In the news, we often hear about Hong Kong’s “indigenous people” – the indigenous inhabitants of the New Territories (“NT“), represented by the powerful Heung Yee Kuk (i.e. Rural Council). Why are they recognized as “indigenous” with special rights to build 3 storey “small houses” (丁屋) when everyone else has to buy expensive homes? Let me offer a very brief introduction of who they are by looking at Hong Kong’s colonial history.
Hong Kong and Kowloon were ceded whilst NT was leased from China
As you may know, Hong Kong Island and Kowloon were ceded to Britain through the First and Second Opium Wars (1842 and 1860 respectively). However, the British soon realized that other European powers were encroaching into China. Britain wanted further lands as a buffer zone to protect her interests in Hong Kong. Britain’s answer was to lease what has become known as the NT from the Qing Dynasty (清朝) in 1898, for a period of 99 years.
The British allowed local inhabitants their traditional way of life
There was no particular reason why the lease was 99 years. The British thought 99 years basically meant “forever.” Since the NT was not technically part of Britain but of China (and to prevent local resistance), the British guaranteed the NT inhabitants’ rights to freely exercise their religious rights, ceremonies, social customs and lawful private property and interests according to Chinese customary law, subject to the British magistrate.
A new people was created within the Crown Colony of Hong Kong
The Crown guaranteed the NT indigenous people that they would not be “interfered with” in their everyday life. On February 19, 1900, Governor Sir Henry Arthur Blake proclaimed,
“I would also impress upon you that this territory having been leased by his Imperial Majesty the emperor of China to her Britannic Majesty the Queen, as subjects of her majesty’s empire, your commercial and lauded interests will be safe-guarded, and that your usages and good customs will not in any way be interfered with.”
Britain’s policy on the NT was to preserve “Chinese customary law.” The New Territories Land Ordinance of 1905 also provided for indigenous land succession. Title was assumed by the Crown which would alienate land to indigenous claimants holding the NT land prior to 1898.
Chinese customary law means the Great Qing Code as applied in 1843
What constitutes “Chinese customary law”? It is the law that was prevalent in the year 1843, when Hong Kong was ceded to Britain from China. This law was the Great Qing Legal Code (大清律例). However, problems arose when “Chinese customary law” was later interpreted to encompass the rights to live on the sites of their ancestral homes, to maintain their traditional burial sites, and to construct their own dwellings there.
From Chinese customary law to introduction of Small House Policy
By the 1970’s, the Heung Yee Kuk lobbied the Government that their male descendants had traditional “rights” to build houses on their land. But since Britain’s arrival, their lands had been unlawfully seized. The “Small House Policy” was introduced in 1972 as a deal in return for giving up some of their land to the Government to build new towns in the NT. Each Male villager was now entitled to apply for a piece of land to build a 3 storey “small house.”
A brief historical overview suggests that “NT indigenous inhabitants” are a socially constructed category by the British. In the 1980’s, the Heung Yee Kuk successfully lobbied the Sino-British Land Committee to register the 652 indigenous villages in the NT, and the Basic Law Drafting Committee to insert Article 40 into the Basic Law – turning “Chinese customary law” into constitutionally protected rights. This is why we have NT indigenous inhabitants today.