Baqun balay qwara Gaga, ini kbrus

(When someone knows customary law (Gaga) we know they will not lie)

(Tayal elder, Jianshi Township, Taiwan, Fieldwork Interview, 6th September 2016)

1. Introduction

In many settler societies, there is a common and dominant misconception that Aboriginal peoples have lost connection to their traditional territories and values as a result of colonization. In reality, Indigenous peoples, languages and cultures are a persistent and resistant presence in many places where the dominant culture asserts such loss and privileges ideas of the absence, erasure and denial of Indigenous peoples (Howitt 2012). Dominant discourses that privilege colonization as an unproblematic driver of modernization demean Indigenous cultures as ‘primitive’ or ‘traditional’ – creating a modern/traditional binary that this paper seeks to unsettle.

In Taiwan’s ‘modern’ society, there is a widespread stereotype that Indigenous cultures must remain unchanged to be authorized as authentic and recognizable by the Taiwanese state. So, like many colonizing societies, Taiwan has, until recently at least, argued that Indigenous culture exists only as a past traditional society – unchanging and unchangeable; anywhere and any-when except the here and now.1

On 1st August 2016, President Ing-wen Tsai delivered the National Apology to the Indigenous Taiwanese for historical injustices and proposed transitional justice in a national scheme.2 This National Apology opens an opportunity for Taiwanese society to reconsider its recent colonial history and to re-narrate the contested cultural landscape by listening and responding to Indigenous narratives as always and already present in the nation’s cultural landscapes. Understanding Indigenous cultures as adaptive, dynamic and evolving is an important step in recognizing Indigenous cultures as part of ‘modern’ Taiwan. Such recognition requires a reconsideration of the nature of common property and Indigenous property rights, including rights held in common under customary governance arrangements, and reframing of those rights. Failure to do this will recreate the conditions for continuing dispossession and displacement of Indigenous peoples and will fail to provide conceptual foundations for just and resilient commons governances.

The opening quotation from a Tayal elder in northern Taiwan proposes that ‘When someone knows customary law (Gaga) we know they will not lie’. This proposition encompasses the ethics and integrity of the Tayal customary law system and reflects a persistent and contemporary customary governance framework about common property resources. This paper explores how this proposition plays out in contemporary water governance in Naro Community, Jianshi Township and considers its wider implications for Indigenous rights discourses in Taiwan.

Following Schmidt and Dowsley (2010), who demonstrate the importance of understanding common property as having active agency in customary governance systems, we acknowledge the active agency of water and re-examine the nature of its place in common property governance in the Tayal context – a shift which requires reconsideration of many aspects of common property governance. The paper explores the ways in which the agency of water in Tayal culture renders it not simply as a common pool resource to be governed, but as a key actor in a resource governance system with significant agency in the everyday affairs of Tayal people, influencing social, cultural and political domains as well as being part of the environmental context in which governance is disputed in contemporary Taiwan. The paper argues governing common property in the Tayal context of Naro Community, Jianshi Township is about governing relations among non-human and human agencies in a more-than-human world as well as communally sharing the responsibility rather than merely exercising (and constraining) self-interested control over the resource. In addition, this paper offers recognition of the persistent, adaptive and contemporary Indigenous presence in common property resource governance in ‘modern’ Taiwan. Finally, it offers some conclusions regarding how to deal better with the complexity of Indigenous claims to rights in property, resources and governance in the wake of President Tsai’s National Apology.

2. Research methods

2.1. Methodology

Methodological approaches which embrace more-than-human worlds are increasingly acknowledged as framing the interface between human and natural systems in the discipline of Human Geography (Whatmore 2002; Braun 2005; Panelli 2010; Suchet-Pearson et al. 2013; Wright 2014; Bawaka et al. 2015; Larsen and Johnson 2016). Among studies of more-than-human worlds, there is growing interest in how Indigenous philosophies perceive relations and connections with non-human agents, such as rivers, land and forests. For instance, Suchet-Pearson et al. (2013) demonstrate the co-constitution of human and non-human agencies in Yolŋu ontology in northeast Arnhem Land, Australia: they ‘see humans as one small part of a broader cosmos populated by diverse beings and diverse ways of being, including animals, winds, dirt, sunsets, songs and troop carriers (Suchet-Pearson et al. 2013, 185)’. Acknowledging a more-than-human world opens the possibility to recognizing a non-anthropocentric worldview and its implication of common property governance (Bawaka et al. 2015). Similarly, Kwakwaka’wakw scholar Sarah Hunt asks how disciplines might more respectfully respond to Indigenous philosophies and knowledge “rooted in Indigenous worldviews” in ways that ensure researchers “avoid being agents of assimilation when it comes to Indigenous knowledge, people and communities?”(Hunt 2014, 30). Building on this approach, the research reported here engaged with the Tayal presence and more-than-human world in modern Taiwan. The research adopted Howitt’s radical contexualist methodology (Howitt 2011). Howitt (2011, 132) uses the term ‘radical contexualist’ to advocate an approach to geographical knowledge that is ‘responsive to and aware of the context(s) in which knowledge is formed, debated, and applied. It also advocates recognition of multiple contexts influencing the social geographies in which our knowledge is constructed, tested, and applied.’ This methodology emphasizes that researchers need to be responsible for how knowledge is generated in a specific context. Especially in Indigenous geographies (Coombes et al. 2012, 2013, 2014), researchers are dealing with issues regarding people and culture, which both are dynamic and changeable. Hence, ‘Context matters – the historical, geographical, social, and cultural context in which social geographers undertake research fundamentally shapes what we come to know and how we come to represent it to our various audiences’ (Howitt 2011, 142).

