Asia Cement: Following Rules or Pit Mining Human Rights?

Whiffs of what indigenous activist groups claim is scandalous whirled around the edge of Taroko National Park like Pacific Ocean mists last week as demonstrators staged a week-long blockage of an Asia Cement Corp. (ACC) mine.

The protest dredged up a host of murky issues revolving around how big business has been allowed to trample on indigenous rights.

Members of various Taiwan indigenous peoples, under the wing of the “Against ACC, Give Back Truku Land, Self-Saving Committee" (反亞泥．還太魯閣族土地自救會), were protesting the failure of Taiwan’s government to prioritize legal changes that would force companies like ACC to take long-term responsibility for the land they mine.

Viewed from above via Google Maps and other photographs, the mined land in Taroko land appears as a gaping white canker draining the mountains of their greenery.

The protest called attention to how the government had rushed through the renewal of ACC’s 20-year permit to operate the mine earlier this year, just ahead of the passage of amendments to Taiwan’s Mining Act that would force the company to take responsibility for the area’s environment, as well as for job losses that might ensue once the mine ceases operations.

Representatives of the Committee had said that if no amendments were made to the Mining Act by Nov. 22, which is when ACC’s new permit to mine came into force, then the group would block entrance to the mountains "to defend indigenous land." Their condemnation was echoed by Taiwan's Control Yuan, or investigatory agency, which in October censured the Ministry of Economic Affairs (MOEA) and Hualien County Government for neglecting to enforce regulations on the mining industry .

Protesters wished to see the Mining Act amended to reflect international best practice, which mandates that companies responsible for mining must also be required to restore the land so that it can be re-used for other purposes, as well as take steps to ensure communities remain viable in terms of employment after mine closures.

People like Sigi Tapaq, an indigenous Truku elder, local resident, and retired schoolteacher, also put a human face on what for many is a remote concern, highlighting how mine operation disrupt daily lives through bone-tingling explosions that rattle through the ground on a daily basis.

“We are here because in the last 43 years [ACC] has been putting us in grave danger. We want to settle here and be able to practice our culture,” Tapaq said, adding the safety of future generations was the group’s primary concern. “Our ancestors have been here for more than 100 years but our traditions, our memories, can no longer be directly attached to our land because we don’t have it anymore!"

To cap it all off, the protest raised longstanding grievances over the allegedly underhand way mining rights had been obtained in the first place – in violation of Taiwan’s Indigenous Peoples Basic Law.

Rubber-stamped renewal

In 1977, ACC was granted its initial 20-year ticket to mine about 450 hectares at this location. Taiwan’s Bureau of Mines Director-General Chu Ming-chau (朱明昭) said at a press conference in May 2016 that this was (and perhaps remains) part of the government’s plan to economically develop eastern Taiwan. At stake if the mine were to cease operations are about a 1,000 ACC jobs and the viability of many downstream industries that rely on cement for their operations.

Occupying the traditional territory of the indigenous Truku, the ACC plant must reapply for an operations extension permit every 20 years. In March 2017 it was granted that permit. November 23 was this new term’s first day.

Activists asserted that Taiwan’s Legislative Yuan wrongly expedited this renewal. In October 2017, environmental groups filed a lawsuit against the Taiwan Ministry of Economic Affairs. Complainants allege that this continuation was an inside job related to protecting big business interests.

They say that rushed renewal was merely a preparatory measure for the potential future revamping of Taiwan's national mining regulations laws. In other words, this is potentially a motion to shield companies like ACC from future regulations that could result in complications to its current mining operations, or even their closure.

Mine bureau director-general Chu said at the May 2016 press conference that there are no new regulations that can alternatively regulate ACC's current operations. Therefore, there is no legislative capacity or reason to deny ACC its operations renewal permit.

These mining laws were originally passed in the 1930s, though they have undergone about six surface revisions. The Taiwan government asserts that new regulations are being considered, which would pertain particularly to new mining operations. These would include strict requirements for environmental impact assessments.

Complainants say that the ACC plant, its operations, and the legislative processes that make this possible have been executed in violation of the Taiwan's Indigenous Peoples Basic Law. The local peoples have never been properly consulted regarding the use of their indigenous lands. Certainly, they did not grant permission for the resulting land and social degradation.

