Sunday, Dec. 05, 2021 |
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KAILUA-KONA — Protection for all sharks and rays within state waters has moved another step closer to reality.
Senate Bill 2079 cleared the state House Committee on Ocean, Marine Resources and Hawaiian Affairs with amendments on March 13 after securing a 5-0 vote. Rep. Richard Creagan, D-South Kona, portions of North Kona and Ka’u, was among the representatives voting in favor of the bill; two representatives were excused from the vote.
The proposal seeks to protect all sharks and rays within state waters for ecological purposes, and their value to Native Hawaiian cultural practices and the ocean recreation industry. The committee on March 13 added an exception for sharks taken outside of state marine waters and possessed on a vessel in state marine waters pursuant to a federally managed fishery for the purpose of landing the catch in the state.
In its current form, the bill would establish fines for “knowingly capture, take, possess, abuse, or entangle any shark, whether alive or dead, or kill any shark, within state marine waters.” It would also expand similar protections afforded to manta rays in 2009 to include all rays — or hihimanu.
Violating the law would be a misdemeanor offense with fines ranging from $500 to $10,000 and an administrative fine up to $10,000 per specimen.
Exceptions are listed for research and educational purposes, as well as traditional and customary rights protected by the Hawaii Constitution.
Senate Bill 2079 passed its third reading in the state Senate and was sent to the House earlier this month. The full House passed on it first reading March 8 and referred it for hearings before two committees.
To remain alive, the measure needs to pass a second reading by the House and secure a hearing before the Committee on Judiciary.
This bill provides good reasons why sharks and rays should be protected. The bill provides severe penalties for anyone who captures, kills, or takes a shark or ray within state waters.
Section 2(e) identifies exceptions whereby holders of special permits, or employees of the DLNR, may engage in activities which would otherwise be prohibited to the general public.
However, subsection 2(e)(2) has a problem which this committee should cure by means of an amendment. Either delete subsection 2(e)(2) entirely, or else broaden the exception to include all people regardless of race who are exercising practices which were traditionally and customarily engaged in by the native Hawaiians who lived in that ahupua’a prior to 1778.
Let me illustrate with an example. We know that in ancient times native Hawaiians, who were the entirety of the population in Hawaii, had the right to gather food and building materials from anywhere in the land controlled by their ali’i or konohiki, and also had the right to cross any land for the purpose of going to the ocean. Such rights were preserved after the Mahele, when royal patent deeds were awarded to create private ownership of land — but the gathering rights and shoreline access rights were preserved for the tenants (residents) of each ahupua’a. Those rights were race-neutral; i.e., every person (kanaka) who was a tenant (hoa’aina) had those rights regardless of race. Although such rights for hunting and fishing and gathering were probably not exercised very often by wealthy foreigners, there was no prohibition against them. The words “kanaka” and “hoa’aina” were race-neutral words not limited to people with native blood.
Today the laws of Hawaii recognize that all residents (hoa’aina), regardless of race, have the right to cross public lands as well as undeveloped or even partially developed private land to go to the beach. This right survives from ancient times right up to the present, for all residents regardless of race.
There are many residents of Hawaii whose heritage is from various Pacific island nations such as Samoa, Tonga, Marshall Islands who engage in Polynesian or Micronesian cultural practices, and should be allowed to continue doing so, even if they have no Hawaiian native ancestry. Likewise there are thousands of residents of Hawaii of Asian or Caucasian ancestry, with no Hawaiian native blood, who participate actively in hula halaus, for example, where their kumu hula might expect them to make their own sharkskin drums or sharktooth martial weapons
So if this committee wishes to make an exception such as Section 2(e)(2), then the exception should NOT be for people on account of their race, but rather should be for the traditional and customary activities formerly engaged in by native Hawaiians before 1778 but which are now engaged in by residents of all races. If you are unwilling to allow the exceptions for cultural activities regardless of race, then I believe the U.S. Constitution, 14th Amendment Equal Protection clause, requires you to entirely delete subsection 2(e)(2).
There is no good reason to make the exemption racial. The exemption should be based on preservation of historic skills or ongoing cultural uses, regardless of race.
Either subsection (2) should be deleted from this bill, or else it should be reworded to broaden it so that all persons regardless of race can capture, kill, or take a shark or ray for purposes of engaging in traditional and customary cultural practices for personal or instructional use but not commercial use. Examples of acceptable circumstances for automatic exemption would include harvesting sharkskin for making a drum, or harvesting shark teeth to make an ornament for personal adornment or a replica of an ancient weapon for use in museum displays or school lessons.
Is it true one of traditional rights is to kill sharks to use their skin for drum making?
suppose an ulua fisherman catches a shark
is he supposed to release it?
suppose the shark dies
has the fisherman committed a crime?
yes, no, duh.
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