In 2005, Taiwan's Smangus community faced a legal case over their right to natural resources. After a four-year battle, the court ruling pushed for the recognition of their traditional territory and stressed the importance of respecting Indigenous customs in legal systems.
Problems and Purpose
In September 2005, typhoon Haitang hit Taiwan and caused severe landslides in the mountain area of Hsinchu County. Instead of waiting for the government to clean the ways to the villages, the Smangus community voluntarily repaired the road and moved the wind-fallen beech to the roadside the day after the typhoon left the island. About a month later, three community members were dispatched to carry back the fallen beech in order that they be used as materials for village decoration. Only then did they discover that the trunk of the beech had been sawn and taken away by the Forestry Bureau, leaving the roots and the remains of the tree with marks made by the Bureau on the roadside. On their way back, the three community members, who were carrying the remains of the trees back to the village, were intercepted and arrested by the forest police for stealing forest by-products. Subsequently, they were charged by the Forestry Bureau of stealing forest products with Article 52 of the Forestry Act, which sets out what constitutes theft of forest products and the penalties for this [1-4]. In the first verdict made by Hsinchu District Court in April 2007, the three community members were found guilty and were given suspended sentences of 6 months' imprisonment and a fine of NT$160,000 (around 5,000$US) each. After the case was appealed in the High Court, the sentences and fines were reduced to 3 months and NT$59,000 (around 1,800$US), respectively. Nevertheless, the three community members, with the support of the Smangus community council, refused to plead guilty and engaged in a legal battle to claim their collective right to practice their customary law according to which the community can utilize the wind-fallen beech as a natural resource within their traditional territory [5]. The case stirred up discussions about the form and agenda of the state’s natural resource management in Indigenous territories.
Background History and Context
The history of forest governance in Taiwan could be traced back to the Japanese colonial era between 1895 and 1945 when the policy of afforestation was implemented for the purposes of both commerce and disaster prevention. Since then, extensive harvesting activities have taken place in the resource-rich forest up until the 1970s when a conservation agenda to limit agricultural activities in the forest for disaster mitigation became one of the aims of the Forestry Bureau [2]. Despite several reforms of the then existing laws to recognize the rights of Indigenous peoples to utilize natural resources, such as the amendment to the Forestry Act in 2003 which, for the first time in law, mentioned the concept of Indigenous traditional territory; it was still up to the central government to decide how the rights were to be enforced in practice. Although the 2005 Indigenous Peoples’ Basic Law acknowledged the rights of Indigenous peoples to the natural resources of their traditional territory, it lacked specific enforcement mechanisms and guidelines for implementation [2]. Even with the formal recognition of Indigenous peoples rights in laws, state agencies would still act as the owners and managers of the resource-rich mountainous regions and use their authority to control the activities on these lands. Conflicts over the rights to land and natural resources were common between the state agency, particularly the Forestry Bureau, and Indigenous communities. In many cases, Indigenous peoples were considered by the state as thieves for exploiting the natural resources of their homelands.
Among the numerous Indigenous peoples in Taiwan, the Smangus community was the last village of the country to be connected to the national electrical grid in 1980 and to be accessed by car in 1995 [6]. The people of Smangus belong to the Atayal tribe, who inhabit mainly the northern mountain region of Taiwan. Before the Smangus community discovered the forest of giant cypresses in 1991 and started to develop tourism, the people of Smangus lived a subsistence lifestyle. Modern state services, including health services and basic education, were for a long time hard to access in the region. Its isolation and the late exposure to modernity may have held at bay some of the influences resulting from market economy such as individualism and outmigration, and may have fostered a stronger sense of collectiveness in the community compared to other Indigenous communities in Taiwan. For instance, instead of competing with each other to manage the tourist business in the community, members gradually developed a communal management system, which was partly influenced by the Presbyterian Church in the community, but also rooted in Atayal traditional practices of sharing and egalitarianism [2]. Tasks to manage the community and the tourist business, including community clean up, repair work, house building or farm work, are discussed and assigned to each member after their meeting each morning. Profits from tourism go into a community fund, which not only pays the salary of the members but also provides them cradle-to-the-grave care [6]. The communal management system has successfully helped the community to be economically independent, with a strong sense of self-reliance without depending on state services that rarely reach the community in time [2].
