Indigenous Rights in the U.S. and Hong Kong - A Comparative Analysis

It may come as a surprise that Hong Kong is home to thousands of Indigenous people, the descendants of those who lived in one of the 642 New Territories villages before 1898 [1]. Today, they continue to enjoy unique burial privileges and special rights to the preservation of cultural relics. Most importantly, the Small House Policy confers upon male New Territories Indigenous inhabitants the opportunity to apply for permission to build a small house for themselves, by way of:

Free Building License, on agricultural land owned by the applicant himself free of premium;

Private Treaty Grant, on government land at concessionary premium; or

Land Exchange, free of premium for the private land portion and at concessionary premium for the government land portion [2].

In the landmark decision of Kwok Cheuk Kin v. Director of Lands (2019) [3], the Hong Kong Court of First Instance ruled that male Indigenous villagers do not enjoy any rights in the form of Private Treaty Grants or Land Exchanges. The Court held, in other words, that they do not have the right to apply for permission to build houses on government land at concessionary premium. The rationale for this decision was that such Small House Policy rights do not constitute ‘lawful traditional rights and interests of the New Territories Indigenous inhabitants’ under Article 40 of the Basic Law [4]. By contrast, rights in the form of Free Building Licenses, allowing Indigenous males to apply to build on their own land free of premium, were held to be protected under Article 40 [5].

With no precedent existing to inform it on the subject, the Court’s inexperience led it to make several crucial errors: the Court 1) failed to adhere to the ordinary meaning of the Constitution, 2) took into account irrelevant extrinsic materials in its construction of statutory purpose, 3) failed to consider the perspectives of the Indigenous people, and 4) ignored the relevance of public values.

This essay proposes analytical improvements to the Hong Kong Court’s approach to interpreting constitutional Indigenous rights, drawing inspiration from the U.S.’s rich Native American case law. The American case authorities are instructive for two reasons: first, by virtue of the long history of legal disputes concerning the rights of Indigenous Americans, U.S. courts have developed a systematic methodology in analyzing and interpreting tribal treaties; second, although the substantive content of the right at issue may be different in each case, it is possible to use American case law to extrapolate general principles common to all Indigenous rights cases.

Adherence to the Text

First, the Hong Kong Court of First Instance failed to abide by the ordinary meaning of the Constitution [6]. The judicial philosophy of Textualism should be adopted by the Hong Kong Court for three key reasons: first, under the separation of powers principle, the role of the judiciary is to interpret and apply the law [7]. Textualism accords due respect to the democratic legislative process, and prevents judges from slipping into lawmaking [8]. Second, textualism upholds the principle of fair notice by ensuring that those who are constrained by legal rules know exactly what those rules mean. Otherwise, legal unpredictability could lead to injustice against individuals who are uncertain as to the meaning of the law [9]. Thirdly, textualism acknowledges the limits of judicial competence. As judges are not well placed to make political or socially optimal decisions, given their lack of legitimacy and expertise, judicial behavior should be confined to those tasks that judges are best equipped to perform -- interpreting the texts of statutes [10]. As Justice Scalia pointed out in Kasten v. Saint-Gobain Performance Plastics (2011), ‘What Congress enacted in 1938 must be applied according to its terms, and not according to what a modern Congress (or this Court) would deem desirable.’

In this case, the Court interpreted ‘traditional’ rights to mean those Indigenous rights ‘traceable’ to before the 1898 New Territories Lease, under which the New Territories had been leased by Qing China to the United Kingdom for 99 years [11]. Yet, nothing in Article 40 of the Basic Law requires a historical tracing exercise. By reading into the words of the Constitution something that is not there, the Court has not only created uncertainty as to how the meaning of the Constitution should be determined, but it has also rendered ineffective the Basic Law’s promise to grant protection to the Indigenous villagers’ traditional rights, as would have been reasonably understood by the whole legislature when it voted on the words of the Constitution [12].

‘Traditional’ rights and interests should instead be interpreted as those enjoyed by Indigenous people at the time when the Basic Law was drafted. The words ‘shall be protected’ in the provision also support the conclusion that the statute affords mandatory protection for all forms of Small House Policy land grants. This interpretation is most compatible with a holistic construction of the Basic Law. As Justice O’Connor rightly pointed out in Hagan v. Utah (1994), when two statutes ‘build’ on one another in the field of Indigenous rights, ‘both statutes must be read together’ [13]. Since Article 122 of the Basic Law [14] validates the existing rent arrangements concerning small houses, this reinforces the construction that Article 40 protects all Small House Policy land grants.

Moreover, as Justice Gorsuch put it in McGirt v. Oklahoma (2020), if the legislature seeks to abrogate Indigenous rights, it must clearly express its intent to do so [15]. In Herrera v. Wyoming (2019), Justice Sotomayor suggested a useful test: there must be ‘clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty’ [16]. Without express language otherwise, the drafters of the Basic Law must be taken to have accepted the Small House Policy’s continuing validity by referring to small houses without qualification in Article 122. Consequently, faithfulness to the text would have not only ensured that the Court fulfilled its proper constitutional role, but it also would have achieved a more honest reading of the Constitution, affording greater protection to Indigenous rights.

