The final proposition for the indigenous peoples’ movement in Taiwan

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As Chairman of the Council of Indigenous Peoples, Executive Yuan, Professor Sun Da-Chuan is the most influential person in the indigenous movement in Taiwan.

While on the one hand he was critical in the organisation of the Pacific conference, he was also presenting his Final Proposition for the Indigenous Peoples’ Movement in Taiwan, which is the autonomy of indigenous peoples. In his speech he talks about the legal battle and administrative difficulties faced by those campaigning for indigenous political autonomy in Taiwan..

Alternative (for readers in China)

The Autonomy of Indigenous Peoples

With its traditional territories invaded and its natural resources exploited, such are the common problems facing each of the indigenous peoples around the world. For the past four hundred years, Taiwan's indigenous peoples have been under colonial rule by an array of different foreign ethnic groups. Although the resistance against the foreign rulers has never ceased, however, the history of an "indigenous peoples’ movement" – one that truly fights for the indigenous rights as its cause through garnering the joint efforts made by all walks of the indigenous communities – is only a few decades old.

Taiwan began to kick off a gradual process of democratization since the mid-1980s, a time for a myriad of social movements to emerge and flourish. 1984 is the year that sees the establishment of "The Promotion Alliance of Indigenous Rights in Taiwan"(「臺灣原住民權利促進會」), which has become the symbol for the launching of the contemporary indigenous peoples’ movement. In 1987 the PAIRT issued "The Declaration of the Rights of the Indigenous Peoples in Taiwan," emphasizing that "indigenous peoples are the masters of Taiwan" and came to a decision that both the "name rectification" and "autonomy" would be the core values for the indigenous movement. Albeit the fact that after the constitutional amendment in 1997 the Constitution of the Republic of China officially addresses all indigenous populations in Taiwan as "indigenous peoples," which made the initial goal of the movement - "name rectification" a reached one, however, the "autonomy" proposition still remained too difficult a conundrum to be solved.

Legal and Institutional Backgrounds

In early 2005 The Indigenous Peoples’ Basic Law had been promulgated. In the Article 4 of this mentioned law, it is expressly stipulated that "The 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. The relevant issues shall be stipulated by laws.” This is the first Law that expressly stipulates that the government shall implement the autonomy of the indigenous peoples; however, way before the promulgation of this Law, the government had got involved in the initial part of the autonomy-promotion process for the indigenous peoples.

Starting from 2000, The Council of Indigenous Peoples, Executive Yuan had undertaken the drafting of "The Autonomy Law of the Indigenous Peoples," whose essence is to allow the autonomous region to “break away from local autonomy, and set up a government for the indigenous peoples." After a lot of inter-ministerial meetings for consultations and negotiations, finally in 2004 the Executive Yuan had arrived at a decision to stipulate the "Draft Law on the Autonomous Region of Indigenous Peoples" (「原住民族自治區法草案」)This is the first proposed law regarding the autonomy of the indigenous peoples ever approved by the Executive Yuan. Although it seems that this Law still retains certain significance of "breaking away from the local autonomy," in its content, however, 16 Articles of the Law merely provide a legislative framework regarding matters of procedural principle. As for the practical issues regarding the substantive content of the autonomy, each and every ethnic group itself will have to request the Legislative Yuan separately to formulate "The autonomous region Ordinance" (「自治區條例」) for dealing with matters as such. [Moreover], the procedural issues regarding the reconfiguration of an administrative region shall also be submitted to the Legislative Yuan for regulating separately "The Reconfiguration Law of Administrative Region For the Autonomous Region of the Indigenous Peoples” (「原住民族自治區行政區劃法」) to deal with matters as such. Therefore, the "Draft Law on the Autonomous Region of Indigenous Peoples" aroused the objection among the indigenous legislators, most of which maintained that this Draft Law was only an "empty-shell autonomy" that appeared to be "deceptively handsome," and consequently the reviewing procedures of this Draft Law had ended up to be delayed.

