A convention to re-examine the present condition of the state constitution is unnecessary and would result in a squandering of needed state financial resources.
The real question is, "What's broke? Is there some area of the state government that is so drastically out of kilter that it needs fixing?" Another question is, "Are there human liberties that are being trampled upon by government so that a constitutional convention is required to ameliorate the situation?"
The answer is a clear and resounding "No!" So, "If it ain't broke don't fix it."
Some advocates of a convention contend that there should be a clearer demarcation between state and county jurisdiction and responsibilities. Most notably, those advocates point to the alleged overlap and confusion in the area of land use planning. Their complaints are similar to those expressed by the majority party in the last U.S. Congress regarding laws and regulations relating to environmental protection: Too much regulation. In our view, the state laws regarding land use should be continued, since they serve the purpose of protecting the environment.
No advocates have indicated any dissatisfaction
with the government's treatment of individual liberties, with the exception
of the same-sex marriage issue, and that is now in the courts.
However, some people have expressed concerns over the impact of the amendments
adopted by the 1978 convention relating to native Hawaiian rights and our
water resources. Those amendments created the Office of Hawaiian Affairs
(OHA) and required the state to protect and preserve Native Hawaiian customs
and traditions and the state's water resources. The concerns are premature.
State Water Code is presently being fleshed out and clarified by administrative
hearings and, perhaps in the near future, court decisions. The same is true
of those native Hawaiian customs and traditions.
Aside from those matters, however, the Native Hawaiian Advisory Council (NHAC) notes that the Native Hawaiian population recently voted to proceed with a process for establishing a Native Hawaiian sovereign government. The matter of Native Hawaiian sovereignty, alone, is sufficient reason to postpone a state constitutional convention until after the Native Hawaiian peoples have determined precisely what form of government will determine their future. It must be noted that the state constitution allows the legislature to put the question of whether a state constitutional convention shall be held on the ballot at any general or special election. Thus, no harm would be occasioned by any delay in convening a state constitutional convention.
Elizabeth Pa Martin, NHAC's executive director,
says, "Hawaiians need to elect delegates to the sovereignty convention,
conduct such a convention, and determine an agenda before another state
constitutional convention is convened."
Mala`ai
O Pa`ala`akai means food garden of Pa`ala`akai,
a district of Waialua on O`ahu's north shore.
The project, initiated by the Native Hawaiian Advisory Council (NHAC) in April 1993, received funding from the Department of Health and Human Service's (DHHS) Administration for Native Americans (ANA) in September 1995.
Native Planters, the grant recipient, has worked in partnership with KI Arts principals, Kunani and Ipo Nihipali to successfully achieve the projects first year objective to restore lo`i and plant taro. David Martin, NHAC project manager and policy analyst, administers the project with Native Planters project manager Kalani Apuakehau, ecoculturalist.
The project was helped tremendously by a $15,500 grant to NHAC by the Queen Lili`uokalani Children's Center (QLCC) for a lease-to-purchase agreement for an excavator to open taro lo`i. QLCC's commitment of $10,000 to the second year lease-to-purchase agreement shows a strong interest in providing financial support to the Mala`ai project and it contributes to efforts to build a community-based taro hui (cooperative).
QLCC has been able to use the project site to meet important needs. QLCC staff and clients have experienced the preparation of lo`i and planting of kalo.
On-site workshops gave the Center's staff an opportunity to practice welcoming chants and entry protocol. QLCC's kupuna (elders) program participated in tapa lessons taught by tapa expert Kawai A`ona-Ueoka. QLCC's summer language program taught by Kalekoa Kaeo and Kahea Dukelow and their hula halau lead by Kumu Hula Moke Labra held a series of classes on the Mala`ai O Pa`ala`akai project site.
A decision allocating Windward O'ahu groundwater captured by the Waiahole Ditch may be reached by the Commission on Water Resource Management (CWRM) by the end of this year.
Closing oral arguments in the Waiahole Ditch Combined Contested Case were held in September. The closing statements are being televised on public access stations.
In their closing arguments, leeward parties requested the Commission to approve their joint application to divert as much as 22 million gallons of water per day (mgd) of the estimated 24 mgd of windward Oahu groundwater captured by and flowing through the Waiahole Ditch to the leeward side.
