A Comparative Analysis: Legal and Historical Analysis of Protecting Indigenous Cultural Rights Involving Land Disputes in Japan, New Zealand, and Hawai'i

Washington International Law Journal Washington International Law Journal

Volume 28 Number 1

1-1-2019

A Comparative Analysis: Legal and Historical Analysis of A Comparative Analysis: Legal and Historical Analysis of

Protecting Indigenous Cultural Rights Involving Land Disputes in Protecting Indigenous Cultural Rights Involving Land Disputes in

Japan, New Zealand, and Hawai'i Japan, New Zealand, and Hawai'i

Zachary Browning

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Zachary Browning, Comment,

A Comparative Analysis: Legal and Historical Analysis of Protecting

Indigenous Cultural Rights Involving Land Disputes in Japan, New Zealand, and Hawai'i

, 28 Wash. Int’l L.J.

207 (2019).

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A COMPARATIVE ANALYSIS: LEGAL AND

HISTORICAL ANALYSIS OF PROTECTING INDIGENOUS

CULTURAL RIGHTS INVOLVING LAND DISPUTES IN

JAPAN, NEW ZEALAND, AND HAWAI‘I

Zachary Browning

Abstract: This article explores how courts in developed market economies address

the tension between recognizing the rights of indigenous groups and addressing questions

of land development that supposedly benefit the majority populations. Using a comparative

approach, the article identifies three jurisdictions in the Pacific Rim with indigenous

populations: (1) the State of Hawai‘i in the United States, (2) Japan, and (3) New Zealand

and analyzes how land use courts and administrative bodies have addressed the thorny

question pursuing development while fulfilling their obligations to indigenous populations.

While the State of Hawai‘i has explicit state constitutional protections, Japan and New

Zealand each demonstrate that international treaties like the ICCPR may provide another

important source of legal protection. However, the article concludes that explicit

constitutional protections of indigenous groups provide the greatest level of support when

combined with other constitutional protections like administrative due process.

Cite as: Zachary Browning, A Comparative Analysis: Legal and Historical Analysis of

Protecting Indigenous Cultural Rights Involving Land Disputes in Japan, New Zealand,

and Hawai‛i, 28 WASH. INT’L L.J. 207 (2019).

I. INTRODUCTION

A major issue emerging in the twenty-first century is how to recognize

and protect the rights of indigenous peoples and their unique cultures,

histories, and values. The dilemma is especially daunting for developed

democracies with indigenous minorities whose land was conquered,

confiscated, or claimed many years ago. To many indigenous peoples, land

access is critical to the protection of their identity, culture, and history.

Denying recognition or protection conflicts with the democratic ideas of

justice and equality that democracies purport to represent. However, in

addition to indigenous rights, courts must consider modern property regimes,

* Born in Honolulu, Hawaii, Zach Browning is a 2018 graduate of UW Law. Prior to law school, the

author lived in Japan for three years—first, as an Assistant Language Teacher in the Japan Exchange &

Teaching Programme in Okinawa and second, for his work at Prudential Real Estate Investors in Tokyo. The

author was an extern for Chief Justice Mark Recktenwald of the Hawaii Supreme Court. He currently works

as an Associate for McCullough Hill Leary, PS in Seattle, where he practices in land use and real estate law.

The author would like to thank Professors Jody Chafee (UW), Tatsuhiko Yamamoto (Keio University), Greg

Hicks (UW), and Bob Anderson (UW). Most importantly, the author would like to thank Professor Melissa

Durkee. Finally, he would like to thank Christina Weidner, Vicky Wei, and Kelly Skahan for pushing him to

publish.

208 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

the rights of owners, and the contemporary development needs of society.

Therefore, land use questions involving the protection of indigenous rights are

particularly thorny for courts.

The examples of Japan, New Zealand, and the State of Hawaiʻi

(Hawaiʻi) provide three different models for how courts may analyze and

answer questions of land rights when indigenous minorities bring suits

challenging proposed land developments. Japan, which has historically

defined itself as an ethnically and culturally homogenous nation, has struggled

to recognize the rights of its indigenous peoples and define the scope of

indigenous rights protections.

Nevertheless, Japan has made strides in at least

recognizing the rights of the Ainu, an indigenous minority with origins in the

northern island of Hokkaido.

