Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 5, 1 May 1994 — Hawaiian rights vs. Western law, "No" to Bellows expansion [ARTICLE+ILLUSTRATION]

Hawaiian rights vs. Western law, "No" to Bellows expansion

by Moanike'ala Akaka Trustee, Hawai'i The issue of Hawaiian rights vs. Western law is placing basic conflicts right now before the state Supreme Court. How should native Hawaiian access, fishing and gathering rights be

protected as the land on whieh they are being practiced is developed? In this case, Nansay, a Japanese development firm, seeks a permit to build a large resort, marina and goft course at Kohanaiki (called Pine Trees) near Kailua on the Kona coast. For generations, families, individuals and surfers

have used the area for recreation, fishing, surfmg, camping, swimming, etc., a rare ma kai oasis for residents since resorts catering to tourists have been given priority. The Protect Kohanaiki 'Ohana has organized to keep the area ffee of development. Several years ago the state admitted to the glut of upscale hotels on this coastline; several have since gone bankrupt. Yet today more hotels are being built, and more developers, including Nansay at Kohanaiki, are trying to get permits to build further resorts. Kohanaiki has the best remaining complex of anehialine ponds (brackish shoreline ponds) on the Kona coast. They are an ecosystem unique to Hawai'i. Seventy-nine of these ponds were destroyed when the now-bankrupt Hyatt Waikoloa Hotel was built up the coast.

For hundreds of years native Hawaiians have gathered 'ōpae 'ula ffom the Kohanaiki ponds. The Hawai'i County Planning Commission, whieh issues development permits, contends it does not have to protect native gathering rights or even entertain them through a contested case hearing. The Sierra Club Legal Defense Fund is suing on behalf of native Hawaiian rights with the support of the Office of Hawaiian Affairs. The state Supreme Court ruled in 1992 that Hawaiians have gathering rights on undeveloped land. A lower court has ruled that Hawaiians have gathering rights at Kohanaiki, but that ruling was appealed and heard before the high court in March. It is hoped this court will recognize and uphold native Hawaiian rights whieh are inherent and guaranteed

in the state constitution. It is the responsibility of the courts to acknowledge our native rights, since the county has refused to do so. Let us see if the state Supreme Court will meet the challenge and do what is morally right for the Hawaiian people.

The Nansay attorney says that native rights to gather would take away private property rights. He refers to the rights of citizens of a nation (the U.S.) that illegally removed our queen. It would be proper, fitting and wise for the state Supreme Court to recognize our native rights and pave the way for a

legal transition toward Hawaiian sovereignty. Bellows Field, Waimānalo The U.S. military plans to expand Bellows field at Waimānalo to nearly double the present military training area and housing for 500 military families. Waimānalo neighborhood board chair Linden Burzell stated, "While many agree military families need housing, native Hawaiians need it more. It's offensive. ... to develop military housing rather than return these ceded lands back to Hawaiian use." Congressman Neil Abercrombie said on the Bellows EIS, "In view of Hawai'i's history and the 1893 overthrow, it is unconscionable that we should be talking about building housing and improving recreational facilities (for military) on Hawaiian ceded lands while Hawaiian families are homeless on the beach."

The apology resolution signed by President Clinton last fall, nearly 100 years after the overthrow, appears hypocritical in view of this latest attempt by the U.S. government to usurp our Hawaiian ceded lands while we Hawaiians and other residents are supposed to feel grateful we are allowed to use Bellows Beach on weekends only. OHA has taken a strong position against the Department of Defense's presumptuous attitude toward expanded use of our Hawaiian ceded lands. Eeonomie blackmail via a military pull-out is a ploy to intimidate us if we dare challenge their plans to expand on our much-needed lands. Mālama pono. Ua mau ke ea o ka ■ 'āina i ka pono.