Written by Bart W. Howk

The State of Hawaii has endeavored to protect the Hawaiian Islands’ unique culture and history with special laws. Some of these special laws can substantially impact development of real property in Hawaii. Real-property developers should consider and account for the potential application of these laws to their projects in the earliest stages of planning.

A. Native Hawaiian Rights

Some of these unique laws protect native Hawaiian traditional and customary rights.1 For example, Hawaii Revised Statutes Section 7-1 prohibits depriving native tenants of the right to access land, gather certain items for personal use, and take water for domestic use.2 The Supreme Court of Hawaii has held that undefined traditional and customary Hawaiian rights to enter and use private property cannot be abandoned or lost through non-use, and that they do not apply to only undeveloped land, even if the rights conflict with those of the fee owner.3

Native Hawaiian groups are very influential in the State of Hawaii and have significantly affected landowners’ plans to develop land in the past. For example, in 2000 a native Hawaiian group’s efforts prevented the reclassification of approximately 1,000 acres of land which would have enabled the development of luxurious homes, golf courses, and commercial space on the Island of Hawaii.4 Developers should not dismiss the importance of working cooperatively with these and other community-based groups.

B. Burials and Historic Sites

Discovering burials and human skeletal remains during construction on the Hawaiian Islands is common, even in areas that are already developed. If human skeletal remains are discovered, activity in the immediate area that could damage the remains must cease.5 The discovery must be immediately reported to the Department of Land and Natural Resources (DLNR), a medical examiner or coroner, and the police. 6

If the remains are determined to be historic or prehistoric remains, the DLNR must gather “sufficient information, including oral tradition, to document the nature of the burial context and determine the appropriate treatment of the remains.”7 Members of the island burial council may oversee the on-site examination and removal, if warranted.8 If the DLNR and burial council approve relocating the remains, an archaeologist must oversee the removal in accordance with a mitigation plan.9 If the discovery is made in the process of developing the land, the landowner or developer is responsible for execution of the mitigation plan (including relocation of remains).10

Discoveries of multiple human skeletal remains, especially of those with known lineal descendants or which are associated with important individuals and events, are more likely to be preserved in place.11

1 D. Kapua’ala Sproat, Avoiding Trouble in Paradise – Understanding Hawai’i’s Law and Indigenous Culture, Business Law Today, Nov./Dec. 2008, p. 30.

2 Id. (discussing H.R.S. § 7-1).

3 Hawaii Real Estate Law Manual, 1997, p. 6-10 (discussing Public Access Shoreline Hawai’i v. Hawai’i County Planning Comm’n, 79 Haw. 425, 903 P.2d 1246 (1995)).

4 Sproat at 30-31 (discussing Ka Poipu Aina’akai O Ka ‘Aina v. Land Use Comm’n, 94 Haw. 31, 7 P.3d 1068 (2000)).

5 H.R.S. § 6E-43.6(a).

6 H.R.S. § 6E-43.6(b).

7 H.R.S. § 6E-43.6(c)(2).

8 H.R.S. § 6E-43.6(c)(3).

9 H.R.S. § 6E-43.6(c)(3).

10 H.R.S. § 6E-43.6(e)(1).

11 H.R.S. § 6E-43.

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