The Queen's Pier saga: unveiling the inconvenient truth of heritage conservation legislation in HongKong

Abstract



With the increasing recognition of the importance of heritage conservation, it would not be adequate merely to control archaeological discoveries or to preserve items of historical interest. In this society where resources are scarce, rules have to be made for enabling the selection of what to keep and what not to, and if to be kept, how the heritage resources could be sufficiently protected. Under the present system, for instance, graded buildings afforded no legal protection save for Grade 1 buildings which may be qualified and ready to be declared as “monuments”. Also, there is no system for appeal if the building is graded against the owner’s will. Through the years, the Ordinance had not been reviewed to meet with the social development and has become obsolete and out-of-date. It is no longer able to give sufficient legal protection to the heritage conservation in Hong Kong.

Following the Queen’s Pier incident and the Court of First Instance decision which will be discussed in details, the need for a more proper and comprehensive heritage protection legislation becomes more intense and imminent. One may recall that the Chief Executive had announced a range of initiatives on heritage conservation in the 2007-2008 Policy Address which was delivered on 10th October 2007. Yet, it is submitted that a policy initiative no matter how ambitious cannot be achieved without the foundation of a concrete legal framework. Objective standard and guidelines have to be established for future precedent. It is only by then certainty and sustainability on conservation can be achieved. The issues that we are going to discuss in this article is, by examining the development of heritage protection law of Hong Kong, whether Hong Kong, being part of China and a State Parties which have adhered to the World Heritage Convention, has afforded and taken sufficient legal measures in securing our cultural heritage. The recent judgment of the Court of First Instance has thrown light to the fact that our heritage legislation, namely the Antiquities and Monuments Ordinance is inadequate to safeguard some of the historically significant heritage in Hong Kong. There are of course counter-argument that conservation is a hindrance to urban development and possible impingement of private property right. In this dissertation, we will examine, from a legal point of view, how the legal framework of our system, insofar as heritage conservation is concerned, can be improved and/or modified or even advanced.