PLC Paper No. CB(1)968

Ref : CB1/BC/4/97

Paper for the House Committee meeting
on 20 February 1998

Report of the Bills Committee on
Protection of the Harbour (Amendment) Bill 1997

Purpose

1.This paper reports on the deliberations of the Bills Committee on Protection of the Harbour (Amendment) Bill 1997

Background

2.The Protection of the Harbour Ordinance (the Ordinance), which was presented as a private members’ bill, was enacted by the former Legislative Council on 27 June 1997. It provides for a principle of "presumption against reclamation" in the central harbour and requires all public officers and public bodies to have regard to that principle for guidance in the exercise of any powers vested in them. The Administration originally proposed suspension of the Ordinance by way of the Legislative Provisions (Suspension of Operation) Bill 1997 (the Suspension of Operation Bill). The Council however endorsed the deletion of the inclusion of the Ordinance in the Suspension of Operation Bill which was passed by the Council on 16 July 1997.

The Bill

3.The main provisions of the Bill are as follows-

1. - to revise the definition of "reclamation" to mean any works or projects carried out for the purpose of reclaiming land from the sea-bed or foreshore so that it may be used for dry land purposes;

2. - to delete references in the Long Title of the Ordinance relating to those parts that had not been passed by the former Legislative Council; and

3. - to add the word "central" before "harbour" in the heading of section 3 to reflect the geographical application of the "presumption against reclamation" principle.

The Bills Committee

4.A Bills Committee to study the Bill was formed at the House Committee on 19 December 1997. Dr Mrs TSO WONG Man-yin was elected Chairman of the Bills Committee. The Bills Committee held two meetings with the Administration and met the Society for Protection of the Harbour. A membership list of the Bills Committee is at Appendix I.

Deliberations of the Bills Committee

5.Members have no objection to the two proposed technical amendments to the Long Title and the heading of section 3 of the Ordinance. The deliberations of the Bills Committee focused on the need to revise the definition of "reclamation" and the ways to amend it.

Need for a revised definition

6.The existing definition of "reclamation" in the Ordinance means "any work over and upon any foreshore and sea-bed". Members note that this is the same as that provided in the Foreshore and Sea-bed (Reclamations) Ordinance, Cap127. As the meaning of "reclamation" is self-explanatory, some members have called into question the need to revise the definition. The explanation given by the Administration is that the Foreshore and Sea-bed (Reclamations) Ordinance has a much wider scope of application than the Ordinance and the definition of "reclamation" therein intends to cover works that may not be reclamation in the normal sense of the word. Given the widest literal effect, the present definition will apply to situations in which even the approval for repair of a cable laid on the sea-bed, or the routine maintenance of facilities within the central harbour, will be subject to the "presumption against reclamation" principle as provided for in section 3 of the Ordinance. This principle, according to the Administration’s legal advice, does not prohibit reclamation per se but requires that the public benefits of the preservation of the central harbour be weighed against the public benefits of the reclamation project before a decision is taken to proceed with the project. Whilst accepting the spirit of the Ordinance, the Administration considers it necessary, for the avoidance of doubt, to narrow the definition of "reclamation" to exclude non-reclamation projects.

7.Members hold the view that any changes proposed by the Administration must be in accord with the spirit of the Ordinance, i.e. to protect and preserve the central harbour as a special public asset and a natural heritage of Hong Kong people. To this end the majority members of the Bills Committee agree that a revised definition is justified to remove ambiguities. Dr Hon LEONG Che-hung, however, shares the view of the Society for the Protection of the Harbour that the undertaking of routine repair and maintenance works for underwater facilities is not subject to the "presumption against reclamation" principle and the existing definition should be retained.

Ways of amendment

8.Albeit supporting a revised definition, members of the Bills Committee consider the proposed version in the Bill failing to achieve the intended effect and will create more ambiguities than it is intended to remove. The Bill amends the definition to mean "any works or projects carried out for the purpose of reclaiming land from the sea-bed or foreshore so that it may be used for dry land purposes". Members have pointed out, inter alia, that the reference to "for dry land purposes" connotes the meaning of a works project to be carried out on the reclaimed land which is not necessarily the case; the inclusion of the word "projects" may not achieve the purpose of subjecting the planning process of a reclamation project to the "presumption against reclamation" principle as intended by the Administration; and the English and the Chinese versions of the definition are not identical in meaning. Some members are concerned in particular about the uncertainty of the application of the definition to cover works such as public dumping and construction of elevated structures on piles over sea surface.

9.The Bills Committee has explored various ways to address the inadequacies of the proposed revised definition. Members discussed the option of adding a proviso to the existing definition to list out those projects that should be excluded from the operation of the Ordinance but discarded it in view of the difficulties in compiling an exhaustive list. The Bills Committee also examined an alternative proposal made by the Administration to stipulate categorically in the definition to cover "any works carried out or intended to be carried out on or upon the sea-bed or foreshore which resulted in the formation of dry land including such dry land formed by public dumping or elevated structures on piles". Whilst a few members consider this revised definition acceptable, the majority members of the Bills Committee are of the view that it is superfluous to spell out in the definition the way by which the land is reclaimed. The more elaborated the word "reclamation" is defined, the more confusion it tends to create. For example, whether the reclaimed land must invariably be dry land or has to be dry all the time. Noting that any proposed definition is fluid and that in the event of litigations, the court will take into consideration the legislative intent of the Ordinance in interpreting the meaning of "reclamation", the majority members of the Bills Committee accept another simpler version put forth by the Administration which defines the word as meaning "any works carried out or intended to be carried out for the purpose of forming land from the sea-bed or foreshore". This revised wording is straight-forward and reflects more accurately the policy intention that not only the reclamation but also the planning process of the reclamation project will be subject to the "presumption against reclamation" principle.

Others

10.The Bills Committee notes the suggestions made by the Society for the Protection of the Harbour to amend the Bill to the effect that reclamation in the harbour should only be authorised if there is no other viable alternative and that the scope of the Ordinance be expanded to cover the whole Victoria Harbour. Members accept the Administration’s views that to impose a rule that reclamation should be taken as a last resort goes beyond the "presumption against reclamation" principle and that the geographical scope of the Ordinance has already been set out in Schedule 1. The two proposed amendments are considered outside the ambit of the Bill and have not been taken up by the Bills Committee.

Conclusion

11.Subject to the Committee stage amendment to be moved by the Administration at I , the Bills Committee supports the Bill.

Recommendation

12.The Bills Committee recommends the resumption of the Second Reading debate on the Bill on 4 March 1998.

Advice sought

13.Members are requested to support the recommendation of the Bills Committee.

Provisional Legislative Council Secretariat
17 February 1998

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Appendix I

Bills Committee on
Protection of the Harbour (Amendment) Bill 1997