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Confronting Discrimination and Inequality in China

 | 
Errol P. Mendes
, 
Sakunthala Srighanthan

Part five. Discrimination against Minorities

Chapter Sixteen. Indigenous Peoples and Hunting Rights

Scott Simon

Texte intégral

INDIGENOUS PEOPLES AND HUNTING RIGHTS

  • 1 Canada, along with the United States, Australia, and New Zealand, voted against the Declaration. C (...)

1The incorporation of indigenous hunter-gatherer peoples and their territories into modern nation-states, historically without their informed consent, has long provided human rights challenges to states and local communities. In the evolving international human rights regime, it has been slowly recognized that indigenous peoples have inherent rights due to their presence on and use of their traditional territories prior to the arrival of the modern nation-state. The United Nations (UN) Declaration on the Rights of Indigenous Peoples, passed by the General Assembly on 13 September 2007, is only the most recent addition to international customary law on indigenous issues.1

2Hunting and fishing practices, which sometimes conflict with other uses of territory conceived by state administrators and other actors, may seem unrelated to human rights. Yet, they are emotionally salient to indigenous people as part of their culture and identity; and they are central to issues of autonomy. These traditional practices, relevant to indigenous peoples in Canada and Taiwan, are important issues in the process by which states have recognized the legitimacy of indigenous ways of life. They have become central to indigenous political and legal demands.

  • 2 Eeyou Istchee means “peoples land” in Cree. They call themselves Eeyouch. Although the Cree live a (...)
  • 3 Discussion of the Taroko is based on eighteen months of field research conducted by the author in (...)

3This paper looks at the issue of indigenous rights to traditional means of subsistence and resource utilization, referring to the experience of the Cree Nation of Eeyou Istchee2 and the Taroko Nation on Taiwan.3 In Quebec and Canada, the legal recognition of hunting rights has been among the main demands of indigenous peoples and has historically been written into nation-to-nation treaties with the Crown. In Taiwan, hunting rights are considered by many indigenous people to be central to their demands and are sometimes the centre of emotionally charged protests against national parks. These rights have also been included in legislation for indigenous rights.

  • 4 Lajoie et al., 2000, p. 172. Canada, by contrast, has common law, which is perceived as more likel (...)

4It is important for scholars of indigenous rights to understand how indigenous peoples in different legal contexts have negotiated and continue to negotiate these rights. This paper does so through a comparison of the Cree of Quebec and the Taroko of Taiwan. There are a number of reasons to compare these two indigenous nations from these two particular jurisdictions. First, the indigenous peoples of both places are egalitarian hunting-gathering peoples who perceive nature as a sacred land regulated by the ancestors and based on relations of respect with animals. Second, they both face a positivist legal regime of civil law that would seemingly deny the existence of indigenous legal orders before the arrival of law-based state regimes.4 Third, they both have been negotiating new relations with the State in recent years within the evolving framework of indigenous rights. Finally, both of these indigenous peoples are political actors in democratic societies with similar contexts of struggle over nationalism and sovereignty. These similarities make it possible to make meaningful comparisons and for the communities in both places to learn from each other’s experiences.

5This paper focuses on the following questions. How has hunting come to be perceived as an indigenous right in international law, as well as in these two jurisdictions? How do hunting rights articulate with other rights, such as environmental and development rights? What makes it possible for indigenous peoples in some contexts to demand the recognition of these rights; whereas it is more difficult in other places? In order to begin to address these questions, it shall be necessary to summarize the concepts of indigenous peoples and subsistence rights in the evolving norms of international law.

INDIGENOUS RIGHTS AND TRADITIONAL ECONOMIC PRACTICES

  • 5 Indigenous communities, peoples and nations are those which have a historical continuity with pre- (...)

6Many Asian countries have either been reluctant to recognize the existence of indigenous peoples in their territories (e.g. Japan) or have claimed that, with the exception of immigrants, all of their people are indigenous (e.g. Malaysia). In Asia, only the Philippines and Taiwan have legally recognized the existence of indigenous peoples within their jurisdictions. This legal recognition conforms with the so-called “Cobo Definition” proposed by José Martinez Cobo to the UN.5 This definition consists of four characteristics: 1) historical continuity with societies preceding colonialism or invasive settlement from outside the territory under consideration; 2) self-definition as distinct from other sectors of societies; 3) a position of non-dominance; and 4) a determination to continue to exist as peoples.

7The Austronesian peoples on Taiwan, including the Taroko, clearly fit into this definition. First, they have historical continuity with societies existing on the island before Chinese settlement in the 17th century. Those in the mountains and parts of the East Coast of the island were known as “raw barbarians” (shengfan) because they were not assimilated into Chinese culture or submissive to Qing administrative control. They were incorporated into the administration apparatus of the modern nation-state only after military conquest by the Japanese and the 1895 Treaty of Shimonoseki that ceded sovereignty over Taiwan to Japan. They self-identify as indigenous peoples, form non-dominant sectors of society, and are determined to develop and transmit their existence as peoples in accordance with their own cultures and institutions. The Cree also possess all four characteristics of the Cobo Definition.

  • 6 UN Charter, http://www.un.org/aboutun/charter/.