In contrast, New Zealand and Hawaiian courts

have both succeeded and failed at recognizing the land rights of the Māori and

Native Hawaiians.

This recognition has coincided with the adoption of a

Western property regime and changes in sovereignty.

In Hawai‘i, the

adoption of a written Constitution has provided additional protection. The

scarcity of land and high demand for property development has pushed those

courts to resolve the tension between indigenous rights and the need for

development.

Accordingly, New Zealand and Hawaiʻi provide an interesting

comparison with the Japanese courts.

This Comment will first explain the legal systems of Japan, New

Zealand, and Hawai‘i and the fundamental differences between them. Second,

it will examine the relationship between the Ainu people and the wajin

majority

throughout history, and the legal relationship between the Ainu and

CULTURAL SURVIVAL, OBSERVATIONS ON THE STATE OF INDIGENOUS HUMAN RIGHTS IN JAPAN 1–

2 (2017), https://www.culturalsurvival.org/sites/default/files/JapanUPRR2017_0.pdf.

May-Ying Lam, ‘Land of the Human Begins’: The World of the Ainu, Little-Known Indigenous

People of Japan, WASH. POST, (July 27, 2017), https://www.washingtonpost.com/news/in-

sight/wp/2017/07/28/land-of-the-human-beings-the-world-of-the-ainu-little-known-indigenous-people-of-

japan/.

See Kalipi v. Hawaiian Trust Co., Ltd, 656 P.2d 745, 752 (Haw. 1982) (holding that Native

Hawaiians may enter undeveloped, privately-owned lands to practice Native Hawaiian customs and traditions

when no harm occurs to the property owner).

Lee S. Motteler & J. Patricia Morgan Swenson, Hawaii, ENCYCLOPEDIA BRITANNICA (May 24,

2018), https://www.britannica.com/place/Hawaii-state/Government-and-society.

See generally Samuel J. Panarella, Not in My Backyard: The Clash between Native Hawaiian

Gathering Rights and Western Concepts of Property in Hawaii, 28 ENVTL. L. 467 (1998).

“Wajin” is a term used in Japan mainstream ethno-racial majority. It originated to distinguish the

settlers of mainland Japan from other ethnic groups, including the Ainu in Hokkaido, the Ryukyu people in

Okinawa, and Taiwanese and Korean ethnic minorities as the Japanese Empire expanded. See Mark Levin,

January 2019 Protecting Indigenous Cultural Rights 209

the Japanese State. This section will examine the Japanese court’s decision in

the landmark Nibutani Dam case. Third, this Comment will discuss the

relationship between the Māori and the New Zealand Crown with a focus on

the creation of specialized courts for Māori land disputes. Fourth, it will

explore the Hawaiʻi Supreme Court’s recent jurisprudence to cases raised by

Native Hawaiian plaintiffs to halt development projects. Here, the role of

Hawaiian sovereignty remains a thorny and complicated issue as the Kingdom

of Hawaiʻi, which predated the U.S. annexation, was autonomous and

conducted its own foreign policy with other foreign nations. While Hawaiʻi’s

State Constitution aims to protect Native Hawaiian rights and Hawaiʻi’s

Congressional delegation has pushed for federal recognition of Native

Hawaiians providing the same government-to-government status as tribes on

the continental United States,

this has not eliminated demands for even

greater autonomy or outright independence in Hawaiʻi. As a result, this

Comment will compare the ideas and legal framework used by each system.

Finally, this Comment will conclude with lessons for each corresponding

jurisdiction.

II. BACKGROUND: THREE DIFFERENT LEGAL SYSTEMS

Most nations belong to one of the following two dominant legal

systems—a civil law system or a common law system. Japan adopted the

former approach and America and New Zealand retained the latter one.

Japan

has continually sought to modernize its legal system.

In Japan, the modern

civil law system emerged from the reformist Meiji government.

After years

of isolation, Japan looked outward from 1868 to become a modern,

Hihanteki jinshu riron to Nihon-hō wajin no jinshu-teki tokken ni tsuite (批判的人種理論と日本法―和人

の人種的特権について) [The Wajin’s Whiteness: Law and Race Privilege in Japan], 80 HŌRITSU JIHŌ 80

(2008).