In 2008, right before he was sworn in, president-elect Ma Ying-jeo put forward his indigenous policies regarding “a pilot project for the autonomous region of the indigenous peoples, and a vision for a stage-by-stage implementation for their autonomy." Soon after this, our Council, in accordance with The Indigenous Peoples’ Basic Law and the proposed policies of the president, carried on to draft a new version of the “Draft Law on the Autonomy of Indigenous Peoples”(「原住民族自治法草案」).

Legal and Institutional Conundrums

We understand that the community of the indigenous peoples at large looks forward to an autonomous system that is able to "break away from the local autonomy and establish a government for the indigenous peoples." However, after we did review the political reality and the status quo of Taiwan, we found that there exist a couple of major legal difficulties.

First of all, the majority of the local governments will face a shrunken administrative area once the indigenous peoples’ autonomy is put into practice. For example, the entire administrative area of Hualien County will be replaced by the autonomous region; the administrative area of Taitung County will lose all of its territory except Green Island Township, and thus will face the repeal of its county jurisdiction; both the administrative areas of Pingtung and Nantou Counties will be downsized nearly by half, and the non-indigenous people within these autonomous regions will lose the right of political participation such as running for magistrates and legislators; the newly established autonomous regions will also demand their due share of the overall distribution of taxes from the central government, a factor that will cause a substantial reduction of the revenue in the local governments. Therefore, the objection that will be aroused by the promotion of the indigenous peoples’ autonomy will be beyond expectations.

Secondly, after the newly established 14 autonomous regions have replaced the local governments, they will have to take over all of the local administrative duties, including civil affairs, land administration, education, policing, and household registration affairs. After we have put everything under evaluation, we found that for the Amis, Atayal, Paiwan and Bunun, who are ethnic groups with larger populations that cover relatively extensive areas, it is possible that they barely have the caliber to shoulder all the financial burdens of the local governments. For those ethnic groups with a population of just several hundred or thousand people, however, chances are that they will face an awkward situation where their financial resources are insufficient for supporting all the local affairs. In case the public finance of an autonomous region entirely depends on the "good will" of the central government, then this means that the initiative for the autonomy of the indigenous peoples is simply dropped and returned back into the grip of the State, which will deviate further from the expectation of the indigenous peoples’ communities.

Therefore, if we only manage to formulate for the indigenous peoples an Autonomy Law that is barely equipped with symbolic functions such as principles and procedural norms etc., then given that the above-mentioned conundrum could be fully evaded, still we will fail in taking up the responsibility in eliminating the obstacle for the autonomy of the indigenous peoples. Due to the fact that "history cannot return to zero," we must face the status quo with honesty by bringing up a solution that is truly feasible, for this is the due performance for a responsible government.

Deliberating Process of the Draft Law[1]

In order to solve the above-mentioned conundrum, we have drawn up an new model for the indigenous peoples’ autonomy system, i.e., the indigenous peoples’ autonomous region can still cover its own autonomous territory, only that in case an autonomous territory overlaps with a local administrative area, then this overlapped space shall be put by us under a "shared-space model for indigenous peoples’ autonomy"(「空間合一的原住民族自治模式」).

First of all, due to the existence of a shared-space, the local government still has to continue implementing its local administrative affairs, thus the matters to be taken care of by the government of the autonomous region will be reduced, and all the unnecessary financial burdens will therefore be cast off, and the autonomous region government can simply focus on dealing with the core affairs of the indigenous peoples' autonomy.

Secondly, within a shared-space model, there is no need to alter the administrative area of the local government, and there is no need for the authority of any government organization to be modified. By doing so, the established rights of the non-indigenous individuals will not be affected either. Furthermore, this can also significantly reduced the bad reactions come from the non-indigenous communities, increasing the probability for the “Draft Law on the Autonomy of Indigenous Peoples” to be passed [in the Legislative Yuan].

But, after adopting the model of shared-space, we will face two major problems as well. First, due to the fact that the local government still manages the local government, how should an autonomous region government deal with the local government regarding issues like "the division of labor between the autonomous and local authorities" and "the cooperation on relevant affairs"?