8Historically, states have been reluctant to recognize the existence of indigenous peoples with collective rights within their national territories, preferring to deal with the individual rights of indigenous people. Considering that Article 1 of the UN Charter calls for “self-determination of peoples” and Article 73 gives provisions to “non-self-governing territories” to achieve self-government,6 many states have feared that recognition of indigenous rights could lead to separatist claims and fragmentation of their national territory. In fact, however, indigenous claims have been less ambitious, calling for new relations within existing states rather than for judicial independence. Those peoples, such as the Palestinians and East Timorese, who seek the establishment of independent states, have historically done so outside of the judicial framework of indigenous rights. Customary international legal practice, therefore, would add a fifth characteristic to a definition of indigenous peoples: they seek self-government within established nation-states rather than statehood of their own. Indigenous rights should not be confused with separatist movements.

  • 7 UN Universal Declaration of Human Rights. http://www.un.org/Overview/rights.html.
  • 8 http://www.ilo.org/ilolex/cgi-lex/convde.plFC107.

9Indigenous rights, like other forms of collective rights, have gradually entered the international human rights regime. The 1948 Universal Declaration of Human Rights concerns principally individual rights and says nothing about the collective rights of indigenous peoples.7 The first international legal instrument to specifically address the rights of indigenous and tribal peoples was the 1957 International Labour Organization Convention No. 107 (ILO 107), concerning the “Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries.”8 Governments at the time thought that the best way to advance the health and wellbeing of indigenous peoples was through integration and assimilation into mainstream societies. There was no mention of rights to subsistence and traditional use of natural resources.

  • 9 Iwan, 2005, p. 33.

10ILO 107 was signed by 28 countries. It was not ratified by Canada; nor was it possible for the People’s Republic of China (PRC) to sign it as they were not members of the UN in 1957. Chiang Kai-shek’s Republic of China, however, did sign ILO 107 in 1962 when they were still China’s representative in the UN and other international organizations.9 They did this partly with the intent to demonstrate to the world that they treated their tribal populations better than did the People’s Republic, which had put down an uprising in Tibet in 1959.

11IOL 107 was broadly rejected by indigenous peoples who called for recognition as separate and distinct peoples. It was revised and replaced by ILO 169, which was drafted in 1988 and 1989 with the participation of indigenous representatives as well as states. This new way of drafting international conventions, which provided the precedent for the UN Declaration, was possible in the ILO because they traditionally operated on the principle of union representation as well as state involvement. The guiding principle of ILO 169 is that indigenous and tribal peoples have the inherent right to continue their existence with their own culture and identities, as well as to determine their own way and pace of development.

  • 10 The ILO provides assistance to state and indigenous groups, usually through NGO-based projects, to (...)

12In terms of traditional economic activities, the Convention highlights the importance of traditional economies for culture and economic self-reliance, the value of traditional knowledge and technology, the need to promote traditional economies, the need to provide enough land for such economies, and the responsibility of states to provide the financial and technical assistance needed to continue traditional economic practices in a sustainable way.10 Article 23 is quite clear in regard to hunting rights:

13Article 23

  • 11 http://www.ilo.org/ilolex/cgi-lex/convde.plFC169.

1. Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concerned, such as hunting, fishing, trapping and gathering, shall be recognized as important factors in the maintenance of their cultures and in their economic self-reliance and development. Governments shall, with the participation of these peoples and whenever appropriate, ensure that these activities are strengthened and promoted.
2. Upon the request of the peoples concerned, appropriate technical and financial assistance shall be provided wherever possible, taking into account the traditional technologies and cultural characteristics of these peoples, as well as the importance of sustainable and equitable development.11

  • 12 The addition of the “s” in the second decade reflects a consensus that indigenous rights are colle (...)

14Parallel with ILO work on this issue, the UN Economic and Social Council established the Working Group on Indigenous Populations (WGIP) in 1982 with a mandate to determine minimum standards of human rights for indigenous peoples. During the drafting of the UN Declaration, 1995 to 2004 was recognized as the International Decade of the World’s Indigenous People and 2005 to 2015 as the Second International Decade of the Worlds Indigenous Peoples.12 In June 2006, the Draft Declaration was adopted by the UN Human Rights Council. On 13 September 2007, the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly with 143 votes in favour, four against, and eleven abstentions. China voted in favour, whereas Canada voted against. In the spirit of ILO 169, Article 20 protects the right of indigenous peoples to engage freely in traditional economic activities:

15Article 20

  • 13 http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207. pdf? OpenElement; this document is (...)

1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.
2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.13

  • 14 Cowlishaw, Mendelson and Rowcliffe, 2005, p. 460.

16For cultural and economic reasons, therefore, indigenous peoples have the right to pursue lifestyles that include hunting, fishing, trapping and gathering. States are encouraged to strengthen and promote these activities, giving financial and technical assistance when possible and compensating those groups who have been deprived of these resources. These practices, however, do not only involve human beings; they also affect wildlife in a global context of broader environmental destruction, loss of habitat, and extinction of animal species. Unsustainable hunting and trapping affect not only wildlife, but also plants dependent on wildlife for pollination and seed dispersal.14 It is thus important to consider environmental rights at a wider level when setting policies on this issue.

ENVIRONMENTAL CONCERNS AND INDIGENOUS HUNTING

17More than two decades of international cooperation on sustainable development and environmental protection has led to a consensus that indigenous peoples, due to their traditional knowledge of the wilderness, have an important role to play in the future of our planet. Principle 22 of Agenda 21, written in Rio de Janeiro at the UN Conference on Environment and Development, states clearly that:

  • 15 United Nations General Assembly, “Report on the UN Conference on Environment and Development A/CON (...)

Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.15

18The Convention on Biological Diversity, born at that meeting, has 188 parties and has become the main international platform for promoting sustainable development and poverty alleviation. Canada and China immediately signed the Convention, Canada ratifying it in 1992 and China in 1993. The Convention Secretariat is located on Mohawk territory in Montreal. Indigenous traditional knowledge and practices are integral to the Convention, as stated in its preamble:

  • 16 http://www.cbd.int/doc/legal/cbd-un-en.pdf. The Chinese version is available at: http://www.cbd.in (...)

Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components...16

19Article 8 (j), the most important section for indigenous peoples, is considered central to the Convention and has a working group dedicated to the implementation of its principles and related provisions. Indigenous people are involved in all aspects of this group, including decision making. According to Article 8 (j),

  • 17 http://www.cbd.int/doc/legal/cbd-un-en.pdf. The Chinese version is available at: http://www.cbd.in (...)

Each contracting Party shall, as far as possible and as appropriate: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.17

  • 18 Secretariat of the CBD, 2004, p. 17, 19.

20The main goals of Article 8 (j) are benefit-sharing, prior informed consent to development, the regulation and protection of sacred space, and protection of traditional knowledge. Voluntary policy guidelines negotiated in the Mohawk community of Kahnawake underscore the need for baseline studies of proposed development projects to include identification of traditional hunting and social impact assessment studies taking traditional economic activities such as hunting into consideration.18 Acknowledging the value of indigenous knowledge about wildlife and related practices of hunting and trapping are thus integral to both indigenous rights and sustainable development. There is hope that indigenous knowledge can provide important guidelines for sustainable development and environmental protection worldwide.

  • 19 Cowlishaw, Mendelson and Rowcliffe, 2005.

21Considering that wildlife populations continue to thrive in the traditional hunting territories of indigenous peoples, it is logical to assume that their practices have historically been sustainable. Research around the world does indeed show that hunting can be sustainable even if the meat is supplied to markets. In Ghana, for example, where bushmeat markets have existed for centuries, ecological research has demonstrated that they can be sustainable. Vulnerable taxa (slow reproducers) have been depleted rapidly in the past and are scarce, whereas robust taxa (fast reproducers) are still traded. The policy suggestion is thus to protect vulnerable species and permit trade in robust species.19

  • 20 Bennett and Robinson, 2000; Noss et al., 2004; Smith, 2003.

22Indigenous traditional knowledge has long been concerned with sustainability and the reproductive capacity of animals. It is thus increasingly accepted that community wildlife management with full participation of local people can best contribute to sustainability.20 At the same time, however, their territory is increasingly encroached upon by the activities of outsiders for such activities as forestry, mining, hydroelectric development, agriculture, and the creation of national parks or conservation areas without prior consultation. These activities, more dangerous to the habitat and to wildlife than hunting or gathering, make the job of wildlife management more difficult than ever. In this context, it is important to examine how indigenous peoples in different jurisdictions have gained hunting rights and the right to participate in regimes of environmental conservation and resource use. There are important lessons to learn from both the Cree and the Taroko.

THE CREE OF EEYOU ISTCHEE

  • 21 The total land area of Taiwan, for comparison, is only about 32,260 square kilometres.
  • 22 Niezen, 2003, p. 66. The spiritual practices and values of Cree hunting and trapping have been wel (...)
  • 23 Salisbury argues that year-round village life began only after 1947 when schools and medical clini (...)
  • 24 Chance, 1968.
  • 25 Salisbury, 1986, p. 12.

23The Cree of Eeyou Istchee constitute approximately 14,000 people on some 350,000 square kilometres in northern Quebec.21 Since time immemorial, they have been a hunting people for whom the land is both a source of subsistence and a connection with their ancestors.22 In the past, they were dispersed nomadic groups of egalitarian communities who moved frequently in search of wildlife, but eventually settled around the trading posts of the Hudson’s Bay Company (HBC) in eight communities known as bands.23 Early anthropological studies focused on the conflicts between these communities and the difficulties of dispersed hunting communities in establishing higher order political organizations.24 In a relatively short period of time, however, the Cree proved them wrong not only by successfully challenging Quebec in court, but also emerging as international leaders in the assertion of indigenous rights. McGill University anthropologist Richard Salisbury described these changes as “an evolution from a village-band society to a regional society” and the creation of a Cree homeland.25

  • 26 Salisbury, 1986, p. 54.

24Eeyou Istchee was not included in early treaties between the Crown and indigenous nations of Canada. The HBC, which conducted the fur trade in the territory, “ceded” northern Quebec to Canada in 1871. The Quebec Boundary Extension Acts of 1898 and 1912 transferred the lands to Quebec jurisdiction with the proviso that Quebec must negotiate treaties settling indigenous land claims on that territory, just as Canada had long done.26 Until 1971, the Cree had been largely left alone by Quebec, receiving some services from Ottawa but generally left to continue their hunting and trapping lifestyle.

  • 27 This entire process, which included long legal battles and social impact studies by anthropologist (...)

