Access from one area to another—along the shore, between adjacent districts, from the mountains to the sea, and to plots of cultivated land—was a vital part of early Hawaiian life. So, too, was the gathering of natural resources for medicinal, religious, and communal purposes and for ensuring the survival of the poor in times of hardship. Following Western contact, however, these traditional and customary practices were undermined by the introduction of the concept of private property.
This chapter provides a detailed account of Hawai‘i’s constitutional, statutory, judicial and administrative efforts to preserve Native Hawaiian access and gathering rights. Hawai‘i law, in contrast to Western law elsewhere, imposes certain limits on property owners’ privileges of exclusion. Several court rulings have affirmed this principle, even while recognizing the difficulty in balancing the interests of Native Hawaiian cultural practitioners and property owners.
Hawai‘i’s legal doctrine in this area is both unique and evolving, given the state’s responsibility to follow historic Hawaiian precedent and to assess its applicability in a modern context. This chapter offers a wealth of information to clarify the complexities of this important subject.
“Traditional and Customary Access and Gathering Rights” is Chapter 14 of Native Hawaiian Law: A Treatise, a volume that updates and expands on the seminal work of the 1991 Native Hawaiian Rights Handbook. The publication is a collaborative effort of the Native Hawaiian Legal Corporation, Ka Huli Ao Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law – University of Hawai‘i at Mānoa, and Kamehameha Publishing.