Taiwan’s Indigenous activists expected the Court to uphold the 2005 Indigenous Peoples Basic Law, which promises Indigenous self-government and autonomy, supports traditional biological knowledge, permits hunting for cultural or subsistence purposes and respects Indigenous peoples’ choices about resource utilisation.

The case began in 2013, when Bunun hunter Tama Talum went hunting to obtain meat for his 92-year-old mother, bringing her back one serow and one muntjac. Arrested and convicted for illegal weapons possession and poaching, he was sentenced to prison for three and a half years. His appeal in 2015 was denied but the term was suspended in 2017 following international and domestic outcry. With help from Taiwan’s Legal Aid Foundation, the case reached the Constitutional Court. The issue pitted an urban-based bourgeois animal rights movement against a rural lumpenproletariat.

The Constitutional Court focussed on four questions. First, the Controlling Guns Ammunition and Knives Actstipulates that Indigenous people who manufacture, transport or possess hunting guns without approval can only be exempted from punishment if they use self-made guns. Does this stipulation comply with constitutional principles of clarity and proportionality?

Second, are Regulations Concerning Weapons regarding ‘self-made hunting guns’, sufficiently standardised? Do they violate Constitutional protections of citizens’ lives and bodies, as well as the Additional Articles of the Constitution, specifically Article 10 which stipulates that Indigenous peoples’ hunting activities are a cultural right?

Third, does ‘traditional culture’ in the Wildlife Conservation Act include non-profit self-consumption?

Fourth, the Wildlife Conservation Act stipulates that hunting, slaughter or the use of wild animals must be approved by competent authorities in advance. Regulations of Indigenous Peoples Needing to Hunt, Slaughter or Use Wild Animals Based on Traditional Culture and Ritual stipulate application procedures, in which the species and number of animals caught must be reported in advance. Does this stipulation violate the principle of proportionality?

To the delight of animal rights supporters and to the dismay of Indigenous rights activists, the ruling upheld the existing legal structure. The court declared that firearms legislation does not violate constitutional principles of clarity and proportionality but that regulation of self-made weapons is insufficient. The court ruled that traditional culture includes self-consumption but does not justify hunting endangered species. The court thus supported the laws used to persecute Tama Talum.

The court decided that regulations requiring hunters to report in advance the species and numbers of animals caught are unreasonably inflexible in cases of ‘non-regular’ hunts and limit Indigenous cultural rights. Chief justice Hsu Tzong-li was cited in the New York Times, saying that ‘the Constitution recognises both the protection of Indigenous peoples’ right to practice their hunting culture and the protection of the environment and ecology. Both fundamental values are equally important’.

This ruling reveals a difference between common law and civil law. Common law — used in the United Kingdom, Australia and Canada (except Quebec) — is based on the study of precedents. Because new precedents have legal force, judges shape law moving forward. Civil law, used in Taiwan and continental Europe, is codified, and largely limits court interpretations to existing laws.

This is why Taiwan’s Constitutional Court focussed on legal acts and regulations. Still, it is revealing that the judges chose not to deliberate on the Indigenous Peoples Basic Law. Indigenous activists have long assumed that the Basic Law is subordinate only to the Constitution. Interpretation 803 implies that the Basic Law is an aspirational document, subordinate to other laws.

The ruling reveals the limits of achieving justice through state-centric indigeneity. Even in common law countries, states tend to recognise customary law only to the extent that Indigenous practices are not considered repugnant or shameful. Taiwan’s ruling considered ‘culture’ — and assumed the exclusive right to determine the limits of culture — without any recognition of Indigenous legal institutions. The ruling assumed that courts could distribute rights fairly and equitably among people, objectively balancing the goals of animal rights and Indigenous rights, without even considering the political agendas and social inequalities that emerged from centuries of settler colonialism.

Taiwan is among the most progressive countries on Indigenous rights. In 2016, newly-elected President Tsai Ing-wen made an official apology to Indigenous peoples for four centuries of settler colonisation. She established the Indigenous Historical Justice and Transitional Justice Committee. Taiwan also has an innovative system of Indigenous hearings to help local courts understand Indigenous customary law. President Tsai acted in sincere support for Indigenous rights when she pardoned Tama Talum on 20 May. But, as Interpretation 803 reveals, Taiwan’s Indigenous activists are still very far from achieving their goal of recognition as peoples engaging with Taiwan on a quasi-nation-to-nation basis.

Scott Simon is Professor in the School of Sociological and Anthropological Studies, holder of the Research Chair of Taiwan Studies and member of both the Centre for International Policy Studies and the Human Rights Research and Education Centre at the University of Ottawa.