NHeritageConservation by Civic Exchange

CREATING OPPORTUNITIES: SAVING HONG KONG’S NATURAL HERITAGE BY JOYCE WAN AND ANASTASIA TELESETSKY JANUARY 2002

Research funded by John S. Wadsworth

Civic Exchange Room 601, Hoseinee House, 69, Wyndham Street, Central Tel: 2893-0213 Fax: 3105-9713 www.civic-exchange.org

TABLE OF CONTENTS INTRODUCTION ........................................................................................… … … … … … … .. 7 PART I:

UNIQUE HONG KONG .............................................................................… … … 9 1.

CHALLENGES TO CONSERVATION ..........................................................… … … 9

CURRENT LEGAL AND ADMINISTRATIVE STRUCTURE … … … … … … … … … ..10

WORKING TOWARDS CHANGE ......................................................… … … … ..13

3.1

PART II:

IMPROVING THE FRAMEWORK ............................................… … … … 15 3.11 RECOMMENDATIONS ON ADMINISTRATIVE STRUCTURE … … … … … … … … … … … … … … … … ..15 3.12 RECOMMENDATIONS ON THE LEGAL FRAMEWORK… … … … … … … … … … … … … … … .… 17

CONSERVATION TOOLS .....................................................................… … … 25

GOVERNMENT MECHANISMS … … … … … … … … … … … … … … … … … … ...25

PUBLIC/PRIVATE INITIATIVES .........................................................… … … … .28

FUNDING CONSERVATION … … … … … … … … … … … … … … … … … … … … 33

PART III:

CONSERVATION IN ACTION .............................................................… … … ...36

A CASE STUDY: TAI LONG WAN ........................................................… … … 36

A CASE STUDY: LUK KENG .............................................................… … … ...40

CONCLUSION .....................................................… … … … … .....................................… … .44

ABBREVIATIONS ACE AFCD AFD BAP CA CAs CITES CBD DPA GLA EIA EIAO EFB EPD ESA FoE NGO OZP PLB SSSI TPB TM WWFHK

Advisory Council on the Environment Agriculture, Fisheries and Conservation Department Agriculture and Fisheries Department Biodiversity Action Plan Conservancy Association Conservation Areas Convention on the International Trade of Endangered Species of Wild Flora and Fauna Convention on Biodiversity Development Permission Area Plans Green Lantau Association Environmental Impact Assessment Environmental Impact Assessment Ordinance Environment and Food Bureau Environmental Protection Department Environmentally Sensitive Area Friends of the Earth Non-governmental Organization Outline Zoning Plan Planning and Lands Bureau Site of Special Scientific Interest Town Planning Board Technical Memorandum Worldwide Fund for Nature Hong Kong

FOREWARD This is the first part of a three-part report on conservation. The other two reports will be published in March 2002. This report deals with nature conservation. The other two deal with heritage conservation and the economic value of conservation. We decided to embark on these studies in 2001 because the time is ripe – Hong Kong people are more ready to look at conservation as an essential part of our living environment, a change from when government and business regarded conservation as something inconvenient to economic development. Attitudes are beginning to change. There is a growing awareness that nature is critical to economic development since our lives are dependent on its continuing productivity. Like financial capital and human capital, natural capital – in the form of natural resources, living systems and ecosystems – is essential to the proper function of life on earth and provides the base for all our economic activities. We ignore this fact at our peril. Conserving and restoring natural capital therefore makes eminent economic sense. Although the HKSAR Government is becoming more interested in the subject, the bureaucracy as a whole has yet to fully acknowledge and institutionalize conservation needs in policy-making. The government’s approach so far is to use administrative means here and there to make improvements rather than clearly state conservation goals and align policies to achieve them. It is time to bring coherence to the issue. The government cannot be left alone and expected to come up with the whole framework with no substantial stakeholder input. Civil society has a duty to play a part. An essential aspect of civil society’s responsibility is to do its homework. We hope that this report helps to serve that purpose. Many ideas on how to promote conservation have been offered by green groups and academics over the last decade. This document reviews what has been proposed so far in the hope that it could help the debate to move forward. We provide a catalogue of possible conservation tools and give examples for how they could be used in Hong Kong. Success will not come from articulating a need and identifying the technical tools alone. There will only be sustained action when the stakeholders are prepared to engage the authorities and each other in the development of policy and monitor implementation. To do so requires more than just intellectual study. New ways of looking at things and in doing things require the adoption of a new mindset. We see the study process as an integral part of awareness building and decision-making. There is no reason why civil society should not be the key driving force behind conservation and restoration. With this in mind, Civic Exchange will organize a one-day seminar on the 22 March 2002 to bring stakeholders together to discuss how to identify key issues for Hong Kong and how to take them forward. But even that will not be sufficient. Many more people have to be willing to continue to research the issue and sustain the public dialogue to help Hong Kong gain a deeper perspective on the issues and come up with creative solutions that are economically efficient and ecologically sound.

We are undertaking a separate study to identify the ways that a society can self-organize to hold public dialogue among stakeholders. There are tools that a community can use to facilitate deliberation and dialogue for complex public issues. We are calling these â&#x20AC;&#x153;sustainability tools.â&#x20AC;? It is our hope that this study will help to inform the nature of community participation as well as how Hong Kong can practice these tools. Apart from having well-researched ideas, society needs participatory processes to deliberate issues. Without these processes, society cannot translate ideas into action and get general acceptance among stakeholders. After all, the process that takes the ideas to market is as important as the ideas themselves. CHRISTINE LOH Chief Executive Officer Civic Exchange Tel: 2893-0213 Fax: 3105-9713 Email: cloh@civic-exchange.org

18 J ANUARY 2002

EXECUTIVE SUMMARY JANUARY 2002

Balancing the demands of development against the needs of resource conservation is a pressing imperative for Hong Kong. Indeed, the territory’s rich natural environment is increasingly threatened by an appetite for growth. In some cases, urban expansion has overtaken significant ecosystems and areas of high biodiversity. In other cases, these issues have pitted different community groups against each other. These controversies ultimately prove both financially costly and socially destructive. It is clear that Hong Kong is in critical need of a comprehensive conservation strategy. This report responds to this need by suggesting ways in which Hong Kong may proceed on the issue of conservation. Although a number of policy options are suggested throughout the report, the key recommendations proposed are as follows: •

Hong Kong must formulate and adopt a Conservation Policy which incorporates protection of biodiversity, scenic beauty, cultural heritage and which fully adopts the principles and guidelines articulated in the Convention on Biodiversity. This Conservation Policy should be legally based and implemented through the creation of a Conservation Unit.

•

Hong Kong must establish a viable implementation mechanism for achieving conservation objectives. Market-driven conservation tools, which provide incentives for private landowners to participate in conservation processes, must be adopted.

•

Hong Kong must explore new sources of funding for conservation programs. A combination of compulsory and voluntary contributions could be tapped including conveyancing charges, tourist fees and environmental fines.

•

Hong Kong must improve the current administrative and legal structure to more adequately protect known and/or suspected species and their habitats. In addition to extending the boundaries of the country parks system, Hong Kong must regularly review the list of protected animals and plants, and institute effective management and monitoring of Sites of Special Scientific Interest, Conservation Areas, Coastal Protection Zones and Green Belt Areas.

•

Hong Kong must continually improve its knowledge and information of the territory’s natural and cultural assets. In addition to establishing a detailed inventory of these assets, Hong Kong must develop a method to systematically update and reevaluate such information.

•

Hong Kong must enhance public awareness regarding the importance of conserving the territory’s natural and cultural heritage. It should also increase public participation in decisionmaking on conservation policy.

While conservation has been a contentious issue in Hong Kong, it is not an intractable problem. On the contrary, with open debate and a free exchange of ideas and concerns, Hong Kong will be able to develop an approach to the conservation of natural heritage that incorporates the needs and concerns of all stakeholders. It is hoped that this report will stimulate debate as well as action regarding the conservation of Hong Kong’s natural heritage.

INTRODUCTION By all accounts, Hong Kong is headed towards increased growth and development. Population is expected to grow by 19 percent over the next ten years, reaching 7.5 million in 2010.1 Largely in response to this growth, development looks posed to steadily inch its way across the territory. Development itself does not necessarily present a problem; however, in some instances, urban expansion has jeopardized areas of high biodiversity. As a result, Hong Kong now faces the irreversible loss of many important natural assets. Conservation of our natural heritage is essential for our future development. The environment provides a basic store of goods and services that support our lives and our economy. Respecting our environment and protecting this heritage is also fundamental for maintaining quality of life. Nature provides us with inspiration, opportunities for recreation and refuge from our increasingly urbanized world. Conservation of our natural heritage is, therefore, of critical importance.2 Fortunately, communities within Hong Kong are concerned about the general welfare of the territory and are committed to making it a better place. Academics, activists, and business leaders, have all expressed concern about conservation. 3 The government is also concerned. In 1997, it initiated a 30-month study on sustainable development to look at ways to incorporate sustainable development principles in Hong Kong. 4 It also set up a number of special Environmental Policy Working Groups including one on Conservation and Use of Natural Environment to help formulate Hong Kong’s environmental policy for the next century. 5 The Agriculture, Fisheries and Conservation Department (AFCD) is currently formulating a new conservation plan. 6 Clearly, the government is looking for the best way to address conservation issues. This report presents some thoughts on how Hong Kong may conserve its natural heritage.7 Part One examines local challenges to conservation and brings together a number of recommendations developed by local experts, including academics and non-governmental environmental organizations. It highlights aspects of the existing administrative and legal framework that could be improved. Part Two examines various mechanisms that can be used to achieve conservation objectives. It looks at a range of legal and administrative mechanisms, as well as private initiatives. In addition, it highlights some institutions that may be used in conservation management and offers some suggestions regarding funding options. Some in Hong Kong have advocated a top-down approach to conserving the 1

See, “Projections of Population Distribution 2001-2010,” Working Group on Population Distribution, located at: http://www.info.gov.hk/planning/index_e.htm, accessed on August 24, 2001. 2 This report limits itself to a discussion of natural or environmental heritage. Conservation of non-environmental cultural heritage will be discussed in a separate Civic Exchange report to be published in February 2002. 3 In one survey, 86% of business respondents said they were not satisfied with conservation measures in Hong Kong. British Chamber of Commerce. British Chamber of Commerce Poll of Business Commerce, 21 September 2001. 4 For more information, see Sustainable Development for the 21st Century, located at: http://www.info.gov.hk/epd/index.htm 5 For more information, see Environmental Policy Working Group, located at: http://www.info.gov.hk/egb/link/epwg/natural/200999.htm 6 The Chief Executive’s 2000 Policy Address contained a specific objective to promulgate a comprehensive nature conservation policy with a target to consult the public on principles, objectives and mechanisms in 2001. However, in the 2001 Policy Objectives, this is reported to be behind schedule. 7 “Natural Heritage” as used in this report includes areas of biodiversity value, as well as sites of scenic or landscape value. Research for this report was conducted over a six-month period and involved a review of existing conservation literature as well as interviews with a number of stakeholder groups including nongovernmental organizations, government officials, academics, businesses and recreational users of natural areas

territory’s natural assets, arguing that an incremental method is both too slow and too expensive.8 This merits further discussion, but this paper has chosen to present a range of potential conservation mechanisms, rather than advocate a one-off solution. In an effort to contextualize the discussion, Part Three discusses the application of specific conservation tools in two case studies. Although these cases concern areas of important conservation value, this report does not intend to prioritize these locations as those most in need of conservation action. The two case studies were simply selected to show how certain mechanisms could work in practice. The following report and recommendations represent constructive cooperation in the civic process. We hope that the ideas discussed here will serve as a launching pad for vigorous and constructive debate on how to make Hong Kong a better place.

Professor R. Corlett, interview 25 May 2001 and correspondence, 12 November 2001. This proposal recommends a one-off division of the entire territory into either “current and future urban/infrastructure” and “current and future countryside” areas.

PART I: UNIQUE HONG KONG SECTION 1.

CHALLENGES TO CONSERVATION

Introduction Given the importance of our natural heritage, why is conservation so difficult? The most basic challenge to conservation in Hong Kong is pressure for development. This, in turn, results from a combination of high land values and a shortage of easily developable land. Although almost 40% of land in Hong Kong is protected in country parks, many threatened areas are located on private land that has no legal protection or inadequate legal protection. And balancing private property rights with the wider societal benefits of conservation is difficult. The other problem confronting terrestrial conservation is a lack of political will. Lack of political support is rooted in lack of understanding about the value of conservation and the assumption that conservation would impinge on private property rights. Political apathy about conservation is augmented by misperceptions regarding the costs and benefits of conservation including the belief that conservation of natural heritage areas would necessarily involve huge outlays of public funds.9 Fears regarding the cost of conservation appear disingenuous when considered alongside the vast sums the government has happily spent on infrastructure. Furthermore, in cost accounting, conservation should be considered a social investment. Saving the territory’s natural assets for future generations is a sound, long-term financial decision. The cost of conservation efforts is finite. The cost of environmental destruction, on the other hand, is inestimable. For the marine environment, the problem lies in the “tragedy of the commons.” In other words, the marine habitat is a public good freely accessible to everyone. Its benefits are shared by all. The cost of its use and/or depletion is also borne by the community as a whole. When people are given access to a valuable resource and are not made to pay for their individual actions, the consequence is inefficient use and rapid depletion. 10 This is manifested in the way in which our marine and coastal environment has been overfished and used as a dumping ground for sewage, contaminated mud and other pollution. To achieve a workable conservation strategy for both the terrestria l and marine environments, we must recognize these inherent problems and design measures that accommodate both private needs and public interests. A Variety of Pressures Undertaking conservation also requires understanding the specific factors that contribute to loss of biodiversity. The most common causes of biodiversity loss in Hong Kong are: •

Habitat destruction associated with infrastructure development: For instance, the construction of the new airport led to the destruction of 18 km of natural coastline. Route 3, a six-lane

In the effort to address these concerns, Civic Exchange will be conducting an in-depth study on the economic benefits of conservation to be published in March 2002. 10 See, Bonnie J. McCay, James M. Acheson (eds.), The Question of the Commons : The Culture and Ecology of Communal Resources (Tucson; University of Arizona Press: 1987).

highway in the North West New Territories, resulted in a loss of over 17 hectares of wetland, and disturbance to 21 hectares of woodland. •

Population growth: Increases in population lead to pressure for infrastructure development (e.g. coastal reclamation works, river channelisation projects, large-scale road construction).

