STAND. COM. REP. NO. 2490

 

Honolulu, Hawaii

                   

 

RE:     S.B. No. 2195

        S.D. 1

 

 

 

Honorable Ronald D. Kouchi

President of the Senate

Thirtieth State Legislature

Regular Session of 2020

State of Hawaii

 

Sir:

 

     Your Committee on Hawaiian Affairs, to which was referred S.B. No. 2195 entitled:

 

"A BILL FOR AN ACT RELATING TO LANDOWNER LIABILITY,"

 

begs leave to report as follows:

 

     The purpose and intent of this measure is to provide liability protections for public and private landowners who expressly allow access and use of their land to practitioners of native Hawaiian traditional and customary practices.

 

     Your Committee received testimony in support of this measure from the Department of Land and Natural Resources, Office of Hawaiian Affairs, Center for Hawaiian Sovereignty Studies, Partners in Development Foundation, Ka Lāhui Hawaii Political Action Committee, and thirteen individuals.  Your Committee received testimony in opposition to this measure from the Hawaii Association for Justice and one individual.  Your Committee received comments on this measure from the Department of Attorney General.

 

     Your Committee finds that article XII, section 7, of the Constitution of the State of Hawaii requires the State to protect and enforce the reasonable exercise of native Hawaiian traditional and customary rights.  Native Hawaiians are legally entitled to engage in the reasonable exercise of these rights and associated practices on both publicly- and privately-owned lands that are less than fully developed, regardless of whether they are granted express permission by landowners.

 

     However, notwithstanding the rights of native Hawaiian cultural practitioners, public and private landowners and property managers with liability concerns may refuse to accommodate practitioners’ access to sites and resources on lands under their ownership or control.  As a result, in order to exercise their constitutional right to reasonably engage in native Hawaiian traditional and customary practices, practitioners often risk potential conflict with landowners or property managers and face potential citation and even arrest.  This measure provide liability protections to public and private land owners, which will encourage the accommodation of native Hawaiian practitioners' traditional and customary rights on public and private lands.

 

     Your Committee acknowledges the concerns of Hawaii Association for Justice but makes mention that in its testimony the Attorney General did basically support the measure with comments.  However, the Attorney General did not raise the concerns raised by the Hawaii Association for Justice so hopefully, going forward, those concerns can be overcome.

 

     Your Committee has amended this measure by:

 

     (1)  Clarifying that article XII, section 7, of the Constitution of the State of Hawaii requires the State to protect the reasonable exercise of native Hawaiian traditional and customary rights;

 

     (2)  Specifying that native Hawaiians are legally entitled to engage in the reasonable exercise of these rights and associated practices on both publicly- and privately-owned lands that are less than fully developed, regardless of whether or not they are granted express permission by landowners, as set forth in State v. Pratt, 124 Hawaii, 329 (2010) and 127 Hawaii 206 (2012);

 

     (3)  Clarifying that notwithstanding the rights of native Hawaiian cultural practitioners, public and private landowners and property managers with liability concerns might refuse to accommodate practitioners' access to sites and resources on lands under their ownership or control; and

 

     (4)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

 

     As affirmed by the record of votes of the members of your Committee on Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2195, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2195, S.D. 1, and be referred to your Committee on Judiciary.

 

Respectfully submitted on behalf of the members of the Committee on Hawaiian Affairs,

 

 

 

________________________________

MAILE S.L. SHIMABUKURO, Chair