2003-07-28 TBLASMAN (4) - Laserfiche WebLink

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VITOUSEK:Turning to the exercise of cultural rights by native practitioners on the property and how that may, on the Keakealaniwahine property, and how that may be impacted by the proposed development, okay. Is it your position that the native practitioners on the Keakealaniwahine property would have any cultural right to a particular viewplane? In other words, would the constitutionally protected exercise of the customary and traditional rights include a right to a particular view from a cultural site? YUEN:IÓm having difficulty -. As with one of the previous questions, IÓm having difficulty with the use of the term Ðright.Ñ If by Ðright,Ñ you mean that the cultural practitioner has an absolute right that cannot be infringed, to have a viewplane unobstructed or unimpeded in any particular direction, I would say no. I would say that the desire of, and we have had testimony about the desire of the cultural practitioner to have a setting that is, that is like the setting of old in carrying out the cultural practices. I would say that desire is something. I donÓt like to use the term Ðright,Ñ because again as an attorney, when I hear that term I think of something that is, it may imply a right that it should not be impeded; and I donÓt think that exists. But I think that desire is something that should be respected in, and that we should try to accommodate in the process of approving SMA permits. VITOUSEK:In HawaiÒi law and in applying HawaiÒi law to the context of land use decisions, we have the opinions of the Supreme Court that say that the exercise of customary and traditional rights can pose limitations on a private landownerÓs use of their own property, isnÓt that correct? YUEN:Yes. VITOUSEK:And so what my question is directed to is, are you taking the position that the native Hawaiian practitioner on Keakealani, you know, do they have a right to a particular viewplane over the Blasman property which would pose a limitation on Mr. BlasmanÓs ability to use his property as he sees fit? YUEN:I would prefer to say that itÓs an interest and a consideration that should be taken into account. VITOUSEK:Okay. And what would be your assessment of how the Haw CourtÓs opinion in Hanapi would impact on the, on a native practitionerÓs customary and traditional right to a particular view posing a limitation on a developerÓs right to use a fully developed property? YUEN:Hanapi, what I take out of the State vs. Hanapi case, it is that on the property thatÓs fully developed, like the Blasman property, that you, there is no longer a right for a native Hawaiian practitioner to go onto the site and gather or to practice traditional practices. The interest that IÓm speaking of, what 18