Non-human agencies play an important role in Tayal people’s understanding of the world (Kuan 2009, 2013, 2015; Berg 2013; Lin 2015). While in Eurocentric ontology, entities such as water, forest and land are treated as ‘objects’ rather than ‘agents’, they are critical elements of common property resource governance which are understood in Tayal governance as embodying cosmological agency. So, rather than being simply a natural resource basic to sustenance of human societies, water is motivated by cosmologically framed agency (Hsu et al. 2014). Water governance that is symbolic of a society’s cosmology is not uncommon across the world (see also Singh 2006; Samakov and Berkes 2017). Taiwan’s dominant resource governance schemes often reduce resources to consumable or tradeable commodities, and nature is binarized with culture so the ‘natural’ resources need to be managed to achieve the goals of human agents. The research reported here paid attention to Tayal views of the cosmological and ontological significance of water resources as an active agent in Tayal culture. The research demonstrates that ‘water’ in Tayal culture is not only a resource, but also an active agent that shapes people’s identity and nurtures social relations.

2.2. Research site and ethics

Drawing on co-author Chen’s existing engagement with the Tayal community in Jianshi Township and using participant observation and ethnographic research (Chen and Howitt 2017), the research reported here explores how Tayal governance and use of commons has evolved through colonial interferences. Jianshi Township (Mandarin: ; pinyin: Jiānshí Xiāng) (Figure 1), is a mountain Indigenous township in Hsinchu County in northern Taiwan. It had an estimated population of 9395 as of July 2017 (Jianshih Township Household Registration Office 2017). The main population is the Tayal people of the Taiwanese Indigenous people. The area is 527.5795 km2.

Figure 1: 

Research site in Naro Community, Jianshi Township, Taiwan.

Tayal economic activities in Jianshi Township continue to be predominantly agricultural, with strong reliance on locally managed water distribution to fields. The Naro Community within the Township (260 households and population 807 as of May 2017 (Council of Indigenous Peoples 2017)), provided an appropriate case study location because the community economy is primarily agricultural, the landholders are a mixture of Tayal customary landholders and more recent ethnic Han and Taiwanese settlers, and customary Tayal governance remains common in how water is governed and managed. When approached, the community leaders supported the research, and cooperated by welcoming Chen into community meetings, activities and interviews. Informed consent was obtained from Tayal participants prior to commencing site visits, trail walks, participatory mapping, interviews or group discussions. The project is covered by a protocol approved under Australian requirements (Macquarie University Human Research Ethics Committee Approval # 5201600433). Under this protocol, and with their approval, participants are referred to using a pseudonym to protect their privacy.

2.3. Data collection and engaging with Tayal knowledge

The research was conducted from August 2016 to January 2017. The fieldwork involved 23 local residents with a mixture of 6 women and 17 men. The average age of informants is above 55 years old and most of them practice agriculture or access common property (e.g. water, hunting ground, forest…etc.) frequently. The informant selection was deliberate. Chen3 consciously recruited senior local residents who are involved in customary water resource governance and have long experiences over time of colonial interventions (for the list of informants see Appendix 1). The data comprises individual interviews and group discussions with research informants about the nature of Tayal knowledge and approaches to the use, management and governance of water. Table 1 lists group discussions that the researchers held during the fieldwork.

Table 1:

Group discussion.

