Small-house policy is hard to justify and should be phased out
I refer to the article by Ian Brownlee ("Protection for all", October 22).
It is the case that those in designated villages who can trace ancestry beyond 1898 are called "indigenous" according to Article 40 of the Basic Law.
However, this does not mean that they are equivalent to indigenous people in international law as or in other common-law jurisdictions as Brownlee suggests.
The concept of indigenous people is a corollary of Western colonial expansion. In the jurisdictions Brownlee mentions there is an obvious ethnic and cultural difference between the settler population and the indigenous.
The people of the New Territories are ethnically indistinct from other Han Chinese, Hakka and so on. It made some sense under British rule but makes none now. The courts have ruled that "indigenous" people under Article 40 are not a separate ethnicity.
The British guaranteed certain rights after the resistance they encountered in the Six-Day War of 1899.
These rights are highly debatable but there is a very good case for saying they do not include the right to build a small house on village land.
The small-house policy is not a recognition of a right but a housing policy administered along traditional lines.
The "difference" between the villagers and other Hongkongers is an artificial relic of the colonial past. Villagers should have no more rights over land than anyone else.
We should be sensitive to their traditions and their feelings for the land, though in many villages, the "indigenous" population is smaller than the non-indigenous because of the selling off of this "traditional" land, but it is disgraceful in modern Hong Kong that men only of certain families should have privileges others do not enjoy.
This is at the heart of the issue in Brownlee's article. Article 40 does not protect rights over land; that people think it does is the result of successful propagandising by the Heung Yee Kuk.
The courts have ruled against indigenous rights where they contravene other constitutional guarantees. Article 40 protects certain traditional cultural rights, such as burial.
Brownlee is right to say the Town Planning Board could get tougher with small-house applications and restrict resale.
I would go further and say the whole small-house policy should be phased out over the next 20 years. Many areas are beginning to be overdeveloped and there is a desperate need for conservation and less construction.
Rowan Hunter, Lamma