•

Hillside fires: Fires maintain hillsides as grassland and prevent succession to shrubland and forest. Over the last ten years, there has been an average of 2,500 hillfires a year, almost all caused by fire illegally used at gravesites.

•

Unsustainable exploitation of wild species, such as the illegal gathering of wild orchids or overfishing.

•

Introduction of alien species: For example, the climbing American creeper Mikania micrantha chokes and kills native vegetation .

•

Pollution: Pollution from Shenzhen and rivers in the New Territories has led to a loss in biomass at the Mai Po Marshes Nature Reserve (e.g. a substantial reduction in crabs, mudskippers and worms was recorded on Mai Po mudflats in 1996). Sewage pollution has also led to reduction in biodiversity in many of Hong Kong’s rivers and streams.

•

Unauthorized developments, such as illegally filling in fishponds for container storage in the North West New Territories.

•

Global environmental change: e.g. climate change, which has led to the bleaching of marine corals.

A variety of factors contribute to these causes. These include: •

Lack of a comprehensive legal framework to protect areas of high conservation value

•

Lack of a comprehensive conservation policy and mechanisms for implementing this policy

•

Low priority given to conservation by top decision makers

•

Disproportionately high land values

•

Conflict between individual property rights and conservation objectives

•

Lack of adequate information on species and habitats

•

Poor enforcement of existing conservation, environmental and planning laws

•

Low public awareness of the value of biodiversity conservation

In order to address conservation, we must consider causes of environmental degradation that are immediately recognizable as well as the underlying pressures that encourage such behavior.

SECTION 2:

CURRENT LEGAL AND ADMINISTRATIVE STRUCTURE

Administrative Structure Government interest in Hong Kong’s natural areas officially dates back to 1872 and the establishment of the Botanical and Forestry Department. However, substantive discussion regarding the use and management of the environment only began in the mid-1960s. During this period, the government actively explored the issue of nature conservation. In addition to establishing the country parks system,11 the government set up a Working Party on Nature Conservation that advocated the formulation of a conservation plan to prevent environmental degradation. In early 2000, nature conservation became a more explicit part of Hong Kong’s administrative structure when the former Agriculture & Fisheries Department (AFD) became the Agriculture, Fisheries and Conservation Department (AFCD) and a new policy bureau, the Environment and Food Bureau (EFB) was established. The EFB is responsible for formulating policies for the protection and conservation of the environment and oversees both the AFCD and the Environmental Protection Department (EPD). Together, the EPD and the AFCD form the major governmental agencies that implement the environmental protection and conservation policies established by the EFB. The AFCD is responsible for managing country and marine parks. The AFCD is also the responsible authority for most nature conservation related ordinances. Authority over environmental issues is shared with the Planning and Lands Bureau (PLB), which is responsible for policy matters on land management, planning and use. The PLB directs the Lands Department, the Planning Department and guides the Town Planning Board (TPB). The work of all these government bodies has some impact on environmental protection and conservation matters. (See Appendix One for an overview of government agencies related to conservation). The Town Planning Board – a statutory body formed under the Town Planning Ordinance – wields significant influence over much of Hong Kong’s land area through its zoning powers. The TPB prepares statutory land use plans for urban and non-urban areas alike.12 Zoning has considerable impact on environmental protection and conservation. For example, an area that is zoned as a “site of special scientific interest” (SSSI) is, in theory, accorded the highest level of protection. 13 “Conservation areas,” “green belts,” and “coastal protection areas” are zoning types that also enjoy varying degrees of protection. 14 The TPB further influences conservation in its determination of the uses that are

In 1966, the government published a report by L.M. and M.H. Talbot entitled “Conservation of the Hong Kong Countryside” (known as the Talbot Report) which advocated the establishment of a country parks system. This led to the creation of the Provisional Council for the Use and Conservation of the Countryside whose terms of reference included the selection of areas for recreation and conservation. The country parks system was officially realized in 1976 with the enactment of the Country Parks Ordinance (Cap. 208). Twenty-one country parks and fourteen Special Areas were created between 1977 and 1979. 12 The Town Planning (Amendment) Ordinance 1991 extended statutory planning to non-urban areas. Outline Zoning Plans (OZP) are plans for urban areas. Development Permission Area Plans (DPA) are mainly for nonurban areas. 13 Protection is theoretical in that there is currently no management of such areas. Furthermore, SSSIs that are not identified or included in an OZP or DPA have no real protection. In other words, unless a site is identified in a statutory plan which restricts certain activities, the listing of an area as a SSSI alone offers no management and virtually no protection whatsoever. However, even if an area is identified in a statutory plan, the only recourse for unauthorized land usage is enforcement of the Town Planning Ordinance which only allows for a response to an unauthorized development. See, Mary Felley, A Biodiversity Conservation Policy and Legal Framework for Hong Kong, (Centre of Urban Planning and Environmental Management, University of Hong Kong; MSc Thesis 1996). 14 The purpose of: SSSI is “to conserve and to protect fauna and flora and other natural features with special scientific value;” conservation areas is “to retain existing natural features and rural use;” green belts is “to define the limits of urban development areas by conserving landscape features;” coastal protection areas is “to retain natural coastlines.”

always permitted (“Column 1” uses) in a particular zone,15 and other uses for which the TPB’s permission must be sought (“Column 2” uses). Legal Framework Sixteen ordinances constitute the primary instruments of environmental protection in Hong Kong. 16 Overall, Hong Kong’s environmental laws lack an explicit conservationist obje ctive. Only the 1995 Marine Parks Ordinance (Cap. 476) and the 1997 Protection of the Harbour Ordinance (Cap. 531) contain clearly articulated conservation principles.17 Other legislation protecting flora and fauna speak of conserving particular species but fail to articulate the values and principles that underlie these objectives. Originally enacted in 1976, the Country Parks Ordinance (Cap. 208) is a good example of this lacuna in Hong Kong environmental law. The Ordinance designates country parks, largely in highland areas that are geologically unsuitable for development. 18 Because the Ordinance is bereft of any conservation object or purpose, the Country Parks system primarily serves other uses.19 WWFHK has advocated the revision of the Ordinance’s purpose to be: “To provide for the designation, control and management of country parks and special areas for the purposes of conservation of biological diversity, countryside recreation and education, the establishment of the Country Parks Board, and for purposes connected therewith.” The Environmental Impact Assessment Ordinance (EIAO) is the newest piece of legislation that seeks to protect the environment. The EIAO requires certain designated projects (generally major infrastructure projects) to undergo an Environmental Impact Assessment (EIA) before they can be granted an environmental permit for development to proceed. A Technical Memorandum (TM) contains guidance on the criteria and guidelines to use for ecological, fisheries, landscape and visual impact assessment.

International Obligations Hong Kong is obligated to protect its natural and cultural heritage by international treaties as well as domestic law. Indeed, most of the major international agreements concerning protection of the environment apply to Hong Kong. 20 These include: 15

Dr. R. Corlett (Jan. 2001) What is a ‘Conservation Area’ and what does it conserve?” Porcupine: No. 22, p.22. These include: 1) the Animals and Plants (Protection of Endangered Species) Ordinance (Cap. 187); 2) the Wild Animals Protection Ordinance (Cap. 170); 3)); 4) the Forest and Countryside Ordinance (Cap. 96); 5) the Country Parks Ordinance (Cap. 208); 6) the Marine Parks Ordinance (Cap. 476); 7) the Environmental Impact Assessment Ordinance (Cap. 499); 8) the Protection of the Harbour Ordinance (Cap. 531); 9) the Water Pollution Control (Cap. 358); 10) the Noise Control Ordinance (Cap. 400); 11) the Ozone Layer Protection Ordinance (Cap. 403); 12) the Town Planning Ordinance (Cap. 131); 13) the Waste Disposal Ordinance (Cap. 354); 14) the Air Pollution Control Ordinance (Cap. 311); 15) the Fisheries Protection Ordinance (Cap. 171); 16) the Marine Fish Culture Ordinance (Cap. 353). The Land Resumption Ordinance (Cap. 124) is also relevant to conservation. 17 For instance, section 3 of the Protection of the Harbour Ordinance (Cap. 531) recognizes the harbour as “a special public asset and a natural heritage of Hong Kong people.” Also, section 4(b)(iii) of the Marine Parks Ordinance (Cap. 476) specifies that “managing the uses of resources in marine parks” should be “to meet the needs and aspirations of present and future generations of mankind.” 18 Seventy-three percent of Hong Kong’s country parks is over 100m above sea level. See, Yip, p. 5. 19 Some note that although the legislation is worded with a focus on recreation, it is not thus administered. 20 International agreements previously implemented in Hong Kong have remained in force after the change to Chinese sovereignty whether or not the PRC is a party to the convention. These conventions were listed in the 20 June 1997 diplomatic notes submitted by the UK and the PRC to the UN Secretary-General, informing him of the continued application of these treaties to the HKSAR. See, Roda Mushkat, “International Environmental Law: 16

the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (and the 1979 Amendment), also known as “CITES”21

the 1979 Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention)

the 1971 (Ramsar) Convention on Wetlands of International Importance

the 1972 Convention for the Protection of World Cultural and Natural Heritage

Under these conventions, Hong Kong is obligated to protect endangered plant and animal species and preserve natural habitats.22 However, the primary instrument for conservation— the 1992 Convention on Biodiversity— remains of limited application in Hong Kong. This is true despite the government’s publicly stated commitment to the objectives of the Convention on Biodiversity (“CBD”).23 Nine years after the government’s endorsement of the CBD’s objectives, there is no sign that the treaty will formally apply to Hong Kong anytime soon. 24 This is unfortunate because the CBD outlines widely accepted conservation principles and objectives which could serve as basic guidelines in developing government strategies.

SECTION 3:

WORKING TOWARDS CHANGE

A number of non-governmental organizations (NGOs) in Hong Kong work on environmental protection and conservation. Many of these groups have proposed innovative solutions to overcome some of the pressures noted above. These NGOs include: •

Conservancy Association: As early as 1981, the Conservancy Association advocated a Conservation Strategy that promoted anticipatory environmental policies, a cross-sectoral conservation policy, and a broader system of national accounting to integrate conservation with development.25 In an August 2000 policy paper, CA reiterated the need for a meaningful conservation strategy and put forward a range of implementation options, including government resumption or buy-out, charitable trusts, granting development rights in exchange

How Green is the Future?” in New Legal Order in Hong Kong, Raymond Wacks (ed), (Hong Kong University Press: 1999), p. 632. 21 The Government is currently drafting subsidiary legislations to implement the resolutions adopted at the Conference of Parties held in April 2000. EFB (2001) Clean Environment, Safe Food. Policy Objective and Key Result Area, located at http://www.policyaddress.gov.hk/pa01/pdf/foode.pdf. 22 Hong Kong is also obligated to prevent and control marine pollution, curtail ozone-depleting substances, control of trans-boundary movements of hazardous wastes and their disposal, and regulate activities in outer space and in the field of nuclear energy. For a listing of international laws applicable to Hong Kong’s environmental obligations, please see Appendix Two. 23 Hong Kong Legislative Council, 2 December 1992, Hansard p. 115. The Secretary for Planning , Environment and Lands is on record as saying, “...we generally endorse the environmental objectives of the two Conventions [e.g., Convention on Biodiversity and the Convention on Climate Change] and we will do all that we can to meet them.” 24 Although the PRC is a party to the Convention on Biodiversity, it has not indicated that the treaty will be formally extended to Hong Kong. Legal scholars note that Hong Kong may conclude and implement international agreements on its own by using the name, “Hong Kong, China.” However, the Hong Kong government has, thus far, shown no intention of joining the CBD in this manner. 25 Founded in 1968, the Conservancy Association was the earliest non-government environmental organization in Hong Kong. For more information see http://www.conservancy.org.hk/

for conservation (i.e., public -private partnerships), the transfer of development rights, the establishment of a Nature Conservation Trust and the passage of a Conservation Bill. 26 •

World Wide Fund For Nature Hong Kong (WWFHK): WWFHK has been a key actor in conserving Hong Kong’s natural heritage. 27 WWFHK offers its services in conservation management and has recommended conservation mechanisms. One major proposal advocated by WWFHK is the creation of a Hong Kong SAR Wetland Trust.28 This Trust would manage donated funds and disburse funds to approved wetland conservation projects. The Trust would also hold the titles for wetland mitigation sites and work with both private developers and government departments.

•

Friends of the Earth (FoE): FoE has recommended a proactive approach to conservation that includes collecting baseline information and data for conservation (e.g. ecological hotspots, biodiversity). 29 For the government to be more responsive to changing social and economic conditions, FoE suggested better coordination between government agencies charged with managing Hong Kong's natural resources and the possible creation of a new Conservation Authority. FoE has also stated that the government needs to reexamine conservation-related legislation to ensure that ordinances protect valuable habitats, including those located on private land. FoE has also proposed that the government tighten and review existing conservation laws and take interim and emergency measures to protect all areas which are biologically valuable. It has encouraged the government to alter land use where necessary to preserve natural habitats and provide for compensation, land exchange and relocations. FoE has suggested that tax and rate incentives could encourage the location of industries, businesses and housing developments in suitable areas. Proposed redevelopment initiatives could create economic incentives to salvage, rehabilitate and redevelop existing land that has been damaged by inappropriate use.

