Zhiben Wetland Photovoltaic Zone Power Plant Establishment Permit; Administrative Litigation
Case Story
The Kadadibu tribe and its traditional leaders have jointly filed an administrative lawsuit against the Ministry of Economic Affairs. The case stems from the Taitung County Government’s plan to develop a large-scale solar photovoltaic plant in the Zhiben Wetland, a traditional territory of the tribe. During the consultation and consent process, the tribe failed to hold a meeting as scheduled, so the Taitung City Government convened a meeting on its behalf. The development plan was approved through household representatives and proxy voting, and the Ministry of Economic Affairs subsequently approved the construction permit for the photovoltaic plant. The plaintiffs argue that the city government’s handling of the meeting and the related voting procedures failed to truly reflect the tribe’s will, seriously infringed upon the tribe’s right to autonomous decision-making, and violated the core spirit of the Indigenous Peoples Basic Law’s guarantee of the right to informed consent. Therefore, the plaintiffs request the court to revoke the Ministry of Economic Affairs’ permit for the construction of the power plant to protect the tribe’s rights.
Plaintiff
Rahan (chief priest, traditional leader of the tribe) of the Kadadibu tribe, the three major families, and the deputy leader of the Musavasavak (Musavasavak) in the tribe’s traditional organization (responsible for the joint cultivation of land in traditional areas and the construction of assembly halls)
Appointed attorney
Attorneys: Xie Mengyu, Lin Bingqin, Tang Wenzhang, Huang Xinwen, Lin Yuxuan, Luo Huixin
Defendant
Ministry of Economic Affairs
Interventor
Shengli Energy Co., Ltd. Preparatory Office, 4 members of the Kadadibu tribe
Assisting intervenor
Indigenous Peoples Council, Taitung City Government, Taitung County
Where is the case currently progressing?
On September 8, 2022, the Taipei High Administrative Court ruled in favor of the plaintiff. Neither the defendant, the Ministry of Economic Affairs, nor the participant, Shengli Corporation, appealed, and the case was finalized.
What happened? Why file an administrative lawsuit against the Ministry of Environment?
The Taitung County Government planned to develop what was then Asia’s largest solar power project on 226 hectares of land in the Zhiben Wetland and along the north bank of the Zhiben River. However, the area was not only the traditional territory of the Kadadibu tribe but also a habitat for many first-class protected bird species, thus sparking controversy. During the one-year feasibility assessment process, the Taitung County Government only held one symposium and one briefing on January 5, 2018. Without conducting sufficient investigation into the human and ecological aspects or consulting with the tribe, the government announced the “Tender for the Installation of Solar Power Generation Equipment and Education Demonstration Zone in the Zhiben Jiankang Section” on January 10, 2018. On April 2 of the same year, the bid was won by Shengli Energy Co., Ltd., a subsidiary of the Singapore-based company “Weineng Energy Company”. The Taitung County Government and the participant, Shengli Company, signed the lease agreement for the disputed development project on April 23, 2018.
Shengli Corporation planned to install 161 hectares of ground-mounted solar photovoltaic panels. The operational plan was approved before Taitung County Magistrate Huang Chien-ting stepped down (December 13, 2018), and the Taitung County Government estimated it could earn NT$200 million in royalties annually. On December 21 of the same year, Shengli Corporation, in accordance with Article 13 of the “Regulations Governing Participation in Indigenous Tribes through Consultation” (hereinafter referred to as the Consultation and Consent Regulations), applied to the Taitung City Government to convene a tribal meeting. Because the Kadadibu tribe failed to convene its tribal meeting as scheduled, Shengli Corporation, in accordance with Article 15 of the Consultation and Consent Regulations, applied to the Taitung City Government to convene the tribal meeting on its behalf on June 1, 2019. The vote at that meeting was 187 in favor, 173 against, and 1 invalid vote. In accordance with Article 19 of the Consultation and Consent Regulations, the resolution approved the disputed development project.