No. Type of interview Date Participants component Rationale of selection
1 Group discussion 2016/09/06 Behuy, Hana and Yulaw Behuy and Hana were born during the Japanese colonial era and have run a local grocery store and agricultural business since they married. They are both prestigious local leaders and have witnesssed colonial interventions in Tayal common property governance (e.g. forest, water, hunting ground… etc.) during various settler governments. Yulaw belongs to the same extended family. He currently is a farmer and subject to Tayal common property governance.
2 Group discussion 2016/09/22 Payal and Kumu Kumu and Payal belong to the same extended family. Kumu is a local farmer and grows customary crops in her fields. Payal is a local resident. Both have the expertise of connecting and maintaining the local pipeline system and the allocation of water resources.
3 Group discussion 2016/10/01 Hetay and Apay Hetay and Apay are a married couple and both are local farmers. They are familiar with evolving agricultural practices and accessibility to common property in the local context.
4 Group discussion 2016/12/07 Yuming, Kumay, Watan and Tapas Yuming, Kumay and Watan belong to the same extended family. Yuming and Kumay are elders and leaders in their extended family and the community. They are both local farmers and are familiar with Tayal common property governance (e.g. hunting ground and trail, water source…etc.) Watan and Tapas were interpreters of this interview.
5 Group discussion 2016/12/12 Pasang and Yapit Pasang has the expertise of connecting and maintaining the local pipeline system and the allocation of water resources. Yapit is Pasang’s mother. She is a committed customary crops cultivator and preserves native species (including bean, cucumber… etc.).

During the fieldwork, Chen became aware that Tayal informants were more actively engaged in interviews when their relatives also participated and when the interview was held in semi-public places. By employing a radical contexualist lens, Chen consciously sensed that Tayal knowledge is embedded in the Qutux niqan, a social-relational group sharing food, which can be interpreted as an extended family. Tayal knowledge is generated, maintained and regulated through/within their Qutux niqan (extended family) (Kuan 2013). Tayal knowledge is never singular, linear, and exclusive. Knowledge is debated, generated and a common property/common knowledge is reached in a localized relational web of kinship, community and senses of place. In order to access contextualized information in Tayal culture, Chen held 5 group discussions and recruited Tayal participants from the same Qutux niqan (extended family). We acknowledged that the relations among informants matter through data collection. Sharing knowledge within a relational web of kinship is paramount in Tayal culture. The research methodology applied to explore the dynamic of Tayal common property resource governance hence emerged in a specific-temporal-and-spatial scale and cultural-and-geographical context and acknowledged the contextualized environment of Tayal knowledge generation.

2.4. Time scope and colonial Taiwanese history

Indigenous Taiwanese have experienced multiple colonial governments (Hsu 2016) since this island was initially spotted by Portuguese sailors and given the name ‘Formosa’, which means beautiful island, in the sixteenth century. The island was occupied by the Netherlands (1624–1662; mainly in southern Taiwan) and Spain (1626–1642; mainly in northern Taiwan) in the Age of Discovery. In 1661, a Ming Dynasty leftover loyalist Koxinga ousted the Netherlands and established a military base in Taiwan. Taiwan was annexed into the Qing Dynasty Empire in 1683, and then ceded to Japan after the First Sino-Japanese War in 1895. Until the Japanese occupation of Taiwan, Tayal customary governance of land and resources was basically unaffected by colonial interference. The Japanese colonial government extended central control to the highlands of Taiwan, invested in significant new infrastructure, particularly hydraulic infrastructure for cultivation (Chen 1993), and encountered significant Indigenous resistance (Fujii 1997). This challenged Tayal sovereign control of local resources, and provided a major foundation for dispossession of Tayal territory that was amplified by later colonial governance. Under the United States oversight, following the defeat of the ruling Japanese colonial government in the 1945, Taiwanese sovereignty was unclear. In 1949 the Nationalist Kuomingtang (KMT) government of the Republic of China (ROC), following their retreat from mainland China and establishment of the Peoples Republic of China (PRC), occupied Taiwan and claimed the island as an indivisible part of an imagined pre-1895 imperial domain (Leng 1996).

Although Japanese colonization challenged Tayal governance structures, the land policies imposed by the Japanese colonial government recognized communal land titles (Kuan 2014; Chen and Howitt 2017) and, as under the previous colonial interventions, Indigenous institutions were largely able to continue operating, particularly in more remote areas. However, the occupation of Taiwan by the ROC government resulted in the enforcement of an individual-registerable and private-owned freehold title system which is identified by the researchers as the main factor currently impacting Indigenous people’s common property governance. As such, this paper focuses on the time period of 1945 to the present.4

3. Tayal water governance

3.1. River-based narrative and relational ontology

The case study presented here focuses on Tayal people’s water resource governance. In Tayal culture, there is a way of chanting called Lmuhuw; it is the philosophy of flow or “through-ness” and informs Tayal people’s cosmology. The term Lmuhuw means “flowing” and “going through” in Tayal language and literally refers to the way water moves as it flows in a river or through bamboo (Kuan 2009). Lmuhuw records the epic migrations led by three brothers: Buta, Ayan and Yaboh, along the different watersheds due to the densely populated origins. They migrated from the origins toward the north to find cultivable lands. Lmuhuw is chanted and inherited by male elders exclusively, and normally is chanted when proposing marriage or reconciliation after a dispute. The chanting of Lmuhuw clarifies the relations between parties involved (Zheng 2006). On the occasion of proposing marriage, it clarifies that there are no blood relations between the two families to avoid incest. During reconciliation processes, it reminds the stakeholders of their common ancestors, in order to smooth the peace-making process by strengthening their identity and connection.