•

Green Lantau Association (GLA): In association with a number of other environmental NGOs, GLA has lobbied for the extension of the marine and country park system in and around Lantau, designation of vulnerable areas as conservation areas or coastal protection areas, more active management of important habitats and increased funding for the AFCD to achieve these objectives.30

Academics and government-organized expert groups have also developed recommendations on how conservation could be achieved in Hong Kong. These include the following: 26

See, “Achieving Conservation –A Positive Conservation Policy for Hong Kong,” The Conservancy Association : August 2000 located at http://home.netvigator.com/~canhk 27 Inaugurated in 1981, WWF has actively worked to protect Hong Kong's threatened environment by lobbying Government to implement conservation policies. It also conducts conservation research projects and manages the Mai Po Nature Reserve. For more information see http://www.wwf.org.hk/ 28 See, http://www.wwf.org.hk/eng/pdf/conservation/wetland/background.pdf 29 Friends of the Earth was founded in 1983 to protect and improve the local and regional environment through education, campaigns and research. It has produced two comprehensive policy papers on the topic of conservation. These are “Conservation in Hong Kong, Preserving our Future” (November 1992) and “A New Policy for Conservation and the Countryside in Hong Kong” (April 1993). The former presented a general conservation strategy and the latter specifically discussed wildlife and habitat conservation using both the Biodiversity Convention and a case study of Sha Lo Tung. For more information see: http://www.foe.org.hk 30 The Green Lantau Association was originally established in 1989 to oppose plans for the building of a power station in the Lantau Country Parks.

•

Working Group on Conservation and Use of Natural Environment (Working Group): The Working Group, a government-appointed group of academics, business and green groups, formulated a detailed proposal to guide the government’s nature conservation policy. 31 Major recommendations included inter alia: 1) establishment of a land exchange mechanism to acquire areas of high conservation value which are under private ownership; 2) establishment of a conservation trust fund; 3) establishment of a comprehensive ecological database; 4) enhancement of conservation education; 5) formulation of an integrated strategy for fisheries resource management; 6) potential designation of all Hong Kong waters as a marine park; 7) provision of necessary resources to achieve a range of conservation objectives.

•

University of Hong Kong, Department of Ecology & Biodiversity: Following its threeyear survey of the biodiversity of Hong Kong’s terrestrial environment, members of the University of Hong Kong Department of Ecology & Biodiversity team recommended a six percent extension of Hong Kong’s existing country park system to incorporate species-rich hotspots currently outside country park boundaries.32

3.1

IMPROVING THE EXISTING FRAMEWORK

These groups and other interested individuals have offered extensive critiques of existing conservation policy and many suggestions on how to improve the current conservation regime. The following two sections highlight ways in which the existing infrastructure can be improved to better achieve conservation objectives.

3.12

RECOMMENDATIONS ON ADMINISTRATIVE STRUCTURE

Administrative Coherence One feature that cripples Hong Kong’s current administrative structure is the lack of coordination between bureaus and departments. This structural weakness could be addressed by the following recommendations, proposed by the non-governmental groups listed above. Table 133: Achieving Administrative Coherence

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY

HONG KONG GROUPS

Current administrative structure inadequately serves conservation objectives Ensure conservation objectives are not overlooked or compromised by competing departmental responsibilities Lack of coordination between bureaus and departments 1. Establish independent conservation department or unit 2. Review all government departments working practices and impact on conservation 3. Create handbook or manual to guide government staff on conservation objectives and strategies 4. Establish regular inter-bureau and inter-departmental meetings on

See, “Environmental Policies for the 21st Century: Report of the Working Group on Conservation and Use of Natural Environment to the Secretary for Planning, Environment and Lands,” located at: http://www.info.gov.hk/efb/link/epwg/natural/200999.html. 32 See, Jackie Yin Yip, “Conserving Biodiversity in Protected Areas: recommendations for the extension of protected areas in Hong Kong,” (University of Hong Kong, Department of Ecology & Biodiversity: June 2000). 33 The recommendations cited in this report have been proposed by a number groups and individuals within Hong Kong. For a complete listing of sources, please see References page.

conservation issues

Challenges of Formulating a Conservation Strategy The Hong Kong Government has developed the following conservation policy: To conserve and enhance our natural environment by protecting existing conservation areas and heritage features, by identifying new areas for such conservation, and by compensating for areas which merit conservation but which are inevitably lost to essential development projects.34 This policy does not spell out a definition for conservation. It fails to discuss protection against biodiversity loss, preservation of areas with scenic or landscape value and maintenance of ecosystems and habitats. Additionally, the government neglects to elaborate how it intends to achieve its conservation goals. It does not provide a timeline for identifying new conservation areas nor does it outline a budget. Many have suggested that Hong Kong needs a conservation blueprint or a Biodiversity Action Plan (BAP) which spells out both a detailed mission statement and how it will be carried out. Table 2: Achieving a Conservation Policy

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY HONG KONG GROUPS

Lack of leadership, guidance and authority Establish an effective conservation policy Political Commitment 1. Amend current policy to incorporate protection of biodiversity, protection of significant habitats and scenic/landscape beauty 2. Clearly articulate Hong Kong’s conservation values and principles 3. Establish clear guiding criteria for identifying species, areas or buildings of conservation value 4. Support the policy with legal backing (such as in a Sustainable Development or Conservation Bill) 5. Officially define “public purpose” to include conservation objectives 6. Incorporate elements of Biodiversity Convention which are not included in existing programs

Managing for Conservation Because most SSSIs or conservation areas are on privately held lands, the AFCD or other government agencies are unable to play an active role in the management of these “protected areas.” Furthermore, neither the Planning Department nor the Town Planning Board has the ecological expertise to manage sites for conservation. 35 The outcome is less than ideal for conservation: zoning 34

Agriculture, Fisheries and Conservation Department Annual Report, 1999-2000, p. 29.The government’s first promulgation of a conservation policy was in the PELB 1993 “Second Review of the 1989 White Paper.” 35 Mary Felley, A Biodiversity Conservation Policy and Legal Framework for Hong Kong, (Centre of Urban Planning and Environmental Management, University of Hong Kong; MSc Thesis, 1996), p. 26.

protects areas from development, but there is no active management for conservation. New legislation is, therefore, needed to enable the government or other competent bodies to manage these areas. Achieving Public Awareness and Public Participation There is a wealth of energy and enthusiasm to tap within the Hong Kong community. The participation of committed individuals and groups can only be in the government’s interests. A project or decision is more likely to receive public support when stakeholders feel their views and concerns have been heard. Additionally, civil society organizations (such as green groups) can help alleviate pressure on the government to perform complex functions. Indeed, governments in other countries with a shortage of staff or resources have welcomed the contribution of private organizations and citizen groups.36 AFCD should be credited for increased environmental outreach over the last few years. However, Hong Kong’s government system could be significantly strengthened by further promoting public participation. Although the administration has conducted consultation exercises on a range of issues of public interest, these events fall short of genuine public involvement in policy development. Although the public is consulted, consultation exercises rarely result in a radical change of the government’s initial position. The administrative structure could be significantly improved by the incorporation of consensus building processes that engage the public in the formulation of policies and decisions. One innovative proposal for improving public participation is the local incorporation of Agenda 21— the action plan developed at the Earth Summit in 1992. 37 An Agenda 21 approach begins with the gathering of all stakeholders on a particular issue. A working group representing all Hong Kong people (including women, children, indigenous people, NGOs, academics, business, industry and workers) would develop a proposal based on stakeholder views. This proposal would then be submitted for public consultation. Unlike the current system, the government plays a facilitating role in this process and has no position to defend. Rather, the proposal is created through public consensus building. Although the Conservancy Association published an Agenda 21 adapted for Hong Kong, it was largely ignored by the government. In some cases, such as with the Working Group on Conservation and Use of Natural Environment, the government came close to employing an Agenda 21 approach, but failed to take action on the Working Group’s recommendations. The utilization of working groups should be further encouraged. Additionally, they should be more transparent, given more authority and made more accountable for producing concrete results. Table 3: Achieving Public Awareness

ISSUE OBJECTIVE CONSTRAINTS

Insufficient public awareness of Hong Kong’s heritage and the importance of conservation Enhance education on natural heritage and conservation values and objectives Resources Lack of expertise and knowledge among HK leadership

See, e.g. Tomsk Initiatives where non-governmental agency ISAR-Siberia administered an environmental restoration grant program for the local government (http://www.isar.org/isar/Siberia.html). Also see, CARE which provides water treatment plants and new rural technology to needy people around the world (http://www.care.org). In Hong Kong WWFHK manages Mai Po Nature Reserve on behalf of the Government. 37 The Hong Kong Sustainable Development Forum is currently discussing the use of Agenda 21 strategies for a particular issue in one district within Hong Kong’s territory.

POLICIES RECOMMENDED BY HONG KONG GROUPS

3.12

1. Support in-school education and field trips 2. Expand AFCD and NGO programs 3. Institute media campaign targeting general public; Aim should be to instill a sense of pride in HK and a sense of responsibility for its continued well-being 4. Ecology, biology and conservation training for government officers whose work relates to natural heritage

RECOMMENDATIONS ON THE LEGAL FRAMEWORK

Protected Areas Hong Kong's laws aim to protect the environment by focusing on specific areas and species. While effective in some cases, this approach overlooks the importance of ecosystems and habitats and is an out-dated structure for biodiversity conservation. A number of Hong Kong environmentalists have highlighted this weakness and have suggested some of the policies outlined below: Table 4: Improving Existing Protection System

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY HONG KONG GROUPS

Important species and areas of high ecological are unprotected under current system Improve existing protection regime Private land ownership 1. Extend area of country park system to include lowland habitats, identified “hotspots,” fresh water wetlands, mangrove, Fung Shui woodlands, and coastal areas. 2. Under the Town Planning Ordinance, establish a new zoning category of protected areas (i.e., “Declared Protection Areas”) including coastal zones to achieve conservation objectives 3. Create a systematic method to identify new species, land or marine areas of conservation value 4. Establish mechanism to acquire areas of high conservation value which are under private ownership 5. Establish ecological corridors between protected areas 6. Institute management and monitoring of SSSIs, CAs, CPZs, and GBs for conservation and environmental protection 7. Incorporate conservation objectives into management of the country parks system

In addition, areas that are specifically protected for their ecological importance are extremely limited. For instance, the Wild Animals Protection Ordinance designates “Special Restricted Areas” where entry is allowed by permit only. However, there are only three “Special Restricted Areas”: 1) the Fung Shui woods behind the village of Yim Tso Ha, at Starling Inlet in the New Territories; 2) the Mai Po Marshes and shallow waters of Inner Deep Bay; and 3) the sandy beach at Sham Wan on Lamma Island. These areas are truly valuable locations for biodiversity. The Yim Tso Ha egretry, 38

Protected areas include country parks and marine parks (Country Parks Ordinance, Cap. 208, Marine Parks Ordinance, Cap. 476), restricted areas (Wild Animals Protection Ordinance, Cap. 170), as well as conservation areas, sites of special scientific interest, coastal protection areas and green belt areas (Town Planning Ordinance, Cap. 131).

Hong Kong’s first formally protected conservation area, is an important site for a number of species, including Chinese pond herons and night herons.39 Mai Po is famous for waterbirds that winter in and around its marshes, including endangered species such as the Saunders' Gull and a quarter of the world's population of the Black-faced Spoonbill. 40 And the sandy beach at Sham Wan is a nesting place for the green turtle as well as an important prehistoric site.41 However, most protected places accommodate multiple purposes (such as water catchments and recreation) and are not chosen on the basis of ecological importance. The three-year biodiversity survey conducted by the University of Hong Kong concluded that approximately 2 percent of Hong Kong’s total land area are ecological “hotspots” (or species-rich sites) that remain unprotected under the current system. 42 Sha Lo Tung, which falls outside of the Pat Sin Leng Country Park, has the highest diversity of dragonflies in Hong Kong. And Long Valley, which remains threatened by the KCRC’s spur line project, is a noted haven for migratory birds. The controversy surrounding these two habitats reveals the inherent weakness of the legal framework protecting biodiversity. Improving Marine Protection Hong Kong’s marine environment is also threatened by overfishing, destructive fishing, coastal development, dredging and pollution. The following table identifies some recommendations to improve marine protection: Table 6: Improving Marine Protection

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY HONG KONG GROUPS

Threats to HK marine environment Improve marine conservation Political will De facto private fishing rights 1. Increase areas protected by the Marine Parks and Reserves 2. Promote sustainable fisheries 3. Formulate an integrated strategy for fisheries resource management 4. Reinstate degraded marine environment through continue management measures such as artificial reef deployment 5. Control sewage discharge or upgrade sewage treatment 6. Consider expanding marine park to include all of HK waters 7. Educate public on problems caused by destructive fishing practices 8. Minimize reclamation of natural coastline 9. Implement an integrated coastal management policy that takes into account the relationship between land and sea

Protected Species

Country and Marine Parks Authority - Country Parks; located at: http://www.info.gov.hk/afd/afdparks/pdf/epsl.pdf. 40 Worldwide Fund for Nature; located at: http://www.wwf.org.hk/eng/maipo/introduction/wildlife.html. 41 Hong Kong Hiking Trails; located at: http://www2.netvigator.com/cgibin/eforceFrame.pl?MyUrl=http://www2.netvigator.com/eng/exploringhk/lamma_revealing.html. 42 See, Conserving Biodiversity in Protected Areas: Recommendations for the Extension of Protected Areas in Hong Kong, which proposes a 6% extension of the existing country park system to incorporate lowland habitats.

