Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 10, 1 October 1997 — Page 11 Advertisements Column 1 [ADVERTISEMENT]

[?]

Ki§|| |j|Hf m

■u—— r mff''T1iri1l u- - ^W- 1 ■■■HHHH ". ilM«' ^<m| I ■* r •. v "* r \ I "* p* v \ i 9B ■ pj m īk m ■! Hi ■^■1 I Junr r ,i",t rri-. K*-- ii~l

Bv Paul E Nahoa Lucas> ^ta#ttfeltei^vitli thfe , m •? .« '■ XT" * ♦ x *■ ■ >» Nativc Hawiiiiim Legal Corporatoon »

* r: „#* t,nou£fh with the CCPASH bashina". Ever since the Hawaii

- •>• « '• m.£fr^ri Sttpfeme Court issued its 1 995 decision, reaffirminj][ the |§||r ripfhts of Native Hawaiians to exercise their traditions and customs wiihin modern society, tljere has been an endless stream of articles criticizing the decision.

That's too bad because PASH — the acronym or shortcut for Public Access Shoreline Hawaii u Hawaii County Planning Commission . doesn't deserve such negative press. First of all, in answering the importanl question of "what rights are we talking about?" the PASH decision says all rights enjoyed by our kupuna for "subsistence, cultural and religious puiposes" are protected. Critics argue that this description is too broad and will create new and unheard of practices not previously found in Hawai'i law. They allege that some of these practices will be claimed for the sole purpose of stopping development. This is not true. The PASH decision did not create new rights but merely reaffirmed those rights whieh were enjoyed by our ancestors fnom time immemoiial. The Hawai'i Supreme Court justices gave the lower ! courts and government agencies some specific though not necessarily exhaustive guidelines in deciding whether a certain practice deserves protection. The praetice must be "certain". "consistent," predate November 25. 1892, "traditional" and above all "reasonable". In addition the practitioner must show that the activity is being carried out on undeveloped land. Despite these instructions, critics of PASH have insisted on the creation of a definitive list of traditional practices. As Hawaiians we know it would be impossible as well as foolish to try and catalog all the conceivable customs and traditions our kupuna engaged in. Such a listing would also be dangerous. Those who oppose PASH would quickly target any practice not contained in this catalog as an attempt by Hawaiiaas to create a right where none previously existed. Decision makers must also be aware of certain cultural values that hamper practitioners from disclosing information in a way most westemers are accustomed to. For example. any probing questions by govemment offi- ' cials or private landowners to dissect the nature of the i practice is usually considered maha'oi or mde. To avoid unneeessary confrontation between native praetitioners and landowners or govemment agencies, I would recommend the following: • Do not question the motives of the practitioner. Recogni/.e that practitioners a) want to enter the property for a legitimate reason b) will care and protect the resource because it will sustain the practitioner and his or her family for luture generations and e) will accept reasonable governmental regula-

tions related to the protection and conservation of the resource, not the practitioner. • Give the practitioncrs the least restrictive setting to practice their culture. Recognize that liability is an issue but not a reason for excluding practitioners. Landowners must bc already protccted from liahility under the recrcational immunity statute (Chapter 520, H.R.S.) • Provide effieient methods for dealing with violators. Methods should include the use of traditional dispute resolution procedures or state administrative mles. Again, the PASH decision correctly provides the goveming agency or court with the fle.xibility to evaluate eaeh practice based on the criteria outlined in the PASH decision and as applicd to the facts presented in eaeh case. Onee the existence of a practice is established, the burden shifts to thc landowner to prove that "actual harm" will result front the exercise of that practice. The practitioner does not have the absolute right to prevent an owner from developing his or her property. NonetheIess, a developer or agency is required to "exp!ore the possibilities for preserving [these practicesj and must not "summar[ily] extinguish [those rights|." but proteet these practiees "to the extent feasible." Finally, the Hawaii Supreme Court reaffirmed that the exercise of any native right is "subject to regulation by the state." This law is consistent with the govemment's obligation to regulate native rights, a job traditionally delegated to the konohilei and ali'i but whieh was transferred to the govemmenf upon the formation of Hawaii's constitutional monarchy. While the state may regulate those rights, the PASH decision said the state does not have the "unfettered discretion" to extinguish those rights. The more important question is what is a "reasonable" regulation? We ean certainly agree that a regulation that seeks to keep a resource healthy or alive appears reasonable. But what about regulation that limits practices to "nonnal business hours" such as 7:45 a,m. to 4:30 p.ni, with weekends and holidays excluded? This kind of regulation mns counter to our customs and practices whieh depend not on westem time but on the tides, currents, phases of the moon, seasons and so forth. Has the PASH decision unleashed a horde of practitioners swarming,over every undeveloped parcel in Hawai'i, exploiting resources as they go?

Absolutely not. Most practitioners understand that with the exercise of any right based on Hawaiian custom comes the responsibi!ity. Values inherent in our culture, such as mālama 'āina and aloha 'āina limit the unrestricted exerci.se of those rights. Moreover, other Hawaiian values work toward dcfusing potcntial eonflicts either with a landowner or fellow practitioner. For examplc, wene we not taught that you should not fish or gather in an areas wherc thcre are other people, unless you are welcomed by that family? What the PASH decision did expand was the state's obligation to protect and preserve Native Hawaiian rights by including govemment agencies. This is a wise ehoiee since state and county agencies, rather than the courts, are in the best position to deal with the day-to-day impacts of a resort, shopping center, parking lot or housing development on a Hawaiian trail, shoreline or native forest. Has the PASH decision led to a flood of aborted business transactions becausc title insurers ean no longer securc land title in Hawai'i? I think not. PASH critics continue to blame thc PASH decision for the state's eeonomie iils, yet they cannot cite a speciftc case of lenders or title insurers failing to conclude a deal because of PASH. For example, did Nahsay Hawai 'i, abandoniīs plans to develop its luxury resort community on the Big Island because of PASH or because of the eeonomie downturn in Japan? Morcovcr, major title companies have always included as part and parcel of their title searches, the limitation that title is "subject to the rights of native tenants." ' Trouble is almost everyonc - from titlc insurcrs to Ienders - did not give this phrase any weight, that is until August 1995. What PASH critics appear to be saying is that they don"t like the decision because it creates a "chilling effect" on doing business in Hawai'i. But how does thc PASH requirements compare to any other governmental permitting process a developer is now

subject to? And are we bent on repealing those laws? Of course not! Sadly recent legislative efforts to change the PASH decision appears to be nothing more than an attempt to extinguish truly valid Nativc Hawaiian practices. Kūpa'a kākou ma hope o ko kākou 'āina aloha!