In 2010, the U.S. House of Representatives passed the Native Hawaiian Government Reorganization

Act, which provided federal recognition of Native Hawaiians and allowed for the creation of a governing

entity organized by Native Hawaiians. The bill failed to pass the Senate. See ROBERT T. ANDERSON ET AL.,

AMERICAN INDIAN LAW: CASES AND COMMENTARY (3d ed. 2015).

Piyali Sam, Major Differences Between the Japanese and American Legal Systems, @WASHULAW

BLOG, (Nov. 20, 2013), https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-

american-legal-systems.

Michael Auslin, Japan’s Endless Search for Modernity, ATLANTIC, (Jan. 3, 2018),

https://www.theatlantic.com/international/archive/2018/01/japan-abe-meiji-restoration-china/549536/.

See R. Daniel Keleman & Eric C. Sibbit, The Americanization of Japanese Law, 23 U. PA. J. INT'L

L. 269, 292 (2002).

210 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

international power.

Legal reform was considered essential to Japan’s

development, and the Japanese sought to model their legal system after France

and Germany, which were then considered the two most advanced legal

systems.

As a result, Japan became a civil law country.

The Civil Code

took effect in 1898.

It remains in place today, having survived two World

Wars and the adoption of the 1946 Constitution.

The primary difference between a civil law and common law system is

that codified statutes predominate in the former.

Although common law also

makes use of statutes, judicial cases are considered an important source of law

systems.

This provides judges with an important role in lawmaking. For the

sake of consistency, common law systems form rules based on precedent from

higher courts, whereas in civil law systems, codes and statutes are expected to

cover all eventualities and circumstances.

Past judgments by courts are mere

guides when interpreting statutes. As a result, judges in civil law systems play

the role of investigators and trial procedure is much more bureaucratic and

focused on fact-finding.

The signature feature of the common law legal

system is the trial—a duel between opponents, involving oral testimony from

live witnesses and the submission of exhibits with a judge acting as a referee.

Trial is an adversarial process, which is a major difference from the Japanese

system.

New Zealand is a common law nation whose Western legal traditions

were adopted from the British legal system.

One key difference between

The Meiji Restoration and Modernization, COLUMBIA UNIVERSITY: ASIA FOR EDUCATORS (2009),

http://afe.easia.columbia.edu/special/japan_1750_meiji.htm.

Legal Research Guide: Japan, THE LAW LIBRARY OF CONGRESS (June 9, 2015),

https://www.loc.gov/law/help/legal-research-guide/japan.php.

Id.

Percy R. Luney, Jr., Traditions and Foreign Influences: Systems of Law in China and Japan, 52

LAW & CONTEMP. PROBS. 129, 148–49 (1989).

Harald Baum, Comparison of Law, Transfer of Legal Concepts, and Creation of a Legal Design:

The Case of Japan, in LEGAL INNOVATIONS IN ASIA: JUDICIAL LAWMAKING AND THE INFLUENCE OF

COMPARATIVE LAW 61, 68–73 (John O. Haley & Toshio Takenaka eds., 2014).

The Common Law and Civil Law Traditions, THE ROBBINS COLLECTION: U.C. BERKELEY SCHOOL

OF LAW (2010), https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html.

Id.

S.B., What is the difference between common and civil law?, ECONOMIST (July 17, 2013),

http://www.economist.com/blogs/economist-explains/2013/07/economist-explains-10.

Monroe H. Freedman, Our Constitutionalized Adversary System, 1 CHAP. L. REV. 57, 57 (1998).

Margaret Greville, Access to New Zealand Law, GLOBALEX (Nov./Dec. 2014),

http://www.nyulawglobal.org/globalex/New_Zealand1.html.

January 2019 Protecting Indigenous Cultural Rights 211

New Zealand and both Japan and the United States (or the State of Hawaiʻi)

is that New Zealand does not have a written constitution.

The absence of a

written constitution has led to criticism in the international community that

the nation could more adequately protect Māori rights with written

constitutional guarantees.

Instead, New Zealand’s constitutional

arrangements are a patchwork of various documents which that include the

Constitution Act 1986, the New Zealand Bill Of Rights Act 1990, the

Electoral Act 1993, and the Treaty of Waitangi, as well as broader traditions

and norms.