The Wild Animals Protection Ordinance, the Animals and Plants (Protection of Endangered Species) Ordinance, 43 and the Forestry and Countryside Ordinance constitute the legislation that protects Hong Kong’s flora and fauna.44 These laws fall short of protecting Hong Kong’s important plant and animal species in a number of ways. First, protection of plants and animals is limited to a narrow list of prohibited acts. The Forestry Regulations prohibit the possession or sale of listed plant species. The Wild Animals Protection Ordinance and the Protection of Endangered Species Ordinance prohibit the hunting, possession or trade of certain animal species. However, species may be put at risk by a range of acts not included in these laws. For instance, habitat loss would affect the species that inhabit a particular location. The listing of a particular plant or animal species protects the species itself, but provides no direct safeguard against habitat destruction— the largest threat to wildlife in Hong Kong. 45 Additionally, the law does not take into consideration the importance of non-listed species that co-exist with protected plants and animals. All things live in a complex web of life and this fundamental concept should be recognized in Hong Kong’s environmental protection laws. In 2000, AFCD completed a review of the Animals and Plants (Protection of Endangered Species) Ordinance (Cap. 187). The AFCD is currently drafting the legislative amendments and the EFB plans to introduce the amendments to the Legislative Council in 2002-2003. 46 However, it has been noted that amending Cap. 187 would have limited effect on the conservation of local species diversity as it acts as the domestic implementation of CITES and deals almost exclusively with international trade.47 Table 7: Achieving Better Protection of Species

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY HONG KONG GROUPS

Insufficiency of existing species protection Revamp current system to more adequately protect known or suspected species and their habitats Lack of complete knowledge on all existing species Limited effectiveness of species protection listings 1. Revise lists of protected animals and plants 2. Establish process to regularly review and update listings to include all species known or suspected to be at risk 3. Amend Forestry Regulations to protect plant species regardless of where they grow (i.e., on leased lands) 4. Institute measures to protect habitats of protected, rare or threatened species 5. Introduce restrictions on fishing areas, closed fishing seasons, equipment types and size used in fishing local waters

The Animals and Plants (Protection of Endangered Species) Ordinance provides for the domestic application of the Convention on the International Trade of Endangered Species (“CITES”) which was extended to Hong Kong by the United Kingdom and approved by the Joint Liaison Group for continued application after July 1, 1997. 44 Fish and other marine invertebrates are protected under the Fisheries Protection Ordinance (Cap. 171). Cap. 171 gives the AFCD similar powers to protect species in the sea as they have on land. 45 “A Biodiversity Survey of Hong Kong,” para. 2.2, ACE Paper 41/99, located at: http://www.pelb.gov.hk/ace/ace/paper4199.htm. 46 EFB (2001) Clean Environment, Safe Food. Policy Objective and Key Result Area, 2001. http://www.policyaddress.gov.hk/pa01/pdf/foode.pdf 47 WWFHK, correspondence dated 26 November 2001.

Weaknesses of major environmental legislation Although many believe it effectively protects the land within its authority, the Country Parks Ordinance fails to adequately provide for biodiversity conservation. For example, the evaluation of land usage within the park system is not guided by the consideration of a particular area’s ecological diversity and the affects of land usage on a particular habitat or species. Instead, enjoyment of the country park’s amenities is the primary factor which allows the Country and Marine Parks Authority to dictate land use. The law stipulates that if the Authority determines that a particular land use within the park system “would substantially reduce the enjoyment and amenities of the country park,” it may order the cessation of such activity or use. 48 This clearly highlights the recreational— rather than conservation— focus of the Country Park system. The Town Planning Ordinance, the main legislation governing land use outside country parks, controls development through zoning.49 However, there are many weaknesses associated with the Ordinance, which is essentially unchanged since its enactment in 1939. For example, many rural areas are still not covered by the Ordinance though land use plans can be developed and implemented relatively quickly where the need arises.50 There is also a lack of transparency and public participation in the planning application process (TPB meetings are closed to the public and the agenda and minutes are confidential). While the public can object to individual planning applications, the time is often limited and details of the application are not made available to third parties. Enforcement of unauthorized land use is also a problem. Amendments to the Town Planning Ordinance have been proposed for some time, but are still several years away from enactment.51 One of the new provisions in the Bill empowers the TPB to designate certain key areas as Environmentally Sensitive Areas (ESAs). This will require applications in those areas to be accompanied by a report on the key planning and environmental issues. The other main piece of environmental legislation, the Environmental Impact Assessment Ordinance (EIAO), is also problematic. Unlike quantitative, objective guidelines for noise, water, air etc., many of the criteria for ecological assessment are qualitative and subjective. This makes it difficult to judge whether the project meets the Technical Memorandum (TM) criteria or not. While the public has a right to submit comments on the EIA, there is no third party right of appeal if the authority grants an environmental permit to a development that appears not to comply with the TM. In the case of the Disney theme park EIA, an environmental permit was granted even though there was considerable concern amongst ecologists that the EIA did not meet the standards. However, the case of Long Valley shows that, in some cases, the EIAO can be a powerful tool for conservation. 52 48

Cap. 208, section 16(1). For a given area an Outline Zoning Plan will be prepared by the Town Planning Board which lists out the land uses permitted. There are a number of land use zonings which are conservation oriented, including Sites of Special Scientific Interest, Conservation Areas, Coastal Protection Areas and Green Belt. For each zoning there are 2 lists of uses – column 1 for which planning permission is always granted, and column 2 for which planning permission is needed from the TPB. 50 The DPAs for Sha Lo Tung and Tai Long Wan were developed and gazetted quickly to prevent any imminent destruction of the natural habitat 51 After a comprehensive review in 1991, a White paper was published in 1996 and the bill finally gazetted in early 2000. While a LegCo bills committee was set up, due to the complexity of the bill and insufficient time, the committee was dissolved in May 2000. The Bill has not be reintroduced into LegCo since. 52 The KCRC had planned to build a railway spur line linking the existing East Rail with the Hong Kong Mainland China border to provide a new rail border crossing – the so-called Sheung Shui-Lok Ma Chau spur line. The alignment ran through the largest remaining freshwater wetland in Hong Kong, a 25 hectare farming area known as Long Valley. This is thought to be the second most important area for birds in HK after the RAMSAR site at Mai Po. In October 2000 the Director of Environmental Protection rejected the EIA report on the basis that alternative alignments had not been properly considered since under the law, if a project that adversely impacts 49

The other problem is that the EPD is the authority for the EIAO, but is not the authority responsible for conservation. The EPD, therefore, relies on the AFCD for advice on whether an ecological assessment is adequate. Due to insufficient human resources, AFCD may allow EIAs which fall short of the TM requirements to be approved. Furthermore, AFCD has stated that it is not responsible for ecological monitoring once the environmental permit is granted. If this is true, there is no mechanism to ensure that ecological mitigation measures achieve original mitigation objectives.53 Finally, the EIAO is a problematic protection tool because the list of designated projects is neither comprehensive nor regularly updated. Limitation of Listings Current legislation protecting plants and animals lack provisions for regular review and update. Such a mechanism is critical to ensure that environmental law reflects the latest scientific data. There is also a need for ongoing ecological research. The University of Hong Kong biodiversity survey, partly funded by the government, was an important step towards addressing a gap in our knowledge. However, it is unclear whether there are plans to permanently continue and expand the scope of such research. Many local groups have advocated the establishment of a comprehensive environmental database both to provide a baseline of existing natural assets and assess conservation value so that the most precious resources can be preserved with greater alacrity. In the 2001 Policy Objectives, the AFCD announced that they would develop a biodiversity survey programme in 2002 in order to establish an ecological database.54 This is a step in the right direction, but on-going maintenance of the database needs to be ensured. Table 8: Improving the Information Base

ISSUE OBJECTIVE CONSTRAINTS POLICIES RECOMMENDED BY HONG KONG GROUPS

Lack of complete information regarding HK natural resources Set up a comprehensive environmental database

Resources 1. Establish a detailed inventory of Hong Kong’s natural resource base 2. Create method to systematically update and reevaluate findings 3. Establish a landscape evaluation system and database on important landscape features and scenic spots 4. Undertake a conservation mapping study to identify specific sites, and areas for conservation 5. Support continued research on Hong Kong’s ecology

Access to Justice Hong Kong has no mechanism allowing private citizens to initiate legal action in response to environmental degradation. “Access to justice” is not a feature of Hong Kong’s legal framework. In many jurisdictions, individual citizens have the right to take legal action for environmental offenses. In India, individuals and community groups can use "public interest litigation" to protect the on an area of ecological importance it must be proved that no other practical alternatives exist. While the KCRC appealed the decision, it was decided by the appeal board to uphold the EPD’s original decision. The KCRC have since announced that they will tunnel under Long Valley as an alternative. 53 WWFHK, correspondence 26 November 2001. 54 EFB (2001) Clean Environment, Safe Food. Policy Objective and Key Result Area, 2001. http://www.policyaddress.gov.hk/pa01/pdf/foode.pdf

fundamental "right to a clean environment.”55 Nearly any person or group can initiate legal proceedings on behalf of the community. 56 In the United States, statutory language permits broad access to judicial review. For example under the Clean Water Act, any citizen may commence a civil action on his own behalf against any person or government agency in alleged violation of pollution standards.57 In Hong Kong, a person who desires to challenge illegal environmental degradation is limited to alleging an infringement of his or her personal rights. 58 The Basic Law does not recognize a right to environmental well-being, so individual plaintiffs would be forced to rely on common law principles such as trespass or nuisance. In short, the ability of an individual to right an environmental wrong in Hong Kong is extremely limited. Checks and Balances This lack of public rights is particularly troubling given the unchecked discretionary powers vested in some individuals in the government. Like other Hong Kong legislation, a number of environmental laws give the Chief Executive extensive powers. •

The Marine Parks Ordinance is not atypical. It provides that “the Chief Executive may give such directions as he thinks fit, either generally or in any particular case,” with respect to the exercise or performance by the Marine Parks Authority or a public officer of any power, function or duty under the Ordinance.59 The Ordinance also states that every public officer “shall, in the exercise or performance of any power, function or duty under this Ordinance, comply with any directions given by the Chief Executive.”60

•

Other individuals are also accorded unchecked discretionary powers. For example, the Forest and Countryside Ordinance stipulates that the Director of the AFCD may permit acts that are otherwise prohibited under the ordinance “upon such terms and conditions as he thinks fit.” 61 There are no formal procedures to evaluate or appeal these decisions.

•

The Wild Animals Protection Ordinance similarly provides the AFCD Director with the authority to issue special permits for any act prohibited by the ordinance “upon such conditions

Subhash Kumar v. State of Bihar, AIR 1991 SC420. Rural Litigation and Entitlement Kendra v. State of U.P. AIR 1985 SC 652; M.C. Mehta v. Union of India AIR 1987 SC 965; Indian Council of Enviro-legal action v. Union of India AIR 1996 SC 1037. 57 See, 33 U.S.C. ** 1365(a). 58 It should be noted that the standing of private citizens or non-governmental organizations in environmental cases will be determined on an ad hoc basis according to the ordinance in question and the specific facts of the case. For instance, Friends of the Earth (Charity) Ltd. was able to launch judicial review proceedings against the Government, the Country Parks Authority, the Director of Agriculture & Fisheries regarding the decision to allow a golf course in Pat Sin Leng Country Park. The Government did not seek to dispute that FoE had standing. Mayo, J granted leave and the case was eventually resolved by a Consent Order which quashed the decision with costs in Mis cellaneous Proceedings 273 of 1992, 13 April 1992. Correspondence with Ruy Barretto, S.C., 29 November 2001. 59 Cap. 476, section 6(1). Cap. 476, section 16(1)(a)(ii) also provides that the Chief Executive may refer any map approved by him to the AFCD for replacement by a new map for the purpose of “excising any area within a marine park or marine reserve, if the Chief Executive in Council considers that such excision is required for a public purpose or is in the public interest.” Under subsection (b), the Chief Executive may also cancel the designation of any marine park or marine reserve, if he considers that such cancellation is required for a public purpose or is in the public interest. 60 Ibid, section 6(2). 61 Cap. 96, section 23. 56

as he thinks fit.”62 The law does not specify what steps must be followed to ensure such decisions are objective and are made in the public interest. •

In the case of the EIAO, there is no third party right of appeal if the public feels aggrieved by the Director of Environmental Protection’s (DEP) decision to grant an environmental permit for a designated project.63 The main systematic check on the operation of the EIAO is the Advisory Council on the Environment (ACE). The ACE EIA Sub-Committee, comprised of representatives from business, green groups and academia, reviews EIAs. However, sometimes the sheer volume of EIA reports means that sometimes only large or potentially damaging projects get thoroughly revie wed.

While the Chief Executive and public officers are duty-bound to act in the public interest, there is currently no requirement that they take conservation objectives into consideration. Lack of Legal Expertise Both the Hong Kong Judiciary and the private bar suffer from a lack of expertise in environmental law. This has serious repercussions on environmental protection. When practitioners are relatively unskilled in a particular field of law, they are less able to make sophisticated arguments that push the legal envelope. Judges who are unfamiliar with a special area are also less able to render sound and innovative decisions. Judgments in such an environment tend to be cautiously conservative, fines tend to be more lenient and the legal reasoning tends to be incapable of providing moral guidance or education to the community. Lack of expertise may also result in the under-utilization of the law to champion environmental concerns. Another consequence of this lack of expertise is the narrow range of remedies for environmental cases. Most environmental penalties are restricted to fines and/or imprisonment.64 In some limited cases, clean-up may be demanded of an environmental polluter. This limited range of options is significant because environmental cases are often best resolved through more creative solutions.65

Cap. 170, section 15. When the legislation was being drafted, several green groups proposed such a right of appeal, but this was rejected by the EPD as it was felt it could jeopardise the chances of the bill passing through a generally prodevelopment legislature. It should be noted that the EIAO provides some checks on the EPD’s power by giving the public the right to the public to view all EIAs and submit comments to the DEP. 64 See, “Creative Environmental Sentencing Making the Punishment Fit the Crime,” by Norman Keith, Environmental Science and Engineering Magazine, 1996 located at: http://www.esemag.com/1196/sentence.html 65 In the U.S. and India, courts will often issue injunctions to compel a violator of environmental laws or a government agency to comply with mandatory requirements of the law. Although fines usually do not result in proactive conservation, more and more courts around the world are using fines creatively. For instance, some courts in Canada have determined the manner in which fines are to be used. For example a convicted company was recently required to pay CAN $100,000 to promote the conservation of fish habitat; a violating company was ordered to pay CAN $30,000 to develop a local toxic waste program; and a corporation was directed to pay their fine to a local school board for the purpose of environmental education. 63

PART TWO: CONSERVATION TOOLS Having outlined the legal and administrative framework governing conservation in Hong Kong, Part Two identifies different conservation mechanisms and offers a preliminary assessment of their applicability to Hong Kong. Although they involve some outlay of funds, some mechanisms offer potential win-win situations. In addition to being possible, conservation could also be profitable — an exciting possibility.

SECTION 1:

GOVERNMENT M ECHANISMS

The government has a range of options to promote conservation at little cost. These remedies are attractive because the infrastructure already exists to support their implementation. Many local environmental groups have also expressed support for some of these options. However, some landowners have been opposed to many. As a result, mechanisms based on existing infrastructure may prove controversial and difficult to implement.

