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The government has been reviewing the New Territories Small House Policy for a long time, but it has yet to decide on the final outcome of this tedious exercise. Recently, controversy over the long-simmering issue reared its head again following the publication of a report by the Office of the Ombudsman criticizing the authorities for its ineffectual clearance of unauthorized building works (UBW) in village houses in the New Territories, including the small houses which come under the policy.

According to Article 40 of the Basic Law, the lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" shall be protected by the Hong Kong Special Administrative Region Government." However, what do "traditional rights and interests" mean?

There is no consensus between the government and the public so far. But in order to better understand the Small House Policy, which has since been publicly described as an abject failure by a top official under the previous British administration tasked with administering the New Territories - we would need to examine this convoluted issue from a historical perspective.

The New Territories were leased from the Qing Dynasty to the United Kingdom government in 1898 for 99 years in the Second Convention of Peking. The crucial point in this transaction is that it was a "lease". But unlike Hong Kong Island and the Kowloon Peninsula, which were ceded to Britain in perpetuity, the ownership of the New Territories belonged to the residents.

At that time, Hong Kong Island and Kowloon were not as densely populated, but there were already about 400 villages in the New Territories with more than 100,000 inhabitants. Because they are generally more mindful of tradition and nationalistic due to the fact many of the clans can trace back their family lineage hundreds of years to their Chinese roots, the residents of the New Territories residents harbored a strong aversion to the British rule, which in some cases even led to confrontations involving physical resistance.

Consequently, the British colonial government decided to govern the New Territories differently from Hong Kong Island and Kowloon, taking into account that village elders in China traditionally enjoyed the respect of the villagers. Historically, Chinese village chiefs have generally ruled their respective bailiwicks with fairness and efficiency. Accordingly, the colonial government decided to confer some administrative authority to the village chiefs, empowering them to manage their respective village's internal affairs to win their acceptance of British sovereignty.

Later, the colonial government set up the New Territories Administration to oversee the District Offices, which were tasked with managing the affairs of their respective districts in the New Territories.

But the turmoil of the Cultural Revolution spilled over into Hong Kong in the 1960s, which saw violent demonstrations and bloody riots, leading some to believe that this would lead to an early return of Hong Kong to China. Confronted with this crisis, the colonial government initiated administrative reforms in order to solidify British rule in all of Hong Kong with the result that governance in the New Territories gradually resembled that of Hong Kong Island and Kowloon.

Meanwhile, because of the increasing population and limited land resources in the urban areas, the government began to reach out to the land in the New Territories for further development in order to accommodate an increasing population. Eventually, the indigenous inhabitants were forced to sell their lands, which were required to accommodate new infrastructure and other public development projects. Many new towns were built to accommodate the population growth from the urbanized areas of Kowloon and Hong Kong Island from the late 1970s.

In order to make up for their loss, the British colonial government issued the "Land Exchange Entitlement", which promised to offer replacement land to the indigenous inhabitants who gave up theirs. Therefore, it is presumed that the "lawful traditional rights and interests" of the indigenous New Territories residents, as spelt out in the Basic Law, actually covers their right to land ownership. But the reality is that limited land in the New Territories makes it impossible for any government of the day to keep the British colonial government's promise of a land swap.

Since land is not renewable, many New Territories residents ended up waiting in vain for decades to realize their entitlement. Thus, those indigenous inhabitants in the New Territories who would never see a land deed in their hand might be rightly described as "sacrificial lambs" of Hong Kong's development.

The author is former secretary for home affairs of the Hong Kong SAR government.

(HK Edition 06/01/2011 page3)