Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 8, 1 August 1997 — PASH bashing [ARTICLE+ILLUSTRATION]

PASH bashing

The June 22 issue of our Sunday paper eontained a whole-page forum on the Hawai'i Intermediate Court of Appeals and Supreme Court decisions in Puhlie Access to the Shoreline v. Hawai'i County Planning Commission, popularly known as PASH I and II. Represented were three points of view on the courts' protection of Native gathering rights, two of them predicting dire consequences all around if PASH isn't squared with Western concepts of property ownership. John Jubinsky, Esq., expressed the title insurance industry's eoncerns. Richard Epstein, a law professor, weighed in for his academic and cultural bias. In a third pieee, Arnold Lum and David Forman, both attorneys with the Native

Hawaiian Legal Corporation spoke for native Hawaiians. Not surprisingly, Mr. Jubinsky, general counsel for Title Guaranty of Hawai'i, touts his clients' gloom-and-doom line that PASH will result in social and eeonomie disaster because of all the unknown factors that allegedly interfere with the acquisition of good title. Since PASH applies to the exercise of traditional rights on utideveloped tracts of lands, we know that most of us small-time homeowners are exempted from the impact of the Hawaiian hoards invading our property and pulling up the plants. Mr. Jubinsky is talking about the fat cats who were extended credit to buy large tracts of land they could afford not to build on. These

big spenders lost their shirts along with interest in Hawai'i when the development era ended some years back, even before PASH I was decided. We remember them, of course, because of all they left behind, beginning with inflated property values that resulted in a cost of living on a par with Tokyo or Paris. I don't think the fat cats are staying away because a few Hawaiians might want to, say, gather ferns, but even if they are, do we want them back, particularly if we have to give up our constitutional rights to get them to return? While Mr. Epstein admits that he is an outsider to our ways, he emphasizes the superiority of Western notions of property ownership, as perceived from his Mid-

Western ivory tower, and ignores that we Hawaiians did just fine with our own system. At a distance of several thousand miles away and more than a century after the fact, he also claims that we abandoned our gathering rights, along with our eommunal interest in our land, during the Great Māhele in order to encourage foreign investment. Just how he is so sure that we suddenly ceased practicing these traditional customs is unclear. Except that such a convenient "fact" is the linehpin in his argument that if customary rights are not exercised they cannot be reclaimed under AngloSaxon principles of law. Like Mr. Jubinsky, Mr. Epstein sees property ownership mired in a morass of unknowns and soimds the alarm for increased definition. While decrying more regulation, he too is calling for more rules. Well, guess what guys? According to Messrs. Lum and Forman the unknowns are known and everything we need to preserve order and sanity is already in plaee. To Lum and Forman's recommendation that landowners and investors "educate themselves . . . about cultural practices on their property," I would add that their attorneys should do that too— and read our laws. Hawai'i is a special plaee after all; isn't that its great attraction? It's time for everyone to recognize our host culture as the culture of the land and to remember our state motto: Ua mau ke eaoka 'āina i ka pono. The life of the land is perpetuated in righteousness.

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