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  • Dec 18, 2014
  • Updated: 7:48am
CommentInsight & Opinion

Villager rights deserve protection, but they can't trump all else

Ian Brownlee says while indigenous villager rights should be upheld, it must be done so in a way that does not degrade the environment in the surrounding country parks or flout the rules

PUBLISHED : Monday, 21 October, 2013, 5:17pm
UPDATED : Tuesday, 22 October, 2013, 3:19am

The development secretary opened a can of worms with his suggestion that residential development could take place in country parks. However, the more complex issue is what to do with the "enclaves" that are surrounded by country parks, but not included as part of them.

A town hall meeting in Sai Kung on Saturday seems to have brought several parties together, and reports indicated that "villagers' rights" was part of the discussion.

To put this in perspective, we need to look at what other common law countries have done for their indigenous peoples in recent decades. In Canada, Australia and New Zealand, there has been a massive change in the degree of recognition given to the history of settlement and land rights of indigenous peoples. Many of the mistakes of the colonial British have been rectified by returning land or through monetary compensation.

Judgments in these places would no doubt provide precedents for our own courts, if and when they get to consider issues relating to Hong Kong's indigenous people.

The Town Planning Board need not permit village houses as of right in sensitive enclaves

Indigenous people are defined as those whose families were here before the British arrived, and many families can trace their history back 400 years or more.

The British probably did a better job in Hong Kong than in other colonies. They established a list of "recognised villages", those which were here when they arrived. These were generally respected and protected, along with occupied agricultural land, temples and burial grounds. The government also provided a range of municipal and social services.

In 1972, in order to encourage the retention of these villages and to improve housing, the government introduced the small-house policy. That enabled eligible males with lineage to an "original" village family to build a three-storey village house, subject to restrictions.

Almost all of the enclaves arise from the government deliberately avoiding inclusion of recognised villages and associated private land within the country parks when they were drawn up in the 1970s. The government acknowledged the rights of the indigenous peoples, while establishing the country parks for the benefit of all Hong Kong people.

These areas of private land within the enclaves can be sold to anyone, as can the village houses.

The enclaves have been beyond the control of the marine and country parks authority and the Town Planning Board, resulting in "uncontrolled development" on this private land.

With the public outcry over development by a non-indigenous owner in Tai Long Sai Wan, the government agreed to look at moving some of the enclaves within the country park boundaries, or for the Town Planning Board to gazette plans which put these areas under statutory control.

This action is now in progress and the outcomes are not necessarily to everyone's liking. New plans have been published by the Town Planning Board for public representation. The one for Hoi Ha, for example, includes a village zone, a coastal protection area, a conservation area and a green belt zone.

These zones have been determined by the Town Planning Board after consideration of technical information presented to it. An assessment of the likely demand for additional small houses for indigenous males from Hoi Ha Village would result in the population of the village growing from 110 to 590.

An ecological assessment justified the extent of the conservation zone and the coastal protection area. The plan now gives the government powers to protect these zones and prosecute offenders.

The main argument is usually about how much land is for conservation and how much is for village development. Usually, the conservationists claim the village zone is too big, while the villagers claim it is too small.

The shock realisation has been that while the plans may protect the conservation areas, they also identify for the first time where the village can expand. As with most villages in the enclaves, no public sewers or sewage treatment will be provided, just inadequate septic tanks.

Given the international recognition of the need to protect indigenous people's heritage and lands, it is only correct that these villages be properly zoned. However, the problems arise from what happens next. It is unacceptable if the implementation of these policies results in degradation of the environment, poor living conditions within the villages and lack of municipal services resulting in pollution. Now that these villages are defined on the plans, the government must expand its programme of providing adequate services to villages and ensure they meet modern standards.

The small-house policy can also be implemented with stricter controls on site formation and building construction. The powers are already there, but it is a question of how they are used.

The Town Planning Board need not permit village houses as of right in sensitive enclaves; it could require an application, so the impact can be assessed and conditions imposed.

The demand for village houses would reduce if the Lands Department enforced a condition that prohibited their sale to anyone but another eligible male villager. Anything else defeats the original principle of providing housing for the indigenous villagers.

Ironically, many of the opponents of the expansion of village zones are owners who are "outsiders" and have themselves benefited from the vagaries of the way the existing policy is implemented.