25In 1971, without consulting the Cree, Quebec Premier Robert Bourassa announced the James Bay Hydro Project which would flood major Cree hunting territories. The Cree, who had never ceded an inch of their territory nor negotiated a treaty with Quebec, perceived this as an invasion of their lands and took action. They withdrew from the Indians of Quebec Association, which had previously represented their interests in Quebec, and formed the Grand Council of the Crees of Quebec (GCC) in August 1974.27 After intense negotiation and constant referral of each clause back to villages for discussion and approval by the Cree, the James Bay and Northern Quebec Agreement (JBNQA) was signed on 11 November 1975. This agreement, to which the Inuit were also signatories, is known as the first “modern” treaty concerning relations between indigenous nations and the State.

  • 28 Excluded from this treaty were waterways, including the seashore, beds and shores of principal lak (...)
  • 29 Mulrennen and Scott, 2001, p. 80-81.

26The JBNQA, in addition to financial compensation for flooded territory, created a land regime on the remaining territory in which different categories of rights would apply.28 On Category I land, about 1.3 percent of the traditional territory, the Cree and Inuit would have permanent settlements in collective form. On Category II lands, about fifteen percent of the territory, the Cree and Inuit would have exclusive rights to wildlife for subsistence but no surface rights. Category III lands, about 83 percent of the territory, would be open to indigenous and non-indigenous people, but indigenous subsistence would take priority. Quebec maintained a “right to develop” Category II and III lands, subject to environmental assessment.29

  • 30 The National Office was located in Nemaska, with an additional office in Montreal and an Embassy i (...)
  • 31 Salisbury, 1986, p. 57.

27The JBNQA institutionalized the organizations of Cree governance and service delivery. The GCC was the political body of the Cree,30 with the Cree Regional Authority (CRA) established to deliver services. Each band would govern its reserve land as “municipal corporations.” Provisions were made for autonomous boards in health and education, albeit under the jurisdiction of Quebec ministries and partially funded from Ottawa.31

  • 32 Salisbury, 1986, p. 81.
  • 33 Salisbury, 1986, p. 57.

28The JBNQA established the organizations that would enforce Cree hunting rights. The Quebec-Cree Hunting Trapping and Fishing Coordinating Committee (HTFCC) was established to give the Cree and Quebec equal participation in policy decisions regarding wildlife use and conservation. Formally, the HTFCC only made recommendations to the relevant ministers, but any change from those recommendations required public justification.32 An Income Security Program (ISP) for Hunters and Trappers was established to guarantee full-time hunters a minimum cash income fixed according to family size and a per diem allowance for each day spent in the bush. A Cree Trappers Association was also formed.33 Through these institutions, the Cree were able to make decisions on wildlife, but Quebec still continued to introduce new projects including mines, roads, forestry, and hydro-electric projects.

  • 34 Scott and Feit, 1992. Further, 45 percent of the beneficiaries were women (Scott and Feit, 1992, p (...)
  • 35 Feit and Beaulieu, 2001.
  • 36 Scott and Weber, 2001.

29These institutions were largely successful at meeting the needs of hunters, maintaining culture, and facilitating mutual aid in terms of meat sharing. The ISP led to an increase in the number of hunters in a viable subsistence economy, incorporating men and women, old and young.34 Strengthening of the hunting economy further affirmed Cree autonomy and insured that its benefits would be widely spread, thus legitimizing the GCC and the CRA as representatives of the Cree. Problems continued to exist, largely because the HTFCC did not give the Cree adequate control over forestry35 and because of conflict with non-indigenous sports hunters.36

  • 37 Lajoie et al., 2000, p. 178.
  • 38 Lajoie et al., 2000, p. 180.
  • 39 Lindau and Cook, 2000, p. 14. Quebec did not sign the 1982 Constitution.

30Negotiating with Quebec, the Cree have defended their autonomy within a wider political context marked by debates about nationalism and sovereignty. In general, the pro-independence Parti Québécois (PQ) has been more favorable to indigenous autonomy than the Parti Libéral du Québec (PLQ).37 In 1985, when the PQ was in government, the National Assembly passed a motion recognizing collective indigenous rights, including rights of harvesting, fishing, hunting, trapping, and participating in drafting wildlife policy.38 Like most First Nations, however, the Cree nonetheless seemed to place more trust in Canada, which had incorporated Aboriginal and treaty rights in the Constitution Act of 1982 and its Charter of Rights and Freedoms.39

  • 40 Morantz, 2002, p. 256.

31The Cree have done well in this context. After the Quebec government proposed the Great Whale River Project in 1988, the Cree and the Inuit lobbied against the project. They even mobilized international support by canoeing to New York City in protest. In a subsequent speech in Washington, Grand Chief Matthew Coon Come denounced the Quebec government as racist. In 1995, the Cree held their own referendum at the same time as the Quebec referendum, clearly showing their own preference to remain in Canada. These actions gave political clout to the Cree, as both Canada and Quebec hoped to gain and keep their support.40 Most importantly, Quebec nationalists became aware that their posture toward First Nations would impact the international legitimacy of their own nationalist aspirations.

  • 41 Scott, 2005.
  • 42 In October 2007, the Cree and Canada settled another set of legal issues in the Agreement Concerni (...)

