More than 100 angry New Territories indigenous residents of the New Territories hold their umbrellas under the rain and protest outside Legco Building about the small-house policy, Central. Photo: Martin Chan

Complexities of small-house issue are no excuse for government to back off

Yan-yan Yip says officials should review the 1972 small-house policy, even seek a legal interpretation of villagers' rights, yet they do nothing


What does the word "temporary" mean to you? In the case of the small-house policy, it means 40 years and more. It was first introduced in Hong Kong as a temporary measure to address housing needs of indigenous villagers in the New Territories. Today, it has been criticised as unsustainable and outdated.

The administration has introduced new measures to address some of the issues. However, they have only exacerbated the problems or caused new ones. As an example, the relaxation of emergency vehicular access requirements in 2006 has had grave consequences. A lack of such access in Wing Hing Wai, Yuen Long, meant that neither ambulances nor fire engines could reach a house fire there last October. Two young boys died in the fire.

Surely, then, it is time to conduct a comprehensive review of this "temporary" measure.

The government said it recognised the need to review the policy in the context of land-use planning and the optimal use of land resources.

But in the Development Bureau's written reply in February to Ronny Tong Ka-wah's inquiry about the land reserved for building New Territories small houses, the government said that officials had not yet "formulated a concrete timetable for the review at the material time".

Why the unwillingness? Obviously, the policy is about more than just land use or land rights. It is also related to nature conservation, city planning, and the legal, political and historical nexus of Hong Kong. It is complicated and perhaps controversial.

One of the challenges facing the administration is the absence of an interpretation of traditional rights under the Basic Law. While the small house grant application refers to a "right", the administration has publicly stated that the indigenous villager's right to a small house is not a statutory entitlement but an administrative measure because no legislation was ever passed on this.

In 1997, the pre-handover administration reiterated that the policy did not confer legal rights on indigenous villagers.

The interpretation of traditional rights is key to determining whether a "right" to a small house grant or building a small house is included.

Some 10 years ago, the Heung Yee Kuk urged the government to clearly define "the lawful traditional rights and interests" and map out the future of the policy, but so far the kuk has taken no action to press the issue.

Some people today share the same thoughts, and would like to see the government seek a court's interpretation of Article 40 of the Basic Law when there is a lawsuit involving the issues of traditional rights of indigenous inhabitants. This could provide an authoritative interpretation of these rights.

Others think it would be unwise to go down this path, as the legal interpretation of traditional rights cannot solve the many cultural and social problems associated with the policy.

Whatever the conclusions on seeking a legal interpretation, it does not stop officials from setting a timeline to review the policy.

Above all, the government must demonstrate its courage and commitment to finding a sustainable way out for this "temporary" measure.

This article appeared in the South China Morning Post print edition as: A house divided