1.1

PRO-ACTIVE USE OF EXISTING LEGISLATION

To better protect terrestrial and marine natural assets, the government could extend the boundaries of the existing country and marine parks system. Under Part III of the Country Parks Ordinance, the AFCD can make recommendations for the designation of areas as country parks or as special areas. Similarly, the AFCD can propose new marine parks areas under Part III of the Marine Parks Ordinance. In the last several years, AFCD proposed an extension of the Lantau North Country Park, and the designation of two proposed marine parks on the Soko Islands and Southwest Lantau. AFCD also implemented a fourth marine park at Tung Ping Chau. As noted above, the University of Hong Kong’s Biodiversity Survey recommended an approximately six percent extension of the country park system. The Working Group on Conservation likewise proposed that the government “espouse a vision of turning the whole of HK waters into a marine park for protecting spawning and juvenile fish.”66 The problem is that consultation can be slow and landowners, rural committees and fishers often raise objections. The Working Group on Conservation has also advocated the introduction of a comprehensive ban on all commercial fishing. This would be possible under the Fisheries Protection Ordinance (Cap. 171). Section 4 of this ordinance allows for regulations which prohibit or restrict a range of activities that may be destructive to the marine environment. For example a ban on in-shore trawling, in depths up to 40 meters, and on demersal trawling could be accomplished through existing provisions of the Fisheries Protection Ordinance.67 The AFCD’s own consultancy report has recommended a number of high priority initiatives68 that are yet to be implemented due to opposition from fishers.

“Environmental Policies for the 21st Century,” located at: http://www.info.gov.hk/efb/link/epwg/natural/200999.htm 67 For more information and other recommendations on protecting the marine environment see A Comprehensive Review of Marine Policy by Civic Exchange (2000) located at www.civic-exchange.org 68 Environmental Resources Management (1998) Fishing Resources and Fishing Operations in Hong Kong Waters. Report for Agriculture & Fisheries Department.

Under the Land Resumption Ordinance, the government is authorized to resume land for public purposes. 69 If the government defined conservation as a public purpose, it could resume privately held land to protect important ecological areas. In the past, AFD brought land-lease lots back into the Country Park system. The Government has also resumed land for development of infrastructure such as highways, railways and reservoirs. Therefore, a precedent exists for this type of action. Although some groups have proposed using the Land Resumption Ordinance to promote conservation,70 most acknowledge that this is a highly politicized tool which may be hard to employ. However, if the government used this tool selectively – and based its decisions on expert advice and ecological data – it would not be necessary to resume more than a few clearly defined sites of high ecological importance.

1.2

ZONING OPTIONS

Conservation goals could also be promoted more actively through the use of zoning under the Town Planning Ordinance. Indeed, zoning has been successfully used to further conservation purposes in a number of threatened sites, including Sha Lo Tung and Tai Long Wan. One zoning option that may help alleviate pressure on environmentally sensitive areas is cluster development. With cluster development, residences and commercial business must be grouped on a certain portion of a development site in order to preserve remaining wetlands, woodlands, and wildlife habitat. An owner of a property is usually given the option of increasing the density of development beyond what is normally permitted in one section of the property in return for leaving the remainder of the property undisturbed and long-term guaranteed financing for the conservation management of the undisturbed parcel. This concept has been approved at Fung Lok Wai in the North West New Territories. Dense residential developments were allowed within the RAMSAR boundary with the proviso that more than 90% of the area was retained as a wetland for conservation. The benefit of cluster development is that it resolves private land ownership problems while providing for conservation. However, others argue that it allows development in areas that should be reserved exclusively for conservation. Overall, conservation zoning provides landowners and conservationists with clear information about which land is suitable for development. At the same time, zoning places a burden on property owners and is susceptible to changes in political will. Zoning also depends on the availability of ecological data and does not necessarily engender good environmental management.

1.3

TRADABLE DEVELOPMENT RIGHTS

A system of land use based on tradable development rights (“TDR”) creates a marketplace for development rights while also providing for the protection of ecologically sensitive land. Under a TDR program, development rights are transferred from "sending zones," which are designated for protection, to "receiving zones," which are designated for future growth. In countries where this mechanism is applied, government authorities usually establish the sending areas (where development is limited) and the receiving areas (where increased development is 69

The Ordinance specifies that “resumption for public purpose” includes: 1) resumption to improve sanitary conditions; 2) resumption to remedy conditions that are unfit for human habitation or dangerous to health; 3) resumption for any purpose connected with the naval, military or air forces; and 4) resumption for any purpose of whatsoever [...] which the Chief Executive in Council may decide to be a public purpose. 70 See, supra p. 7-9.

encouraged). Property owners in the sending site may give up the right to develop their land and receive development credits in return. These credits can be freely sold or traded. The price of the development credit is left up to the participants and the free market. The sending site is usually protected using a conservation easement (see section 2.2 for details on conservation easements). When a property owner in the receiving area purchases the development credits, he is allowed to expand development beyond current limitations. Typically, the buyer is either a residential developer, who can build houses on smaller lots with development credits, or an industrial or commercial developer, who can increase the floor size of the work or sales area on a lot as dictated by the number of credits purchased. In a successful program, the TDR credits are worth more to the seller than the unused development potential of the land and the buyer's profit from the increased development exceeds the costs of the TDR credits. The most successful TDR programs are mandatory. These programs restrict the land use in the sending area by â&#x20AC;&#x153;down zoningâ&#x20AC;? property. 71 Government authorities are responsible for setting the value of development credits. For example, the owner of a twenty-five acre parcel would be given five development credits. He may use one credit to build a house on the agricultural land and sell the remaining four for use in a receiving area, or he may sell all five credits and prohibit all construction activities on his land permanently. A TDR program can also assign a higher number of credits for ecologically valuable lands. For example, lands with moderately high biodiversity might be valued at one credit per acre while lands with higher biodiversity might be valued at 1.5 credits per acre. TDRs have been successfully used to limit development in a number of areas within the United States.72 To be successful, the system requires the commitment of a government department to develop a reliable methodology to set the value of development rights. Because this may be a timeintensive exercise, there is a high likelihood that valuable land may be lost in the meantime.

1.4

DEVELOPING A BLUEPRINT FOR CONSERVATION

Effective conservation schemes require forward thinking policies which are both visionary and pragmatic. New Zealand recently generated a participatory and detailed conservation plan which may be instructive for the Hong Kong government. New Zealand and Natural Heritage The New Zealand Department of Conservation drafted an elaborate long term conservation policy based on specific goals, objectives and targets. 73 Government officials identified general conservation goals and grouped these as either natural heritage goals or cultural heritage goals. Each broadly worded goal was further broken down into objectives. For example, under the goal of protecting marine natural heritage, the government set for itself the objectives of: 1) establishing a national network of protected natural areas representing the full range of marine natural heritage; 2) effectively managing existing marine protected areas; and 3) working with commercial fishing interests to promote and develop ways of reducing bycatch of seabirds and marine mammals in the New Zealand Exclusive Economic Zone.

Downzoning is the reclassification of an area to a more restrictive zoning classification, where fewer or less intense land uses are permitted. 72 These include Montgomery County- Maryland (1980), New Jersey Pinelands (1981), Long Island Central Pine Barrens-New York (1995), Bucks County-Pennsylvania (1994) and Dade County, Florida. 73 See, http://www.doc.govt.nz/about/plans/dawn/part3a.htm.

The objectives were further narrowed by a series of targets which described specific timeoriented actions to achieve the objectives and goals. For example, under the objective of establishing marine natural heritage areas, the targets included establishing a Gulf Marine Park by June 2000, completing coastal extension of existing national parks by June 2002 and encouraging proposals to add new reserves or to enlarge the 14 existing reserves. New Zealand encourages public participation in conservation policy formulation. The public is notified of the government's intention to develop a policy or a plan. Public meetings may be held. Once a draft conservation plan is finished, the public is notified and given opportunities to submit critiques and suggestions. After both oral and written submissions have been received, the comments are summarized and the drafts are revised in light of public comments. The final document must be approved by area conservation boards and the New Zealand Conservation Authority in consultation with the Minister of Conservation. The public has a strong voice on the conservation boards which are formed of interested citizens. What from New Zealand’s conservation policy could be applied to Hong Kong? While New Zealand’s goals are unique to New Zealand’s interests, the New Zealand policy is a valuable model for Hong Kong because it takes the policy discussion from broad generalizations to specific tasks which enable conservation to be actualized. The Hong Kong government could, in cooperation with interested civic groups and government agencies, draw up a series of goals, objectives, and realistic targets. As noted above, Hong Kong needs a detailed conservation blueprint. New Zealand's approach towards public consultation is also instructive for AFCD as a way to develop a conservation policy with a strong foundation of public support. To aid policy development, Hong Kong may want to geographically divide itself into a number of manageable conservation areas. Each of these conservation areas would be assigned a conservation board made up of interested citizens. The conservation boards would be charged with protecting the area’s natural and cultural resources. Each board would have the responsibility of approving plans which would affect the natural or cultural integrity of their area. Ideally, the conservation boards would work in conjunction with bodies such as the TPB.

SECTION 2:

PUBLIC/PRIVATE INITIATIVES

Many in Hong Kong see the existence of private development rights as a major obstacle for conservation objectives. Indeed, many important unprotected sites are located on privately owned land. However, ownership does not automatically create development rights. In Hong Kong, development rights exist only when approved by the government and the TPB. Nevertheless, many areas are at risk because Hong Kong land prices create enormous pressures to sell and develop. Yet private interests need not be at odds with conservation objectives. If devised thoughtfully, conservation mechanisms can create opportunities and result in “win-win” situations for all stakeholders. Some of these options are discussed below.

2.1

LAND SWAPS

In other countries, land trusts, government agencies and conservation organizations are often willing to swap parcels of land with high development value for privately held land with higher conservation value. The intention of a land swap is to protect important ecological sites in exchange for surplus land that is more suitable for development.

To use land swaps in Hong Kong, surplus land with development value must be identified and appraisals made to determine whether the surplus land has economic value equal to that of the area to be protected. Land swaps will probably have the greatest success where the communities propose the swap and where the government is willing to provide basic infrastructure for the surplus lands. The AFCD has expressed concerns that compensation for conservation may open a Pandora’s box of claims by private landowners interested in making money. Although land swaps and compensation should be approached with caution, 74 a general consensus exists among environmentalists about the most important sites for conservation. Claims could, therefore, be limited to a select number of sites. Land swaps have been proposed in Sha Lo Tung where government land would be swapped for a conservation area and villages could be re-located.

2.2

CONSERVATION EASEMENTS

A conservation easement is a voluntary agreement between a landowner and a conservation organization where a landowner agrees to restrict uses of his or her property in exchange for monetary compensation. The landowner continues to have all ownership rights and may sell or convey the land as if it was ordinary property. However, the conservation organization is entitled to monitor the land to ensure that the terms of the agreement are met. If the organization believes the agreement is being breached, it can take the matter to court. There is considerable flexibility in terms of what types of areas may be protected, the degree of protection allowed, what obligations may be imposed, what types of parties may enter such an agreement and how long these agreements may last. In California, for example, a conservation easement holder must have the primary purpose of preserving, protecting, or enhancing land in its natural, scenic, historical, agricultural, forested, or open-space condition. However, in Washington State, a principal purpose of a conservation easement holder must be conducting or facilitating scientific research, conserving natural resources or conducting/facilitating the preservation of historic sites, districts, buildings and artifacts. Although easements usually last perpetually, they can be terminated in a number of ways. For instance, a holder’s failure to enforce the restrictions and obligations of the easement contract may lead to the abandonment of an easement. An easement can also be terminated when the easement holder acquires the title to the property subject to the easement. The effectiveness of an easement lies in long-term monitoring of the agreement. Parties often enter into easements because of the attractiveness of the tax benefits associated with designating land for conservation purposes. Therefore, a community that is interested in adopting this conservation tool must have an effective system of tax discounts to attract easement donors. Conservation easements have been successfully used to protect private land in other parts of the world. Today, it is the most common conservation instrument used in the United States. About 1.4 million acres of US land have been successfully protected using this mechanism. 74

In this United States, the introduction of land swaps for conservation has led to what some people call “ecosabotage.” Individuals who have holdings of highly biodiverse land make threats to log or mine the land in order to get the federal government to buy the land or to exchange it with higher market value. For example, in the state of Washington, the Cascade Development of Yakima threatened to exercise its mining claim on a 37-acre private parcel near Alpine Lakes Wilderness by detonating a 300,000-pound explosive unless the government bought the land. The government subsequently purchased the land at above market rates.

2.3

M ITIGATION BANKING

In many cases, both public and private parties that carry out activities resulting in the loss of areas of significant natural value are required to mitigate or compensate for the loss. Mitigation must usually be on-site (i.e. developer must mitigate on the same site where he is undertaking development) and in-kind (i.e. if a developer removes plant cover he is expected to restore the same or similar plant cover). Critics claim that this leads to isolated, fragmented mitigation projects with little conservation value. Mitigation banking is a mechanism that allows those who are required to compensate for resource impacts to do so through the purchase of "credits" from a pre-approved mitigation bank. Instead of mitigating on-site, money can either be put into a mitigation account or the party can earn “credits” by mitigating a high-priority off-site habitat to compensate for on-site losses. The funds in the mitigation account can be used for acquisition of habitat or habitat restoration at a later date. In either case, the concept is based on the premise that mitigation is applied toward larger habitat projects that provide greater collective ecologic al benefits. Mitigation banking has been applied in the U.S. for the protection of wetlands. For example, the Naval Amphibious Base Eelgrass Mitigation Bank in San Diego, California, started in 1986, was the first bank to be federally owned and operated. It has been used to mitigate for damage to eelgrass habitat from the operations of the Naval Amphibious Base in San Diego Bay. Of the 10 acres at this site, 4.2 acres compensated for one existing mitigation project and 5.8 acres were established for future Navy projects. The Navy is responsible for the operation of the bank, but the National Marine and Fisheries Services managed the restoration of the wetland and was reimbursed by the Navy. Quasi-public mitigation banks also exist. In Long Beach, California, the Pier J Anaheim Bay Mitigation Bank is operated by the Port of Long Beach (CA) within the perimeter of the Seal Beach Naval Weapons Station. The bank is used to mitigate wetland degradation due to port development. Mitigation banks could be established in Hong Kong to protect valuable land. 75 Money for the accounts could come from mitigation demanded under the EIA process as well as fees imposed on development.

