Indigenous Rights in Hong Kong's New Territories: Hakka, Weitou, Land, and Law

Abstract

"Indigenous inhabitants" of New Territories occupy a distinctive constitutional position in Hong Kong enshrined by the Basic Law, yet this legal category is substantially a product of colonial land administration and the 1972 Small House Policy. This article asks how the legal identity of the indigenous inhabitant was constructed, and how Article 40's guarantee of 'lawful traditional rights and interests' should be reconciled with equality norms and with the heritage interests of Hakka and Weitou lineages now exposed to the Northern Metropolis development. Employing a doctrinal-historical method, the article advances three findings. First, "indigenous inhabitant" is a legal artifact of colonial land registration, not a primordial ethnic category. Second, in Kwok Cheuk Kin (2021) and Chan Wah (2000), the Court of Final Appeal has produced a layered constitutional regime in which political rights are subject to equality review while economic entitlements remain insulated under Article 40. Third, this article proposes that cultural heritage — Hakka and Weitou language, ritual, and built environment — may be interpreted as a derivative right under Article 40, operationalized through a statutory Heritage Impact Assessment for the Northern Metropolis. The findings contribute to debates on indigenous rights, customary land, and heritage governance in post-colonial East Asian jurisdictions.

Keywords: Indigenous Inhabitants; Hakka; Weitou; Customary Land; Constitutional Protection; Article 40; Northern Metropolis.

DOI: https://doi.org/10.55463/hkjss.issn.1021-3619.67.4