32In 2002, Cree hunting and resource management rights were strengthened with the signing of the nation-to-nation Agreement Concerning a New Relationship between the Cree Nation and the Government of Quebec. In an improvement over the JBNQA, it increased revenue sharing with the indigenous peoples, involved the Cree more actively in economic development, recognized Cree traditional knowledge and authority at the level of kin-based hunting territories, and raised the status of those territories as management units. In order to better adapt forestry practices to Cree activities, a Cree-Quebec Forestry Board was established with five members appointed by the Cree, five by Quebec, and a chair acceptable to both. At the local level, joint working groups were also established with equal representation from the affected communities and the Ministère des Ressources naturelles (MRN). Cree hunting territory leaders were given greater management powers over certain areas, including one percent of each hunting territory that would be off-limits to forestry and 25 percent designated as under their direct responsibility.41 These new measures were designed to increase hunters’ rights, deepen Cree autonomy, and manage natural resources more sustainably with the incorporation of traditional knowledge. Even without Canada’s support of the UN Declaration, the Cree have managed to assert their autonomy and implement much of its content in Quebec.42

THE TAROKO NATION OF TAIWAN

  • 43 They are known officially as the Truku tribe in English translation. For information, see the webs (...)
  • 44 There are also more than 6,000 people in Nantou County who are eligible to register as Truku, but (...)
  • 45 There is a nascent literature on this subject, including a study by Taroko hunter Huang Chang-hsin (...)

33The Taroko of northeastern Taiwan, first classified as part of the Atayal tribe by Japanese anthropologists at the beginning of the last century, were legally recognized by the ROC Executive Yuan Council of Indigenous Peoples as an independent tribe in 2004.43 They consist of some 23,383 people officially registered under that tribal affiliation.44 Like the Cree, the Taroko have since time immemorial been a hunting people for whom the land is both a source of subsistence and a connection with the ancestors, or utux rudan.45 In the past, they were also dispersed nomadic groups of egalitarian communities who moved frequently in search of wildlife. Although hunting is now restricted (see below), the men base their personal identity on hunting skills and take pride in their ability to return to the villages with such delicacies as flying squirrel, wild boar, and muntjac.

  • 46 There are, however, other ethnic groups in those townships. The main problems would be that the Bu (...)

34Like all indigenous nations in Taiwan and the Cree until 1975, the Taroko have never concluded a comprehensive land claim agreement or treaty with a state. If the Taroko were to get a land claim for all townships with a significant Taroko population, however, the land area would add up to at most 4,556 square kilometres including Xiulin, Wanrong, and Zhuoxi Townships of Hualian County and Renai Township in Nantou.46 They thus have a larger population than the Cree, but a much smaller territory. The Taroko territory is rough mountainous terrain mostly covered with subtropical rainforest.

35The Qing Dynasty had never administered the area claimed by the Taroko, who became subject to state control only after the Japanese conquest of their communities, particularly after Governor-General Sakuma Samata launched the “Five Year Plan to Subdue the Barbarians” in 1910. They thus had less early contact with modern states than the Cree, who had contact with the Hudson’s Bay Company for generations and were regulated by the Indian Act since 1876.

  • 47 Wang, 2006, p. 30.
  • 48 By far the most detailed study of the resettlement history is the two-part article by Masaw (1977, (...)
  • 49 Masaw, 1998, p. 48-49.
  • 50 Fujii, 1997, p. 131.

36Because of their lack of set territory or leadership roles, Japanese anthropologists considered the Taroko (as part of the Atayal) to be an “incomplete society.”47 Under Japanese administration (1895-1945), they were settled in the lowlands and encouraged to take up agriculture.48 After the 1930 Wushe Incident, in which indigenous villagers rose up against the Japanese, all but two Taroko communities were forcibly relocated to the plains. Like the Cree, they were settled into bands and required to elect chiefs and village councils. The true power in the villages remained with the Japanese police officers, and even the institution of the chief was eliminated in 1939. The village council remained as a communication channel from the Japanese government to local communities.49 The similarity with North American policies of establishing chiefdoms and band councils is not just fortuitous. Shortly after the Japanese had arrived on Formosa, American consul J.W. Davidson observed the problems Japan faced with the indigenous peoples there and provided them with materials on US Indian policy.50

37Once the Japanese left Taiwan after the conclusion of the Second World War, administration of the island was given to the Republic of China under Chiang Kaishek. In 1945, the new state created thirty “mountain townships” with different levels of government including the township with a township office, the village with a village office, and neighborhoods. In 1950, under the principle of “local autonomy” for indigenous communities, they established an electoral system for the township magistrate, the members of the township council, and village heads. In mountain townships, only aborigines were eligible to run for office. In effect, this policy established indigenous municipalities charged with implementing policies decided by others. It was a form of indirect rule that preserved indigenous communities as well as the social distinction between indigenous and non-indigenous peoples.

38In spite of the existence of local democratic elections, it is important to remember that opposition parties were illegal in Taiwan until the lifting of martial law in 1987. Until the liberalization towards the end of the martial law period, it was impossible for indigenous people to create their own organizations or launch protests like the Cree. Some individuals certainly learned important governance skills in the township governments. These institutions, along with the property rights regime of reserve land, also kept their ethnic identities alive. Yet they were unable to respond like the Cree when the ROC state imposed on them infrastructure projects including mines, hydroelectric projects, forestry, and the creation of national parks. Most of these projects restricted the land available to hunting and endangered the habitat of fauna.

  • 51 For the role of the Presbyterian Church and foreign missionaries in Taiwan’s indigenous social mov (...)
  • 52 Rudolph, 2003, p. 401.