2.4

LAND TRUSTS

Conservation land trusts are private, non-profit organizations formed to protect specific lands. Land trusts frequently work in cooperation with government agencies and use a variety of creative methods to achieve land preservation goals. Some trusts identify land that they believe is worthy of protection, buy it, and manage the land (i.e. The Nature Conservancy). Most trusts pursue voluntary conservation easements and donations of lands. In order to operate, most land trusts depend on private donations. WWFHK has proposed a Wetland Trust to support the efforts of the Director of Agriculture, Fisheries, and Conservation in responding the SAR’s obligations under the Ramsar Convention. The proposed Trust would convey management funds for wetland protection and would hold land titles for wetland mitigation sites. While wetland trusts are a good idea, a more general “Nature Conservation Trust” may provide a more comprehensive solution. Additionally, such a trust could act as an independent intermediary to decide which areas should be prioritized for conservation. 75

Some believe that mitigation banking may only be useful for small scale conservation projects.

The time is indeed ripe in Hong Kong for the creation of conservation land trusts. Private donors could finance land trusts that could purchase or lease environmentally sensitive lots. These lots could be used for a combination of preservation work, ecological research projects, and educational activities. However, due to high land costs in Hong Kong, even relatively small sites would be expensive and out of the reach of most NGOs. Given the potential profit from development, land donations are also unlikely unless some kind of compensation is offered. Two mechanisms exist to enhance the operations of Land Trusts:

BARGAIN SALES

A “bargain sale” refers to a situation where a party sells land to a charitable organization below fair market value and then donates the remaining value as a tax-free charitable contribution. The seller’s incentive to do this derives from income and tax benefits. Bargain sales are only effective where there is a system of tax benefits for potential sellers. In Hong Kong where taxation is relatively low, it may be difficult to create sufficient tax breaks to make this option attractive to land owners.

RIGHT OF FIRST REFUSAL

The Right of First Refusal gives a land trust the opportunity to acquire land without competing against other bidders. The owner of a particular piece of land gives a land trust the opportunity to be the first to purchase a piece of land if the land is ever put on the market. To afford the purchase, the land trust must be well-funded.

2.5

PRIVATE PARTNERSHIPS

Corporate environmentalism is criticized as self-interested, but corporate monies have proven beneficial for long-term environmental protection. For example, in Singapore, HSBC donated US$120,000 to the National Parks Board in 1997 to establish the Sungei Buloh Education Fund to provide on-going support to the Sungei Buloh Nature Park for nature conservation and environmental education. 76 Other investments in the environment are made by individuals. In Australia, the business owner of Earth Sanctuaries Ltd. believes that people will invest in land and species conservation because biodiversity and wild lands have become relatively rare. The company is listed on Australian Stock Exchange and has been successful in marketing environmental protection.77 In the United States, William Altenberg Jr. believes that private wilderness not only preserves species but can also be used for sustainable business. In New Hampshire, he leases 24,000 acres of timberland from the International Paper Company and offers low impact outdoor recreation to paying customers.78 Both of these individuals prove that one person's effort can make a sizable difference to the environment. With the majority of Hong Kong’s wealth concentrated in individual and corporate accounts, the private sector has the greatest potential to finance conservation. The government could encourage private involvement by passing legislation that either provides tax incentives or gives preferential treatment to private companies who make substantial contributions to conservation goals. Business tycoons or the Hong Kong Jockey Club could be approached to fund specific projects or to donate the 76

See, http://www.unepapac.org/sing_hsbc_care.html. See, http://www.est.com.au. 78 See, http://www.perc.org/privmore.htm. 77

seed money for a conservation trust foundation. However, given the current low value of property, soliciting additional funds from business may be hard and tax breaks may be critical.

2.6

EDUCATIONAL NATURE RESERVES

The acquisition of ecologically significant parcels of land for the purpose of research and education has the potential to protect land from development for the benefit of future generations. For example, the University of California operates 33 natural reserves across 12 different ecological regions.79 12 percent of this area was purchased by the State of California for use by the university. The remaining land was either donated by interested parties or leased by land trusts and other organizations. Unlike the public reserves owned by the state, the natural reserves are not open to the public and are closely monitored to ensure that human visitors do not harm the reserves. Money to manage the reserve system comes from the eight university campuses, university endowments, and general state funds. It may be possible for Hong Kong universities to create similar programs with the financial support of the Hong Kong government. Initial reserve land could be purchased by the government or donated by graduates of the university. One possible drawback is that closing the land to the public may generate animosity, particularly because the public is already somewhat indifferent to conservation goals.

2.7

PARASTATAL PARTNERSHIPS

Parastatal partnerships exist between the government and a private body with ties to the government such as a national land trust. Parastatals involve government oversight of a privately administered program. The advantage of parastatal organizations over government-run organizations is that parastatal organizations are usually permitted to retain revenues collected from protected areas. This gives the parastatal organization an incentive to manage resources in a sustainable manner, collect fees, and enforce conservation laws. Parastatals are a popular model for conservation and have proliferated in recent years, especially in developing countries.80 In Hong Kong, a parastatal exists in Mai Po Nature Reserve, where WWFHK manages the reserve on behalf of the government. Created by a legislative act, a parastatal foundation could benefit Hong Kong’s management of its existing resources. Areas of high natural value could be turned over to the parastatal. Annual permits could be sold at a reduced rate so that local residents would continue to be able to access the parks. All of the revenue from the entrance fees would be reinvested in the parks. To cover operating costs, the government or a private sponsor could provide matching funds. Another possible source of funding is a 25 cent transaction fee placed on either stock purchases or stock sales. Parastatals could also create cultural experiences to market to visitors such as “Feng Shui Hong Kong” or “Nature Hong Kong” for additional funding. Creating a new institution charged with land preservation may be the necessary catalyst for conservation. In response to the lack of structure for conservation programs in Singapore, Singapore

See, http://www.ice.ucdavis.edu/guide_to_california_programs_for_biodiversity_conservation/uc/ucnrs.html. For example, in Swaziland, the National Trust Commission is a parastatal organization charged with the preservation of Swaziland’s natural and cultural heritage. The trust was created in 1972 by a legislative act and is responsible for operating nature preserves, opening national museums, overseeing archeological projects, promoting tourism related to natural and cultural heritage, implementing cultural and natural preservation legislation (including the Convention on Biodiversity and CITES). See, http://www.sntc.org.sz. 80

environmentalists recently proposed a private land trust partially overseen by the government. A similar institution may prosper in Hong Kong, especially if private partnerships are cultivated. In Hong Kong, the most effective and immediate way to begin introducing new partnerships may be through private contributions of ecologically sensitive land. Government could offer an attractive package of tax benefits to individuals/corporations who either donated land with important conservation value or conducted meaningful restoration activities. This could accelerate conservation without depending on political whims or the vagaries of funding.

2.8

COMMUNITY-BASED PARTNERSHIPS

Community-based partnerships with government agencies have also been effective in raising awareness about the environment and generating interest in conservation goals. Community-based partnerships are often able to avoid becoming enmeshed in political inertia and are better able to cultivate public participation. 81 Partnerships design and implement projects which protect or restore landscape, make longterm commitments to land conservation, perform scientific research and/or implement educational outreach. Partnerships receive funding for proposed projects from the government through the submission of proposals which are evaluated by a board of experts. Experiences with communitybased partnerships in other parts of the world suggest that such projects must be: 1) voluntary and based on incentives other than government regulation; and 2) broad-based, locally organized efforts, that incorporate the interests and participation of local communities and landowners. To introduce a community-based partnership in Hong Kong, the Legislative Council would need to budget for conservation grant money, a lump sum to be released over a period of time.82 The AFCD could introduce the program to the community and help groups of individuals, neighborhoods, corporate interests, and non-profits form partnerships. These partnerships would then apply for grant money to execute specific projects approved by a funding review board comprised of both government and non-government entities. The Environment and Conservation Fund could be adapted to perform this role.

SECTION 3:

FUNDING CONSERVATION

Although funding for conservation is a legitimate concern, it need not be an insurmountable obstacle. Given political will, mechanisms exist to raise funds for conservation. Some of the options outlined below may be impossible to implement in Hong Kong’s current politic al climate. Nonetheless, they are listed below to provide readers with a sense of the range of possibilities. •

Annual Appropriations – The Hong Kong Government could allocate conservation protection money from its general or discretionary funds to buy undeveloped land or

For example, the state of Illinois, in cooperation with community groups, launched an initiative called Conservation 2000 which built “Ecosystem Partnerships.” Each “Partnership” is a coalition of local stakeholders private landowners, business people, natural scientists, policy makers, etc. - united by a common interest in the natural resources of their area's watershed. The program is administered by the Illinois Department of Natural Resources and funded by Conservation 2000, a multi-agency, multi-year initiative to preserve and restore Illinois' natural resources. See, http://www.dnr.state.il.us/orep/c2000/manage/partner.htm. 82 In 1995, the General Assembly of the state of Illinois earmarked $100 million dollars for a six year program. Because of the promising results from the program, in 1999, the Governor of Illinois extended the program until 2009.

development rights. However, this is an unpredictable source of income because it is dependent on political will. •

Bonds – Assuming the Hong Kong Government is unwilling to finance conservation through its general revenue account, it could carry out conservation projects by raising revenue through the issuance of general obligation bonds.

•

Conveyancing Charges – A small percentage of the purchase price of a piece of real estate could be set aside in an account for either acquiring undeveloped land or for managing conservation programs.

•

Mitigation Charges – Developers may be given the option of either granting a conservation easement on one of their properties of high conservation value or paying a fee that would cover the cost of protecting a comparable area of land. Hong Kong could create a system that requires every acre of developed land be replaced by the same acreage of undeveloped land, which will be unconditionally protected. This would support conservation without the costs associated with other programs because the land designation costs would be internalized by developers.

•

Conservation Trust Funds - The Lord Wilson Heritage Trust and the Environment and Conservation Fund are two examples of Hong Kong trusts with conservation goals. Trust funds can be endowment funds, which only allow earnings from a fund’s income to be used for specified activities, or sinking funds which allow both principal and income to be used over time. Conservation trust funds can derive revenue in a number of ways. Recurrent sources of funding could include entrance fees collected from country parks or fees collected from recreational water sports such as diving.

•

Gambling Proceeds - The Hong Kong Jockey Club has a long tradition of donating part of its proceeds to public service projects. The government and conservation groups could approach the Jockey Club and seek its support for conservation programs. Similarly, a percentage of money obtained from the Hong Kong lottery could be earmarked for conservation purposes.83

•

Conservation Grants- Hong Kong could be the beneficiary of an international conservation grant. Global Environment Facilities (GEF) is one multilateral organization which works with the World Bank and United Nations branches to make grants to countries for conservation. Grants have funded work related to biodiversity, pollution of international waters and ozone depletion. 84

•

Matching Funds - Private companies may be willing to match funds supplied by the government.85

•

Sales of specialized stamps or license plates- The Hong Kong government could create a special postage stamp or license plate from which a percentage of the revenue generated could be slotted for a special land conservation fund. The stamps or license plates could be

For example, in 1992, voters in Colorado decided to direct a portion of state lottery revenues to protect open spaces. Between 1994-1999, an average of $17 million a year was collected for this purpose. 84 It should be noted that such grants are often given to lesser developed countries. 85 In the U.S. state of Minnesota, a critical habitat matching program provides a pool of government and private funds to acquire wildlife management areas, restore wetlands, and protect spawning sites.

widely advertised and sold for a limited time as a collector's item in order to generate more interest.86 •

Transaction charges- It may be possible to raise money from transaction fees associated with the exchange of stocks and currencies on the financial markets. For each sale s transaction, a seller could be assessed a small fee (i.e. a certain percentage of the sale price). This sum would be put into a trust fund. This idea would probably have a mixed reception, particularly in the financial community. Levying a transaction charge could also have unwelcome effects on market stability if traders change their trading behavior to compensate for an additional fee.

•

Check-off Boxes- Taxpayers in other parts of the world are often given the option of voluntarily contributing to conservation efforts. Hong Kong could implement a similar program when it collects individual taxes by including “check-off” boxes on annual tax notices. People may be more likely to contribute to conservation when it requires little effort to make a civic contribution. Tourist Fees- Conserving and maintaining Hong Kong’s natural and cultural heritage is crucial for the continued attractiveness of Hong Kong as a tourist destination. The government may consider imposing nominal tourism fees to support conservation. These could include devoting a portion of the airport tax to conservation or imposing a surcharge on hotel rates.87 Other tourism destination countries have adopted tourist fees. Some overseas marine reserves charge a fee for diving in the reserve and allocate the collected funds for reserve management. Given the current downturn in the tourism industry, any taxes associated with tourist activities are unlikely to be politically feasible. Instead, the government may wish to consider giving tourists the voluntary option to contribute towards conservation. For instance, the government could install conservation contribution boxes at key tourist areas.

•

Taxes- The introduction of new taxes or rates is an unlikely option for Hong Kong. However, if there was a change in the political climate, various types of taxes or rates could be levied to support conservation purposes: -Sales taxes could be levied. The tax could either be broad-based or tacked on to particular items such as luxury goods and servic es. 88 Currently, sales taxes are controversial and unlikely to be introduced for conservation.

•

Environmental Fines- Fines collected from environmental penalties could finance land conservation programs. However, this would not be a stable source of funding because fines

A postage stamp could be designed depicting endangered landscapes or species of Hong Kong. The government might agree to issue a certain number of these stamps. Either all of the proceeds from the special issue stamps or a percentage of the proceeds from the stamps could be donated to the trust. This program would have the double benefits of raising revenue for the trust while also raising awareness among the public of the need for protecting Hong Kong’s resources. The sale of the stamps could be launched with a number of public relations events which could highlight citizen green groups, green businesses, and green government agencies. 87 Such methods have been successfully employed in other parts of the world. For instance, a conservation fee of approximately US $3.75 is paid by each visitor to Belize upon departure and a 20% commission from cruise ship passenger fees is also imposed. 88 The city of Virginia Beach in the United States collects a 10% tax on cellular phone bills (up to a maximum of $3 a month). The money is deposited in a general fund and used for conservation protection programs.

are not always collected and the amount of the fines is negligible compared to the costs of conservation.