The common law system in Hawaiʻi predates its annexation by the

United States. Hawaiʻi adopted a common law system in the 1840s after the

arrival of American missionaries.

III. THE AINU IN JAPAN

A. Historical Background

The Ainu people developed their distinct culture and settlements in

Hokkaido, the northern part of Honshu, the southern part of Sakhalin, and the

Kuril Islands.

The Ainu were subjects of the Yuan Dynasty of China from

1308 to the sixteenth century.

The first documented encounter between the

Ainu and wajin occurred in 1356.

Suwa Daimyojin Ekotoba describes the

Ainu as the image of Oni (devil), a term used to discriminate against foreign

people.

During this period, wajin began settling in the southern parts of

NEW ZEALAND MINISTRY OF JUSTICE, THE NEW ZEALAND LEGAL SYSTEM: A GUIDE TO THE

CONSTITUTION, GOVERNMENT, AND LEGISLATURE OF NEW ZEALAND 4–5,

http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN013991.pdf (last visited Nov. 18,

2018). [hereinafter NEW ZEALAND LEGAL SYSTEM].

UPR Recommendations New Zealand received, UPR INFO: DATABASE OF RECOMMENDATIONS,

https://www.upr-info.org/database/index.php (select “New Zealand” under the “State under Review” filter)

(last visited Nov. 18, 2018).

NEW ZEALAND LEGAL SYSTEM supra note 22, at 4–5.

Jane L. Silverman, Imposition of a Western Judicial System in the Hawaiian Monarchy, 16

HAWAIIAN J. HIST. 48, 57 (1982).

Mitsuharu Vincent Okada, The Plight of Ainu, Indigenous People of Japan, 1 J. INDIGENOUS SOC.

DEV. 1, 2 (2012).

BRETT L. WALKER, THE CONQUEST OF AINU LANDS: ECOLOGY AND CULTURE IN JAPANESE

EXPANSION, 1590-1800 132–33 (University of California Press 2006).

Okada, supra note 26, at 3.

Id.

212 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

Hokkaido.

The Ainu and wajin traded with each other—yet many of these

arrangements favored wajin.

A general pattern of unequal trade, conflict,

and colonialism occurred.

By the 1860s, Japan claimed Hokkaido as its sovereign territory.

The

Meiji government established a plan to develop the island in 1869.

The

acceleration of wajin migration coincided with the forced assimilation of the

Ainu.

Traditional Ainu ways of living, culture, and language were

prohibited.

From then on, the Ainu were forced to give up their traditional

hunter-gatherer lifestyle and become farmers.

The Census Registration Act

of 1871 forced the Ainu to adopt Japanese last names.

Meanwhile, under the

Property Law, the Meiji government confiscated traditional Ainu land that

wajin considered underdeveloped.

While wajin individuals and businesses

received incentives to move to Hokkaido, the Ainu were excluded from the

policies that were intended to develop Hokkaido.

The results of these

policies were devastating for the Ainu.

After a century of policies enforcing assimilation and discrimination,

Ainu people struggle to maintain and preserve their traditional methods of

living, culture, identity, beliefs, land, and education. It is not uncommon for

Ainu to hide their identity to avoid discrimination.

In 1993, there were less

than ten remaining speakers of the Ainu language.

This fact is especially

Norimitsu Onishi, Despite Free Land, No Cry of Northward Ho in Japan, N.Y. TIMES (June 3,

2010), https://www.nytimes.com/2008/06/03/world/asia/03iht-03shibetsu.13410595.html.

Richard M. Siddle, The Ainu: Indigenous People of Japan, in JAPAN’S MINORITIES: THE ILLUSION

OF HOMOGENEITY 25–26 (Michael Weiner ed., 2008).

Id.

Okada, supra note 26, at 3.

Hiroshi Maruyama, Note, Japan's Post-War Ainu Policy. Why the Japanese Government Has Not

Recognized Ainu Indigenous Rights?, 49 POLAR RECORD 204, 204–07 (2013).

A Shameful Statement on the Ainu, JAPAN TIMES (Nov. 17, 2014),

https://www.japantimes.co.jp/opinion/2014/11/17/editorials/a-shameful-statement-on-

ainu/#.WsEov2aZPq0.