39In the 1980s, an indigenous social movement began to form, especially in urban areas. The movement began formally with the establishment of the Mountain Greenery (Gaoshan Qing) newspaper in 1983 and the foundation of the Alliance of Taiwan Aborigines (ATA) in 1984. One of the main objectives of the ATA was the creation of autonomous regions with corresponding legal recognition of resource rights. Throughout the 1990s, the Taroko of Hsiulin Township were active in the “Return our Land” movement, notably through protests against Asia Cement and the Taroko National Park. Another important social movement in Hualien was the Taroko Name Rectification Movement (zhengming yundong) based largely in the Taroko Synod of the Presbyterian Church and composed of some of the same cadres as the other movements. These social movements had international contacts with foreign missionaries, including Urban-Rural Mission (URM) trainers Dr. Ed File of York University and his Mohawk wife Donna Loft. Their work was influential in bringing ideas to Taiwan from the Canadian First Nations experience.51 Throughout the social movement period, however, activists found that hunting and land were the only issues that could consistently mobilize large numbers of indigenous protesters.52

  • 53 See Simon, 2007.

40Like the Cree, the Taroko benefitted from a larger context in which nationalism and sovereignty were debated at a wider level. In 1999, delegates of all tribes including the Taroko and Sediq signed the “New Partnership between Indigenous Peoples and the Taiwan Government” with pro-independence Democratic Progressive Party (DPP) candidate Chen Shui-bian on Orchid Island. That document included the legal term natural rights (ziran zhuquan) to recognize that indigenous peoples were the original owners of Taiwan and have rights that precede the arrival of the state on Formosa. These include the right to high level autonomy. These electoral promises were further refined and discussed in the 2000 DPP White Paper on Aboriginal Policy; much of it to be subsequently adopted in the Kuomintang (KMT) White Paper on the same subject.53 After legal recognition of the Taroko in 2004, the Taroko Nation Autonomous Region Promotion Team (Tailugezhu Zizhiqu Tuidong Gongzho Xiaozu) was created and began lobbying for the creation of an autonomous region, promising as well that autonomy would lead to hunting, trapping and fishing rights. They are now lobbying for comanagement with the Taroko National Park, and have been successful in preventing a hotel project on that territory.

41The most important legal change to come out of this two decade process of protest, lobbying, and negotiation was the Basic Law on Indigenous Peoples (yuanzhuminzu jibenfa), passed on 21 January 2005. Although as a basic law it still required all relevant laws and regulations to be redrafted and implemented, it did offer hope to indigenous peoples, including on the issue of hunting rights. Article 19 stipulated that:

  • 54 Resource Management Consultants, 1980, cited in Asch, 1990, p. 25.

Indigenous persons may undertake the following non-profit seeking activities in indigenous peoples’regions: 1) Hunting wild animals; 2) Collecting wild plants and fungus; 3) Collecting minerals, rocks and soils; 4) Utilizing water resources. The above activities can only be conducted for traditional culture, ritual or selfconsumption.54

42In the absence of any substantive legal revisions, some township governments took it upon themselves to begin taking registrations and giving permits for limited catches for cultural and ritual purposes. These were generally defined as festivals or rituals when local people might need two to three wild boars. They did not consider other cultural reasons such as courtship, nor did they give permission to individuals to hunt for subsistence purposes. Police, however, continued to arrest hunters. The arrests angered the hunters even though the charges were consistently dropped in the courts.

43In April 2007, hunters protested at the Taroko National Park, leading to a public apology by the Chief of the National Park Police. KMT legislator Kung Wen-chi (Yusi Dagun) subsequently held a public hearing at the Legislative Yuan encouraging revision of all relevant laws and suggesting that the DPP was not sincere about indigenous rights. Icyang Parod, DPP-appointed Minister of the CIP, said in November that it is the responsibility of the Legislative Yuan to pass relevant legislation, including that which will resolve the hunting problem. Just months before the 2008 presidential election these issues had not yet been resolved. It is important, however, that both the KMT and the DPP now feel a need to prove that they can best protect indigenous rights. The indigenous social movement on Taiwan has not had the same success as that in Canada, but it has managed to put indigenous rights, including hunting rights, on the political agenda.

CONCLUSIONS

44In conclusion, there are a few lessons to learn from Quebec and Taiwan about indigenous human rights, including the rights to hunt, trap, and fish. The importance of these practices to indigenous peoples cannot be underestimated. As one study for the Canadian government found:

  • 55 Niezen, 2003, p. 90.

A number of intangible and unquantifiable factors such as taste preferences, traditional food preparation and eating practices, the esteem in which a successful hunter is held in a community, and the simple satisfaction of being in control of one’s means of livelihood, combine to make any dollar estimate of the value of the Native renewable resource harvest totally inadequate from a Native person’s perspective. Its loss or diminishment cannot be compensated for because there are no real substitutes.55

45A number of points need to be made in conclusion to understand how hunting has become recognized as an indigenous right; and what the exercise of this right means for the Cree, the Taroko and other First Nations worldwide. First of all, the actions of indigenous peoples themselves have put hunting rights and indigenous autonomy on the international human rights agenda and on domestic political agendas. Even in Quebec, where the Canadian government had forced Quebec to recognize aboriginal title, the Cree were only able to claim and enforce their rights because they formed their own organizations, lobbied the government, pursued them in courts, and sought international allies. In Taiwan, the Taroko and other indigenous peoples were similarly able to form their own social movement and assert their rights, but only after a process of liberalization began in the 1980s and martial law was lifted. Indigenous rights thus need a democratic context including freedom of assembly and freedom of speech. Without these, even the most enlightened government cannot understand what issues are important to indigenous communities.