Credit: Jeffrey Warner

ACC claims that over half of its employees are locals. In addition to acquiring community approval signatures four decades ago — which the locals claim were forged and some included deceased people — this serves as what they claim is sufficient basis for free and prior informed consent.

Moreover, according to one report, "The Taiwanese government has in fact sometimes championed ACC as a model of ecologically friendly development in spite of how [the company] was able to sidestep an Environmental Impact Assessment through renewing its pre-existing mining permit."

Protesters vehemently assert that what is transpiring is a violation of land and civil rights. They are peacefully demanding transparency and transformative justice.

While ACC has the legal right to continue operating, it had temporarily halted production while protestors expressed themselves.

Deeper Roots

According to an October 2017 report by Taiwan Business Topics, "Taiwan’s modern cement industry dates back to the establishment of the Taiwan Cement Corp., formed as a state-owned company in 1946 and privatized in 1951 under the leadership of the Koo (辜) family. For decades it was considered one of Taiwan’s blue-chip companies. ACC was formed in 1957, as part of the giant Far Eastern Group, and moved most of its production from its original site in Hsinchu, northern Taiwan, to the east coast in 1973, at the government’s urging. Currently, all of Taiwan’s cement mines and more than 80 percent of cement production is located on the east coast."

In other words, this is big business. ACC is linked to a range of national and international issues including national economic security.

Taroko National Park was created in the mid-1980s. Twenty-five hectares of the Park (i.e. Taroko Gorge) overlapped with ACC’s mining area. The Park administration and ACC penned an agreement that the corporation could continue mining this 25-hectare area. However, it could not extend the mine any further.

Environmental Protection Administration Minister Lee Ying-yuan (李應元) said at the May 2016 press conference that the Taiwan government is making moves to ban all mining in national parks. "Actually, ACC stopped mining in the park a while ago… It is now helping the park restore the environment of the 25 hectares," mining bureau boss Chu said at a May 2016 press conference in Taipei.

Locals, activists, and the late filmmaker Chi Po-lin (齊柏林) — who helped raise awareness of environmental issues in Taiwan, particularly with his 2013 documentary film "Beyond Beauty – Taiwan from Above" — have shown otherwise.

Aries Huang (黃靖庭) is an activist and campaigner for Citizen of the Earth (CET), Taiwan. CET is a not-for-profit environmental justice advocacy organization dedicated to environmental justice. This NGO focuses on mountain, forest and coastline development.

"We are here at this protest to make sure that the government meets local people’s demands," said Huang. "This struggle for local people has been going on for 40 years. We want to stop this company from continuing to operate."

"We (CET) care about the mining industry, and the laws that regulate it," she added. "Mining is one of the biggest threats to Taiwan’s nature. Mining is happening everywhere."

One report describes how ACC acquired the land from the local indigenous peoples.

In 1974, the Siou-lin district administrative office, the Hualien county government, and ACC held several meetings for residents regarding ACC's desire to develop a production site in Siou-lin district. However, as the Council of Indigenous Peoples' (行政院原住民族委員會) judgment clearly points out, "The meeting only highlighted the benefits of the establishment of an ACC factory during these 'informational meetings', never clearly stating to attendees that they would need to desist all cultivation and use of Truku Reserved Lands."

Furthermore, the Truku people's full understanding of the meetings' proceedings cannot be taken for granted when these meetings were conducted solely within the context of the laws and language of the Republic of China, which were alien and unfamiliar to them.

Credit: Jeffrey Warner

Subsequently, the Siou-lin District administrative office proceeded to transfer the lease for large sections of reserved lands to ACC, soon afterward revoking the cultivation rights registrations for 146 hectares. Fortunately, because of errors in documentation, a few of these revocations were not completed and some were able to retain their cultivation rights. Two of these comparatively lucky rights holders eventually became litigants in the aforementioned case. After the lease agreement between the Siou-lin District administrative office and ACC was formed, the original Truku rights-holders were forced off their land. Many of the original cultivation rights’ registrants have since passed away, and the remaining few who are parties to this case are now quite elderly.

During the course of protracted litigation, the Siou-lin District administrative office and ACC have repeatedly produced a written document which they claim is an agreement to abandon cultivation rights to which the seals and signatures of the Truku cultivation rights-holders have been affixed as proof of the aboriginal people's voluntarily renouncing of cultivation rights and receipt of compensatory payment. However, the two indigenous plaintiffs in this case do not recall signing any such document, and the handwriting used on all the signatures appending the agreement is curiously identical.