In Lmuhuw, when Buta separated from Ayan and Yaboh for different migration paths, he exhorted them that: “No matter wherever you are going, you shall start your community alongside with different water sources (mtbuci lmuhuw ginqwangan sbqiy) (Zheng 2006).” In Tayal culture, Tayal ancestors migrated along rivers, and established settlements along rivers. They founded communities and subgroups along rivers and various watersheds. Throughout Tayal migration, the rivers acted as guides rather than just convenient paths. Rivers also actively shaped and reshaped Tayal people’s identity. Their identity is watershed-based. In other words, Tayal people identify themselves with the watershed they come from rather than settlement (Kuan 2009; Mabuchi 2012 [1941]). Rivers play an active and significant role in Tayal ontology and cosmology. The traditional chanting Lmuhuw is an explanation of Tayal people’s existence over time and space. The migration paths recorded in Lmuhuw embed Tayal people’s identity simultaneously in past migration, current territory and commitment to future generations. Tayal people formed a watershed-based identity through the common ancestral migration, and they use the term qutux llyung (qutux means one; llyung means river in Tayal language) to refer to the fact that community members live within the same watershed and share the same identity.

Lmuhuw is also about social norms and ethics. The legendary leader Buta taught his younger brothers how to hold reconciliation once a conflict happened and other social norms that they and their decedents should obey (Zheng 2006). Tayal ontology and cosmology are entangled and mutually constructed in a relational web, in which social norms, explanation of existence, sense of belonging, ethics, sense of place, governance and identity are entangled, mutual-constructed and connected through the flow or through-ness of physical and/or symbolic rivers. Physical and symbolic rivers actively construct and connect Tayal people – practically, ontologically and cosmologically.

Relations with water construct Tayal people’s ontological and practical understandings. The flow or “through-ness” of rivers construct a relational web in which Tayal ontological and practical understandings are embedded. A relational ontology of connection means understanding all beings and things as inherently connected. Neither one’s identity, actions or ethics can be understood in isolation from other research partners, family members, other people, or the natural world. As in Yolŋu culture in Australia, humans, animals, plants, winds, rocks, spirits, songs, sunsets and water, indeed “all things, are connected together in a web of kinship and responsibility” (Lloyd et al. 2012, 1076). In the Tayal context, their relational ontology reflects a unique way of governing common property. By recognizing that all beings and things are connected, natural resources are not solely consumable and manageable resources; they also embody an active agency that connects, nurtures and maintains relations amongst all beings. In the group discussions it was clear that this relational way of seeing their world still matters in Tayal peoples’ water resource management while practices evolve over time.

3.2. Water as an active agent – a manageable resource or a commons relation?

When non-human agencies are understood as active agents, the scheme of common property governance requires significant revisions (Schmidt and Dowsley 2010). In Tayal culture, rivers, no matter whether they are symbolic or physical, are more than manageable resources for Tayal people. Rivers plays an active role in Tayal customary governance. Rivers shape and engage Tayal people’s identity, sense of belonging, sense of place, explanation of existence. Rivers also maintain and nurture social norms and ethics that are embedded in Tayal customary governance. Rivers and water commons are not reducible to a consumable commodity in Tayal ontology. They establish common relations that connect human and non-human agencies in more-than-human worlds. In this sense, Tayal governance of common property is not an anthropocentric utilization, but is about managing the social relations among various human and non-human stakeholders with an interest in a common pool resource. It is also implicated in the relations among various ‘non-human’ stakeholders in a more-than-human world. The following section provides three case studies that further illustrate how water, as a non-human agent in the scheme of common property governance, evolves along with colonial interferences; and how Tayal customary governance resists and persists in the ‘modern’ Taiwan landscape.

4. Case studies

4.1. Water interests in customary governance

With annual rainfall of around 2000 mm, water is not scarce in Tayal territory. Water sources, in springs and water courses, are used for domestic and agricultural purposes, with a complex system of pipes connecting water sources to a range of locations. In terms of Tayal customary law, sharing water sources implies being part of an extended family. The Tayal term for extended family, Qutux niqan, refers to a group who share foods, and also refers to a group that shares water sources. With increasing presence of non-Tayal5 people in Tayal territory, Tayal groups have adjusted their social norms to apply in current society. In Tayal language, the term Pucing qsya’ means the water source (pucing means roots; qsya’ means water), and the term Cinpucinq qsya’ refers to the priority user of a water source, normally a person who used that water source first and therefore has the priority interest. To connect to the pipeline system, the consent of Cinpucinq qsya’ is essential in Tayal social norms, and other people are only allowed to connect pipelines below where the Cinpucinq qsya’ is connected. Historically, approval to use the same water source implied being included into family. Nowadays, however, Tayal community members also give their permission and welcome to non-Tayal settlers to connect pipelines to their water sources. To comply with Tayal social norms, some non-Tayal settlers will hold a sharing pork ceremony with Tayal community members’ assistance:

