protection.

Taiwan's indigenous land justice journey remains long. From reconstructing historical justice to improving modern institutions, from traditional territory demarcation to resolving development conflicts, every step requires joint efforts from government, indigenous peoples, and society. But just like the wisdom of indigenous peoples who have coexisted with the land for thousands of years, every advance on this path is a precious contribution to multicultural Taiwan.

References

• Presidential Office Indigenous Historical Justice and Transitional Justice Commission — Investigation reports and meeting records
• Council of Indigenous Peoples — Traditional territory demarcation related laws and policies
• Indigenous Peoples Land and Maritime Area Information Service — Land rights database
• Kuan Ta-wei (2019) "Indigenous Land Rights and National Spatial Planning," Angle Publishing
• Eleng Tjaljimaraw (2018) "Transitional Justice and Indigenous Peoples," Avant-garde Publishing
• Indigenous Peoples Basic Act — Republic of China Ministry of Justice National Regulations Database
• UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Chinese version, translated by Council of Indigenous Peoples
• Tsai Chih-wei (2020) "Indigenous Traditional Territories and Transitional Justice," Wu-Nan Publishing