46Second, both the Cree and the Taroko have been able to negotiate new relations with states on their respective territories within a wider political context in which national identity and sovereignty are already being questioned. In Quebec, the PQ has recognized that the international legitimacy of their own nationalist project depends very much on how well they respect indigenous rights. In Taiwan, the DPP has used indigenous peoples as a symbol of Taiwan’s distinct identity, but has been slower than Quebec to make concrete change. It took Quebec four and a half years, from the announcement of the James Bay Project in April 1971 to the signing of the JBNQA, to recognize the inherent rights of the Cree and to negotiate a mutually acceptable agreement with them.

47The Cree remain suspicious of both Quebec nationalism and Canadian federalism, but have become skilled at playing these two agendas off of each other in the promotion of their own rights. Chen Shui-bian recognized the natural rights (ziran zhuquan) of Taiwan’s indigenous peoples in 1999. Yet, after eight years in office, the promised “new partnership” was not realized. It is not surprising that Taiwanese indigenous activists are disappointed, yet committed to pursuing these issues with a new government.

48Finally, this research also shows that hunting rights and political autonomy are mutually reinforcing. On the one hand, formal political autonomy without control over subsistence or local industry risks creating conditions of dependency in which indigenous leaders have no way to exercise power without controlling and exploiting the people themselves. 56 On the other hand, the formalization of hunting rights including the creation of appropriate governing bodies is one of the most potent assertions of local sovereignty. The Cree have managed to increasingly assert sovereignty through the growing power of their HTFCC in forest management. On paper at least, the indigenous peoples of Taiwan are also gaining recognition of these rights. The Taroko have made important progress by creating the Taroko Nation Autonomous Region Promotion Team. Their next step will surely be forest co-management with the Taroko National Park and other authorities; steps that will of necessity include the creation of a hunters’ organization like the Cree HTFCC.

49Indigenous rights, including the rights to hunt, fish, trap and participate in other traditional economic activities, have become a part of the international human rights regime. These rights are still contested in many parts of the world, including Taiwan and Quebec. Progress has been made, but largely when indigenous communities have enjoyed democratic rights to association and expression. The result is increasing indigenous stewardship of natural resources, widely recognized as the best hope for sustainable development and poverty reduction. If the world really is committed to social justice and environmental sustainability, therefore, the struggle for indigenous rights is part of the struggle for a better world for all.

ACKNOWLEDGEMENTS

50The author thankfully acknowledges the Social Sciences and Humanities Research Council of Canada for funding the research in Taiwan that made this paper possible, the Canadian International Development Agency for funding this symposium, as well as colleagues at the University of Ottawa and Peking University for their support.

Notes

1 Canada, along with the United States, Australia, and New Zealand, voted against the Declaration. Canada was concerned about issues of consent, access to natural resources, and the possibility that acceptance of the Declaration would open up the possibility of lawsuits regarding previously negotiated treaties with First Nations.

2 Eeyou Istchee means “peoples land” in Cree. They call themselves Eeyouch. Although the Cree live across the subarctic areas of Canada, this paper focuses on the James Bay Cree of Northern Quebec.

3 Discussion of the Taroko is based on eighteen months of field research conducted by the author in Taiwan from 2004 to 2007. Discussion of the Cree is based on the relevant scientific literature.

4 Lajoie et al., 2000, p. 172. Canada, by contrast, has common law, which is perceived as more likely to recognize actual practices in local communities as guides for emerging legal practice.

5 Indigenous communities, peoples and nations are those which have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems (Cobo, 1986, cited in Hodgson, 2002, p. 1039).

6 UN Charter, http://www.un.org/aboutun/charter/.

7 UN Universal Declaration of Human Rights. http://www.un.org/Overview/rights.html.

8 http://www.ilo.org/ilolex/cgi-lex/convde.plFC107.

9 Iwan, 2005, p. 33.

10 The ILO provides assistance to state and indigenous groups, usually through NGO-based projects, to promote and implement ILO 169, including in countries that have not yet ratified it. As of December 2007, 19 countries had ratified it, the most recent being Nepal on 14 September 2007. Neither Canada nor China has ratified the Convention. Even in countries that have not ratified ILO 169, however, it is still recognized and used in many places as a guide to lobbying and policy making on indigenous issues.

11 http://www.ilo.org/ilolex/cgi-lex/convde.plFC169.

12 The addition of the “s” in the second decade reflects a consensus that indigenous rights are collective rights that they share as peoples.

13 http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207. pdf? OpenElement; this document is also available in Chinese at: http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/06/PDF/N0651206. pdf? OpenElement.
It should be noted that the Chinese term tuzhu renmin is considered pejorative because it has connotations of being attached to the soil, primitiveness, and savagery. On Taiwan, there has been considerable controversy about which term to use in Chinese. Due to the success of the indigenous social movement, the ROC state accepted in 1994 the term yuanzhumin (indigenous people) and incorporated it into the constitutional revisions of that year (Rudolph, 2003). Yuanzhu minzu (indigenous peoples) has become accepted usage in subsequent legislation.

14 Cowlishaw, Mendelson and Rowcliffe, 2005, p. 460.

15 United Nations General Assembly, “Report on the UN Conference on Environment and Development A/CONF.151/26 (Vol. 1).” http://www.un.org/documents/ga/confl51/aconfl5126-lannexl.htm.