Most of these funding mechanisms would require administration and management by either a charitable trust or a government agency. A Heritage Conservation Trust, with a board composed of members from government agencies, private businesses, and NGOs, would be useful.

PART THREE: CONSERVATION IN ACTION In order to better understand how conservation may be achieved in Hong Kong, part three examines specific conservation tools in the context of two case studies. Although these cases represent areas of important conservation value, this report does not intend to prioritize these locations as those most in need of conservation. The two sites discussed below were simply selected to serve an illustrative purpose.

SECTION 1: 1.1

A CASE STUDY — TAI LONG WAN INTRODUCTION

Located on Sai Kung Peninsula, Tai Long Wan is a site of special scientific interest because of its unique combination of freshwater, marsh, stream, grassland, woodland, and coastal sand dune habitats. Tai Long Wan is the only well-developed sand dune habitat remaining in Hong Kong. It is also the only site in Hong Kong where there are populations of the dwarf sedge Carex pumila and the rare herbaceous climber Cynachium insulanum. Immediately behind the beach are the ruins of the historic Tai Wan village and a woodland which may have been a historic fung shui wood. The marsh behind the beach is home to locally rare birds including Chestnut Bitterns, Black Bitterns, and Schrenck’s Bitterns as well as important migratory birds like Baillon’s Crake, Pallas’ Grasshopper Warblers, and Laceolated Grasshopper Warblers. A population of White-breasted Kingfishers breeds in the marshes. The area has seen human visitation for generations. Ancient prehistoric rock carvings are located near the water and represent some of Hong Kong’s earliest human history. The site is regularly visited by hikers who make trips to the area for a peaceful escape from the urban environment. Even though there is no direct road to Tai Long Wan, as many as 1000 people make excursions there on public holidays. Tai Long Wan is surrounded by a country park, but is not within the park boundary.

1.2

THREATS

The primary pressure on Tai Long Wan is a desire to develop the area. During the last several years, various proposals for the use of Tai Long Wan have been floated in the press including using the dune area as the base for a “Club Med” style resort and for building a university specializing in Confucianism. These plans generated substantial community rancor. Residents of Sai Kung complained that development projects will simply allow urban sprawl to spoil the remaining countryside atmosphere. The area is so desirable as a potential tourist destination that prominent Hong Kong developers have been buying up property from indigenous landowners, especially landowners who live overseas. Developers are eager to begin work even without permits. In 1995, Master Choice Development illegally began bulldozing the area. The developer was fined for this infraction but this has not dampened development enthusiasm. 89 In late 1996, WWFHK drafted a proposed DPA map which was subsequently endorsed by 20 other concerned organizations and submitted to the TPB. The TPB responded and an actual DPA was gazetted in May 1997 and the OZP was made in May 2000. 90 89 90

“Police stop beach resort bulldozer in its track,” South China Morning Post, April 20, 1995. The DPZ and the OZP were essentially the same in nature. DPAs are periodically replaced by OZPs over time.

More recently, developers and indigenous villagers have wanted to increase the area given over to small homes from 1.9 hectares to 7.9 hectares. This would potentially mean the construction of 300 small houses, a fourfold increase in houses.91 On April 27, 2001, the TPB took a step towards precluding development. Emphasizing the value of environmental protection, the TPB re-zoned much of Tai Long Wan as a conservation area. However, as one supporter of the TPB’s actions commented, “Preventing development by zoning is not the be-all and end-all solution towards Tai Long Wan’s plight.”92

1.3

IMPACTS

Failure to build additional housing will have an immediate effect on developers who had hoped to profit from the project and on villagers who had hoped a larger population in the area would boost local incomes. However, there are serious questions about the need for additional housing. Vacancies in Sai Kung have been on the rise in the last few years. Tai Long Wan, even further away than Sai Kung, may be too remote for most people looking for housing. 93 Tai Long Wan is one of Hong Kong’s last natural legacies and development would be detrimental for the plant and the bird populations inhabiting the area. Even if development is prohibited in the most sensitive areas, such as the marshes, it may have indirect negative effects. For example, non-native seeds planted outside a new housing development or a resort may easily invade the dune areas and compete with endangered, native plants. In addition, stormwater run-off from housing units or a resort could contaminate marshes. Toxic fertilizers from gardens and other household chemicals could also affect the ability of birds to hatch healthy chicks. Tai Long Wan’s coasts are already being damaged by marine pollution from the Mainland, any additional infrastructure could act as a catalyst to destabilize the local ecology.

1.4

IMPLEMENTATION M EASURES

A “win-win” situation allowing for economic inputs into the Tai Long Wan community and ensuring long term protection for Tai Long Wan is possible. One possibility is land swaps and serious proposals have been made along these lines. Indigenous land owners would give their existing village lots to the government in exchange for parcels of land in a planned community with basic infrastructure. While this idea is appealing, it requires the government to establish a new planned community which requires complex logistics, a sizable budget, and time. There are also no guarantees that residents will want to move if given the opportunity. A land swap will not satisfy developers who will have lost their investment and might just lead to development in a different location. Another possibility is conservation easements. The government of Hong Kong or a private land trust could enter into a series of conservation easements with landowners in the Tai Long Wan area. Conservation easements are negotiated, voluntary agreements where a landowner agrees to restrict certain activities and uses on his or her property in exchange for compensation (see section 2.2 for a more detailed discussion of conservation easements).

“Campaigners hail decision to reject plans for 300 homes in Sai Kung’s Tai Long Wan Scenic spot saved from builders,” South China Morning Post, April 28, 2001. 92 “Important Area must be closely monitored,” South China Morning Post, (Letter to Editor) May 8, 2001. 93 “End of the Village Idyll: The closure of Kai Tak and rural overbuilding leave Sai Kung Reeling,” South China Morning Post February 28, 1999.

Information and Uncertainty In the case of Tai Long Wan, additional research will need to be done to set adequate compensation for conservation easements. Two methods are commonly used: Before and After Method- This method takes the value of a piece of land encumbered by the easement and subtracts the values of the land unencumbered by the easement. The idea is to arrive at a number that reflects the highest and best use of the property. To calculate the value of the land encumbered by the easement, appraisers either look at 1) recent sales that are encumbered by similar easements or 2) recent sales that have similar constraints applied such as zoning or access issues. The price attached to the value of the land encumbered by the easement needs to be adjusted by offsetting benefits and severance damages. Offsetting benefits increase the value of an easement because they provide benefits to easement owners and improve the value of adjacent lots because proximity to a protected area is usually considered desirable. Severance damages reduce the value of encumbered property because once an easement attaches to land it may create a â&#x20AC;&#x153;shadowâ&#x20AC;? of not just explicit but also implicit land use regulations that will affect a landownerâ&#x20AC;&#x2122;s choices about how to use the land. Calculating these values is difficult. Direct Comparison Method- In this method, sales of other land under conservation easement are compared to the easement being appraised. Factors considered include what interests are transferred in the easement sales, physical comparability of real estate, market opportunities for realizing economic potential, availability of capital for easement purchases, public attitude toward the resource being protected, and the offsetting benefits and severance damages unique to the sale. This method is not particularly useful in Hong Kong because there is no pool of comparable real estate with comparable easements. If easements become regularly implemented in Hong Kong, direct comparison can be used to set market prices in the future. Regardless of what method is used to set a fair price for a conservation easement, government agencies and conservation groups frequently find themselves paying above the market prices because they are operating with an implicit social discount rate that places priority on future benefits. This is very different from how developers place premiums on short-term opportunities and discount longer term benefits.

1.5

POLICY IMPLICATIONS

The first step to implementing a conservation easement is to determine whether a government agency or a private land trust would best implement a pilot easement. While government agencies have the advantage of existing staff and resources, no single existing government agency has the necessary experience to implement a conservation easement. A private land trust either specific to Sai Kung or encompassing numerous sites in the New Territories could be formed by interested citizens or conservation professionals as a tax exempt charity. It may also be possible to create a private land trust that works in close partnership with a government office. The second step is identifying the land owners in the area and setting up meetings with them to explain how conservation easements work. If there is sufficient interest on the part of the residents, then an easement can be drafted. Drafting an easement would require a baseline study of the status of existing resources and an appraisal of a fair compensation rate for encumbered land.

Ideally, a general easement would be negotiated between a land trust/government agency and an alliance of villagers. Easements can also be individually negotiated, but this may be time-consuming. Parties entering into the easement would be encouraged to consult lawyers to review the documents. A sample conservation easement (Appendix Three) could be used as a skeleton to build a site-specific easement. The document should be as specific as possible about the expectations of each party and should detail when and how payments will be made. After the easement is signed, the agreement must be monitored. This would include regular inspections at the expense of the land trust/government agency with possible financial assistance from the landowners in the case of flagrant breaches of the contract. Landowners could also be trained by ecologists to recognize and report environmental degradation such as soil erosion or declines in breeding populations. Conservation easements offer a market driven solution which balances conservation with rural economic pressure for development. If communities are willing to support easements, easement programs will give rural individuals the option to continue to live a more traditional lifestyle while receiving some supplementary income based on the land market. Conservation easements have the potential to be a very popular conservation mechanism for Hong Kongâ&#x20AC;&#x2122;s remaining rural areas where residents are not interested in transforming their communities into urban imitations. However, easements must be approached prudently. The Hong Kong government has been reluctant to explore conservation easements because of concerns over a flood of monetary claims. While this is a legitimate concern, this should not prevent Hong Kong from at least piloting a conservation easement to see if the program will be effective. In order to avoid opening a Pandora's box of demands for compensation, the government or an NGO could supply some form of dispute resolution mechanism. To ensure that villagers have confidence in the easement programs, the government will also need to be prompt and fair in its various payments. A conservation easement combined with a government buy-out option should address the compensation issues of landowners in the core conservation areas. Individuals who wish to divest themselves of their land and move to a community with urban amenities could be offered market value for their lands plus a negotiated sum for relocation. Individuals who wish to stay in the village could be invited to participate in an easement program. Before enacting any land conservation program, the government needs to identify what households would be invited to participate so that there is no confusion about the boundaries of the project. A number of individualized easements could be negotiated to meet the various needs of villagers who want continue farming or open small tourist enterprises, such as restaurants or guesthouses. The compensation rate could differ depending on what activities were permissible on a given piece of land. Compensation payments should be flexible to change with land use over time (e.g. opening or closing of tourist enterprises). Two compensation fees would be annually paid. One fee would be based on the value of the land calculated according to current and future income rates. This fee could either be in the form of a payment or a tax credit. The other fee would be a payment for any stewardship or management activities conducted by the villagers, such as protecting migrating species or replanting native species. Compared to easements, land swaps have disadvantages because it is difficult to identify land of equitable exchange value for a swap. Unless the government is able to move residents of Tai Long Wan to already developed areas of equal or greater market value, the government will be obligated to clear other open lands in order to relocate residents. This would have an adverse effect on the natural

environment. Land swaps can also be complicated if one or several village members hold out on the swap.

SECTION 2: 2.1

A CASE STUDY — LUK KENG INTRODUCTION

Located near Starling Inlet (Sha Tau Kok Hoi) in the North East New Territories, Luk Keng is the largest freshwater wetland in Hong Kong. It provides habitats for many birds that forage and breed in the Starling Inlet area and is home to rare wetland birds, including rails and bitterns. Indeed, the marsh is a particularly important feeding habitat for egrets, especially the Cattle Egrets that nest on A Chau Island. Luk Keng is also a “dragonfly hotspot.”94 This rich ecological area is an important location for cultural heritage too. Significant sites include Kang Yung Shu Uk (a declared monument), the Luk Keng Archaeological Site, Sha Tau Kok Old Stone Lime Kilns, Pok Tau Ha Old Lime Kiln and the Sha Tau Kok Shek Kiu Tau Archaeological Site. A number of ancestral halls and village houses within the thirteen recognized villages of the area have also been identified by the Antiquities and Monuments Office as structures of historical interest. Luk Keng lies along the southern periphery of Pat Sin Leng Country Park. A simple and effective method of preserving this area would be to extend the boundary of the Country Park. This recommendation, proposed by the University of Hong Kong’s biodiversity survey, offers the most straight-forward protection mechanism. There are a number of other options available to protect this area. One option is to establish a Heritage Reserve. Given Luk Keng’s unique attributes, this could provide an effective means of satisfying both private and public interests.

2.2

THREATS

The rich lowland marsh at Luk Keng has been threatened by developers wanting to turn the area into a golf course.95 Destructive recreational uses also pose a threat. In the winter of 1999/2000, a group playing with remote-controlled helicopters disrupted the ecosystem. 96 Growing cross-border traffic on Sha Tau Kok Road, the main access to the area, has also resulted in pollution and noise that may disturb the area’s ecology. Although parts of the lowland marsh are protected as Conservation Areas (CAs) or Sites of Special Scientific Interest (SSSIs), Luk Keng also encompasses land zoned as “village-type development” (30.42 ha), “government, institution or community” (2.42 ha), “recreation” (11.13 ha), and “agriculture” (109.15 ha).97 Development is meant to be concentrated in areas zoned as “village type development,” but conservation is not a stated objective of any of the three zones. Zone boundaries are determined by existing land-use patterns or outstanding Small House applications.98 Overall, the present system could countenance the ploughing up or draining of Luk Keng.

See, Yip, p. 11. and Porcupine! (August 2000; No. 21). World wide Fund For Nature Hong Kong, Letter to the Secretary for Planning, Environment and Lands, 22 February 1996. 96 See, Porcupine! (August 2000; No. 21). 97 The Draft Outline Zoning Plan for Luk Keng covers an area of 401 ha. In addition to the categories cited, there are also areas zoned as “green belt” (total 41.42 ha) and “coastal protection areas” (total 9.06 ha). 98 See, Draft Luk Keng and Wo Hang Outline Zoning Plan No. S/NE-LK/5, 18 May 2001, p. 5. 95

CAs in Luk Keng constitute a total of 192.47 ha, or less than half of the total area. SSSIs account for only 2.02 ha or less than one percent of the total area. While these zoning categories provide some level of protection, there is no active management or monitoring for conservation in the statutory plans.