Waiahole Irrigation Co.'s (WIC) monthly water use reports to the Commission show that water usage on the leeward side from August 1995 to June 1996 averaged 6 mgd. This means that unauthorized uses (golf course irrigation), waste (dumping water into leeward gulches) and, to a lesser extent, system losses (siphon and ditch leakage, evaporation, etc.) account for up to 5 mgd of the approximately 11 mgd of water which today continues to flow through the ditch to the leeward side.
It is alarming that the leeward parties are requesting an additional approximately 16 mgd of Windward Oahu groundwater. The Commission apparently agrees. Order No. 36 had directed WIC to address:
1. On what basis is water from the Waiahole ditch system made available to end users not authorized to continue an existing use? And on what basis does WIC collect revenues from end users not authorized?
2. What specific actions have been taken to reduce system losses, when were they taken, and what are the related changes in total system losses from August 1995 to September 1996?
3. What are the actual quantified system losses by category (siphons, ditch leakage, reservoir, evaporation, etc.) as opposed to the simple mathematical difference between total average ditch flow and the total metered end uses (which include unauthorized as well as authorized uses)?
WIC is now required to report monthly to the Commission on measurements of the monthly average of the daily ditch flows. As Order No. 36 states, it is not "acceptable that water retained in the system by greater efficiencies simply be allocated as WIC chooses and for its own financial benefit."
"This is a small but significant victory for advocates of stream restoration specifically and, more generally, the protection and preservation of public resources," Nahono Haia, Native Hawaiian Advisory Council (NHAC) attorney, said. "WIC has tried to dodge its responsibility to account for its water use practices. Its attempt to do so speaks volumes about its respect for a public resource and the laws and agency which have been put in place to protect it. The Commission should be commended for its attempt to make WIC accountable to the people of Hawai'i."
More than 70 percent of a crowd filling Moloka`i High and Intermediate School cafeteria on Sept. 23 for the continuation of a Commission on Water Resource Management public hearing opposed a request from Moloka`i Ranch for water from the Kamiloloa aquifer. But officials chose to listen to 30 percent in favor of the request.
Moloka`i Ranch requests to use 1.25 million gallons of water from the aquifer. Those opposing the request include native Hawaiian homesteaders striving to protect their water supply. The Office of Hawaiian Affairs (OHA) and the Department of Hawaiian Home Lands (DHHL) also testified against the permit.
Of 110 people signed up to testify before the Commission, only 45 people actually presented testimony. At the initial public hearing on the permit request in May, 500 Moloka`i residents attended. In both hearings, testimony (overwhelmingly in opposition to the request) lasted until late into the evening.
"It's no use for the other side to downplay the desire of the majority of people living on Moloka`i to disallow the Moloka`i Ranch request, " Nahono Haia, Native Hawaiian Advisory Council (NHAC) staff attorney, said.
DeGray Vanderbilt, a Moloka`i resident, told the Maui News that most of the testimony delivered in favor of the request was from Moloka`i Ranch employees, business people, and representatives of the labor union.
Testimony in opposition to the permit request included
the following concerns:
There is a lack of data concerning ground water availability on the island.
Further definitive information is required to ensure that Commission decision-making
on these applications is based on reliable data and sound science.
The proposed water use threatens fresh water supply which is essential to community life. Community life on Moloka`i depends greatly on traditional and customary Hawaiian subsistence, cultural, and religious practices. Clearly these practices play a vital role in Moloka`i's economic, cultural, and social fabric.
The Water Code prohibits any action that would abrogate the rights of Hawaiians to practice their customs and traditions.
There is great uncertainty regarding the quantity
of water that can be safely extracted from the aquifer without degrading
the quality of this sole source of drinking water on Moloka`i.
Overpumping would be disastrous and could jeopardize the sole source of
drinking water for the island, and threaten the quality and quantity of
water available over the long term.
Commission staff has recommended that the permit be approved. Petitions challenging this recommendation have been filed by DHHL, OHA and other parties.