Steering a cautious course between different deliberations, our Council manages to list all tasks highly related to the aim of the autonomy of indigenous peoples - including the conservation of natural resources; the management of natural resources; and both the ethnic education and culture - as the autonomous affairs of the indigenous peoples. Moreover, in accordance with the regulations of The Indigenous Peoples’ Basic Law, we also list the following rights under the jurisdiction of the autonomous region government, including the indigenous peoples’ rights to manage animals, plants, minerals, earth, rock, and water resources; the rights to manage and use land; the right to resist the state over issues that affects the land rights of the indigenous peoples.

Second, due to the fact that an administrative area of the local government and the autonomous region government overlap with each other, therefore the autonomous region government cannot levy the local tax and national tax for a second time. With this in mind, how shall we program and devise the financial resources for the autonomous region government?

After repeated researches conducted over The Act Governing the Allocation Of Government Revenues And Expenditures (財政收支劃分法), The General Rules for Local Tax Act (地方稅法通則), The Public Debt Act (公共債務法) and the financial situation of each local government in Taiwan, our Council, after consulting further with many financial and auditing organizations in the central competent authorities, has reached a consensus as follows: The finances of the autonomous region government shall be regulated in the light of that of both the counties and cities; albeit neither entitled to levy the local tax nor to obtain any share from the national tax and the centrally-allotted tax revenue, the autonomous region government, in accordance with the regulations of The General Rules for Local Tax Act, can still levy of special tax (特別稅課), provisional tax (臨時稅課) and surtax[2](附加稅課); albeit the autonomous region government is not entitled to issue any government bonds, it is entitled to procure short-term funds from the central government.

Moreover, with regards to the incomes gained within the autonomous region government - such as water rights charges, the mineral royalty, the conservation and feedback fees from water resources and national parks, the profit obtained from designated scenic areas of national level and recreation areas - we particularly have it expressly stipulated that a specific proportion of these revenues shall be appropriated as the Special Revenue of the autonomous region government. In addition, for facilitating the autonomy of the indigenous peoples, the autonomous region government can set up relevant funds, which will be subsidized by both the central government and The Integrated Development Fund for the Indigenous Peoples (原住民族綜合發展基金). With regards to those autonomous region governments that still find themselves caught in less satisfactory financial situations, it is also expressly stipulated in this Draft Law[3] that the central government has the statutory duty to grant subsidies. We are convinced that, through the above-mentioned financial planning, after the establishment of the indigenous peoples' autonomous region, even without the Local Tax, Shares of National Tax and the Centrally-Allotted Tax Revenue, still there will be sufficient financial resources to cope the needs for carrying out the policies.

Conclusion

As members of the indigenous peoples, we cannot forget the pursuit of ideals, but we cannot refuse to face the reality either. After the establishment of the indigenous peoples' autonomous region under the principles of shared-space, division of labor, and cooperation on relevant affairs, though it seems that there is still a distance for us to cover between our ideals and where we are, however, once the autonomous region is established, once the subjectivity of the indigenous peoples is legally acknowledged, then through the ensuing consultation, negotiation, communication and coordination between the autonomous region government and all levels of the government, each and every ethnic group, according to its own autonomous momentum, will get more involved in the autonomous issues, and will obtain higher jurisdiction power, and we for sure will be able to create a political system for an autonomy that meets the needs of all ethnic groups.

We believe that this is a Draft Indigenous Peoples' Autonomy Law that is best equipped with feasibility, prosperity and dynamism at the present stage. We also hope that all communities of the indigenous peoples can make joint efforts with us to solve the last conundrum for our indigenous peoples' movement as soon as possible.


[1] “Draft Law on the Autonomy of Indigenous Peoples”

[2] A surtax may be a tax levied upon a tax, or a tax levied upon income.

[3] “Draft Law on the Autonomy of Indigenous Peoples”

Last modified on Wednesday, 08 January 2014 17:34
Ta-chuan Sun (孫大川)

Professor Sun is a renonwed advocate of aboriginal culture in Taiwan. A member of the Beinan tribe he teaches at Tunghua University, Hualien.

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