3.3

IMPACTS

The current draft Outline Zoning Plan (OZP) for the Luk Keng area aims to place development in the area under statutory planning control. However, weaknesses in the statutory framework leave areas of recognized ecological and cultural value vulnerable to destruction. Any impact on the marshes of Luk Keng would be felt by the species that feed and breed in its waters and environs. Given the integrated nature of ecosystems within Southern China, it is also likely that other ecosystems in the region would be affected as well. The loss of Hong Kong’s largest complex of freshwater wetland would be a tragedy. The diversity of species that thrive in that habitat would abandon the area and strip Luk Keng of its natural richness. The area— currently known for serene countryside and natural features— would become little more than concrete chaos. Although difficult to quantify, it is likely that damage to Luk Keng’s biodiversity would also impose direct and indirect costs. For example, wetlands usually help reduce damage caused by storms and help treat organically polluted water. Destruction of the Luk Keng wetland may result in costs associated with substituting for the functions this area naturally fulfills.

3.4

IMPLEMENTATION M EASURES

A mitigation bank would provide a creative conservation solution for Luk Keng. 99 Mitigation banking is restoration, creation, enhancement, and preservation undertaken expressly for the purpose of compensating for unavoidable losses due to development. Mitigation banking occurs when compensation cannot be achieved at the development site or would not be as environmentally beneficial (see section 2.3 for details on mitigation banking). The first step in establishing a bank is to locate landowners in Luk Keng and determine whether they would be interested in membership. In return for allowing their land to be used for environmental or cultural preservation projects, private landowners in the Luk Keng area would receive payments from developers who need credits to offset the environmentally destructive aspects of their development in other areas. If landowners in Luk Keng are receptive to the project, an independent and expert working group could be created and charged with developing a master plan of the area. The master plan would include a number of projects from re-vegetating areas with native species to building field study centers. Each project would be assigned a number of credit points. More important projects might be assigned additional credits to encourage developers to invest their resources there. Developing project ideas requires accurate descriptions of baseline conditions. In addition, both an accounting procedure for tracking credits and debits and a project monitoring plan will be necessary to ensure that developers are performing quality work. Provisions for the long-term management and

Luk Keng may not be the most ideal site for mitigation banking. Luk Keng is simply used here to serve as an illustration of how the mechanisms discussed could be employed.

maintenance of a project should also be discussed as well as an instrument to provide for lasting, legally-binding protection. A government agency would be charged with developing a debit scheme to assign a certain debt for each development project. For example, a project to enlarge an existing business with large impacts on the environment may require 10 credits of mitigation. Developers could then "shop" for programs to earn credits. To protect the various parties, contracts would be drafted detailing the terms and conditions of the project including payment terms for the landowners. Ideally, mitigation projects should be performed either before or concurrently with a development project. This means that a mitigation bank should be constructed and functioning prior to development projects. The advantage of mitigation banking is that it ensures that the developers pay some of the costs of conservation. Ideally, mitigation banking also protects certain areas from development while offering private landowners an incentive not to develop land. The key to success is effective management of the credit/debit scheme and extensive monitoring. Once a number of projects have been completed through the bank, it may be possible to create a Heritage Reserve in the area through a statutory act. A Luk Keng Heritage Reserve would promote the areaâ&#x20AC;&#x2122;s ecological importance and accentuate its unique cultural attributes. This would be achieved through the creation of cultural trails and nature paths. The Luk Keng area currently has thirteen recognized villages. Thoughtfully planned cultural trails could weave together histories related to the natural evolution of the area and the development of indigenous life in Hong Kong. If designed properly, parallel ecologic al trails could be of high education value and low impact on the environment. For instance, boardwalks could protect sensitive, heavy-use areas. An educational reserve would be appealing for nature enthusiasts, tourists and school groups. Visitors could be instructed on the value of certain topographical features in the area such as the Sheung Wo Hang Fung Shui Woodland. Guided bird watching tours could be provided to educate the public on the importance of this freshwater wetland and its ecological function for the variety of species in the area. Heritage Conservation Trust Protecting Luk Keng through the creation of a Heritage Reserve need not involve complicated land swaps or costly compensation plans. By establishing a Heritage Conservation Trust, areas of very high conservation value may be acquired from private landowners who are uninterested in participating in the conservation program. At the outset, the Hong Kong government may be asked to contribute to the establishment of the Trust by providing an initial capital grant. Revenue derived from visitor fees could be directed into a common fund whose interest is used for the continual renovation and improvement of cultural sites. Management of the reserve could be undertaken either by an NGO or a government body like the AFCD. The success of a Luk Keng Heritage Reserve would rest on the active participation of all stakeholders. Indigenous villagers and conservation groups alike should be included not only in the formulation of the reserve but also in its development and maintenance. Negotiations should be held on how the reserve should be developed, what features or attributes of the area will be highlighted and the extent of continual stakeholder participation.

3.5

POLICY IMPLICATIONS

A Luk Keng Mitigation Bank and Heritage Reserve could potentially create economic opportunities in the area. Given the current economic slowdown, the government may find this prospect appealing. 100 Businesses around the world have found that environmental projects can yield unexpected gains. 101 Many countries eager to make conservation economically profitable have embraced eco-tourism, including Hong Kong. 102 A Heritage Reserve at Luk Keng could make Hong Kong a more attractive eco-tourism destination. Mitigation banks have been successfully implemented in a number of countries, especially the United States. In California, there are at least 43 operating conservation banks which vary in terms of what they protect and how they were developed. In San Diego County, the Boys and Girls Clubs of East County Foundation is helping to finance its continuing programs for area youth by creating the two-phase San Vicente Conservation Bank on a 1,500-acre former cattle ranch. Businesses have also profited through conservation banking. In Kern County, ARCO’s 6,000-acre Coles Levee Ecosystem Reserve sells credits to other landowners in the Southern San Joaquin County and helps finance ARCO’s oil and gas operations. Environmental reserves have been successfully implemented around the world. Japan used a similar approach to conserve the biodiversity of the Oze Area.103 Like Luk Keng, the Oze Area is primarily marshland with some lakes and ponds. New Zealand conserved the Pae O Te Rangi Area by converting the area from sheep and cattle farmland to a nature reserve.104 There are some key ingredients to every successful environmental reserve. These include: the enactment of regulations and access restrictions, clear definition of property rights, funding, removal of adverse incentives, positive subsidies, education and information provision, capacity building, and stakeholder involvement.

100

See, Kong Lai-fan and Ambrose Leung, “Long Valley decision reflects jobs push, says Tsang,” South China Morning Post, September 20, 2001. 101 See, Claudia Deutsch, “Green –and Lucrative, Too,” International Herald Tribune, September 10, 2001. 102 See, Sheelah Gullion, “Playing the Green Card,” ActionAsia, Feb/March 2000, edition 1, vol. 9, p. 30. 103 See, http://www.oecd.org/env/eco/. 104 Ibid.

CONCLUSION This report outlined strategies for nature conservation in Hong Kong. In addition to bringing together many policy suggestions that have been developed in Hong Kong, it discussed a number of new and innovative approaches to conservation that have been successfully implemented in other parts of the world. Such strategies show that conservation is both possible and profitable. As illustrated in the two case studies, conservation is possible in Hong Kong. However, Hong Kong must first realize that environmental and economic objectives need not be incompatible. Indeed, if initiatives are devised creatively and implemented carefully, conservation can produce opportunities rather than incurring costs. It is hoped that this report will stimulate debate as well as action regarding the disappearing heritage of Hong Kong. As stewards of the territory, we all have a responsibility for what we have inherited from past generations. We hope that this report will contribute to on-going efforts to protect Hong Kong and make it a better place for today as well as tomorrow.

ACKNOWLEDGEMENTS Thanks to the following people who contributed their time, knowledge and resources to our research efforts.

Ruy Barretto, Temple Chambers Malcolm Broom, Environmental Protection Department Richard Chan, Agriculture, Fisheries and Conservation Department Wai Kwan Chan, Hong Kong General Chamber of Commerce Dr. Cheng Luk-ki, Green Power William Cheung Wai Lung, World Wide Fund For Nature (Hong Kong) Cecilia Chu, Civic Exchange Dr. Richard Corlett, Department of Ecology & Biodiversity, The University of Hong Kong Dr. Andy Cornish, Dept. of Marine and Wildlife Resources, American Samoa (formerly at The University of Hong Kong) Jill Cottrell, Department of Law, The University of Hong Kong Mary Felley, Environmental Consultant Annie Fung Billy Hau, Kadoorie Farms & Botanic Gardens Elizabeth Hutton, Civic Exchange Lay Chik-chuen, Agriculture, Fisheries and Conservation Department Dr. Brian Morton, Swire Institute of Marine Science Terri Mottershead, Fellow, Center of Urban Planning and Environmental Management, The University of Hong Kong Dr. Yvonne Sadovy, Department of Ecology & Biodiversity, The University of Hong Kong Scott Smith, The Nature Conservancy Rachel Stern, Civic Exchange Kylie Uebergang, Civic Exchange Jackie Yip, Department of Ecology & Biodiversity, The University of Hong Kong Keith Wilson, Agriculture, Fisheries and Conservation Department Karen Woo Lai Yan, World Wide Fund For Nature (Hong Kong)

APPENDIX ONE ORGANIZATIONAL CHART OF GOVERNMENT ORGANS RELEVANT TO CONSERVATION

Environment & Food Bureau

Agriculture, Fisheries and Conservation Department (AFCD)

Agriculture

Fisheries

Environmental Protection Department (EPD)

Country & Marine Parks

Conservation

Air

Water & Waste

Environmental Assessment & Noise

Waste Facility Local Control

APPENDIX ONE ORGANIZATIONAL CHART OF GOVERNMENT ORGANS RELEVANT TO CONSERVATION

Planning & Lands Bureau

PLANNING

Town Planning Board

LANDS

BUILDINGS

Lands Registry

APPENDIX TWO INTERNATIONAL ENVIRONMENTAL LAWS Applicable to Hong Kong105

Protection of endangered plant and animal species: q q q q q

1946 International Convention for the Regulation of Whaling (and the 1956 Protocol) 1956 Plant Protection Agreement for the Southeast Asia and Pacific Regions (and the 1967 Amendment) 1962 Regulation of Antarctic Pelagic Whaling 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (and the 1979 Amendment) 1979 Convention on the Conservation of Migratory Species of Wild Animals

Preservation of natural habitats: q q q

1971 (Ramsar) Convention on Wetlands of International Importance 1972 Convention for the Protection of World Cultural and Natural Heritage 1988 Convention on the Regulation of Antarctic Mineral Resource Activities

Prevention and Control of Marine Pollution: q q q q q q

1969 International Convention Relating to Intervention on the Seas in cases of Oil Pollution Casualties (and the 1973 Protocol) 1969 International Convention on Civil Liability for Oil Pollution Damage (and the 1976 Protocol) International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (and the 1976 Protocol) 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (and the 1978, 1980, 1989 Amendments) 1973 International Convention for the Prevention of Pollution from Ships (and the 1978 Protocol) 1958 Law of the Sea Conventions

Protection of the Ozone : q q

1985 Vienna Convention for the Protection of the Ozone Layer 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (1990 Lond and 1992 Copenhagen Amendments)

105

Source: Roda Mushkat, â&#x20AC;&#x153;International Environmental Law: How Green Is the Future?â&#x20AC;? in New Legal Order in Hong Kong, Raymond Wacks (ed) (Hong Kong University Press: 1999), p. 631-632.

APPENDIX THREE

Steps Needed to Complete Conservation Easement

Groups that are interested in becoming easements holders have to undergo a rigorous process of locating the boundaries of a site, entering into negotiations over the site, contracting for an easement, and monitoring the easement. Steps in formulating an easement include: 1) Initial meeting with landowner: Useful for clarifying the potential qualifications of the land for easement protection and the willingness of the landowner to proceed with an easement. 2) Landowner consults legal and financial advisers 3) Title information: The landowner acquires an up to date title report and shares this with a potential easement purchaser to determine what liens or mortgages there are on the land. If there are mortgages, a mortgage subordination agreement must be arranged with the mortgage carrier to assure that the easement will not be extinguished in the event of a foreclosure. 4) Baseline study: These are systematic studies to examine a parcel of land and identify its value for recreation, ecology, historic preservation, or open space. Fieldwork will include the creation of vegetation and soil maps, wildlife observation, inventories of existing structures and improvements, and the establishment of permanent and easy to locate photo points. This will protect the conservation organization from any environmentally questionable alteration a land owner may make in the future and will protect a land owner from an overzealous conservation group who may attempt to demand more than what is specified in a contract. 5) Negotiate easement restrictions: A standard easement should include: •

A general description of a plot of land including its initial ecological and land use inventory. It is best to survey an area and have the boundaries marked and the metes and bounds of the area written in the legal description of the easement

•

Auditing requirements such as a regular environmental assessment

•

Specific limitations on appropriate uses of the easement with some language about using a reasonableness standard for unforeseen changes to the land

•

Requirements for notice and approval of any permitted uses and activities with a high potential for causing violations of a conservation easement Rights reserved to grantor

•

Requirement for demonstration of unencumbered ownership on the part of the grantor. If there is a mortgage, a easement holder should obtain a mortgage subordination from the lender

•

Rights of access by the easement holder

•

Basic land management requirements that are expected of the grantor

•

Indication of what remedies will be available for breach of contract. Remedies should probably include injunctive relief, restoration, damages, and any expenses including attorneys fees necessary for enforcement of the easement

•

Limitation on the liability of the easement holder. (An easement holder may still want to obtain adequate casualty and liability insurance coverage for the property)

•

Assumption of liability on the part of the grantor for matter within his control including pre-existing liabilities. In the case of areas with contamination, it may be necessary for an easement holder to obtain an environmental warranty and indemnity from the landowner

•

Statement of easement’s transferability with sale -related provisions

6) Easement appraisal: The landowner or the preservation agency/government agency/easement holder hires an independent, certified land appraiser to determine the monetary value of the land use rights. 7) Easement finalized 8) Easement deed filed: The deed of a conservation easement should be recorded as a perpetually binding legal document at the recorder’s office. The baseline report should also be filed as a record of the condition of the property at the time of the conveyance. 9) Stewardship: The holder of the easement should monitor the land regularly for violations. Violations of an easement restriction may lead to court action for breach of contract.