Abstract
There has been a huge debate about the protection of indigenous rights in the context of legal reform. One of the focal points of the debate is how and to what extent the state’s legal system and social transformation construct indigenous cultural development and needs. On 1 August 2016 Taiwan’s President Tsai Ing-wen delivered a National Apology to Indigenous Peoples, which laid out a comprehensive scheme to restore historical and transitional justice for indigenous rights. In brief, this chapter focuses on the deliberation of law and legal pluralism amongst indigenous diversity. By way of empirical research, this chapter demonstrates the legal web of the state’s legal system and its influence on local indigenous communities. Also, it explores how and to what extent indigenous customary laws have been incorporated and implemented through the state’s legal system. To conclude, the theoretical emphasis on ontology framing distinctive bodies and processes of indigenous jurisprudence, together with the possibility of collaboration and translation between indigenous knowledge and academic disciplines, will create space for postcolonial indigenous legal consciousness, ongoing dialogues and relationship-building of self-determination and indigenous justice paradigms.
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Notes
- 1.
Tully (1994b), pp. 158–169.
- 2.
Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia, (1971) 17 FLR 141 [hereinafter the Gove Land Rights Case]; Mabo v. Queensland (No. 2), (1992) 175 CLR 1. The Gove Land Rights Case reinforced the conservative legal position that before colonization Australia was terra nullius and that aboriginal titles could not be enforced in the common law of Australia. It was not until the Mabo decision that the principle of terra nullius was implemented.
- 3.
Early well-noted cases, known as the ‘Marshall Trilogy,’ established the foundations for the development of the U.S. Federal Indian Law and Policy. See Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823); Worcester v. Georgia, 31 US (6 Pet.) 515 (1832) [hereinafter Worcester v. Georgia]; and Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
- 4.
Robert Gray, A Good Speed to Virginia, quoted by Porter (1979).
- 5.
Worcester v. Georgia. In Marshall’s decision, “This principle, acknowledged by all Europeans, because it was the interests of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it (namely, the indigenous peoples). It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a discovery made before the memory of man.”
- 6.
Blumm (2004), p. 714.
- 7.
Macklem (2001), p. 78.
- 8.
Delgamuukw v. British Columbia, [1998] 1 C.N.L.R. 14 (S.C.C.).
- 9.
Guerin v. The Queen, [1984] 2 S.C.R. 335. (It is true that the sui generis interest that the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians.) Mabo, supra note 2. (Native title has its origins in and is given its content by the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.) Begay v. Keedah, 19 Indian L. Rep. 6021 (Navajo Supreme Court 1991). (Traditional Navajo land tenure is not the same as English common law tenure, as used in the United States. The Navajo have always occupied land in family units, using the land for subsistence. Families and subsistence residential units [as they are sometimes called] hold land in the form of communal ownership.)
- 10.
International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 27 Jun 1989 (entered into force 5 Sept 1991). Detailed provisions for the protection of indigenous land rights are framed in Part II of Convention. In particular, Article 14(1) provides that, [t]he rights of ownership and possessions of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the rights of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
- 11.
Robert A. Williams, Jr., Amicus Curiae Brief (presented by the National Congress of American Indians in the case of the Mayagna (Sumo) Community of Awas Tingni), Inter-American Court of Human Rights Case No. 11.577.
- 12.
American Declaration on the Rights of Indigenous Peoples, AG/RES. 2888 (XLVI-O/16) (15 June 2016).
- 13.
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, UN Doc. A/RES/61/295 (13 Sept 2007), 46 I.L.M. 1013 (2007) [hereinafter UN Declaration on the Rights of Indigenous Peoples].
- 14.
UN Declaration on the Rights of Indigenous Peoples. Relevant provisions are Article 25 and Article 27.
- 15.
Williams, supra, note 11.
- 16.
Wiessner (1999), p. 109. As Wiessner concludes, “Today, many of these proposed or actual prescriptions, coinciding, as they do, with domestic state practice … have created a new set of shared expectations about the legal status and rights of indigenous peoples that has matured and crystallized into customary international law.”
- 17.
For examples, the Indigenous Peoples Basic Law, the Indigenous Peoples Employment Rights Protection Act, the Status Act For Indigenous Peoples, and the Indigenous Peoples Education Act.
- 18.
The New-Partnership between Aborigines and the Taiwanese Government was signed on 10 September 1999 among 11 major Aboriginal representatives and the DPP presidential candidate, Mr. Chen Shui-bian. These electoral promises were further refined and discussed in the Yuanzhuminzu zhengce baipishu [原住民族政策白皮書] [2000 DPP] White Paper on Aboriginal Policy). On 19 October 2002, President Chen reconfirmed the treaty which thus became an official document highlighting the guiding principles of the government’s platform.
- 19.
- 20.
- 21.
Tully (ed) (1994a).
- 22.
Id.
- 23.
ILO Convention No. 169, Article 8, states, “1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws. 2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights.”
- 24.
The preamble to the UN Declaration on the Rights of Indigenous Peoples states, “Recognizing also that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.”
- 25.
Article 26 of the UN Declaration on the Rights of Indigenous Peoples.
- 26.
Kalt (2006), p. 197.
- 27.
Chartrand (2006).
- 28.
World Commission on Environment and Development (The Brundtland Commission) (1987). According to the report of the Brundtland Commission, “The starting point for a just and humane policy for such groups is the recognition and protection of their traditional rights to land and other resources that sustain their way of life—rights they may define in terms that do not fit into standard legal systems. These groups’ own institutions to regulate rights and obligations are crucial for maintaining harmony with nature and the environmental awareness characteristic of the traditional way of life. Hence, the recognition of traditional rights must go hand in hand with measures to protect the local institutions that enforce responsibility in resource use. And this recognition must also give local communities a decisive voice in the decisions about resource use in their areas.”
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Tsai (Awi Mona), CW. (2019). National Apology and Reinvigoration of Indigenous Rights in Taiwan. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_34
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