If a non-Tayal settlers came to our community to live and ask to connect his/her pipeline system from our water source, he/she needs to share a pig with whom sharing the same water source, not the whole community. This thing is called qbalay (deal with) Gaga (customary law), which means all relevant parties negotiated, agreed, so we will share a pig.

Kumu and Payal from Naro community

Through killing a pig and sharing pork with the group sharing the same water source, the non-Tayal settlers acknowledge the custodianship of Tayal people and will be recognized as part of the social relations in the Naro community, and thus share the responsibility of water resource governance. While the sharing pork ceremony does not require explicit recognition of Tayal customary governance of the shared resource, it reflects Tayal custom and the customary governance relationships built on that customary law. Not all non-Tayal settlers were willing to hold the sharing pork ceremony. Some non-Tayal settlers paid the maintenance fee to the community without sharing pork with the community. In such cases, the maintenance fee paid to the Cinpucinq qsya’ or the head of household or through a community council body also reinforces the Tayal perception that customary governance of the resource is being reinforced and accepted rather than bypassed. But either way, holding the sharing pork ceremony or not, paying the maintenance fee to the community still indicates a customary governance system that is recognized and reinforced by non-Tayal settlers making financial contribution to the community.

Figure 2 illustrates the priority relations of customary water interests in Tayal society. Tayal customary governance system, in which common property interests are explicitly allocated to various members in a customary community, is well understood and lasts for multiple generations among Tayal people. In Tayal customary governance system, people have particular responsibilities that are accountable to a wider body politic. If a local Tayal person asks to connect her/his pipeline from the Cinpucinq qsya’, she/he does not need to hold a sharing-pork ceremony with the group; only non-Tayal settlers need to do so. This is because the sharing-pork ceremony is an acknowledgement of being included in the relations, and thus, being responsible to govern the common water interest. For community members, there are clear priority water interests maintained by social norms. As in other customary law settings, common property resource governance is not about collective ownership of particular resources; it is about sharing the responsibility and custodianship collectively under customary law in a more-than human world rather than exercising anthropocentric utilitarianism over resources (see also Toussaint et al. 2005; Hoverman and Ayre 2012; Jackson et al. 2012; Ayre and Mackenzie 2013). In Tayal customary law settings, managing water commons is not solely about utilizing the resource. It is always directed towards maintaining, nurturing and governing the social relations embedded in the customary law and governance system.

Figure 2: 

The priority relations of water interests.

(The diagram visualizes the understanding of customary water interests’ priority as concentric circles. The inner circle appears as the priority of water interests in customary law.)

4.2. Contemporary water commons governance

Even though water is not a scarce resource in Tayal territory, pipeline systems in its mountainous terrain are fragile and require a lot of maintenance, especially in response to major storms, typhoons and landslides. In such events, water and rivers play an active force in guiding Tayal people’s mobility and migration patterns (Kuan 2015). In order to work with this active agent, Tayal people need to respond to the agency of water through timely maintenance of the pipeline systems. The responsibilities involved in maintaining the water commons is integrated in Tayal customary system. When maintaining the pipeline, Tayal are simultaneously maintaining their social relations. As illustrated in Figure 2, the relationships within this water governance system are multi-faceted, and well-illustrated both physically and metaphorically by the pipelines that carry water from the water sources to fields and houses. Figure 3 shows a pipeline connected across a five-storey-deep valley. The Cinpucinq qsya’ (water source owner) is responsible for maintaining their own pipeline system. If damage occurs, the Cinpucinq qsya’ (water source owner) either maintains it in person or hires someone to do so, and all households in the same pipeline system will split the costs. The left side of Figure 3 is the water source and the right side of Figure 3 extends to the left side of Figure 4. In Figure 4, two sub-pipelines connect from the main pipeline. The two sub-pipelines belong to different households. Each household is in charge of their own sub-pipelines. Again, the pipeline system illustrates a customary governance system, in which people have specific responsibility that are accountable to a wider community polity.

Figure 3: 

An example of the pipeline system in Naro.

Figure 4: 

The pipeline reflects the social connections.

