Asia Cement Hualien Xinchengshan Mine applied for an extension of its mining rights. In 2022, the Bosgan Tribal Conference voted 294 votes in favor and 45 votes against to continue developing 183 hectares of indigenous reserve land. Unexpectedly, some tribesmen questioned the unfairness of the consultation process and the flaws in the voting agent process, and filed an administrative lawsuit to confirm that the tribal consent was not established. The Taipei High Administrative Court held that the tribal resolution was only a factual act and dismissed the decision. Can be appealed.
The judgment pointed out that Asia Cement originally held a mining license for the Hualien Xinchengshan Marble Mine, and the Ministry of Economic Affairs approved the extension of the mining rights in 2017. However, the Supreme Administrative Court held that Asia Cement failed to implement the consultation and consent participation procedures of indigenous peoples in accordance with the Basic Law of Aboriginal Peoples, so the original extension was revoked.
Yani subsequently reapplied for an extension of the mining rights, and applied to the Hualien County Xiulin Township Office to convene a tribal meeting for consultation. The Bosgan tribe held a meeting on February 12, 2022, to vote on Yani’s continued development of the 183-hectare aboriginal reserve at the Xinchengshan mine, and it was finally passed with 294 votes in favor, 45 against, and 14 invalid votes.
However, Tian Mingzheng, deputy convener of the Ayu tribe, and others filed an administrative lawsuit claiming that Ayu and related units did not provide 373 complete land numbers, specific mining locations and related maps, so the tribesmen had no way to confirm whether their land was within the development scope; in addition, the 200-page fact-finding report related to the mining dispute was only released three days before the tribal meeting, and there was no ethnic version, so there was no time to fully read and evaluate it.
Tian Mingzheng and other plaintiffs questioned that after Ya Ni reapplied for consultation on January 21, 2021, the tribal council did not issue a document to obtain the latest household list from the household registration authority until January 20, 2022. During this period, ineligible people may have moved into the household registration and obtained voting rights, which would affect the voting results.
In addition, the appointment letter and power of attorney on that day also had defects such as signatures, qualifications, and seals. Plaintiffs such as Tian Mingzheng believed that after deducting the problematic proxy votes, the number of attendance and consent votes may not have reached the legal threshold, so they requested the court to confirm that the 2022 tribal meeting resolution was invalid.
The defendant, the Bosgan Tribe, argued that the tribal meeting resolution itself does not have legal effect on the outside world. If the plaintiff believes that the extension of mining infringes on its own rights and interests, it should file a revocation lawsuit against the Ministry of Economic Affairs’ decision to extend the mining rights, instead of filing a separate lawsuit against the tribal meeting resolution.
In addition, Yani has gone through many briefing sessions to explain the 183-hectare mining area to the tribesmen through maps and diagrams, and the household list has also been retrieved in accordance with the law. A total of 555 households were eligible to vote that day, of which 370 households attended. In the end, it was approved with 294 votes, meeting the relevant legal thresholds.
The collegial panel pointed out that the 2022 resolution of the Tribal Council is only an expression of consent or disapproval by the indigenous peoples during the consultation process. It is a de facto act and will not directly create a relationship of rights and obligations under public law among the rights subjects. Whether Yani can continue mining must still be reviewed by the Ministry of Economic Affairs and an administrative sanction to extend the mining rights must be made. This sanction is the administrative act that truly has legal effect on the outside world.
The collegial panel stated that in response to the Ministry of Economic Affairs’ approval of the extension of the Asian mud mineral rights on July 3, 2024, some plaintiffs and others have also filed petitions against the extension, which are still being processed. At that time, they should also review whether the consultation and consent procedures are legal. There is no need to file a separate confirmation lawsuit against the tribal meeting resolution, so it rejected the lawsuit of Tian Mingzheng and others. The entire case remains open to appeal.