John B. Cornell, Ainu Assimilation and Cultural Extinction: Acculturation Policy in Hokkaido, 3

ETHNOLOGY 287, 287–88 (1964).

Okada, supra note 26, at 5.

Id.

Alexander Bukh, Ainu Identity and Japan’s Identity: The Struggle for Subjectivity, 28 COPENHAGEN

J. ASIAN STUD. 35, 36–38 (2010).

Okada, supra note 26, at 11.

David McGrogan, A Shift in Japan's Stance on Indigenous Rights and its Implications, 17 INT'L J.

MINORITY & GROUP RTS. 355, 356 (2010), http://www.academia.edu/3299428/

January 2019 Protecting Indigenous Cultural Rights 213

devastating for the preservation of Ainu culture because the Ainu did not

develop a written language.

Furthermore, Ainu are disproportionately poor

and undereducated; in Hokkaido, roughly 56% of Ainu are employed in low-

wage industries,

and only 17% of Ainu have college degrees, compared to

the national average of 54%.

More Ainu receive government-supported

welfare than the national average.

In light of the different history, culture, and socioeconomic status of the

Ainu, the Japanese government has historically pursued a policy of denying

those differences even exist.

At the time, the government’s official position

was that there were no ethnic minorities in Japan.

The Ainu were “former

aborigines” totally subsumed into the Japanese homogenous state. In reports

to the treaty monitoring bodies of the United Nations (U.N.), the Ainu were

referred to with euphemisms such as “the group” and described as living “lives

that differ little from those other constituents of the society.”

Nevertheless,

beginning in the 1980s, Ainu activists began organizing with greater energy.

The Ainu Association of Hokkaido (AAH) lobbied the Japanese government

for greater educational, political, cultural, and fishing rights.

The AAH’s

main goal was recognition of the existence of the Ainu people both

domestically and internationally.

By 1987, an Ainu delegation was sent to

the U.N. Working Group on Indigenous Populations.

A_Shift_in_Japans_Stance_on_Indigenous_Rights_and_its_Implications_International_Journal_of_Minorit

y_and_Group_Rights_2010.

Sherley Wetherhold, The Disappearing Languages of Asia, THE ATLANTIC (July 9, 2012),

https://www.theatlantic.com/international/archive/2012/07/the-disappearing-languages-of-asia/259530/.

Okada, supra note 26, at 9–10.

Id.

Bukh, supra note 40, at 38.

McGrogan, supra note 42, at 357.

Id.

Ann-Elise Lewallen, Ainu Women and Indigenous Modernity in Settler Colonial Japan, 15 ASIA

PAC. J. 1, 3 (2017).

Simon Cotterill, Ainu Success: The Political and Cultural Achievements of Japan’s Indigenous

Minority, 9 ASIA-PAC. J. 1, 5 (2011), http://apjjf.org/-Simon-Cotterill/3500/article.pdf.

What is the Ainu Association of Hokkaido?, AINU ASSOCIATION OF HOKKAIDO, https://www.ainu-

assn.or.jp/english/outline.html (translating in English) (last visited Apr. 3, 2018).

Ainu Historical Events, AINU ASSOCIATION OF HOKKAIDO, https://www.ainu-

assn.or.jp/english/history.html (translating in English) (last visited Apr. 3, 2018).

214 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

B. The Nibutani Dam Decision

The Nibutani Dam Decision was a landmark case in Japanese law,

representing the first time that a Japanese court recognized the right of an

ethnic minority to enjoy his or her culture based on Article 13

of the

Japanese Constitution and the International Covenant on Civil & Political

Rights (ICCPR).

The Sapporo District Court held that a public dam project

was illegal because the government failed to adequately consider the project’s

effect on Ainu culture.

In doing so, the court reached three important

conclusions. First, the court held that the Ainu are a distinct minority culture

in Japan deserving of protection.

Second, Japan has a public policy interest

in protecting Ainu cultural rights resulting from the legacy of discrimination

and forced assimilation that weakened Ainu culture.

Finally, the court found

that the dam construction project itself threatened to damage Ainu cultural

interests.

C. Facts and Background

The Nibutani Dam Decision resulted from the construction of the

Nibutani and Shiratori dams in Hokkaido’s Saru River. The project’s first

stage began with planning in 1973 by the Hokkaido Regional Development

Bureau (the Bureau). The Bureau initially intended for the dam to supply

water to a nearby industrial park.

