Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 11, 1 November 1997 — Protecting Hawaiian Rights [ARTICLE+ILLUSTRATION]

Protecting Hawaiian Rights

The 1995 landmark Hawai'i Supreme Court decision in the case Public Access to the Shoreline Hawai'i (PASH) v. Hawai'i County Planning Commission delivered a shock wave throughout the legal community, loeal and state ehannels of government, loeal developers and title insurers. The decision clarified the rights and interests of Hawaiians as separate and distinct from those of the general public, sufficient to confer legal standing in a contested matter. It aeknowledged that fee simple ownership in Hawai'i is not akin to the strictly western property concept that all the "bundle of sticks" resides with the owner, including the unencumbered authority to exclude any person. Rather, Hawaiian customary rights attach to the land; they have their genesis in constitutional and statutory law sources and in land title dating from the time of the māhele. The state, then, has an affirmative duty to protect and preserve Hawaiian customary practices and usage rights. The immediate result of this decision was that PASH, by virtue of its Hawaiian membership, had the right to contest the ■ _ - - -

issuance of a Special Management Area permit to a developer whose resort project would jeopardize Hawaiians' access and gathering of 'ōpae 'ula in brackish water oonds located on

the property. There were broader repercussions, however. Business interests, developers and title firms argued that this judicial decision threw a cloud on land titles in Hawai'i and unfairly disabled owners from building and making reasonable use of their land. Lawmakers responded in kind and introduced legislation requiring Hawaiians to undergo a rigorous and excessivelv burdensome

certification process entailing registration of usage rights to a given site and the potential for expensive litigation. This backlash against Hawaiians prompted heavy protest; a vigil was organized at the capitol by prominent kumu hula whose access to plants of ceremonial and religious significance was

threatened. One person who testified at the committee hearing likened this act of legislative underhandedness and singling out of Hawaiians as "troublemakers" to anti-semitism in Nazi

Germany and Amefica's treatment of its Japan-ese-American citizens during World War II. The legislature backed down and the bill was killed in committee. Hawaiian groups introduced legislation calling for a cultural impact statement process intended to complement the existing environmental impact statement (EIS) system. However, in the final stages, the legislature quelled these

pro-active efforts. The importance of integrating assessment of cultural impacts with the EIS system is that the latter has been in plaee for nearly 30 years and is established as a vehicle of informed governmental decision-making on proposed development projects. Last year, the Environmental Council underwent review and amendment of its

administrative rules implementing the state's EIS law. Additional language for assessment of cultural impacts was proposed. Unfortunately, Governor Ben Cayetano vetoed these suggested amendments. Now, the Council has created a draft guidance document for the assessment of cultural impacts as the next best step. The draft guidelines appeared in the Office of Environmental Quality Control's September issue of The Environmental Notice and the public comment period ended Oct. 8. The guidance document details a protocol for analysis of cultural impacts whieh includes ethnographic and oral history interviews; consultation with individuals and organizations familiar with cultural practices and features connected with the project site; and reference to resources such as land court, census and tax records, testimony, vital statistics records, family histories and genealogies, recorded interviews, archival documents. The guidelines are thorough and reflect a serious and conscientious attempt to follow constitutional, statutory and judicial safeguards of Hawaiian practice and usage rights. Other state and county entities should follow the environmental council's lead. ■

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