Courts protect our imperiled waterway - at least for the time being
Monday, August 14, 2006
In 2004 our chief justice said: "The harbor is undoubtedly a central part of Hong Kong's identity.
"It is at the heart of the metropolis both physically and metaphorically," wrote Andrew Li Kwok-nang.
"It is something extraordinary ... it was not created artificially by man but is part of nature ... it is inherited as a legacy from previous generations and is to be transmitted from generation to generation."
The inspiration for Li's quasi-elegy was the Town Planning Board's decision in 2003 to go ahead with the reclamation of a 76.4-hectare area north of Wan Chai for more roads, in the face of fierce opposition and a law that was specifically enacted to protect the harbor.
The Society for the Protection of the Harbour filed a judicial review against the decision and, in April 2003, Justice Carlye Chu Fun-ling ruled against the board in what has been described as "the first leading judgment on sustainable development."
Li was given the opportunity to write down his thoughts in a judgment after an unprecedented "leap-frog" procedure omitting the Court of Appeal.
He upheld Chu's ruling in January, 2004, adding "it must be appreciated that the context of the [Protection of the Harbour] Ordinance was that, by the time it was enacted in 1997, nearly half of the harbor had been reclaimed and extensive further areas in the harbor were planned for reclamation."
It took a combination of the 1997 law, and its reinforcement by the Court of Final Appeal in 2004, to force the government to rethink its assumption that reclamation was the solution to many Hong Kong problems.
The government now approaches every new development with a "no reclamation" principle, but environmentalists are still wary of its motives.
"I don't believe we're safe yet," said Christine Loh Kung-wai, who drafted the bill for the Protection of the Harbour Ordinance in 1996 as a lawmaker, and was the deputy chairwoman of the Society for the Protection of the Harbour when it filed the judicial review.
"We have to keep going," she said.
For at least 165 years, British and Hong Kong economic interests depended greatly on the harbor.
It first provided shelter for British trading vessels in the 19th century, before becoming a trading port and then a prestigious safe haven for the international financial community.
Rapid industrialization in the 1970s meant the government adopted a policy of harbor reclamation in response to short-term needs. But as Hong Kong's arguably most cherished physical feature was gradually reduced to an ever- narrowing sewer, citizens began to react.
The turning point for Loh was when Winston Chu Ka-sun, then a member of the Town Planning Board, introduced himself to her in 1994 and asked her to look at a plan he had obtained through the board showing proposed reclamation sites.
A proposal in Southeast Kowloon alone would have taken up 300 hectares and another in Green Island, 190 hectares.
"Don't you think the harbor is beginning to look like a river?" Chu asked Loh. And with that question and implicit answer, the Society for Protection of the Harbour was set up in 1995 with a "Save Our Harbour" campaign that gathered 170,000 signatures.
In 1997, a Hong Kong University survey found that more than 95 percent of respondents were opposed to further reclamation - which should have ended with the enactment of the ordinance on June 27, 1997. But the government had other ideas. The newly formed Hong Kong Special Administrative Region attacked Loh's ordinance 12 days after it was enacted, arguing the private member's bill was rushed and unworkable - but lawmakers held firm.
In 2003, Michael Suen Ming-yeung, then secretary for housing, planning and lands, argued that reclamation for more roads was the only way to alleviate road congestion in Central.
"If a new trunk road has to be built, we must reclaim land," he wrote in a newspaper column.
Since the 2004 court judgment, the government says a new extensive road system can be constructed in an underwater tunnel, without reclaiming land.
And that was just the way courts saw it: "There must be protection, that is, it must be kept from harm, defended and guarded," Li wrote.
The government can no longer reclaim land unless it proves there is a compelling, present, and overriding public need with no viable alternative, as stated in the judgment.
But according to Loh and other environmentalists, the government seems to bear a grudge against her for the law that severely hampers generation of revenue through land sales. They say the government now uses the judgment as an excuse not to construct more piers to be used for active water sports, according to Paul Zimmerman, a harbor activist.
Since strictly speaking, piers require some form of reclamation, facilities for active water sports have not been included in harbor development projects, even though reviving marine activity is surely within the spirit of the law, he said.
"We didn't say: `No piers.' The law doesn't say: `No piers,"' Loh said. "I think they're raising all this to blame us."
And even now, the fate of the Central- Wan Chai bypass, the proposed infrastructure that sparked legal proceedings in 2003, is still undecided.
Will there be another lawsuit if the government tries to argue that reclamation is an overriding public interest in this case?
"I won't rule it out," Loh said. "We are lawyers, we're not afraid of the law courts."