HomeMy WebLinkAboutCOM 0853.014 2010-2012 Date: October 10, 2012
To: Hawaii County Council
From: Williamson B.C. Chang, Professor of Law, University of
Hawaii, William S. Richardson School of Law
Re: Testimony in favor of acquisition of an easement over the
trail leading fr m the end of Mill road to the beach at Papaikou
Mill Resol. '306 _ 12_
My name is Williamson B.C. Chang. I am a law professor at
the University of Hawaii, William S. Richardson School of Law. I
have been teaching law since 1976 primarily in the area of water
rights, Native Hawaiian Rights, and the Legal History of Hawaii .
I wish to lend my support to the County' s acquisition of an
easement over the trail leading from the end of Mill road to the
beach at Papaikou Mill. I have litigated a variety of Native
Hawaiian rights and water rights cases, including the Hanapepe
Water Rights case.
First, access to beaches is of critical importance in an
island state. Where property is scarce, such as in an island
community, communal access to beaches and other recreational
areas is of the utmost importance. As I have written elsewhere,
see Williamson Chang, The Life of the Law is Perpetuated in
Righteousness: The Jurisprudence of William S. Richardson, 33
University of Hawaii Law Review 99, 123 (2010) :
Islands are different from continents . The property
law appropriate for a continent is not compatible with
small islands. The paradigm for property rights on an
island, with scarce lands must be different from the
paradigm of property for England where estates are the
norm.
Comm. No� O J 3•�`T
Ref. To: Cr
Ref. Date 0 T 1 0 2012
Thus, beach and shoreline access for recreational and
sustenance purposes is absolutely essential in an island
environment. Where not provided by the common law, see Kalipi
v. Hawaiian Trust Co. , 66 Hawaii 1 (1982) ; it should be provided
and protected by government. The use of public funds to enlarge
and secure an easement to a critical beach would be one of the
most worthy expenditures of county funds.
Second, the State Constitution, provides, as a goal, the
protection of traditional and customary rights. Section 7, of
Article XII of the State Constitution provides that:
The State reaffirms and shall protect all rights
customarily and traditionally exercised for subsistence,
cultural and religious purpose and possessed by ahupua'a
tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to
the right of the State to regulate such rights.
Clearly, access and use of beaches and shoreline areas was
an essential, customary and traditional right of native
Hawaiians. If the people of the Island of Hawaii do not
possess a right under law to access the trail to the Papaikou
Mill, a matter which could be litigated, the use of public
monies to acquire that access is certainly an expenditure in the
best interest of the people of Hawaii.