Fast-tracked approvals

Whether or not there was skullduggery in the past, there was certainly suspicious activity in March 2017, when ACC submitted its operations renewal application. Huang explained how the approval review process usually takes about 15 months, but the go-ahead was granted in just over three months. She and others said that while no laws were violated, this expedited renewal process is very unusual.

Huang said that by the end of 2016 there were a number of mining companies whose operations permits were up for renewal. Nine of these companies proposed a draft of the new mining laws that perpetuate a status quo with minuscule changes.

She said that no environmental impact assessment has ever been done for ACC. Huang also stressed that this mining area is "environmentally sensitive" and is prone to landslides and other environmental risk phenomena. She also noted that the national mining laws governing ACC date from the 1930s and do not reflect modern concerns and needs.

"The company says it is operating safely, and that the overall environment is safe," said Huang. "Yet it still refuses to do an environmental impact assessment. Why?" She added that locals were forced to move down from their homes on the mountain and are in constant danger. "Regardless of everything, this is still a geologically sensitive area," she said. "The local people are losing their land, and it’s getting ever more dangerous for them. They want transparency. While mining laws are receiving attention, the government is facilitating this company to get a new permit."

Huang said that though everything regarding the permit extension seems legal, the company did not adhere to the Indigenous Basic Law. This is the main issue.

"Many of us still consider Taiwan a developing country," said Huang. "We have limited resources. And most of these resources are in mountainous areas. This means that we need to have rigorous laws that regulate policies, which come from public debate and public discussion."

This case runs the gamut of issues ranging from politics to land and human rights.

"Globally, we are in an awakening movement. In Taiwan, we are part of this. We have basic indigenous laws, and they must be implemented. The indigenous peoples in Taiwan have been oppressed by the system for centuries. They deserve the right to live safely and happily, just like everyone else. Transformative justice should not just be a slogan."

Hank Hsieh is an Attorney at Law for the Legal Aid Foundation and the Northern Legal Aid Staff Attorneys Center. Hsieh also works for Wild at Heart Legal Defense Association, an organization of lawyers that cares about environmental and social justice issues.

Hsieh said the association is establishing a legal center to support indigenous groups. Wild at Heart is focusing on this ACC mine protest and the overall land issue because this mining area used to be part of Taroko National Park. This is an interesting case because it runs the gamut of issues ranging from politics to land and human rights.

"The reason that mining cases are so controversial is because they (almost always) exist in areas where indigenous peoples live," said Hsieh. "Development processes make it nearly impossible for local people to live their lives, such as with hunting, fishing, etc. And these mining operations are making it impossible for future generations to do this."

Hsieh sees three major issues with ACC and this operations renewal: it is a direct violation of Indigenous Peoples’ rights, it causes environmental issues in a geologically sensitive area and it violates mining laws regarding the legal determination of a mining area.

Hsieh verified that Taiwan’s Mining Act regulating ACC was created in the 1930s and subsequent revisions have been minor. Hsieh said that these laws overall systematically deprive local indigenous peoples of basic human rights.

"The fact is that the government is aiding this human rights violations related process," said Hsieh.

He said the primary issue is that land demarcation and utilization for ACC’s mining area has never been specifically determined. According to the law, in order for a mine to be created the first step is that the company must determine the exact area. Once this area has been identified, a formal plan must be drafted and passed through the various governmental channels, including the involved communities. Hsieh said that if step one never occurs then a never-ending situation can ensue.

Hsieh stressed that according to the Indigenous Peoples Basic Law any development related activities in indigenous areas must involve their consultation in regard to the overall plan. What must be determined is how the benefits will be distributed and how the land will be restored. All of this must be approved by local village councils.

"Yes, there is a hierarchy in the villages, which could involve some elders controlling things too much," said Hsieh. "However, Article 21 of the Basic Law requires that half of the affected area’s households attend the meetings, and at least half of the attendees must agree to whatever is decided."

Hsieh explained that what is most peculiar thing about Taiwan’s current mining laws is that when local people are not in agreement about a mine like ACC, the mining company — under Article 47 of the Taiwan Mining Act — can legally deposit a financial retainer to the State Court and continue with development.