Evaluation of Extrinsic Materials

Secondly, although historical context can be a valuable interpretative tool in elucidating semantic ambiguity [17] and ascertaining statutory purpose [18], the Court erred in placing too much emphasis on an appraisal of the views of government officials and practices which departed from official government policy.

By scrutinizing the opposing statements of Sir Cecil Clementi [19], the Crown Solicitor and the Attorney General [20], the Court fell into what Justice Gorsuch termed as the ‘pitfall of elevating commentary over the law’ [21]. Similarly, the Court should have explicitly rejected evidence of customary practices which departed from the law. Such practices include colonial District Officers permitting closed village auctions, in contravention of the Executive Council’s Memorandums [22]. These historical conventions defied official government policy and thus represented an arbitrary and inaccurate yardstick by which to determine exactly which ‘lawful’ rights Indigenous people enjoyed [23]. Accordingly, in delineating the types of extratextual sources that would assist in ascertaining the content of constitutional rights, the Court should have recognized that practices inconsistent with the law cannot override the law -- to do so would legitimize unlawful conduct [24].

The Importance of Indigenous Perspectives

A noteworthy omission from the Court’s scope of inquiry is any examination of what the Indigenous people understood their ‘traditional lawful rights and interests’ to mean. The State’s obligation to protect minority interests means that any ambiguities should be construed against the drafter who ‘enjoys the power of the pen’ [25].

Interestingly, in the U.S., defining tribal treaties from Indian perspectives is a well-settled approach [26]. In Herrera v. Wyoming (2019), the Supreme Court noted that the Crow Tribe appreciated the word ‘unoccupied’ to denote areas free of non-Indian settlement [27]. In Washington State Department of Licensing v. Cougar Den Inc. (2019), Justice Breyer gave preponderant weight to the Yakamas’ understanding that the treaty terms gave them unrestricted use of public highways, including the right to travel with goods for the purposes of trade [28]. Although the concept of tribal sovereignty is not directly applicable to the Hong Kong context, a contractual conception of the Constitution nevertheless demands that the interests of both the State and the people determine its interpretation [29]. The legitimacy of government depends upon the consent of the governed [30], the latter of which includes the Indigenous people, who had an (albeit indirect) say in the text of the Constitution through their participation in the Basic Law Consultative Committee [31].

The Normative Role of the Court

Finally, an interesting thought experiment is whether a different outcome might have been reached if the Court had engaged with the common law presumption that ‘the lawmaker does not intend to produce consequences which are unreasonable, objectionable, undesirable or unfair’ [32]. By shying away from normative canons of construction [33], the Court sidestepped uncomfortable questions regarding whether courts should construe ambiguities to further public values or objectives [34]. One can only wonder whether the Hong Kong Court would have found wholly in favor of the Indigenous villagers if, as Justice Gorsuch’s judgment in McGirt v. Oklahoma indicated, it had held some moral commitment to the idea that the government should be ‘held to its word’ in its dealings with Indigenous people [35].

Conclusion

Given the emerging significance of Indigenous rights around the world, the Hong Kong Court’s attempts to navigate this controversial subject is commendable. Moving forward, the U.S. Supreme Court’s approach to American Indian rights will provide an illuminating guide for the Hong Kong courts, and perhaps courts in other jurisdictions, to devise a principled methodology for analyzing and safeguarding Indigenous rights.

References

1. Sino-British Joint Declaration 1984, Annexe III, §2. The New Territories is one of the three main regions of Hong Kong. It makes up 86% of Hong Kong’s territory, and contains around half of the population of Hong Kong.

2. Kwok Cheuk Kin v. Director of Lands [2019] HKCFI 867 §9; see also: Hong Kong Lands Department, ‘How to Apply for a Small House Grant’ (December 2014).

3. [2019] HKCFI 867; at the time of writing awaiting appeal.

4. Kwok (n 3) §117 (Anderson Chow J). Article 40 of the Basic Law reads: ‘The lawful traditional rights and interests of the indigenous inhabitants of the “New Territories” shall be protected by the Hong Kong Special Administrative Region.’ The Basic Law is Hong Kong’s Mini Constitution.

5. Kwok (n 3) §116 (Anderson Chow J).

6. Kasten v. Saint-Gobain Performance Plastics Corp 563 US 1, 22 (2011) (Scalia J, dissenting); see also: McGirt v. Oklahoma 591 U.S. ___ 18 (2020) (Gorsuch J).

7. The Law Reform Commission of Hong Kong, ‘Report: Extrinsic Materials as an aid to Statutory Interpretation’ §3.16 (March 1997) <http://www.hkreform.gov.hk> accessed 1 October 2020; Antonin Scalia, ‘Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Law’ (Princeton University Press, 1997), p.17.

8. John F. Manning, ‘Federalism and the Generality Problem in Constitutional Interpretation’, 122 Harv. L. Rev. 2003 (2009), 2045.