Water makes and reflects the connections between people as an active agent. At times of typhoons, floods and landslides, it can exercise an active threatening agent to well-being. People are literally connected by/with water. The connections are visible in the landscape through the pipelines which reflects certain social structures. All pipelines are literally the social connections constructed by/with Tayal customary governance. The pipelines clearly demonstrate the materiality of Indigenous presence and water as an active agent in local relationships of governing and using shared resources. The persistent and adaptive presence of customary governance structures and relationships with resources disrupts dualist representations of traditional/modern and articulates that Tayal social norms evolve over time. For instance, the Naro community acknowledges the non-Tayal settlers in their area and includes them into their relations through cultural processes. With the pressures that come from increasingly monetized economic relations and the challenges of rapid social changes, Tayal community members reorganize and adjust their social norms in a dynamic manner, but in doing so, they create and maintain a modern and dynamic Tayal presence in the region, which subverts the dominant culture narratives of Indigenous absence, irrelevance or inauthentic cultural identity.

Clearly, then, Tayal customary common property governance is not simply a matter of managing the common resource itself. It is crucially also and always about governing relationships among human and non-human agencies in a more-than-human world, as well as managing relationships between Tayal and non-Tayal people in an increasingly complex Taiwanese setting. In Tayal ontology and practice water is an active agent that directly influences governance, appropriate behavior, and how custodians are rewarded and supported. In modern Tayal society, governing the common property resource indicates commonly sharing the responsibility, rather than merely sharing the resource. The next section examines the domination and invisibility of Tayal culture, values and identity through colonial interventions and government legislations in ‘modern’ Taiwanese settings, and its implication for Indigenous presence and the matter of common property governance.

4.3. Colonial interventions and government legislations

When President Ing-wen Tsai delivered the National Apology to Indigenous Taiwanese on August 1, 2016 for historical injustices and proposed transitional justice in a national scheme, an important moment emerged to reconcile, acknowledge and recognize Indigenous presences as an essential part of ‘modern’ Taiwan. Nevertheless, discourses of invisibility and ignorance towards Indigenous presences are still deeply rooted in the dominant culture and national government legislation. Taiwan’s occupation by the ROC government essentially erased Indigenous water rights and interests with deficient legislative frameworks and policies (Chen and Howitt 2017). The main legislation dealing with water rights and interests is the Water Act 1942. Amendments made in 1963 declare the State’s ownership of water resources and claim to virtually extinguish Indigenous customary water rights and interests at the national-legislative scale. The Water Act states:

(§2). Water resources, being part of the natural resources, are owned by the state, and the state ownership is not prejudiced by the land ownership of any persons.

The 1963 amendments also formalized the legal concept of water right:

The term “water right” as referred to herein shall mean the right acquired according to law to use or make profits from surface or ground waters (§15)’.

Furthermore:

‘the acquisition, creation, transfer, alteration or extinguishments of water right shall be null and void unless duly registered pursuant to this Act (§27)’ [and to obtain water rights requires] ‘registration shall be filed with the authorities-in-charge at the municipal or country (city) level (§28)’.

A 2016 amendment of Article 42 recognized Indigenous Peoples’ water interests in a certain way. It stated:

‘In the Surface or ground water usage for the following purposes are exempt from water right registration: …2. water consumption in accordance with Subparagraph 4, Paragraph 1, Article 19 of the Indigenous Peoples Basic Law’ (hereafter referred as IPBL).

The IPBL announced in 2005 is the main body of Indigenous rights and interests legislation in Taiwan. Article 19 aims to protect Indigenous Peoples’ accessibility toward natural resources:

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’.

These activities can only be conducted for traditional culture, ritual or self-consumption. While the IPBL means to protect Indigenous rights, the articles ironically only recognizes Indigenous Peoples’ accessibility to natural resources in a ‘traditional’ purpose. The IPBL effectively froze Indigenous cultures in a ‘traditional’ frame and failed to recognize contemporary Indigenous cultures. It formalized Indigenous water interests and rights in a way that ensures they are only recognized when the activities are conducted for ‘traditional culture, ritual or self-consumption’, which underpins the doctrine of ‘tradition’ and unchanging Indigenous cultures. Based on this token acknowledgement of Indigenous peoples and their water interests, the Water Act accordingly privileges the dominant discourse that Indigenous cultures are recognizable and acceptable only to the extent that they are unchanged, ancient and ‘traditional’ (see also Barclay 2010; Maddison 2013).

5. Discourses and practices of invisibility and dominance

The legislative framework in ‘modern’ Taiwan recognizes a limited scope for Indigenous water rights on the presumption that Indigenous culture is unchanging and part of ‘traditional’ society. The legislation fails to acknowledge Indigenous water interests in a dynamic manner and that Indigenous cultures are adaptive and modern, not limited to some arbitrary authentic moment in the past. Fieldwork with Tayal custodians and managers of water for agricultural and domestic use revealed their understanding of water as an active agent in Tayal ontology. This significant feature has not been acknowledged in Taiwanese national legal frameworks. The dominant discourse deems water, along with other natural resources, as a passive object, subject to (state-authorized and controlled) human action to manage/control/intervene. This section examines how Indigenous presence at a local scale has been challenged by national policies and legislation and rapid social changes. This section also unpacks how Tayal customary was intruded by practices and discourses of invisibility and dominance.