However, the Bureau later added

hydroelectricity, flood control, and other goals for the project.

The project’s

critics argued that it threatened the livelihood of the Ainu in three ways. First,

the dam would alter salmon migration—a source of sustenance that Ainu

NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION] art. 13 (Japan) (“All of the people shall be respected

as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not

interfere with the public welfare, be the supreme consideration in legislation and in other governmental

affairs.”).

Sapporo Chihō Saibansho [Sapporo Dist. Ct.] Mar. 27, 1997, Hei 9 (gyō u) No. 9, 1598 HANREI

JIHŌ [HANJI] 33, 938 HANREI TAIMUZU [HANTA] 75 (Japan), in THE JAPANESE LEGAL SYSTEM: CASES,

CODES, & COMMENTARY 296 (Curtis J. Milhaupt, J. Mark Ramseyer, Mark D. West 2d eds., 2012) (Kayano

v. Hokkaidō Expropriation Committee) [hereinafter Nibutani Dam Decision].

Id.

Id. at 302.

Id. at 303.

Id. at 304.

Kenichi Matsui, Nibutani Dam on Ainu Homeland, ENVIRONMENTAL JUSTICE ATLAS (June 19,

2015), https://ejatlas.org/conflict/dam-on-ainu-homeland.

Id.

January 2019 Protecting Indigenous Cultural Rights 215

fishermen relied on.

Second, the dam would destroy traditional burial

grounds as well as historical and sacred sites.

Finally, the dam would

inundate land that Ainu property owners retained for farming since the Former

Aboriginal Protection Act of 1899.

In 1987, the Hokkaido Expropriation Committee (Expropriation

Committee) entered negotiations with landowners of the proposed dam site.

When some Ainu owners refused to sell their land—both unsatisfied with the

price and demanding greater compensation for the Ainu that inhabited the

area—the Expropriation Committee condemned the land using the Land

Expropriation Law.

Two private plaintiffs appealed the administrative

ruling to the Minister of Construction in 1989.

Because the Minister of

Construction failed to review the matter, the plaintiffs sued the Expropriation

Committee in Sapporo District Court on October 26, 1993.

The court did not

publish its decision until March 27, 1997.

Nevertheless, dam construction

commenced despite the plaintiffs’ administrative appeals and lawsuit in

Sapporo District Court.

D. The Sapporo District Court’s Ruling

The Sapporo District Court considered the dispute between the private

landowners and the Expropriation Committee in light of Japan’s Land

Expropriation Law.

Article 20(3) requires a balancing test between the

planned project’s public benefits and the resulting harm to both public and

private interests.

The balancing test should be comprehensive according to

the following factors:

Id.

Nibutani Dam Decision, supra note 55, at 296.

Andrew Kaisuke Stewart, Kayano v. Hokkaido Expropriation Committee Revisited: Recognition of

Ryukyuans as a Cultural Minority Under the International Covenant on Civil and Political rights, an

Alternative Paradigm for Okinawan Demilitarization, 4 ASIAN-PACIFIC L. & POL’Y J. 387, 387 (2003).

Nibutani Dam Decision, supra note 55, at 296.

Jude Isabella, How Japan’s Bear-Worshipping Indigenous Group Fought Its Way to Cultural

Relevance, HAKAI MAGAZINE (Oct. 18, 2017), https://www.smithsonianmag.com/science-nature/how-bear-

worshipping-group-in-japan-fought-for-cultural-relevance-180965281/.

Nibutani Dam Decision, supra note 55, at 296.

Id.

216 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

[T]he background of the Project Plan enactment process, the

details of the Project Plan that are raised in the Project

Authorization, the public benefit that should occur from carrying

out the Project Plan, the losing interests and accompanying costs

that may arise out of the execution of the project, and the

considerations that were made in response to the various losses

arising from the instant project.

To condemn private property, the government must show that the public

benefits outweigh the cumulative harm inflicted on public and private

interests.

In its analysis, the court acknowledged the public benefits gained

by constructing the dam, including improving flood control, maintaining the

Saru River’s flow, and increased water supply and electrical power

generation.

The court concluded there was little difference between the

Nibutani dam and other projects that had been approved and this supported

the project’s approval.

