Lack of Protection is Destroying Hong Kong’s Marine Environment
DKL Hong KongFounding partner
Hong Kong’s record in protecting the environment is mediocre at best; but it is especially poor in respect of our marine environment. In this edition we revisit the abysmal lack of action by the government to establish a meaningful, robust network of marine protected areas.
——The Editors
Marine protected areas
Marine protected areas (MPAs) are a vital tool in the world-wide effort to halt the alarming degradation of marine ecosystems. The main causes of the extensive damage to the marine environment which has occurred during the last 4 decades, particularly, are：
●overall rapid increase in human population
●dramatic increase in coastal urbanisation and development
●over-fishing and general over-exploitation of marine resources
●harmful fishing practices, such as trawling and other indiscriminate practices by deep-sea fishers
●in coral reef regions, the use of explosives and poisons (e.g. cyanide) to harvest once rich coral fisheries
●sedimentation and pollution from land-based human activities; e.g. intensive, chemical-reliant agriculture
●deliberate or negligent dumping of waste; e.g. plastic waste
●infrastructure development
●resource extraction; e.g. oil and sea-bed minerals
●increased shipping traffic and associated ship-related pollution.
Marine ecosystems are by far the least known of our ecosystems, especially in developing countries. Of course, Hong Kong is not a developing country; we have the financial and technical means to fully research and implement measures for adequate protection of our own marine environment. So it is scarcely credible that to date the government has refrained from implementing meaningful measures to conserve and protect Hong Kong’s marine ecosystems.
As has been widely demonstrated in other countries, a key measure for effective marine environmental protection is the creation and robust monitoring of MPAs. A MPA is “any area historical and cultural features, which has been reserved by legislation to protect part or all of inter-tidal or sub-tidal terrain, together with its overlying waters and associated flora, fauna, the enclosed environment” (IUCN 1988)
A MPA is only as effective as:
(i) the extent to which it limits human activities; and
(ii) the degree to which the restrictions are policed and enforced. There are numerous examples of MPAs throughout the world which represent no more than official tokenism in the name of environmental protection, simply because the restrictions are watered-down to become meaningless, and/or responsible agencies do not enforce the regulations governing the MPA. Regrettably, Hong Kong’s few MPAs largely fall within these categories.
Hong Kong has a land area of 1092 km 2 and territorial sea area of 1650 km2. Approximately 75% of the land is non-urban, countryside; and nearly 40% is designated country parks, which essentially, but not completely, prevents development or exploitation within those areas.
Twenty-four country parks have been created since 1978; they cover a total of 440 km2.
Their stated purpose is nature conservation, countryside recreation and outdoor education.
Additionally, Hong Kong has 11 designated “special areas” which occupy a total of 846 ha within country parks and are dedicated to nature conservation.
In stark contrast, our marine environment is far less protected. Hong Kong’s MPAs comprise 6 marine parks and 1 marine reserve, totaling a 4050ha. Thus, only approximately 34 km2 of our 1650 km2 marine area is a declared MPA.
The marine parks and reserve have been gradually established since 1996 under the Marine Parks Ordinance (Cap.476). They are:
The most recently established marine park is Southwest Lantau MP, which was designated in April 2020 with the main objective of affording some protection to our dwindling Chinese White Dolphin population.
Under S.3(1) of the MPO, control and management of MPs and MRs are vested in the Country and Marine Parks Authority. The Director of the Department of Agriculture, Fisheries and Conservation is the “Authority” who has, in effect, virtual control of all matters to do with MPs and MRs: S.3(2).
The creation of a MP or MR is, however, initiated by the Chief Executive, who may direct the Authority to prepare a draft map of the proposed area: S.7(1). The map is then gazetted :S.8. and members of the pubic have 60 days to object to any aspect of the proposed MP: S.12. The Board hears and determines objections: S.5(a); otherwise it is merely a consultative body to advise the Authority: S.5(a)
The Chief Executive may give direction to the Authority as to the exercise of his powers under the MPO: S.6.
Otherwise, the Authority has unfettered discretion to take any measures he sees fit in respect of MPs and MRs for the purposes of achieving the goals set out in S.4, which include:
●facilitating recreational activities
●providing opportunities for educational and scientific studies
●managing use of resources to meet the needs and aspirations of present and future generations of mankind
This last objective may appear to require measures genuinely aimed at conserving the marine environment of MPs and MRs. However, it’s anthropocentric foundation –typical of environmental legislation of the last century – renders it more a tool for facilitating exploitation, rather than protection, of the subject ecology and environment. And, as we shall see, such is the sad case in the short life of our MPs and MR. It is perhaps to be expected, when the Director of Fisheries and Agriculture doubles up as also the guardian of the environment.
The Marine Parks and Marine Reserves Regulations (Cap 476 A) regulate or ban certain activities within MPs and MRs:
●a total ban on all fishing, hunting or the removal of any plant: S.3(1), except: the Authority may (and does) issue a permit under S.17(3) for fishing:S.3(1A)
●nests may not be removed or disturbed: S.3(2)
●a ban on water skiing: S.5(1)
●swimming, diving and boating are forbidden: S.6
●fish culture may not be established: S.7
Sadly, but not surprisingly, experts in marine ecology generally concur that the MPs and MR have done little to improve Hong Kong’s marine environment. It should be noted that Hong Kong’s marine territory is home to an impressive range of approximately 6000 marine species and corals – more than many other countries. But the political will to stand up to the powerful fishing lobby, and other exploiters, and to create and enforce meaningful protections is lacking. Thus, while swimming is banned in MPs, the AFCD’s own website extols MPs attractions for divers, for example.
A serious, meaningful MPA would prohibit any human activity, or at least, exploitive activity; but a mere 0.019% of Hong Kong’s seas is a no take zone.
The government hopes to designate 5% of our seas as MPAs by 2023.
The WWF considers this “grossly inadequate to conserve marine resources”.
Apart from the fact our MPAs are way too small, there are serious and, indeed, blindingly obvious problems with the way they are administered. The following are examples (this is not an exhaustive list).
●continued pressure from fishing by local villagers and commercial fishers.
●consequently, fish stocks within MPs/MR are not recovering.
●damaging fishing methods are still allowed, such as the use of non-targeted techniques: e.g. filament nets.
●no transparent health checks on MPAs.
●no proactive science – based MPA selection process
●no clear target or date for future MPs/MRs.
A glimmer of hope is afforded by the government’s ban on commercial fishing in 4 MPS from April 2020, but it is not much more than a faint glimmer. And it is astounding that the government would allow any commercial fishing in a MPA in the first place.
Conclusion
As the government and AFCD continue to move at their usual glacial conservation pace, the prospects for the health of our marine environment are no brighter than they were 25 years ago, regrettably.
❈The above article does not consist of any legal advice. Should you need any Hong Kong or overseas legal advice, please contact the following person of DKL Hong Kong:
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石小雨（Catherine Shi）
香港及前海办公室律师
Catherine是徳和衡前海办公室的海外业务主管，也是其香港联营所的注册律师，她在中国内地和香港有近十年的法律服务经验。凭借其深厚的中国法和普通法背景，她最擅长为中国客户提供海外法律解决方案，尤其是统筹跨国家和跨法域的复杂诉讼和交易。
业务领域：境外基金和信托、跨境诉讼和投融资纠纷
邮箱：catherineshi@deheheng.com
作者简介
简家骢
DKL 香港创始合伙人
质控人简介
孙 甜
合伙人
跨境投资并购业务中心总监
suntian@deheheng.com