HomeMy WebLinkAboutCOM 0333.192 2010-2012Submitted by: Kaimi Kaupiko (10/5/11) re Resolution 130 -11
Sources of law
Requiring affirmative action from government
to protect cultural resources, native rights
and ceded lands
A
1 -1 I
IBS
Usage
Custom
C
Ch.
HRS
Ch. 6E
THIS
1;
MAJOR STATE
FE1MIIT PROGRAMS
Ch. 226
HRS
Gathering Rights
Ways
'dater
EIS Program
(d isclosure,
mitigation
of impacts)
62, -2
Historic
Presenratiof
Program
6E -10
Historic
Registry
Program
Ch IS
HRS
Ch. 205
HRS
Ch. 2075A
HRS
"Merger
of
1 -1
and
7 -1
3 2
1
Kohanaiki PDF Kalipi
PASH
L) LNR
6 -E -8
S'tatU
Projects
State
Mandate Federal
(but nO rules) Program
CDUP
LUC S MA
T T
4
Ka'upul hu
Boundary
Amendment
en + n
3
PASH
F
COUNTY
PROGRAMS
SOURCES OF NATIVE HAWAIIAN "RIGHTS" AND "CUSTOMS" OMS" -- Columns A & B -
and
THE PROTECTIVE MECHANISMS (General} ESTABLISHED BY
CURRENT LAWS FOR THEIR PROTECTION (not including)
Article X11, Section 7, State Constitution Mandate
-- Columns C ,D, & E --
1847 -1850
Principals of the
Land Commission
Knowing that the change in land tenure
system to include fee simple concepts
of property ownership would challenge
Hawaiian ahupua'a concepts, common
law and usage, Kamehameha Ill
(Kauikeauli) set forth principals that
guarantee traditional and customary
practices, religious practices, and the
gathering of all materials necessary for
survival. He adopts western principals,
yet reaffirms Hawaiian rights and
values. Hawaiian usage sets the
foundation for Common Law, HRS
Section 1 -1 and Gathering Rights, HRS
Section 7 -1.
oint Resolution of Annexation
1898
Provides that public lands and all other public property be held in a special trust solely
for the benefit of the inhabitants of the Hawaiian islands
Organic Act
1900
Establishes Hawaii as a Territory.
Section 91 carries forward the special trust
provisions of the Joint Resolution of Annexation
192D
Hawaiian Homes
Commission Act
Establishes the Native Hawaiian Rehabilitation Fund. Money to be used for
educational, economic, political, social, and cultural processes by which the
general welfare and conditions of native Hawaiians are thereby improved
and perpetuated.
Admissions Act
An Act to Provide for the Admission of the
State of Hawai'i into the Union
1959
State of Hawai'i assumes trust responsibilities of public lands and other public
property defined by reference to the Joint Resolution of Annexation.
Water rights, fishing rights, and all traditional and customary rights are within t
public trust and the State as trustee is bound by a fiduciary duty to administer t
trust according to the 5(f) provisions of the Admission Act
State Constitution
Traditional and Customary Rights
Article XII Section 7
Affirms State's obligations to protect cultural resources
"The State reaffirms and shall protect all rights customarily and traditionally
exercised for subsistence, cultural and religious purposes and possessed by
ahupua'a tenants who are descendants of native Hawaiians who inhabited the
Hawaiian . _ • • 1 _ I . __ 1 _ t _ � � � n 1_ r _ _�. .L _ the I_ .L of the _ t^.L _ .L _ 1 _ i _ 1.
Hawaiian islands prior to 1! %8, subject to the right of the Mate to regulate sucr
rights."
(1978 Con Con)
1978
Constitutional Convention
Article XII, Section 4 added to reaffirm that the public lands and other public property
were held by the State as public trust for native Hawaiians and the general public.
Landmark Supreme Court Decisions
affirming Hawaiian rights and the Public Trust:
McBryde 1973
Zimring 1977
Kalipi 1982
Pele Defense 1992
Kohanaiki / PASH 1995
Waiahole 2000
Ka Pa'akai 2000
Ki'ilai 2003
tdisia
titA ow
1
y
1973
McBryde v. Robinson
Water found to be in the public trust. The purity and flow of our waters must be
maintained for future generations and beneficial uses for the common good.
1977
Zimring
Chief Justice Richardson traces the chain of title to public property back to
the 1840 Constitution of Hawaii. Based on the original common ownership
of lands held by Kamehameha I, the court concluded that based on
Hawaiian usage, water rights, gathering rights and fishing rights were
attached to the land.
1982
Kalipi v. Hawaiian Trust Co.
Establishes gathering rights for ahupua'a tenants. Gathering
rights were necessary to insure the survival of those who, in 1851
sought to live in accordance with the ancient ways. They remain,
to the extent provided in the statute available to those who wish
to continue in those ways.
1992
Pele Defense Fund v. Paty
Gathering rights may be extended beyond the ahupua`a of residency.
..t
2000 Ka Pa'akai vs The Land Use
Commission
1.Reaffirms: Western concepts of private property in
Hawai'i must be balanced with traditional rights of
Native Hawaiians.
2.Provides the framework to ensure enforcement of
traditional and customary Native Hawaiian rights
with competing private development interests.
3.Commission cannot delegate their obligation to
determine cultural impacts to the developer.
mission must address issues before reclassi
d.
an be used as a precedent and applied to
te, city and county agencies considering a
posed development.
ACT 50:
CULTURAL IMPACT STATEMENT
r • 1 C I AIA/
The legislature finds...
Environmental Assessments
and Environmental Impact Statements
shall address Hawaii's cultural, traditional
and customary rights.
Milolii Last Hawaiian
Fishing Village
Native Hawaiian Kupuna:
Walter Keli'iokekai Paulo
& Eddie Ka'anana
MA 4ish
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