However, the court observed that the private-public

interest balancing test implicates the cultural rights of the Ainu, a minority

group.

The Expropriation Committee argued that, even if a minority’s right to

enjoy their culture existed, the Land Expropriation Law did not confer the

Ainu special protections subject to the public and private balancing test.

response, the court considered the scope and quality of legal interests held by

Japan’s ethnic minorities. The court used a two-prong analysis, where it

considered both Japan’s obligations under the ICCPR and the Japanese

Constitution.

After concluding that ethnic minorities possess the right to

culture, the court explored whether the Ainu met the definition of an

indigenous minority.

Finally, the court analyzed the Nibutani dam project in

light of both the public benefits and the harm inflicted on Ainu cultural rights.

Stewart, supra note 68, at 388 (quoting the Nibutani Dam Decision).

Nibutani Dam Decision, supra note 55, at 296.

Id. at 297.

Id.

Id. at 299–302.

Id. at 300.

January 2019 Protecting Indigenous Cultural Rights 217

The court concluded that Japan’s international legal obligations

required the recognition of ethnic minorities.

According to the court, the

ICCPR was binding because the Diet ratified the treaty in 1979 and Article

98(2) of the Constitution provided that treaties have legal force.

The court

observed that the preamble established the dignity and equal rights of all

persons, including the “inherent dignity of the individual.”

Article 2(1)

and

Article 26

of the ICCPR prevent distinctions based on race, language, sex,

and religion, among other statuses, and provide for equal protection.

In light

of the ICCPR preamble and the aforementioned articles, the court applied the

text of Article 27, which read in relevant part:

[I]n those States in which ethnic, religious or linguistic minorities

exist, persons belonging to such minorities shall not be denied

the right, in community with the other members of their group,

to enjoy their own culture, to profess and practice their own

religion, or to use their own language.

The court noted that, based on the Government of Japan’s own reports to the

U.N. Human Rights Committee, it was undisputed that the Ainu are a minority

protected by Article 27 of the ICCPR.

In addition to the ICCPR preamble

and the protections of Article 2(1) and Article 26, Article 27 protects the rights

of individuals belonging to a minority to practice their unique culture,

language, and religion.

Accordingly, the government was obligated to

“exercise due care” to prevent the passage of policies that harm minority

culture.

Although the scope of minority protections may be balanced against

other public needs as defined in Articles 12 and 13, the court concluded that

individuals may seek to enforce minority rights under the ICCPR.

Id. at 298–99.

Id. at 298.

Id. at 297.

G.A. Res. 2200A (XXI), art. 2(1), International Covenant on Civil and Political Rights (Mar. 23,

1976).

Id. art. 26.

Id.

Id. art. 27.

Nibutani Dam Decision, supra note 55, at 298.

Id.

218 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

The court analyzed Article 13 of the Japanese Constitution in a manner

similar to the ICCPR.

The court wrote that Article 13 “demands the highest

regard for the individual” in relation to the state.

Regarding diversity, Article

13 “demands meaningful, not superficial” respect for individuals and

differences among people.

In the context of majority and minority relations,

the court concluded that a minority’s distinct culture is an “essential

commodity” for self-survival.

The constitutional guarantee of minority rights, therefore, fulfills basic

tenets of democracy,

and Article 13 protects the rights of minorities to enjoy

their culture.

Even if minority rights are subject to the public welfare clause,

the court wrote that limitations on minority rights “must be kept to the

narrowest degree necessary.”

Accordingly, the protection of minority rights

is afforded special consideration under the Constitution.

The court concluded that the Ainu meet the definition of “indigenous

people” required to receive protection under ICCPR Article 27. Interestingly,

the court provided its own definition of indigenous people, defining minority

populations as a social group that historically “existed outside of a state’s rule”

until their subjugation by the state.

100

In addition, the indigenous people must

have had a culture and identity different from the majority and have “not since

lost the unique culture and identity.”

101

This definition is problematic because

it implies that groups totally subsumed within the Japanese state would have

no protections or redress, even if the loss of culture or identity resulted from

majority domination. Given the government’s once-held position that there

are no minorities in Japan, the court’s definition of indigenous peoples leaves

open the possibility that a court could ignore minority claims if they conclude

that a minority sufficiently lost its unique identity.