Kaua`i Hawaiian homestead residents continue to raise concerns about the
interconnection of Department of Hawaiian Home Land's (DHHL) Anahola Agricultural
water system with the municipal system operated by the Kauai County Department
of Water (DOW) and the proposed water system license agreement. (For more
background, see Ke Kia`i Fall 1996 issue)
During the Sept. 23, 1996 DHHL community meeting at the Anahola Clubhouse,
residents requested more consideration be given to a beneficiary-operated
water system in the future. Many objections were raised to the present proposal's
provision to turn the system over to DOW in perpetuity (forever). However,
homesteaders strongly supported proposed language requiring DOW to obtain
DHHL's written approval before issuing new water allocations from the well
site.
The allocation approval provision has become a difficult sticking point in discussions between DHHL and DOW. DHHL chair Kali Watson told beneficiaries DHHL would hold firm to keeping the water allocation provision in the agreement and that DHHL would seek a fixed year term of license. Watson responded affirmatively when asked by beneficiaries if community representatives could attend and participate in discussions with DOW representatives.
Beneficiaries were especially critical of Kauai County's continuing failure to fund and construct a 500,000 gallon water storage tank negotiated for in the 1990 settlement of the Aki vs. Beamer lawsuit.
Aki successfully challenged the County's prior unlawful use of the Anahola Beach park. The plaintiff's focused on the mission of DHHL to provide housing and negotiated for the water tank to assist DHHL in its efforts to accelerate housing. Asserting that Kaua`i County has not used "good faith efforts" to seek funding from the state, beneficiaries were insistent that both the Kaua`i County and DHHL undertake a more serious and coordinated effort to do so.
The County was successful in getting $470,000 of the $1.2 million required to construct the tank appropriated last legislative session. The governor has held up release of the funds.
Kenneth Kupchak, a Honolulu lawyer specializing in construction law, wants
Hawai`i residents to believe that honoring Hawaiian rights will stifle investment
and development in the islands. Kupchak takes issue with the "PASH"
(Public Access Shoreline Hawai`i) decision, a strong statement by the Hawai`i
court clarifying Hawaiian rights.
Daniel Case and Clinton Ashford, two former bar association presidents, want people to believe that Hawai`i's Supreme Court makes decisions that are "harmful to the people of Hawai`i." Case and Ashford maintain that the Hawai`i Supreme Court has an activist agenda and has been radical in its decisions.
Former Chief Justice William S. Richardson responds to what he sees as inaccurate criticism of the Hawaii Supreme Court.
"Their belief that Western concepts always
must control in a system based on the rule of law is simply wrong,"
Richardson said in a commentary to the Advertiser (Focus, Sept. 1, 1996).
Richardson notes that Section 1-1 of Hawai`i's statutory law "has provided
a list of exceptions to so-called Western law. These exceptions include
Hawaiian judicial precedent and Hawaiian usage (custom), and statutes made
by our Legislature."
The PASH decision deals with native gathering rights. The Supreme Court determined that state agencies are obliged to protect native Hawaiian traditional and customary rights set forth in the constitution and statutes. It also affirmed the constitutional and statutory right of native Hawaiians to seek to go on to private property for traditional gathering, cultural and religious purposes. This right applies whether or not they live on or adjacent to the property.
In considering the balance between the rights of private landowners and the rights of persons exercising traditional Hawaiian culture, the court declared that "the western concept of exclusivity is not universally applicable in Hawai`i."
Ashford and Case call upon the Hawai`i Supreme
Court to adhere to "traditional standards and rules." Richardson
maintains that is exactly what the Hawai`i Supreme Court has been doing,
making decisions "based on standards and values time-honored and traditional
in Hawai`i."
"For too long, economic considerations have reigned over the rights,
customs and traditions of the Hawaiian people," Elizabeth Pa Martin,
Native Hawaiian Advisory Council (NHAC) executive director, said. "To
suggest that protecting the rights of native Hawaiians will devastate the
economy is ridiculous.
"What is good for Hawaiians is good for Hawai`i."
Note: The following article is taken from an amicus curiae to the U.S. Supreme
Court by the Native Hawaiian Legal Corporation, No Loio No Na Kanaka, and
the Native Hawaiian Advisory Council regarding Article 28, Arizona's English
Only amendment. These excerpts are taken from the summary.
