Copyright (c) 1995 University of Hawai'i Law Review
University of Hawai'i Law Review
COMMENT: The Reassertion of Native Hawaiian 1 Gathering Rights Within The Context of Hawai'i's Western System of Land Tenure
Summer, 1995
17 Hawaii L. Rev. 165
Author
Excerpt
Contemporary Hawaii law includes the mandate that Native Hawaiian culture must be protected or, if once lost, restored. 2 Article XII, section 7 of the Hawaii Constitution, adopted in 1978, embodies the emerging trend in Hawaii public policy to protect Native Hawaiian culture: "The State reaffirms and shall protect all rights customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a 3 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." 4 The traditional rights encompassed by article XII, section 7 include Native Hawaiian gathering rights. 5
The land system of ancient Hawaii revolved around the land division known as the ahupua'a. 6 Typically, each ahupua'a would encompass an area of land extending from the seashore to the mountains. 7 The division of land in this fashion "enabled a chief and his people to obtain fish and seaweed from the ocean, and fuel, canoe timber and mountain birds" from the uplands. 8 A tenant of an ahupua'a could traverse the lands within the ahupua'a in which he resided in order to gather from the land those items necessary for survival. 9 The uses of gathering rights were myriad:
First, gathering allowed the tenant farmer to supplement a subsistence lifestyle with plants and animals that either could not grow or could not be supported on or near the tenant's houselot or cultivated plot of land. In this ...
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Traditional Gathering Rights
Q: What rights do native Hawaiians have with respect to beach and shoreline access to practice traditional gathering rights?
A: Native Hawaiian gathering rights are addressed in HRS §§1-1 and 7-1, and in Article 12 §7 of the Constitution of the State of Hawaii. In order to legally exercise these constitutionally protected native Hawaiian rights of gathering, a person must establish the following three factors.
- (1) He or she must qualify as “native Hawaiian” within the guidelines set out in Public Access Shoreline Hawaii (PASH) v. Hawai’i County Planning Com’n, 903 P.2d 1246, 1270 (Haw. 1995).
- (2) Once qualified as a native Hawaiian, he or she must then establish that his or her claimed right is constitutionally protected as a customary or traditional native Hawaiian practice. Id.
- (3) He or she must also prove that the exercise of the right will occur on undeveloped or “less than fully developed property.” Id.
- See also section regarding landmark cases.
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Common Law
HRS CZM 205A-1 DEFINITION OF SHORELINE
"Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.”
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