Ka Wai Ola - Office of Hawaiian Affairs, Volume 12, Number 11, 1 November 1995 — Hawaiʻi Suoreme Court confirms Hawaiian access rights [ARTICLE]

Hawaiʻi Suoreme Court confirms Hawaiian access rights

by Patrick Johnston Private property is a cenlral part of American ideology, history and economy. It is also antithetical to the eommunal philosophy of the society that existed in Hawai'i up until the Great Mahele, a philosophy that some Hawaiians still share today, despite the enormous changes the islands have undergone since contact with the West. A recently issued opinion by the Hawai'i Supreme Court has recognized the unique nature of property rights in Hawai'i and has argued that Hawaiians have access rights to privately held land for traditional and customary purposes. These rights, the opinion says, were reserved by the government in 1848, when fee simple titles were first granted, and have remained strong since that time. The opinion has iLs immediate origins in a 1990 decision by the Hawai'i County Planning Commission (HPC) to deny Public Access Shoreline Hawai'i (PASH) and Angel Pilago standing to participate in a contested case hearing on an applieahon by Nansay Hawaii tnc. for a Special Management Area

(SMA) use permit. Nansay wanted approval to develop a community complex in the Kohanaiki ahupua'a near the Kona airport on the Big Island. PASH and Pilago opposed the plan on the grounds that the development would destroy the freshwater pools in the area that Hawaiians had traditionally used for fishing. The county had contended that PASH and Pilago interests were not distinguishable from those of the general public and so, under county rules, were not eligible to participate in a contested case hearing. PASH and Pilago disagreed and went to circuit court to have the county decision reviewed. The court agreed that PASH and Pilago had distinguishable interests although a later decision by the Intermediate Court of Appeals ruled that only PASH was eligible. HPC and Nansay then applied to the Supreme Court for a ruling on the issue. The opinion, citing decisions from numerous past court cases and 150 years of constitutional language, concluded that "to the extent feasible" the HPC must "preserve and protect native Hawaiian rights when

issuing an SMA penniL" The opinion also states that "eonditions lhat ensure continued access to the subject property for the legitimate and reasonable practice of customary and traditional rights would presumably comply with constitutional prohibition against the uncompensated taking of private property." OHA land officer Linda Delaney says the decision is a milestone. "Fot the first time we have a ruling that recognizes native Hawaiian laws and traditions. This is a historic breakthrough. ... Traditional rights must now be acknowiedged and accommodated in planning design." Judge Walter Heen of the Native Hawaiian Advisory Council eoncurs. "The court has finally given clarity to long existing statutes relating to gathering rights and the protection afforded them through the constitution." The opinion flies in the face of what many in this country believe

are landowners rights but the court made it clear that it will protect Hawaiian practices only wheie they are practical. "Unreasonable or non-traditional uses are not permitted under today's ruling," the opinion stresses. However, the opinion also argues that landowner's rights in Hawai'i are unique and never included the absolute right to exclude Hawaiians from the lands wheie they perform customary and traditional practices. "Our examination of relevant legal developments in Hawaiian history," the opinion reads, "leads us to the conclusion that the Westem concept of exclusivity is not universally applieahle in Hawai'i." So when ean a Hawaiian perform traditional activities on a privately held pieee of property? Heen says the opinion does not clearly spell this ouL "Essentially the opinion does not apply to ordinary houselots," Heen points out. "If property is fully

developed then access ean be curtailed or eliminated." But he adds that it is a different matter for those who want to develop propeity. The opinion, Heen says, does not set a "gradation of development," levels of development at whieh access ean be reduced or denied, and that these details are likely going to be worked out on a case-by-case basis. Delaney argues that, while the State Supreme Court decision might seem at odds with practices in the rest of the country, it is an empowering decision for native Hawaiians. "People keep saying this is the kind of decision that stands Hawai'i on its head," she says. "I say this is what stands Hawaiians on their feet." Heen takes this a step further arguing the decision is a positive one for all of the islands. "It affords a basis for control of too mueh development whieh is not readily affordable under the U.S. constitution."