9. Note, ‘Textualism as Fair Notice’, 123 Harv. L. Rev. 542 (2009) 551.

10. See generally: Adrian Vermeule, Judging Under Uncertainty (Harvard University Press, 2006).

11. Under the Convention between the United Kingdom and China, Respecting an Extension of Hong Kong Territory (commonly known as the Second Convention of Peking), the New Territories was leased by Qing China to the UK for 99 years.

12. See: Green v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1989) (Scalia J).

13. McGirt (n 6) (Roberts CJ, dissenting) 14, citing Hagen v. Utah, 510 U.S. 399, 415 (1994).

14. Article 122 of the Basic Law reads: ‘In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, where the property is granted to, a lessee descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the previous rent shall remain unchanged so long as the property is held by that lessee or by one of his lawful successors in the male line.’

15. McGirt (n 6) 8 (Gorsuch J). See also: Solem v. Bartlett, 465 U. S. 463 (1984); Nebraska v. Parker, 577 U.S. ___ (2016).

16. Herrera v. Wyoming (Sotomayor J) 587 U.S. ___ 14 (2019), citing Minnesota v. Mille Lacs Band of Chippewa Indians 526 U.S. 172, 202 (1999). This is another example of a substantive canon, namely that ‘repeals by implication are not favoured’: Morton v. Mancari 417 U.S. 535, 549 (1974) (quoting Posadas v. Nat’l City Bank 296 U.S. 497, 503 (1936); Antonin Scalia, Bryan A. Garner, ‘Reading Law: The Interpretation of Legal Texts’ (Thomson West, 2012), 327.

17. McGirt (n 6) (Gorsuch J) 20, citing Milner v. Department of Navy, 562 U. S. 562, 574 (2011); Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 16, 17 (1997) 37.

18.  John F. Manning, ‘What Divides Textualists from Purposivists?’ 106 Colum. L. Rev. 70 (2006) 84; Jonathan T. Molot, ‘The Rise and Fall of Textualism’ 106 Colum. L. Rev. 1 (2006) 65; City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 450 (2002) (Scalia J, dissenting).

19. A member of the Land Court appointed in 1903 who later became Governor of Hong Kong between 1925 and 1930.

20. Kwok (n 3) §§103-104.

21. McGirt (n 6) (Gorsuch J) 26.

22. Kwok (n 3) §§93-96.

23. McGirt (n 6) 22 (Gorsuch J).

24. McGirt (n 6) 35 (Gorsuch J); contrary to McGirt (n 6) 8, 27 (Robert CJ, dissenting).

25. Washington State Department of Licensing v. Cougar Den Inc. 586 U. S. ____ 2 (2019) (Gorsuch J).

26. Minnesota v. Mille Lacs Band of Chippewa Indians 526 U.S. 172, 196, 202 (1999).

27. Herrera (n 16) (Sotomayor J) 17.

28. Washington State Department of Licensing v. Cougar Den Inc 586 U. S. ____ 10-14 (2019) (Breyer J). See also: Tulee v. Washington, 315 US 681, 683-685; United States v. Winans, 198 U. S. 371, 380–381 (1905); Seufert Brothers Co. v. United States 249 US 194, 196-198; Aimée Craft, ‘Treaty interpretation: A tale of two stories’ 24. Craft proposes that Indigenous ways of approaching treaties, rooted in Anishinabe laws, should be infused into the interpretation of treaties.

29. Herrera (n 16) 14 (Sotomayor J), citing Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 675 (1972). The contractual concept of the constitution can be traced back to Alexander Hamilton’s Federalist Papers; although it is also noted that there is significant opposition to this view: Tom Ginsburg, ‘Constitutions as Contract, Constitutions as Charters’ in Denis J. Galligan & Mila Versteeg, ‘Social and Political Foundations of Constitutions’ (Cambridge University Press, 2013) pp.182-204.

30. Amy Coney Barrett, John Copeland Nagle, ‘Congressional Originalism’, 19 U. Pa. J. Const. L. 1 (2016) 8.

31. The Basic Law Consultative Committee - Special Group on Inhabitants’ and Other Peoples’ Rights, Freedom, Welfare and Duties. See: Kwok (n 3) §52.

32. Kwok (n 3) §33. See also: R (on the application of Edison First Power Ltd) v. Central Valuation Officer [2003] 4 All ER 209 §116 (Lord Millet); T v. Commissioner of Police (2014) 17 HKCFAR 593 §281 (Lord Neuberger).

33. Manning, ‘What Divides Textualists from Purposivists?’ (n 18) 82; Valerie C. Brannon, ‘Statutory Interpretation: Theories, Tools, and Trends’ (Congressional Research Service, 2018), 29.

34. Stephen F. Ross, ‘Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?’, 45 Vand. Law. Rev. 561, 563 (1992); William N. Eskridge, Jr., ‘Public Values in Statutory Interpretation’, 137 U. PA. Law. Rev. 1007, 1018 (1989). See also: Wurridjal v. Commonwealth (2009) 237 CLR 309 (French CJ) 363.

35. Noah Feldman, ‘How the Creek Nation Finally Prevailed in Oklahoma’ (Bloomberg Quint, 10 July 2020).