This week,s decision by the Hawaii Supreme Court further clarifying
the place of traditional Hawaiian rights in land-use matters is welcome
and important.
It adds a strong dose of predictability to what has been a worrisome
and murky process, creating uncertainty that has contributed to our slow
pace of economic growth.
What is being sorted out here is a conflict, if you will, between
traditional Hawaiian land-use practices and Western land-use laws and
expectations. The two systems can co-exist, but it will take wisdom and
time to make it happen.
The High Court,s ruling is an amplification of a landmark 1995 decision
that said Native Hawaiian rights and practices must be considered when
making land-use changes and granting development approvals. The specific
1995 case, the so-called "PASH" decision, said that the impact on
traditional cultural, gathering and religious uses of a piece of land
must be considered when granting land-use changes.
The latest ruling, involving a planned 1,009-acre development in North
Kona on the Big Island, amplifies what that means in practice. The
ruling said the state Land Use Commission must take several rather
specific factors into consideration before granting or rejecting
requested land-use changes.
That "framework" includes an identification of cultural, historic and
natural resources on the land; determining how the use of those
resources will be affected; and seeing whether there is a "feasible" way
to "reasonably" protect those rights.
It is important to underline that the court has not said that
traditional rights trump western land ownership rights; only that they
be considered.
And most important, it says that the approving body " in this case the
Land Use Commission " has the responsibility for doing this
consideration. The work cannot be delegated to the landowner or developer.
This offers important guidance to all land approval agencies at both
the state and county levels. They now know what process they must follow
when considering land-use requests.
It also offers a degree of certainty to those seeking changes or
development approvals. If they follow the Supreme Court,s guidelines,
they have a reasonable expectation that their right to proceed with
their project will not be further interrupted.
It is important now that these additional steps be worked thoroughly
into the land-use process; not as a matter of delay but as a routine
matter of due process.
Land owners and developers deserve a degree of certainty as they move
forward. Those who seek to protect traditional practices deserve a
coherent way that their interests are considered.
This ruling should bring both sides closer to their goal.