More importantly, under the communal management system, all participants are considered the co-owners of the land in the community, and every decision about the land is made collectively. In the community covenant, the members are prohibited from the sale, rental or lease of their private land to non-community members [7]. The communal management system, particularly their regulations on land ownership, helped to maintain a strong sense of sovereignty among the Smangus community despite the increasing influences of the market economy and outmigration which weakens the traditional practices and connection between Indigenous people and their land [2]. The legal battle for the fallen beech was thus not only a question of resource management, but also about the assertion of Smangus sovereignty over their land.
Methods and Tools Used
Instead of treating the defense of the three community members as individual cases and having them faced the legal case alone, the Smangus community took it as a collective issue. To raise public awareness about the case and convey their narratives and messages to the general public in Taiwan and the international community, a blog − 'When God’s Village Meets the State' − was set up by the youths of the Smangus community to publicize the case. In addition, conferences were held by the community to gather different Indigenous groups across Taiwan to share and discuss their common issues regarding natural resources utilization and rights to traditional territory. Traditional ceremonies to form alliances between the neighboring Atayal groups of the Smangus community were also held to solicit support and review the issues discussed.
What Went On: Process, Interaction, and Participation
After the community received the first verdict, dialogues were facilitated between the community and the Forestry Bureau. Despite that, no consensus was reached between them, and the conflict even escalated due to their differing points of view on who owns the rights to the land [2]. As the case progressed, the Smangus community was widely supported by Indigenous advocates and scholars locally, nationally, and internationally. Many Indigenous groups in Taiwan had also been experiencing conflicts with the Forestry Bureau on similar issues in the past few decades. Several Indigenous tribes showed their solidarity with the Smangus community. The Pinhaban Alliance was formed by nearby Atayal communities and other supporting Indigenous groups to assert Indigenous peoples’ rights to their traditional territory [8]. Representing various Indigenous communities of Taiwan, the Pinhaban Alliance raised the case as a collective issue of the Indigenous peoples of Taiwan and demanded that the state apologize for humiliating and stigmatizing Indigenous peoples and for accusing them of being thieves in their homeland [8]. During the process, several protests organized by different Indigenous groups were held in front of the Forestry Bureau, the Executive Yuan, and the Council of Indigenous Peoples (CIP), a governmental agency that represents the Indigenous peoples of Taiwan in the government.
Apart from appealing to the courts, the youths of the Smangus community used the blog they set up as a platform to document the development of the case and to represent the voices and viewpoints of the community. By reclaiming their own narratives of the case, showing Indigenous perspectives on the concept of traditional territory, and explaining their practices of natural resources management in the blog, the case eventually became known and supported by international bodies such as the International Society of Ethnobiology. Representing the Smangus community, the three defendants, accompanied by Indigenous rights groups, brought the case to international scene such as the United Nations Permanent Forum on Indigenous Peoples in 2007 to meet the United Nations Special Rapporteur on the Rights of Indigenous Peoples and solicit international support.
With the increasing attention to the case from the general public and the international society, the Premier of the Executive Yuan asked CIP to look for solutions to the dispute. One solution the CIP came up with was for the judge to refer the case to the Indigenous Peoples’ Basic Law, which clearly states the rights of the Indigenous peoples to the land and natural resources within their traditional territory. Nevertheless, the law that defines the scope of traditional territory – the Indigenous Peoples Land and Maritime Territory Act – had not yet been passed by the legislative process. Hence, despite the survey study that has already been conducted by the CIP on the boundaries of traditional territories of the Indigenous communities in 2002, the government had no legal basis to recognize the traditional territory of the Smangus community. To solve this issue, CIP then proposed to directly issue an executive order to announce the domain of Smangus traditional territory to legitimize their rights to their territory. However, another difficulty of demarcating and announcing the traditional territories of the community arose due to the overlapping area between the neighboring villages, especially the hunting or gathering grounds. To ease the concern of the neighboring communities, the CIP also included another neighboring group and acknowledged the rights of both groups to the land and natural resources within this domain [5].
