Hawaii’s World

By A.A. Smyser

Tuesday, December 10, 1996

Defining traditional
and customary rights

AFTER the 1978 Constitutional Convention, voters easily ratified an amendment that reads:

A Con Con committee said these rights include access to certain land areas as well as fishing, hunting, gathering, trail use and water rights. It didn't write them into the amendment in order to not limit legislative or court regulation.

The Legislature hasn't done much, if anything, but the state Supreme Court has scared the dickens out of some developers with a 1995 decision, which the U.S. Supreme Court in April refused to review.

It extends all rights exercised prior to Nov. 25, 1892, a previously enacted cut-off date, to all part-Hawaiians or 20 percent of the population instead of just 50 percent Hawaiians, around 5 percent. It says rights can be exercised without living in the pie-shaped shore-to-mountaintop ahupua'a involved. It says only fully developed land is specifically exempt from the reach of the amendment, now Article XII, Section 7.

It says traditional Hawaiian rights must prevail when they do not sharply disturb existing private uses. Undeveloped and underdeveloped lands thus are most affected. The court says regulators must determine under its guidelines where the line is between traditional Western and traditional Hawaiian rights.

Does that mean more long legal battles like Nansay Hawaii's being sent back to square one at the Hawaii County Planning Commission after a six-year fight to build a 450-acre Big Island shoreline resort?

The unanimous opinion written by Justice Robert Klein, the court's only part-Hawaiian, is called PASH, the acronym for the Public Access Shoreline Hawaii, the organization of 50 percent Hawaiians that brought the suit against the planning commission and Nansay.

Nansay has given up. We will never know how many other developers, lenders and title insurers will be chilled by the uncertainty created.

A remedy lies in the clause, "subject to the right of the state to regulate such rights." If we want the jobs and tax revenues that can come with more development we need reasonably clear rules at the beginning. Otherwise the prospect of litigation, confrontation and continuing uncertainty will be a turn-off.

Dozens of government permit agencies could be involved. Pending clear overall regulations, their decisions will be made on a case-by-case basis with no certainty another agency won't decide differently - another example of Hawaii's tough climate for business.

KENNETH Kupchak, a developer attorney, asks if a traditional hunting right could today be a right to go on someone else's property with a jeep and high-powered weapon. He favors legislative and administrative initiatives rather than further appeals to the Supreme Court. He says its members lack good business sense.

There is no rush to go back to court. The Native Hawaiian Legal Corp. says no one has asked it to take a case. Any Hawaiian could. Our biggest private landholder, the Kamehameha Schools/Bishop Estate, is standing aside for now. The Campbell Estate is watching and waiting, too.

A year ago, former Sen. Rey Graulty, then judiciary chairman, held an informal hearing on the possibility of inventorying the old rights in order to draft regulations. He did not go further.

The 1978 Con Con believed there can be an acceptable middle ground. So do others. The state Supreme Court, however, rushed in ahead of regulators to define a wider-than-before gulf between Western and Hawaiian customary rights. It thus floated a worrisome cloud over future development.

A.A. Smyser is the Star-Bulletin's contributing editor.
His column runs Tuesday and Thursday.

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