Ian Brownlee is managing director of planning consultancy Masterplan Ltd

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13

This article is now closed to comments

wwong888
what is the difference between me and an "indigenous" hong kong villager? absolutely nothing. except the villager somehow gets a HK$10m handout from the government.
mymak
To compare indigenous populations in Australia, Canada and NZ is ridiculous. The indigenous population in these countries are from a different race than those of the dominant (in terms of 20th century economic wealth and political power) race The thousands of years in which these peoples had been residing in these places contrasts sharply with the 400 years maximum that you quote in your article. In fact the requirement to be considered indigenous is not 400 years but simply 2013 minus 1898 = 115 years. This begs a simple question; Why can't all Chinese state where their families were resident 115 years ago and consequently claim a plot of land to build a house? Families from Guangzhou, Foochow, Beijing should by the rule applied here be entitled, as indigenous residents to a plot of land.
The British applied the term indigenous in a much different sense to that of other countries. Indigenous in Hong Kong was used as a matter of political expediency to quell any unrest emanating from the New Territories. Britain no longer rules Hong Kong. Chinese people now rule Chinese indigenous people. End this out of date and unfair policy.
johnyuan
Has the HYK grown politically so much that it is a de facto government of Hong Kong. Sure limiting but so influential in any other ways. Is CY Leung and his administration fighting with this indigenous shadow government of Hong Kong?
captam
Brownlee has barely touched on the abuse of the small house policy since its introduction in 1972.
A "small house"should be just that ( and those built prior to the 1970s they generally used to be). They should not be three separate flats each of which at 700 sq ft, is larger than the average 400 sq ft concrete boxes that downtown residents have to spend their entire working lives paying off their mortgages. This is the inequitable perk that needs to be squashed as well as the corruption involved in the acquisition and ultimate use of the "ding" rights!
caractacus
Compensation is all very well, but other, more sinister factors are at work behind the scenes. District Lands Office and Town Planning Board are rubber stamps for abusive or fraudulent applications by indigenous villagers who do not live in villages (or even in Hong Kong) and never occupy the houses they build. All cogent scientific planning objections are peremptorily brushed aside and ignored. Ding rights are often sold to developers by secret, illegal agreement before permission is applied for, or the house is sold to a non-indigenous buyer immediately after the house goes up. In Hoi Ha 95% of the private agricultural plots to the West of the village have been sold to development companies where, by coincidence, the Town Planning Board, fully knowing this, has zoned exactly that same area for future small house applications by indigenous villagers. In the meantime, AFCD sits on its hands and Country and Marine Parks Board has been undermined as a protector of the parks by a dominant Heung Yee **** faction which has insinuated itself onto the Board.
The Small House Policy is almost entirely a fraud, a massive cash cow for the idle when ordinary citizens can only hope to afford a shoe box after working all their lives, if they are lucky.
The analogy with Canadian First Nation People, Australian Aborigines and New Zealand Maoris is highly tenuous; they live on ancestral lands and had a distinct tribal culture, which cannot be said for the indigenous villagers of the NT.
wwong888
in no particular order:
1) clean our air, even if it damages vested business interests
2) get rid of the small house policy, and improve efficiency of land use in NT to build low cost housing
3) improve transparency on govn't decisions, for example on HKTV decision
5) accelerate the process to determine the rules for the 2017 election, even if it means we ultimately must have a nomination committee
6) improve quality and capacity of public hospitals
its not that hard, and immediately CY's approval rating will go through the roof
caractacus
The Minister for Development, without any public consultation or any fact finding exercise, has unilaterally changed the enclave policy of 2010 to benefit developers and undermine protection for the Country Parks. Outline Zoning Plans published by the Town Planning Board and Planning Department are massively expanding the "V Zones" to allow for future indigenous houses. In fact, these zones benefit developers much more than villagers. Under the Small House Policy only villagers are allowed to apply to build there, however, developers own most of the land either openly or by illegal, under the table agreements. The villager applies to District Lands Office (DLO) pretending he wants to live in the house and DLO rubber stamps it. Or under a DPA / OZP Town Planning Board (infiltrated by HYK members) receives the same application, finds a gap on a map and rubber stamps the application. The Country Parks are under unprecedented assault
How did this massive corruption come about? Why is our Government too afraid to do something that might upset the biggest gangster organisation in HK?
don67
There is a VERY big difference between indigenous people in Canada, Australia, New Zealand and the ones here in Hong Kong. In many western countries, the indigenous people were/are subject to a lot of discrimination and disadvantaged mainly as a result of racial and cultural differences with the settlers. There is no such problem in HK. Can anyone in HK honestly say they can spot a "villager" out of a crowd in public? You would probably not know even if you talked to one unless the conversation was about their village house.
caractacus
One more difference, you and I do an honest day's work for a living.
pslhk
Brownlee’s argument is shortsighted and bias
as evidenced by his references to common law
which has a constricted tenure that will expire in 2047
and to international recognition for the need to protect
“native heritage and land” based on silly misconceptions
such as those resulted in the joke of Pokfulam Village
-
The only valid terms of reference for discussions about long term interests
such as HK’s land and native heritage
are those in practice in the mainland

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