Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 1, 1 January 1998 — PASH: an issue in 1998 [ARTICLE+ILLUSTRATION]

PASH: an issue in 1998

By Lynn Lee and Paula Durbin IN THE months before the opening of the 1998 legislative session, meetings were conducted statewide on the Hawai'i Supreme Court's decision in Public Access Shoreline Hawai'i vs. County ofHawai'i and Nansay, Ine., better known as PASH, and on last session's attempts to reverse its effects. The PASH case was brought in 1990 when Nansay Hawaii, ine., applied to the county for a permit to develop a resort in Kohanaiki, Kona, and the County Planning Commission refused to hear community concems. Five years of judicial hearings culminated in the Supreme Court's confīrmation of Hawaiians' constitutionally protected gathering rights on undeveloped, privately owned land and in the requirement to consider these rights when the land is developed. Last year's legislative session saw a strong, collaborative effort by land owners, realtors and developers - who all profit when raw land is developed - to enact legislation regulating the exercise of rights confirmed in PASH. Senate Bill 8 and House Bill 1920 proposed that gatherers be required to register and prove their right to gather through evidence tracing genealogy to ancestors who actually gathered in the relevant area. Hawaiians and other interested individuals claimed these requirements were oppressive and resembled those imposed by land commissioners during the māhele and, subsequently, in water management and adverse possession cases. In the past, registration effectively reduced Hawaiian interests. And as Office of Hawaiian Affairs Trastee Hannah Kihalani Springer noted on Dec. 9 at a Native Hawaiian Bar Association workshop, "Hawaiian

culture is a vital force still living. We cannot rely on studies of aneienī practice to set the parameters of use today." When the legislature appeared indifferent to their objections, Hawaiians resorted to a highly effective 24-hour demonstration in whieh drummers, dancers and chanters expressed opposition. The pahu reverberated in every

comer of the capitol and the senators ripped their bill to shreds in a dramatic public display. In reality, both bills are still alive and had only been deferred. This year, land owners and business interests again advocate restricting native rights. At a recent eommunity meeting, the Kona section of the Board of Realtors stated its intention to submit legislation this session to weaken the effect of PASH. And at a Nov. 18 Hawai'i Institute for Continuing Legal Education seminar on the land use process, the Real Property and Financial Services Section of the Hawai'i State Bar Association also sounded an alarm. Ken Kupehaek, a partner in the law firm of Damon Key Bocken Leong Kupehaek, spoke against the PASH raling and in favor of legislative action to nullify its effects. He also suggested that Supreme Court judges be appointed based on their understanding of the business community. "It was the greed of the Hawaiian people for westem products whieh caused them to privatize and sell property under the māhele." Kupehak said. Later, Lilikalā Kame'eleihiwa, an associate professor of Hawaiian studies, dismissed his remark as having no basis in fact. "The māhele happened because of the chief 's haole advisors, including Ameriean lawyers and missionaries, who would eventually form multinational corporations ffom their māhele gains," she maintained. On Dec. 9, the Native Hawaiian Bar Association's workshop "Living with PASH" was a forum for many points of view. While considering the possibility of reaching an agreement that would not worsen the state's economy, participants acknowledged that Hawaiian practices make Hawai'i uniquely attractive to visitors. "OHA intends to protect native rights and customary practices guaranteed in Article XII, Section 7 of the Hawai'i state constitution," Trastee Colette Machado reminded those present, "and we are concerned the legislature will pass a bill whieh compromises those rights." But Representative Ed Case, chair of the House Committee on Hawaiian Affairs, conceded that last year's proposed legislation was not the right way to address PASH. As David Forman of the Native Hawaiian Legal Corporation noted, "Failure to recognize native rights perpetuates an injustice andmiakes us all a part of it." ■

Crowds joined drummers, dancers and chanters at the capitol in successful opposition to last year's legislation aimed at restricting Hawaiian gathering rights. Many of the demonstrators are currently active in 'īlio'ulaokalani, a coalition that grew out of the event. See page 14 for information on their concert to raise funds to support efforts at protecting cultural rights this legis!ative session.

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