Article 47 states that the mineral rights holder may commence mining upon depositing the rent or compensation for the land with the court and filing a notification with the governing agency, without agreement from the landowner and other rights holders.

Article 47 likewise states that the mineral rights holder may commence mining operations upon depositing the rent or compensation for the land with the court and filing a notification with the governing agency, without agreement from the landowner and other rights holders. "This process then becomes buried in legal complications," and the company can move forward as proposed, said Hsieh. The present mining law thus allows mineral extraction to trump other public or private interests unconditionally.

Hsieh said the next major issue with this case is that current mining laws require an environmental maintenance protection plan. Moreover, most mining laws require that if a mining company were to leave an area it must restore the land to its original state.

"In Taiwan, [developers and the government] don’t consider the land and the social impacts. The laws just say that they have to ‘stabilize the land.’" Hsieh further explained that Taiwan’s national laws changed in 2000 in relation to the Indigenous Peoples Basic Law, Article 21, which states: "This law was promulgated for the express purposes of recognizing, protecting, and promoting the fundamental rights of indigenous people, enhancing and securing shared prosperity of their communities, so as to ensure their continued survival based on sustainable socio-economic development and in the spirit of inter-people cooperation.

"This cleared the way legislatively for indigenous peoples to be consulted regarding land related issues," said Hsieh.

Hsieh added that the Basic Law was revised in 2005, with Article 34. He said that this addition is "particularly progressive." It requires that Article 21 be applied to all of Taiwan’s national laws. Article 34 states: "The competent authorities concerned shall amend, make, or repeal relevant rules and regulations in accordance with the operating principles underlying this Law within a period of three years from the date of its enactment."

"However, this has never really happened," said Hsieh. "Being that Taiwan’s Indigenous Peoples are a social minority, these laws didn’t really give them more significant votes."

Another notable aspect of the Basic Law is Article 32: "The government shall not displace or relocate any indigenous person from his or her land, except in cases of imminent and obvious danger."

Hsieh provided an example of Taiwan’s new mining laws. He pointed to a proposal for a new mine in Nantou County, Taiwan's only landlocked county. The mining area was hastily proposed to be located in the middle of the area’s water source. While local villagers stopped the mine with protests, "that case illustrates just how reckless the authorities actually are," said Hsieh.

Credit: Jeffrey Warner

Regarding the ACC mining area in Hualien, Hsieh said: "This is a geologically sensitive area. There is nothing in the reports about this, nor does the government regulate the companies as it should. Also, there is a burial ground around here, and it is forbidden to do anything on this land."

How can all this happen?

Hsieh explained that with this ACC operations renewal, the Taiwan Council for Indigenous Peoples asked Taiwan President Tsai Ing-wen (蔡英文) to show that her 2016 apology to the indigenous peoples of Taiwan is sincere.

On Aug. 26, 2017, the council demanded that Articles 21 and 34 become fully realized via ACC’s permit renewal. However, Taiwan’s Legislative Yuan and the Ministry of Economic Affairs deemed this unnecessary. What was determined is that an extension for operations is different than the application for a new mine. And if a company is adding operations areas to prior mining areas, it is ‘grandfathered’ in under the old systems.

Hsieh explained that this legislative gridlock contention put into legislative motion an ad hoc committee comprised of "experts" representing each of the legislative bodies. The other two executive branches determined that the council failed to implement its own laws. Everything was then nullified within this committee.

Using this logic, the government made it impossible to implement Articles 21 and 34, according to Hsieh.

"Indigenous peoples have been fighting for generations, and modern people are tired of this," he added. "We (Taiwanese) embrace human rights. We recognize ourselves as a country. And human rights are a foundation of this country. It should be demonstrated for and by all of us."

Truku elder Sigi Tapaq said that this protest (at least for now) is a peaceful process.

"These non-confrontational ways represent indigenous groups’ core values," said Tapaq, adding that protesters acquired a protest permit. "This (non-violence) is our Gaia, our belief system. [Indigenous peoples] need to work together, unite each other across various groups. Given we are a minority, we also have patience and support for each other. We will reach our goal."

Editor: TNL Staff

Special thanks to Yu Fen Kao (高于棻) of Greenpeace International for brilliant on-site Chinese-English translation as well as to Tobie Openshaw and Michael Turton for input.