ADMINISTRATIVE & PUBLIC LAW – Court of Final Appeal Grants Permission to Appeal Against Government’s Refusal to Consult Country and Marine Parks Board

In 2010, extensive illegal and destructive works in and around indigenous villages located within Hong Kong’s designated country and marine parks (“Enclaves”) led to a Government policy and programme for the Country Parks and Marine Authority (“Authority”) to assess and decide which of the 54 Enclaves across multiple country parks ought to be protected by designation and incorporation into their surrounding country park.

After the initial rounds of assessment were complete, the Government declined to recommend 6 of 9 Enclaves for designation, and refused to consult the Country Marine Parks Board (“Board”) on decisions not to recommend Enclaves despite members of the Board expressing grave reservations.

The Appellant succeeded in the Court of First Instance in quashing the assessments of the 6 Enclaves in which the Court held that the Authority failed to carry out its Tameside duties when conducting its assessments.  The matter went on cross-appeal with the Appellant asserting that the Authority had a statutory obligation to consult the Board on the decisions not to recommend.

In Chan Ka Lam v The Country and Marine Parks Authority [2020] HKCFA 16, the Appellant was granted leave by the Appeal Committee of the Court of Final Appeal to argue that the decision not to recommend the 6 Enclaves fell within the definition of a “programme” for which the Authority was required by s.5(1)(b) of the Country Parks Ordinance, Cap. 208 to consult the Statutory Board upon, and that such non-recommendations are in respect of country parks.

This case will provide important guidance on the statutory duty of consultation and when such duties arise.  The outcome of the appeal will have provide a welcome clarification on the relationship and interactions between the Authority and the Board, and also securing the role of the Board in protection of our country parks.

The appeal will be heard on 4 September 2020. The determination can be found here. Earl Deng (pictured left), led by Nigel Kat S.C., acted for the applicant Chan Ka Lam.