With an increasing number of non-Tayal settlers moving into Tayal territory in recent decades, the customary allocation of water resources has been affected. Non-Tayal settlers tend to fence their lands as an assertion of their proprietary claim under tenancy or lease, so Tayal community members have to detour around the fence to connect their pipelines. With more and more non-Tayal settlers moving into the territory, most Tayal community members choose to avoid negotiating access arrangements with non-Tayal settlers by locating their pipeline to take advantage of recently provided government infrastructure, such as ditches and roads.6 By doing so, informants Kumu and Payal said: ‘no one can argue with you’. This implies that the Tayal customary governance system has been influenced by non-Tayal actions. Pipeline connection used to be dependent on and reinforcing of local social relations even though it was increasingly framed as a private property from the dominant perspectives. The dominant practices and discourses excludes the Tayal collective water resource governance. The dominant discourses and practices claim that the state is the sole authority in the water resource scheme and infrastructure, the individuals only owns the pipeline as private property. As a result, individuals can connect their pipeline through infrastructure without reference to the Tayal customary governance, since the Water Act reserves exclusive authority over water source governance for the state and omits customary governance.

While Tayal common property governance renders a strong sense of communality, in the national legislation, recognition spaces7 for the communal and customary interests of Indigenous people are rendered all but impossible (Chen and Howitt 2017). Encountering oppression from arrogant settlers’ discourses and practices, the Tayal customary water governance faces great pressure to maintain and regulate. The colonial interventions that authorize and reinforce the national governance of local water resources are profoundly carved into the landscape. Figure 5 shows a land boundary marker set up by the local land registry office to clarify the boundary between fields. Tayal residents in Naro community generally do not require land boundary markers to clarify boundaries between fields due to the fact that they lived here for generations and shared the communal custodianship. However, non-Tayal settlers brought dominant spatial discourses and practices into Tayal territory. Through a discourse of invisibility, non-Tayal settlers omitted the Tayal conceptions of and approaches to water governance. They ignore the notion of communality in Tayal people common property governance, and aggressively claim their proprietary right under tenancy or lease through erecting land boundary markers. In response to the physical markers of state governance, Tayal community members place pipelines in the edge of fields or bury them under the ground. This literally marginalizes Indigenous presences in the landscape, and literally marginalizes Tayal perceptions of more-than-human worlds as well. The colonial intrusion into the Tayal landscape actually creates a spatial disciplining – the pipelines are disciplined by the colonial power to only traverse areas that are not ‘privately owned’ by non-Tayal settlers. The dominant discourses and practices perceive common resource as manageable, controllable and measureable, and they literally marginalize the Tayal water governance. However, there is actually an ongoing assertion and presence of Tayal governance system, as presented in Figures 35, which required careful interpretation.

Figure 5: 

Land boundary marker and a pipe attached on it in the edge of a field.

The Tayal epic migrations along rivers, watershed-based identities and social relations all reveal a more-than-human cosmology and relational ontology. Here multi-layered and multi-dimensional knowledge is formed in relations that stretch between places and across temporal scales. Knowledge and the systems that govern its application to the stewardship of common property resources, are, therefore, entangled in the more-than-human settings in which they operate. The ROC’s colonial interventions brought an arrogant settler discourse based on an assumed binary distinction between nature and culture, and a privileging of state power over customary practice and Gaga (customary law). The dominant discourse interprets subsequent patterns of common property management as disconnection of Tayal people from their culture. In Tayal discourses, however, the same patterns are understood as adaptive responses in which Tayal connections to nature, community and customary governance are reinforced against the colonizing assumptions of the invisibility and unimportance of Indigenous rights in contemporary resource management. Encountering the growing pressure from dominance and invisibility, nevertheless, Tayal water governance remains a presence in the landscape of an ostensibly ‘modern’, but still colonizing Taiwan.

6. Conclusion

Tayal governance of common property offers an alternative to colonial interventions. It challenges discourses and practices of dominance and invisibility by demonstrating its persistent and resistant presence. Through re-examining the nature of commons, this paper has illustrated that common property governance in the Tayal cultural context is maintained/nurtured by customary law which has accountability and moral obligations to a broader Tayal customary governance system. In Tayal water governance, water is an active agent which engages Tayal cultural dynamics rather than a consumable resource. Tayal customary governance offers a strategy for thinking relationally about governing the communal relations among non-human and human agencies in a more-than-human world, rather than consuming resources in anthropocentric ways.

