The Cabinet on Dec. 7 approved a set of draft amendments to the Mining Act (礦業法). Among the proposed amendments, the one that has received the most attention says that when mining companies apply for access to mining land, they must follow the procedure laid down in the Indigenous Peoples Basic Act (原住民族基本法) for consulting with locally affected Aboriginal peoples and obtaining their consent, thus safeguarding Aborigines’ rights and interests.
This is a rare instance, among existing laws concerning resource development activities, of applying the legally stipulated procedure for consultation with Aboriginal people. This is a highly significant step.
However, there are still many questions in urgent need of an answer with regard to incorporating procedures for consultation with Aboriginal people into the Mining Act.
This will have a major bearing on whether the ideas enshrined in the Indigenous Peoples Basic Act can be put into practice, and it will also have an impact on mining companies’ cost estimates, and willingness to develop mines and quarries.
The Indigenous Peoples Basic Act stipulates that when government authorities or private parties plan to develop resources on Aboriginal land, in Aboriginal communities or on adjoining government-owned land within a certain area, they should consult with those Aboriginal people or communities and share the benefits with them.
It also says that the Council of Indigenous Peoples is to define how such consultation and consent procedures are to be carried out.
However, lands considered to be traditional Aboriginal territory are still being delineated and have not yet been fixed. Furthermore, one piece of land might be the overlapping territory of different Aboriginal people or communities.
The law also does not define within what distance of Aborigines and their communities “adjoining land” actually lies.
It is therefore difficult under the present system to be sure about the range covered by Aboriginal land and communities and whether consultations have to be carried out. Even if consultations are indeed held, it is not clear which affected communities need to be notified about them.
Second, consultative procedures have to be applied to affected communities in the locality of the matters for which consent is needed — affected communities being defined as community areas at the location of the matters for which consent is needed and within the range of their implementation, plus community areas indirectly affected by their extended impact.
The question then is: What is meant by extended impact, and how can one judge how far it extends? Neither of these things is specifically defined, nor are there standards for them. Furthermore, the extent of community areas might be hard to define because of cultural, historical and other factors.
Although it is stipulated that the consultation regulations are to be set by local government departments, and that if those departments encounter difficulties they can report to the central authorities and request their assistance, if disputes remain after a decision is made, mining companies are likely to face long and tedious remedial procedures, and even protest movements.
Furthermore, Aboriginal communities are still being established one after another, and this poses another question, namely how to determine the threshold for which related communities take part in the procedure, in which the consultation regulations require more than 50 percent approval.
“Affected communities,” as defined in the consultation regulations, seems to be a different concept from “adjoining government-owned land within a certain range,” as appears in the Indigenous Peoples Basic Act.
Moreover, a mechanism is provided for government departments to define affected communities, but there are no regulations or complementary arrangements about how to judge how far an adjacent area extends or who is supposed to define it.
The draft amendments to the Mining Act have drawn the attention of people from various sectors, and the Cabinet has responded to calls from all sides by proposing amendments that take their various demands into consideration. That is commendable.
Comprehensive complementary measures for the procedure for consultation with Aborigines are the key to whether the idea of safeguards for Aboriginal people can really be implemented after being incorporated into the Mining Act.
The authorities should finish drawing up complementary procedures as soon as possible, so that the good intentions of the proposed amendments can be put into practice.
Yu Cheng-yuan is a managing partner at Titan Attorneys-at-Law.
Translated by Julian Clegg
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