Influence, Outcomes, and Effects
The recognition of the traditional territory of the Smangus by the government was unprecedented in the history of Taiwan [4]. In December 2009, the Supreme Court convened to revisit the case. In this subsequent hearing, the previous guilty verdict was overturned, and the case was remanded to the High Court for further examination. Notably, the judge's ruling introduced the phrase "Indigenous peoples' traditional territory" into the legal case for the very first time. This ruling acknowledged the necessity of demonstrating heightened respect for Indigenous peoples' activities that align with their traditional customs within their ancestral lands in order to safeguard their fundamental rights. Furthermore, the judge also pinpointed the deficiencies in the earlier interpretations of the Forestry Act [4]. On 9 February 2010, after more than 4 years of legal battle, the High Court finally passed down a non-guilty verdict to the three community members and emphasized the need to uphold the spirit of the Indigenous Peoples’ Basic Law [9].
This verdict was the first case in Taiwan where the judiciary recognized the rights of the Indigenous people to the natural resources of their traditional territory. During the legal proceedings, the community’s management practices and its knowledge of the land were presented by indigenous leaders, lawyers, and scholars in the court as evidence to its claim to the sustainable utilization of natural resources on the territory [9]. The case has historical significance for the Indigenous and environmental movements in Taiwan. It challenged the authority of the state’s forestry governance and opened the conversation on the possibilities of a co-management system on natural resources by both the state and the Indigenous peoples.
Analysis and Lessons Learned
Apart from the wide support from different national and international groups and organizations, the success of the Smangus case can be attributed to the strong assertion of sovereignty presented in the legal battle process. Several community statements were made to assert the Smangus’ rights to their traditional territory and to reject the control of the state. In May 2007, before the Pinhaban Alliance was formed, the community held a traditional ceremony to declare the autonomy of their traditional territory and set up a stone marker to make a covenant [2]. Representing the people that have been residing on this land for generations, the 'declaration of Indigenous land rights' of the Smangus community asserted their full sovereignty, control, and their right to the management over their ancestral lands which they had never given up ownership of [10].
More than rejecting the control of state agencies on their land, the Smangus emphasized how the state management system had failed to protect the environment of their traditional territory. Claiming to be the better steward and knowledge holder of the land, the Smangus community justified their rights over their traditional territory by presenting their power and capacity to collectively manage and regulate activities on their land and to sustainably use its natural resources. For example, the community covenant or Gaga, the Atayal customary law, sets even stricter regulations on the sustainable utilization of land and natural resources than the state's Forestry Act.
The case showed that the management agenda of the government still perceived the state as the owner of the land and natural resources, despite the laws that were established to recognize the rights of the Indigenous peoples to their traditional territory. The challenges faced by the CIP in recognizing the traditional territory of the Smangus also highlighted the latter’s distinct conception of land ownership: while Indigenous peoples perceived the boundary of their territory as fluid and subject to social relations [5], the state saw territories as needing to be demarcated with fixed lines for administrative purposes.
The way the Smangus community dealt with the legal case demonstrates how it faced disaster and problems with a mix of community collective decision-making mechanisms, traditional practices, and assertions of sovereignty and rights to the land. The Smangus case successfully facilitated discussions among the Taiwanese judicial and conservation actors on the then existing natural resource management agenda of the state in which Indigenous knowledge were undervalued and under-recognized. It represents a milestone for the Indigenous peoples in Taiwan in their ongoing struggle and movement over the rights to their traditional territory and natural resources.
