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Poynton, Peter --- "Stirrings: Recognition of Native Rights in Hawaii" [1998] IndigLawB 77; (1998) 4(15) Indigenous Law Bulletin 19


Recognition of Native Rights in Hawaii

by Peter Poynton

In Public Access Shoreline Hawaii and Angel Pilagro v Hawaii County Planning Commission and Nansay (`PASH'),[1] the Hawaiian Supreme Court recognised that native Hawaiians have collecting and gathering rights on land `previously undeveloped or not yet fully developed', notwithstanding that the land may be freehold. In that case, the Hawaiian Supreme Court stated that:

Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii ... In other words, the issuance of a Hawaiian land patent confirmed a limited property interest as compared with typical land patents governed by Western concepts of property.[2]

After two years of vigorous public debate, the Hawaiian Legislature arranged a year of structured hearings and discussions through the Office of Planning, assisted by the Centre for Alternative Dispute Resolution in Honolulu. These discussions of the issues raised by the PASH decision were broad-based and canvassed the main stakeholders: native Hawaiians, Landowners/Business interests and the Government of Hawaii.

Currently, all discretionary permits issued by the State or Counties are subject to PASH-type considerations.

In March 1998, the Hawaiian Supreme Court found against the Board of Land & Natural Resources ('the BLNR') of the State of Hawaii and Haseko, a marina developer which wanted to dredge a channel through the sea bed for the purposes of developing a 1400 berth marina.

The Court found that:

The BLNR failed to make any definitive findings or conclusions as to the exercise of the native Hawaiian rights in the subject area ... We hold that, on the record before us, the BLNR failed to discharge its duty to protect native Hawaiian rights to the extent feasible ... It is necessary for the BLNR to make express findings as to the existence and extent of traditional and customary practices in the subject area. If the issuance of the permit will impair these rights, the BLNR must determine whether this impairment is justified ... The delegation of protection of Native Hawaiian rights to Haseko was improper. First, pursuant to our decision in PASH, the landowner's obligation to allow access for traditional and customary practices continues to the extent that those practices can reasonably co-exist with the development of the property ..Second, the condition only addresses such native Hawaiian rights as are left after dredging. Therefore, it does not address the loss of rights or any possible mitigation of this loss... For the foregoing reasons we vacate the grant of the Conservation District Use Area permit and remand to the BLNR for the sole and limited purpose of addressing the questions:

1. whether traditional and customary native Hawaiian rights are exercised in the project area;

2. of the extent to which, if such rights exist, they will be affected by the proposed action; and

3. of the feasible action, if any, that should be taken by BNLR to protect these rights if they are found to exist. [3]

The Hawaii State Legislature has decided not to legislate on native Hawaiian rights until there is consensus among native Hawaiians.[4] The goal in Hawaii remains a consensus throughout the State, rather than prescriptive legislative intervention.

[The contrast between Hawaiian and Australian law is marked, especially in light of the High Court's decision in Fejo v Northern Territory of Australia (1998) HCA 58 (10 September 1998) which held that grants of freehold title permanently extinguish all native title rights and interests.]

Peter Poynton is a Cairns Barrister who specialises in native title law.


[1] This case was decided in 1995. The most easily readable record of the case is on the internet at: < <http://hawaiination.org/pash.htmll> >.

[2] PASH case, cited in Peter Poynton, `The Co-existence of Native Title and Common Law Proprietary Interests: The Hawaiian Style', (1997) 4 JCULR p103 - 110

[3] Jeff Anderson v Board of Land and Natural Resources and Hasenko. Civ. No. 95-0334-01 First Circuit Court, and Supreme Court of Hawaii, 12 March 1998. Also, the Ewa Marina Case - Save Ewa Beach Ohana; Anna Marie Kahunahana-Castro-Howell.

[4] Recommendation on House Bills 2351, 1536 and 2340 by representative Ed Case, Chair, Committee on Hawaiian Affairs, Hawaii House of Representatives, February 5 1998.


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