西灣事件

2013-06-20 21:32:40

1. 事緣：
在2010年，有發展商收購大浪西灣具有考古價值的農地後，在該土地上發展私人住宅，不少保育及行山人士抨擊此破壞環境的工程，在公眾輿論壓力下，有關工程被擱置下來。

在2012年10月，政府刊憲，正式將西灣納入西貢東郊野公園範圍 (圖則號碼：CP/SK(E)B)，變相凍結西貢原居民的祖堂地、私人地。在郊野公園條例管理下，村民不可隨便興建丁屋，私人土地喪失發展潛力，這等同剝奪原居民的傳統合法權益。

2. 問題重心：
1. 當年設立郊野公園時，港英政府曾經承諾不會將任何私人土地劃入郊野公園範圍。但現時特區政府未有履行當年承諾，受到保育團體的壓力下，而背棄承諾； 
2. 在香港私人財產是受到法律保護的。政府不應因民意而肆意剝奪私人財產，更不應蔑視原居民合法傳統權益，否則有違法治精神；
3. 保育與發展必須取得平衡。若然在公眾私益的前提下，政府推行任何政策而造成犧牲私人權益之時，政府理應給予業主合理賠償；
4. 新界原居民的合法傳統權益是受到基本法第40條所保障，在終審法院FACV No. 11 & 13 of 2000 案件中，李國能首席大法官說明原居民的合法傳統權益是包括：
(i) 興建丁屋權利；
(ii) 殯葬權；及
(iii) 豁免差餉和扣減地租。
現在大浪西灣被納入郊野公園範圍，剝奪原居民合法傳統權益。政府這種行為是蔑視基本法對私人財產及原居民合法傳權益所給予的保障，是嚴重侵權的違法行為。

3. 訴求：
新界關注大聯盟基於上述問題，對西灣事件表示極度關注，並支持鄉議局的訴求。政府在平衡公眾利益和私人權益兩者之時，不應純粹傾側於保育而忘卻照顧私人權益。可惜，政府在諮詢法定組織鄉議局後，仍一意孤行，強行將西灣劃入郊野公園範圍，而未有提出補償方案，大聯盟對此表示極度失望。

4. 如何處理：
新界關注大聯盟建議政府應立即：
1. 重新檢視郊野公園範圍，剔除私人土地於該範圍之外； 及
2. 設立新的補償機制，在考慮各方利益之後所制定的規劃，如有任何私人物業權益受到不公平的影響，政府可以考慮徵收有關土地和按基本法第105條釐定給予合理補償。

 

THE SAI WAN INCIDENT

 
 
Background:
 
In 2010, plots of agricultural land with substantial archeological value were acquired for the construction of private residential complexes in Tai Long Sai Wan. Many conservationist groups and hiking enthusiasts strongly opposed the development on the basis that it was destructive to the environment, and under the immense public pressure, the project was abandoned.
 
In October of 2012, the Government officially incorporated Sai Wan into the Sai Kung East Country Park (Plan Number: CP / SK (E) B). The incorporation ‘froze’ the private lands and ancestral halls of the indigenous villagers. Subject to the Country Parks Ordinance, the villagers could not freely build small houses or develop ancestral lands, which is a deprivation of their traditional lawful rights as indigenous inhabitants of the New Territories.
 
 
Core Issue:
 
This current incorporation of Tai Long Sai Wan into the surrounding country park deprives indigenous villagers of their traditional lawful rights. The Government’s actions are not only contrary to the Basic Law (in both private property rights and indigenous traditional rights), but is in fact an illegitimate violation of individual rights and interests.

This current incorporation of Tai Long Sai Wan into the surrounding country park deprives indigenous villagers of their traditional lawful rights. The Government’s actions are not only contrary to the Basic Law (in both private property rights and indigenous traditional rights), but is in fact an illegitimate violation of individual rights and interests.

  1. When the Sai Kung East Country Park was first established, the then Colonial Government had promised that private lands would not be incorporated into public park zones. However, the SAR Government has now failed to honor this guarantee. Instead, it has succumbed to pressure from various environmental conservation groups and abandoned the commitment.
  2. Hong Kong private property rights are protected by law. The Government should not be dictated by popular sentiments and implement policies that deprive private citizens of such rights. Furthermore, the Government should not scorn the traditional rights of the New Territories indigenous inhabitants, as it is a contravention to the fundamental spirit of law and justice.
  3. Development and conservation must be balanced. If the Government were to implement a policy that advocates public interest but deprives private individuals of their rights, then reasonable compensation must be given. 
  4. The traditional rights of the New Territories indigenous inhabitants are recognized and protected by Article 40 of the Hong Kong Basic Law. Such rights are further affirmed by Chief Justice Andrew Li Kwok-Neng in the Hong Kong Court of Final Appeal, where he held (in the judgment for cases FACV No.11 and 13 of 2000) that indigenous traditional rights include:
    1. the right to build “small houses”;
    2. the right of traditional / hillside burial; and
    3. the right to rates exemption and government rent deductions.
This current incorporation of Tai Long Sai Wan into the surrounding country park deprives indigenous villagers of their traditional lawful rights. The Government’s actions are not only contrary to the Basic Law (in both private property rights and indigenous traditional rights), but is in fact an illegitimate violation of individual rights and interests.
 
Demands:
 
The N.T. Concern Group expresses grave concerns for the aforementioned issues and the Sai Wan Incident. We support the requests made to the Government by Heung Yee Kuk. The Government must strike a balance between public and private interests; it cannot forgo private rights in the name of environmental conservation and “the public good”. Sadly, despite having consulted with Heung Yee Kuk (a statutory advisory body) on the matter, the Government has persisted in incorporating Sai Wan into the surrounding country park – without any proposals of a compensation scheme. The N.T. Concern Group expresses extreme disappointment in the Government’s handling of this matter.
 
 
Recommendations:
 
The N.T. Concern Group is of the view that the Government should, without delay:
  1. Re-examine the proposed area to be incorporated in the Sai Kung East Country Park, and exclude any private lands from the proposed area; and
  2. Give due consideration to the rights and interests of all sections of society prior to the implementation of any policies, for example, the Government could establish a new compensation scheme for those affect by expropriating the land, with the appropriate compensation to be determined as given in Article 105 of the Basic Law.