Research Ethics
While I intermittently participated in activities related to this campaign in 2007, the writing of this case study primarily relies on secondary sources. In accordance with the ethical guidelines developed by the members of Participedia Signature Project on Indigenous Innovations in Democratic Representation, this case study sought to understand and share knowledge in partnership with Indigenous communities. Consequently, the major sources for this case study have been intentionally chosen from platforms or scholars aligned with the Smangus community during the legal battle. In addition to gathering basic information from newsletter articles, the main sources include the Smangus community-led blog, master's theses authored by community member and researcher conducted fieldwork in Smangus, as well as studies carried out by scholars who have established long-term relationships with the Smangus community. Moreover, this case study was presented to the core members of the Smangus community council to obtain their consent for publication and ensure their perspectives are accurately represented. In doing so, this case study aims to amplify the voices of the Indigenous community and accurately portray their perspectives, thus contributing to their cause.
References
[1] Loa, I. (2007) ‘Minister urges faster review of Aboriginal legislation’, Taipe Times, 29 September. Available at: https://www.taipeitimes.com/News/taiwan/archives/2007/09/29/2003380898 (Accessed: 1 November 2023).
[2] Reid, D. (2010) Indigenous Rights in Taiwan and The Smangus Case. Master Thesis. National Chengchi University. Available at: https://www.scribd.com/document/168494403/Indigenous-Rights-and-the-Smangus-Case (Accessed: 1 November 2023).
[3] Smangus (2007) ‘The Site and History of the Event’, Taiwan’s Indigenous Community-Smangus Battles for the Unfair Trial. Available at: http://smangus.blogspot.com/2007/04/site-and-history-of-event.html (Accessed: 1 November 2023).
[4] Yen A. and Chen, T. (2011) ‘The Study on Co-management of Indigenous Traditional Territory--Cases Study of Atayal Communities in Jianshin Township, Hsinchu County’, Taiwan Journal of Geographical Science, (61), pp.1-30.
[5] Kuan, D. and Lin, Y. (2008) ‘What Tradition? Whose Territory?: A Critical Review to the Indigenous Traditional Territory Survey and the Translation of Spatial Knowledge in Marqwang Case, Taiwan’, Journal of Archaeology and Anthropology, (69), pp. 109–141.
[6] Cheng, Z. (2007) ‘Forest Guardians Find a Future’, Taiwan Today. Ministry of Foreign Affairs, Republic of China (Taiwan), 1 June. Available at: https://taiwantoday.tw/news.php?unit=12&post=22158 (Accessed: 1 November 2023).
[7] Lahuy Icyeh (2008) Who Is Telling What the Knowledge is about? The Construction of Smangus Subjectivity and Local Knowledge Practices. Master Thesis. Providence University. Available at: https://etd.lib.nctu.edu.tw/cgi-bin/gs32/hugsweb.cgi?o=dnthucdr&s=G021050455010.id (Accessed: 1 November 2023).
[8] Smangus (2007) ‘The Statements of Declaration, from The Conference of Pihaban Alliance’, Taiwan’s Indigenous Community-Smangus Battles for the Unfair Trial. Available at: http://smangus.blogspot.com/2007/06/statements-of-declaration-from.html (Accessed: 1 November 2023).
[9] Lin, Y. (2010) ‘Revelation from the acquittal of the Smangus Beech Incident’, New Messenger Magazine, (118), pp. 67–70.
[10] Soqluman N. and Lahuy Icyeh (2007) ‘Taiwan’s Indigenous Community-Smangus Battles for the Unfair Trial: Declaration of Indigenous Land Rights’, Taiwan’s Indigenous Community-Smangus Battles for the Unfair Trial. Available at: http://smangus.blogspot.com/2007/05/declaration-of-indigenous-land-rights.html (Accessed: 1 November 2023).