TNAG-0615-FCO40-763-Visit-by-delegation-from-Heung-Yee-Kuk-(Rural-Consultive-Cou-1997 — Page 53

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Note

CONFIDENTIAL

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Re: Heung Yee Kuk's Counsels' Joint Opinion

The Joint Opinion attacks Government basically on 2 fronts, namely, the Block Crown Leases and the Crown Lands Resumption Ordinance.

2.

The Block Crown Leases

These are, admittedly, unusual Leases in that they are not signed

by any of the lessees, but we maintain that they are effective in law by

reason of the facts that the lessees have occupied the land demised to

them and have paid the Crown rent reserved thereunder. As anticipated

in the Joint Opinion, we would argue that if the Leases were not effective, the "lessees" would simply be trespassers.

3.

To avoid this result, Counsel seem to be saying that the Leases are

effective to the extent that they legalize the occupation of the land but

are not effective as regards the restrictive covenants. In our view this

is not a valid argument.

4.

Counsel argue that the restrictive covenant as to building upon agricultural land is not operative since no land was in fact expressly demised as agricultural land, the Schedules to the Leases being merely

descriptive of the actual user of the land at the date of the Lease. This

is a strong argument, but nevertheless it may be argued that the effect of

the covenant and the Schedule is to restrict the user to the general type

of user specified in the Schedule. Government and N.T. residents alike

have for many years adopted this interpretation and have regulated their

respective affairs accordingly. Furthermore the Leases themselves provide

for differing rates of Crown rent according as to whether the user is agricultural or building etc.

5.

In any event, the Joint Opinion ignores the covenant following, which provides that the lessee will not construct any building on the land "whether demised as agricultural or garden ground or otherwise" without Government approval.

6.

The Crown Lands Resumption Ordinance

Undoubtedly the Order in Council of 1898, the Crown Lands Resumption Ordinance and the Twon Flanning Ordinance do not reflect accurately the terms of the Convention of Peking; however, that is a matter about which only the Chinese Government could complain. It is not a matter of domestic law.

CONFIDENTIAL

17. The Joint

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