Article 28, Arizona's English Only amendment is not about national unity versus balkanization. Nor is it about the encouragement of immigrant assimilation versus cultural group separatism. Arizona's English Only amendment is about negation and exclusion. It is designed to achieve a false sense of unity through an apparently homogenous polity by rendering invisible those who do not look and talk like "Americans."
The amendment could destroy many immigrant group members' ability to function in day-to-day interactions with government and to participate meaningfully in political life. The amendment will deprive immigrants of the cultural base of identity and support needed to cope with continuing mainstream racism and nativism. Maintenance of this transitional base is necessary for such groups to survive in and adapt to American society.
This is supported by history. The racist underpinnings and horrendous cultural consequences resulting from the overthrow of Hawai`i's constitutional monarchy and the Hawai`i territorial government's efforts to wipe out the indigenous Hawaiian language to establish English as the "standard" language for multiracial, multilingual Hawai`i.
English Only in Hawai`i meant more than the suppression of Hawaiian and other non-English languages. Although cast in terms of assimilation and societal unity, the Hawaiian language prohibition was part of a larger racist strategy to negate nonwhite racial and cultural groups. Banning the Hawaiian language did not result in the assimilation of Hawaiians but nearly destroyed their culture, as well as their physical and spiritual health while effectively excluding them from the United States polity.
The proper description of this English Only controversy is negation/exclusion versus multicultural democracy.
The Native Hawaiian Advisory Council (NHAC) has been awarded a grant to assist in their quest for more meaningful participation in government decision-making.
The U.S. Environmental Protection Agency (EPA) awarded the $20,000 grant for the project "E Alu Like Mai I Ka Pono," a joint effort of the NHAC and the William S. Richardson School of Law at the University of Hawaii .
The law school has a history of service to the Hawaiian community. Most recently, the school produced a workbook for Hawaiians describing the major environmental laws in Hawaii and the Hawaii Administrative Procedure Act. It was produced as part of "Kupaa Mahope O Ka Aina," an EPA-funded environmental justice project that taught the basics of environmental law and community organization.
The new project, "E Alu Like Mai I Ka Pono," or "Coming Together for Justice," designed to educate Hawaiians about the legislative and administrative processes by which government agencies make environmental decisions, will expand on the 1995 Kupaa project.
"We hope the project will increase Hawaiian participation in the legislative and administrative processes in Hawaii that establish the stateÕs environmental policies, laws and regulations," Elizabeth Hooipo Martin, NHAC Executive Director, said.
"A Guidebook to Hawaii's Legislative and Administrative Processes" will be published as part of the project. It will focus specifically on those legislative committees and agencies that handle environmental and Hawaiian issues. Workshops for the guide will be held statewide beginning in early 1997 under the direction of Nahono Haia, NHAC staff attorney and community liaison.
The guidebook will outline how citizens can be involved in the legislative process. It will provide practical advice on drafting written and oral testimony, and identify legislative services available to the public, such as the public access room and the computer-based bill tracking system.
Rule-making and contested case hearing procedures will be explained in detail in the guide, and one section will be dedicated to explaining agency informal decision-making and Hawaii's open meetings law. Discussion will concentrate on activities with the Hawaii Department of Health, Department of Agriculture, Water Commission, Land Use Commission, Hawaiian Home Lands Commission, and the Office of Hawaiian Affairs (OHA).
"Improving communication between Hawaiian communities and environmental decision-makers is at the core of this project," Martin said. "As a result of being politically and economically disenfranchised, Hawaiians have often been left out of the environmental decision-making process."
USA, 1996, Beta SP, 30 Minutes
Producer: Na Maka O Ka 'Aina
Distributor: Na Maka O Ka 'Aina
PO Box 29
Na'alehu, Hawai'i 96772
Tel: 1-800-WAR-1811
In a land where water means power, the battle over the water rights abridged by the Waiahole Ditch is about more than just the effort to restore streams to the communities which depend on them. It is a battle for the perpetuation of Hawaiian culture and life. From long time activitist filmmakers, Puhipau and Joan Lander of Na Maka O Ka 'Aina and NHAC. Stolen Waters was produced with funding from Pacific Islanders in Communications.