Ka Wai Ola - Office of Hawaiian Affairs, Volume 40, Number 9, 1 September 2023 — Activating Ka Pa'akai [ARTICLE+ILLUSTRATION]

Activating Ka Pa'akai

MOKU Q KEAWE

By Shane Akoni Palacat-Nelsen, OHA Puhlie Policy Advocate, Kailua-Kona m 1 pū pa'akai kākou" is a gesture of grati- • | i tude before eating a meal that roughly I ■ translates to "let us partake together." M A Instead of shaking salt onto your food, a periodie pineh of pa'akai (salt) plaeed on your tongue during your meal is eustomary. Not just any pa'akai - pa'akai flavored by the oeean, eultivated in salt pans, and earefully harvested. The praetiee of preparing opelu, akule, and halalū for drying requires pa'akai. Salting preserves the fish for storage and long journeys. Growing and gathering pa'akai is imperative in Kānaka traditions, ineluding religious praetiees. Pa'akai traditions also inspired a eritical legal deeision that set the foundation for meaningful eonsultation with Native Hawaiians and regulatory aetions by the State of Hawai'i. On Sept. 11, 2000, the Hawai'i State Supreme Court deeided on Ka Pa'akai O Ka 'Aina vs. Land Use Commission, State ofHawai'i related to the Kaupūlehu development in North Kona. The eourt overruled the Land Use Commission's (LUC) deeision to grant the developer's petition to reclassify approximately 1,000 acres of land from eonservation to urban as it failed to "preserve and protect any gathering and access rights of native Hawaiians." The court established a three-prong framework for assessing Native Hawaiian constitutionally protected rights and further held that the state has an obligation to protect those rights and may not transfer its duties to a third party. The court concluded that: "1) The state and its agencies are obligated to protect the reasonable exercise of customarily and traditionally exercised rights of native Hawaiians to the extent feasible; 2) Agencies are obligated to make an assessment, independent of the developer or applicant, of the impacts on customary and traditional practices of Native Hawaiians; and 3) The independent assessment must include three factors known as the 'Ka Pa'akai' framework." The "Ka Pa'akai Analysis" Framework Emerges In its decision, the Supreme Court noted that for the rights of Native Hawaiians to be meaningfully preserved and protected, they must be enforceable. And to be enforceable, an appropriate analytical ffamework is needed; a framework that accommodates the competing interests of protecting Hawaiian gathering and access rights with eeonomie development. The court's three-prong test is triggered when government agencies consider proposed uses of land and water resources that may impact the exercise of Hawaiian traditional and customary rights (e.g., determining the approval of permits). The test includes the following: 1. The identity and scope of "valued cultural, historical,

or natural resources" including the extent to whieh traditional customary Native Hawaiian rights are exercised in the petition area; 2. The extent to whieh those resources, including traditional and customary Native Hawaiian rights, will be affected or impaired by the proposed action; 3. The feasible action, if any, to be taken by the LUC to reasonably protect Native Hawaiian rights if they are found to exist. Applying the Ka Pa'akai Framework In waters off the Kona Coast of Hawai'i Island, two evolving issues are challenging Kānaka gathering rights and the court's directive to protect those rights. The Department of Land and Natural Resources' Division of Boating and Oeean Recreation (DLNR/DOBOR) recently proposed rules that promote commercial manta ray "tours" at Keauhou and Makako Bay. The proposed rules restrict community access to the designated areas by providing only one mooring, yet commercial entities are provided muhiple moorings. The proposal also confuses how Native Hawaiians may gather within the designated area: "[prohibited activity] within designated manta ray viewing zones include...use [of ] a pole, net, spear, or any variation thereof to engage in fishing. This shall not prohibit gathering marine life by

hand without using such equipment." The Ofhce of Hawaiian Affairs (OHA), along with Hawaiian fishermen, spiritual practitioners, lineal descendants, and community leaders in Kona, eame forward to remind the DLNR/DOBOR of their obligation to apply the Ka Pa'akai Analysis framework and that consultation with the Native Hawaiian community should supersede a public hearing. We continue to wait for the government to consult the Hawaiian community appropriately and meaningfully. Another example is the highly extractive aquarium fish and pet trade industry in West Hawai'i whieh impacts sustenance gathering and creates eeonomie hardship for generational families. Hawai'i is one of the largest aquarium collection loeations worldwide. Between 1976 and 2018, more than 8.6 million reef fish were taken from waters off West Hawai'i. Fully 98% of the species sought for saltwater aquariums cannot be bred in captivity to satisfy the demands of collectors. Thus, many species of reef fish favored by subsistence fishers are being greedily extracted to supply saltwater aquarium owners on the American continent with exotie tropical fish. In response, a community coalition was formed to SEE ACTIVATING KA PA'AKAI ON PAGE 15

The aquarium fish and pet trade in West Hnwni'i tnrgets species such ns puhi (eels - pictured left) nnd Inu'ipnln (yellow tnng - pictured top) despite the foct that both species feed on specific limu and corol ond connot survive for long in oquoriums. īhe bottom right photo shows hundreds of deod lau'ipolo gothered by oquorium troders. A lorge percentoge of those collected do not survive. - Photo: forthefishes.org

ACTIVATING KA PA'AKAI

Continued from page 14 challenge the aquarium pet trade's commercial activities. Researchers, community scientists, and kilokilo practitioners (traditional observers and data collectors) agree that the industry harms our ecosystem. A proposal from DLNR's Division of Aquatic Resources (DAR) alludes to placing bag limits on sustenance gatherers, while allowing commercial extraction of reef fish at alarming rates - even though large-scale removal of these species contributes to the depletion of ako'ako'a (coral). As one resident commented, "We would not permit people to take wild birds [from] the forest; likewise, we disagree with people taking fish [that we use] for food."

Hāhālua (manta ray) viewing tours and the extractive aquarium pet trade exemplify the need to protect and enforce Native Hawaiian constitutional rights. "Ola ka aina, ola ke kānaka." If resources thrive, then mankind thrives. The state has a kuleana to ensure the use of our land and water resources align with Native Hawaiian traditional and customary rights and practices. I am the oeean, and the oeean is me. Hawaiians have a symbiotic relationship with all living beings in the oeean. Kanaloa, a principal deity, provides that space for reciprocal interactions, and today, the Ka Pa'akai Analysis Framework is a legal tool to uphold these cultural, traditional, and spiritual beliefs and connections. ■ To learn more about Ka Pa'akai go to: http://oaoa.hawaii. gov/jud/211 24.htm

Commercial mūntū ray "tours" have heeome popular visitor attractions ot Keauhou and AAakako Boy. DLNR recently proposed rules thot restrict the community from fishing in these areas to promote tourist activities in violotion of Notive Howoiion gothering rights. - Courtesy Photo