In order to implement this photovoltaic development project, Shengli Corporation planned to establish the Shengli Zhiben Power Plant. In accordance with Article 3, Paragraph 1, Item 1 of the Electricity Registration Rules, it applied to the Ministry of Economic Affairs for a permit to establish the plant. After review, the Ministry of Economic Affairs granted permission for the establishment on February 11, 2020, with letter number 10900112660 (hereinafter referred to as the original decision). The Kadadibu tribe, dissatisfied with this decision, filed this administrative lawsuit.
What demands do we have for the court?
The permit for the establishment of the “Shengli Zhiben Power Plant” issued by the Ministry of Economic Affairs has been revoked.
What are the main legal issues in this case?
1. Should the Ministry of Economic Affairs' issuance of the power plant establishment permit (hereinafter referred to as the "original disposition") be subject to Article 14, Paragraph 2 of the Renewable Energy Development Act and Article 21, Paragraphs 1 and 4 of the Basic Law of Indigenous Peoples?
2. Continuing from the above, if the aforementioned regulations should apply to the original disposition, did the participant, Shengli Company, complete the consultation and consent procedures stipulated in Article 21, Paragraph 1 of the Indigenous Peoples Basic Law? Was the resolution made by the Taitung City Government on June 1, 2019, on behalf of the participants, valid?
3. Continuing from the previous point, regarding the resolutions passed by the Taitung City Government on June 1, 2019, which convened the tribal meeting on behalf of the participants, are there any procedural flaws in the following aspects: "convening on behalf of the participants" (Article 15 of the Consultation and Consent Procedures), "household representatives" (Article 19 of the Consultation and Consent Procedures), "using household registration as the criterion for determining the eligibility of voters" (Article 2, Paragraphs 2, 5, and 6 of the Consultation and Consent Procedures), and "proxy voting" (Letter from the Council of Indigenous Peoples)? Therefore, according to Article 11, Paragraph 2 of the Consultation and Consent Procedures, should the resolution be deemed invalid?
Regarding the aforementioned legal dispute, the court held that the consultation and consent regulations concerning the convening of tribal meetings by the township office, the system of indigenous household representatives, and the establishment of household registration, as well as the letters from the Indigenous Peoples Council regarding proxy attendance and proxy voting, violated the normative intent of Article 21, Paragraph 1 of the Basic Law of Indigenous Peoples, Article 1 of the Public Administration Covenant, Articles 1 and 15, Paragraph 1, Subparagraph 1 of the Economic, Social and Cultural Covenant, Article 22 of the Constitution, and Articles 10, Paragraphs 11 and 12 of the Additional Articles of the Constitution, which protect the autonomy of indigenous peoples and tribes. These regulations are inconsistent with the authorizing intent of the Basic Law of Indigenous Peoples and should not be adopted. Therefore, the Taitung City Government’s convening of tribal meetings on behalf of the participants, based on the aforementioned regulations, was procedurally flawed, and the resulting resolutions were invalid.
Since the participant, Shengli Company, failed to complete the consultation and consent procedure stipulated in Article 21, Paragraph 1 of the original Basic Law, the original disciplinary action lost its premise and was illegal, and should be revoked.
What effect/goal does this lawsuit hope to achieve?
- The permit for the establishment of an electric power plant issued by the Ministry of Economic Affairs is revoked.
- The original penalty shall be suspended until the conclusion of this administrative dispute.
- The court has granted our/our tribe/plaintiff’s approval. The court holds that the provision in the “Regulations Governing the Participation of Indigenous Tribes through Consultation” concerning “the use of public funds to convene tribal meetings” violates the Constitution and the Basic Law of Indigenous Peoples, infringes upon the tribes’ right to self-determination, and should therefore not be applied.
You can search for the judgment document if you wish to read it.
Taipei High Administrative Court Ruling No. 57 of 2020 (Suspension of Power Plant Establishment Permit Granted)
Taipei High Administrative Court Judgment No. 1509 of 2020