PLC Paper No. LS 68
Paper for the House Committee Meeting of the Provisional Legislative Council
on 19 December 1997
Legal Service Division Report on Protection of the Harbour (Amendment) Bill 1997
Object(s) of the Bill
To amend the long title of the Protection of the Harbour Ordinance (106 of 1997) (the Ordinance) and to revise the definition of " reclamation " in the Ordinance.
PLC Brief Reference
2.PELB(CR) L/M 81/95 Pt. 7 dated 21 October 1997 and PELB (CR) L/M 81/95 Pt. 8 dated 2 December 1997 issued by the Planning, Environment and Lands Bureau.
Date of First Reading
3.17 December 1997.
Comments
4.The Ordinance was enacted in June 1997 following the passage of the Protection of the Harbour Bill which was presented as a private members' bill. Its continued operation was proposed to be suspended by clause 2 of the Legislative Provisions (Suspension of Operation) Bill 1997 (the Suspension of Operation Bill) which was introduced into the Provisional Legislative Council on 9 July 1997. A Bills Committee was formed to study the Suspension of Operation Bill. The relevant part of its report is at Appendix A. The Suspension of Operation Bill was passed by the Provisional Legislative Council on 16 July 1997 with clause 2 deleted from it.
5.The key provision in the Ordinance is section 3 which provides as a principle that there is a 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 boundaries of the central harbour are set out in the Schedule to the Ordinance which provides the boundary on the east as a straight line from Hung Hom to North Point and on the west as a line following the course of the easternmost conduit of the Western Harbour Crossing Tunnel. " Reclamation " is defined in the Ordinance as to include any work over and upon any foreshore and sea-bed. The wording of this definition is the same as that provided in the Foreshore and Sea-bed (Reclamations) Ordinance (Cap. 127).
6.According to the latest PLC Brief , the Administration is of the view that if a broad interpretation is adopted for the definition of " reclamation " , works or projects which are not reclamation in the normal sense, e.g. 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 under section 3 of the Ordinance. The revised definition is, according to paragraph 3(a) of that Brief, for the avoidance of doubt so that reclamation under the Ordinance would cover only 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. The revised definition would also have the effect of narrowing the present definition to what is being proposed. Whether this amendment should be regarded as seeking to change the policy of the Ordinance would be a matter for members. However, in order to assist members, Legal Adviser has written to the Administration to ask for clarification of the purpose for amending the definition of " reclamation " . A copy of the letter is at Appendix B.
7.Other amendments proposed in the Bill are minor and technical in nature.
Recommendation
8.Subject to members' views on the need to form a Bills Committee to study the Bill, Legal Adviser will report further when the Administration's reply to the letter in Appendix B is available.
Encl.
Prepared by
MA Yiu-tim, Jimmy
Legal Adviser
Provisional Legislative Council Secretariat
16 December 1997
LS 68(01)
PLC Paper No. CB(1)33/97-98
Ref.: CB1/BC/1/97
Report of the Bills Committee on
Legislative Provisions (Suspension of Operation) Bill 1997
Protection of the Harbour Ordinance
16.The Bills Committee notes the objection of the Society for Protection of the Harbour to the proposed suspension of the Ordinance, as well as the Administration's grave concerns about uncertainties caused by the declarative principle of presumption against reclamation in the central harbour and the public law duty on public officers and public bodies to have regard to the principle for guidance in the exercise of their powers.
17.In examining the queries raised by the Administration, members have taken note of the advice of the Committee's legal adviser that the presumption, though unusual in legislation, was legally effective and that in litigations, the court will take into consideration the legislative intent when interpreting relevant provisions in specific cases.
18.In order to gauge the impact of the Ordinance, members have requested for further information on the extent to which Government operations are/will be affected. In response, the Administration highlights four major reclamation projects in the central harbour currently under planning which may be subject to serious uncertainties and disruptions should the decision to undertake reclamations be challenged in court.
19.The Bills Committee has not taken a position on the proposed suspension. Nevertheless, to address some members' concerns, the Administration has confirmed that it will not commence any major reclamation works even if the proposed suspension is passed.
Provisional Legislative Council Secretariat
15 July 1997
LS 68(02)
LS/B/34
2869 9419
2868 2813
16 December 1997
Mr Wilson FUNG
Principal Assistant Secretary for
Planning, Environment and Lands
Planning, Environment and Lands Bureau
Room 903, Murray Building
Garden Road
Central
Hong Kong
Dear Mr Fung,
Protection of the Harbour (Amendment) Bill 1997
The key provision in the Protection of the Harbour Ordinance (106 of 1997) (the Ordinance) is section 3 which provides as a principle that there is a 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.
According to paragraph 3(a) of the Provisional Legislative Council Brief (ref: PELB(CR) L/M 81/95 Pt. 8), the Administration states that " For the avoidance of doubt, it is desirable to refine the definition to cover only works or projects carried out for the purpose of reclaiming land from sea-bed or foreshore so that it may be used for dry land purposes'. However, the Executive Council's decision on this point as stated in paragraph 2(a) of the PLC Brief was to amend the Ordinance by " narrowing the definition of " reclamation " to mean only works that would turn an area of water into an area usable for dry land purposes'. Would you please clarify which of the two statements represents the purpose for amending the definition of " reclamation " ?
On the technical aspects of the proposed definition for " reclamation " , would you please clarify what " dry land purposes' is intended to cover and the reason for including the words " or project " after works? In addition, it should be noted that under the Foreshore and Sea-bed (Reclamations) Ordinance (Cap. 127), under which the Chief Executive in Council may authorize reclamations, the word " reclamation " is defined in identical terms with that in the Ordinance. In the light of section 3(2) of the Ordinance, there seems to be merit in providing identical definitions for " reclamation " in the two ordinances.
In relation to the Chinese text of the definition of reclamation, may I suggest that 
be amended to 
.
In addition, may I also suggest repealing the definition of " relevant Ordinance " since the expression does not appear in other provisions of the Ordinance.
The House Committee will consider this Bill at its meeting on 19 December 1997, I should be grateful if your reply to this letter could reach me by 18 December 1997.
Yours sincerely,
(Jimmy MA)
Legal Adviser