This paper weaves together two threads of argument from fieldwork on water governance in the Naro communities of Jianshi Township in Taiwan. On the one hand, there is a theoretical thread; on the other is a contextual thread. First, the paper has shown that in common property governance, it is important to recognize that non-human agencies play an active role in Tayal culture. By recognizing water as actively engaged in common property governance, the approaches regarding common property governance needed to be re-examined. In the Tayal context, water is a vital agent that shapes identity, belonging and existence; water also connects a range of other human and non-human agencies. Governing the water resource for Tayal people is never merely about managing the resource itself, but about managing the relations among non-human and human agencies and sharing the responsibility communally in a more-than-human world. It is too simplified to presume that common property governance indicates communal ownership. In the Tayal cultural context, it also indicates sharing the custodianship under customary law. Academic discourse typically represents scholarly knowledge as detached, objective and universal, yet the contested cultural landscapes of Tayal territory in Taiwan reflect a persistent ontological pluralism (Howitt and Suchet-Pearson 2003, 2006) that needs to be recognized. Recognizing Tayal people’s communal custodianship of ‘resources’ is the foundation needed to propose more culturally appropriate, just and resilient common property governance frameworks in this contested cultural landscape.

Secondly, the paper critically considered the implications of a discourse about ‘modern’ Taiwanese society. In Taiwanese dominant discourses, Indigenous culture is deemed traditional and authentic only when it exists somewhere else or some-when else. Colonial interventions and government legislation have been complicit in creating the apparent invisibility of Indigenous Taiwanese in ‘modern’ Taiwan, and in underpinning the dominance on non-Indigenous culture in ‘modern’ Taiwan. However, in examining the case of Tayal water governance, the paper demonstrated the continuing Indigenous presence and identified the political challenge in ‘modern’ Taiwan, especially in a post-Apology political dynamic. The examples discussed reveal a contemporary Tayal ontology that consists of interdependent relations between human and non-human beings in particular places, which is not valued in a deep colonizing Taiwanese society. Tayal people’s water resource governance is deeply integrated with their epic migrations and oral history that underlies their more-than-human ontology. Tayal customary governance framework is resilient and adaptive, evolving correspondingly to society dynamics. Through cultural ceremony, Tayal people recognize non-Tayal settlers as stakeholders of collective water interests and include them into the social relations. When down-scaling the discourse of Indigenous absence (or stereotyped presence) from national legislations to local landscapes, the research reported here revealed an inconsistency, as well as identified a political challenge in a post-Apology political dynamic in Taiwan. In the ostensibly ‘modern’ Taiwanese setting, the dominant discourse excludes Indigenous cultures as parts of the present society. However, a resilient local common property resource governance relies on the collective ability to engage rather than subvert diversity in knowledges8 and cultural experiences (see also Natcher et al. 2005; Chaudhary et al. 2015; Bunge-Vivier and Martínez-Ballesté 2017; Tadie and Fischer 2017). Just as custodianship of territory by Indigenous peoples was not seen or valued by non-Indigenous colonizers, Indigenous modes of governing the landscape to maintain vital resources were also mostly unperceived and unacknowledged (see also McLean 2010). The pipeline systems in Naro community governed by customary law literally show Indigenous governance embedded in an ever-present and everyday social-relational web (see Figure 4), and illustrate how Indigenous presences, while marginalized by colonial interventions and national legislation (see Figure 5), remain resilient and adaptive and reassert themselves through negotiation of the changing physical, social and regulatory landscape (see also Figures 3 and 4).

The National Apology provides a space to start re-narrating (and listening/attending to other narratives already present) the discourses of presence, existence, belonging and governance in Taiwanese contested cultural landscapes (Howitt 2012). Recognizing the historical injustices of colonization and national legislation that sought to erase the rights of Indigenous Taiwanese is an important step toward building a national society that acknowledges and recognizes Indigenous Taiwanese’s presence as an essential part of ‘modern’ Taiwan. Only by acknowledging the failed extinguishment and the persistent and resistant Indigenous presence, can Taiwanese society start a process of reconciliation. Starting to identify and bridge the gap between the dominance and the messy reality is what this paper aimed for. Common property governance is about governing among relationships rather than merely governing the resource. Recognizing the inherent custodianship of Indigenous Taiwanese people does not hurt the legislatively protected water interests of individual citizens. Such recognition would benefit Tayal communities by acknowledging their importance of Tayal relational ontology in common property resource governance. Such reframing of common property resources such as water will be beneficial for Taiwanese society by reframing the historical, cultural, political, ecological narratives in ways that support the solidarity of Taiwanese society by including Taiwanese Indigenous peoples, including Tayal people, as part of ‘modern’ Taiwan, rather than romanticized relics.