16 http://www.cbd.int/doc/legal/cbd-un-en.pdf. The Chinese version is available at: http://www.cbd.int/doc/legal/cbd-un-zh.pdf.

17 http://www.cbd.int/doc/legal/cbd-un-en.pdf. The Chinese version is available at: http://www.cbd.int/doc/legal/cbd-un-zh.pdf.

18 Secretariat of the CBD, 2004, p. 17, 19.

19 Cowlishaw, Mendelson and Rowcliffe, 2005.

20 Bennett and Robinson, 2000; Noss et al., 2004; Smith, 2003.

21 The total land area of Taiwan, for comparison, is only about 32,260 square kilometres.

22 Niezen, 2003, p. 66. The spiritual practices and values of Cree hunting and trapping have been well documented in the anthropological literature (Brightman, 2002; Tanner, 1979). These practices are important to both indigenous livelihoods and environmental sustainability, but remain outside of the scope of this paper.

23 Salisbury argues that year-round village life began only after 1947 when schools and medical clinics were established at these posts. He notes that the “band” refers to groupings that did not exist before contact with Europeans and are thus “administrative bands” created by the Department of Indian and Northern Affairs (DINA) after the 1876 Indian Act. The smaller hunting groups of around twenty people might be called “micro-bands.” Even in groups that previously had no chiefs, DINA required them to vote for a formal chief (Salisbury, 1986, p. 8-9).

24 Chance, 1968.

25 Salisbury, 1986, p. 12.

26 Salisbury, 1986, p. 54.

27 This entire process, which included long legal battles and social impact studies by anthropologists at McGill University, is chronicled by Salisbury, p. 53-60.

28 Excluded from this treaty were waterways, including the seashore, beds and shores of principal lakes and rivers, and a 200-foot strip on the shores. These exclusions were thus “held by the Crown in the right of Quebec” (Scott, 2001, p. 9).

29 Mulrennen and Scott, 2001, p. 80-81.

30 The National Office was located in Nemaska, with an additional office in Montreal and an Embassy in Ottawa. Interested readers are encouraged to consult the website of the GCC at: http://www.gcc.ca/.

31 Salisbury, 1986, p. 57.

32 Salisbury, 1986, p. 81.

33 Salisbury, 1986, p. 57.

34 Scott and Feit, 1992. Further, 45 percent of the beneficiaries were women (Scott and Feit, 1992, p. 80).

35 Feit and Beaulieu, 2001.

36 Scott and Weber, 2001.

37 Lajoie et al., 2000, p. 178.

38 Lajoie et al., 2000, p. 180.

39 Lindau and Cook, 2000, p. 14. Quebec did not sign the 1982 Constitution.

40 Morantz, 2002, p. 256.

41 Scott, 2005.

42 In October 2007, the Cree and Canada settled another set of legal issues in the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee.

43 They are known officially as the Truku tribe in English translation. For information, see the website of the Executive Yuan Council of Indigenous Peoples: http://www.apc.gov.tw/english/docDetail/detail_ethnic.jsp?cateID=A000205&linkParent= 151 &linkSelf= 151 &lin kRoot=101.

44 There are also more than 6,000 people in Nantou County who are eligible to register as Truku, but (with 81 exceptions as of October 2007) the vast majority of them have retained Atayal legal identity. Some of them prefer to be called members of the Sediq Nation, which was legally recognized by the ROC on 23 April 2008. Whether they call themselves Taroko or Sediq, all agree that they belong to one distinct ethnic group composed of speakers of three dialects: Truku, Teuda, and Tkedaya. For a history of the Taroko and Sediq name rectification movements, see Hara, 2003, 2004, 2005.

45 There is a nascent literature on this subject, including a study by Taroko hunter Huang Chang-hsing (2000) and an M.A. thesis (Liang 1996).

46 There are, however, other ethnic groups in those townships. The main problems would be that the Bunun are prevalent in Zuoxi and might prefer their own autonomous region, whereas the Sediq in Nantou do not wish to be part of the Taroko Nation. Of course, the presence of non-indigenous people does not preclude autonomy. In James Bay, for example, there are over 100,000 non-indigenous Quebecers. For examples of Taroko nationalist literature outlining their plans for autonomy, see Siyat, 2004 and Tera, 2003.

47 Wang, 2006, p. 30.

48 By far the most detailed study of the resettlement history is the two-part article by Masaw (1977, 1978).

49 Masaw, 1998, p. 48-49.

50 Fujii, 1997, p. 131.

51 For the role of the Presbyterian Church and foreign missionaries in Taiwan’s indigenous social movement, see Rudolph, 2003; Simon, 2004; and Stainton, 1995.

52 Rudolph, 2003, p. 401.

53 See Simon, 2007.

54 Resource Management Consultants, 1980, cited in Asch, 1990, p. 25.

55 Niezen, 2003, p. 90.

Auteur

Associate Professor in the Department of Sociology and Anthropology at the University of Ottawa. He has been working on the Canada-China International Human Rights Implementation Project of the University of Ottawa and Peking University since 2005, with a focus on minority rights. A specialist in the anthropology of development, he is author of Sweet and Sour: Life Worlds of Taipei Women Entrepreneurs (2003) and Tanners of Taiwan: Life Strategies and National Culture (2005), as well as numerous book chapters and articles. Since 2004, he has been conducting research on development and human rights for the indigenous peoples of Taiwan, where he works with the hunters of the Taroko Nation. He is currently writing a book on that subject

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