Id.; see also, NIHONKOKU KENPŌ [KENPŌ] [CONSTITUTION] art. 13 (Japan).

Nibutani Dam Decision, supra note 55, at 298.

Id.

Id. at 299.

Id.

Nibutani Dam Decision, supra note 55, at 298.

Id.

100

Id. at 299–300.

101

Id. at 300.

January 2019 Protecting Indigenous Cultural Rights 219

Nevertheless, the court acknowledged that the Ainu inhabited

Hokkaido before it was incorporated into the Japanese state.

102

The court then

engaged in a historical analysis that was honest and reflective regarding the

relationship between the wajin, the Japanese government, and the Ainu. The

court concluded that the assimilationist policies imposed by the Meiji

government caused the Ainu to lose their “ethnic culture, lifestyle, [as well as]

traditional customs.”

103

Prohibitions on Ainu fishing were especially

devastating, and the court conceded that attempts to “stabilize” the lifestyle of

Ainu failed.

104

As a result, the Ainu are an indigenous minority that are

deserving of protections under the ICCPR and Japanese Constitution.

105

Finally, the court considered the obligations of the government with

respect to the Nibutani dam project. The court placed special importance upon

Ainu religious ceremonies and customs held in the Nibutani area.

106

For

example, the Nibutani area was home to burial grounds, worship places, and

other sacred sites, and these were important to understanding the history and

culture of Ainu people.

107

The court observed that the “essence” of Ainu

culture depends on its close connection to nature.

108

Thus, the project’s threat

to Ainu interests was especially high.

109

Therefore, public officials must give

“the greatest degree of consideration” to Ainu minority rights in applying the

Land Expropriation Law.

110

The court concluded that the Ministry of Construction failed to

adequately consider the cultural interests of the Ainu during the project

approval process.

111

The court noted that authorities knew that the planned

development area would disproportionately impact the Ainu since most of the

condemned land belonged to Ainu.

112

Nevertheless, the planning authorities

did nothing to investigate the project’s impact on Ainu culture. At the very

least, the court stated that the planning authorities should have conducted the

102

Id. at 300–01.

103

Id. at 302.

104

Id. at 303.

105

Id. at 305.

106

Id. at 304–06.

107

Id. at 305.

108

Id.

109

Id. at 306.

110

Id.

111

Id. at 307.

112

Id. at 304.

220 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

“equivalent of a preliminary environmental assessment.”

113

The court

concluded that when the Ministry of Construction approved the project, it

should have given the “highest regard” to balancing the public benefits of the

project with the Ainu’s cultural interests.

114

The authorization of the project—

before any study investigating the Ainu’s interests—therefore, was illegal

under the Land Expropriation Law Article 20(3).

115

However, even if the project was illegal, the court refused to reverse the

expropriation order.

116

The court concluded that public policy concerns

required rejecting the plaintiffs’ complaints.

117

The court based its conclusion

on the fact that the dam construction project was already near completion and

that most of the cultural sites had already been destroyed.

118

In light of these

facts and remedial measures by the Hokkaido government, the removal of the

dam would cause even greater damage. In spite of this result, the court

expressed hope that “from this time forward” there would be sufficient

consideration to Ainu culture by the national and local governments.

119

E. The Nibutani Dam Decision—Unmet Expectations?

The decision of the Sapporo District in the Nibutani Dam Decision is

important because it marked the first time that a Japanese court recognized the

rights of indigenous minorities based on the ICCPR and Article 13 of the

Constitution. In addition, it was important that the court addressed the

historical relationship between the Ainu and wajin—acknowledging wajin

responsibility for the cultural and socio-economic deterioration of the Ainu.

In doing so, the court repudiated the typical narrative that Japan is a

homogenous nation with a single cultural, linguistic, and ethnic heritage.

Taken to its logical extreme, the Nibutani Dam Decision has the potential to

redefine the relationship between the Ainu, wajin, and the Japanese

government.

Yet, for many Ainu, the value of the Nibutani Dam Decision has proved

to be more symbolic than substantive. The decision by the Sapporo District

113

Id.

114

Id. at 307.

115

Id.

116

Id. at 307–08.

117

Id. at 307.

118

Id.

119

Id.

January 2019 Protecting Indigenous Cultural Rights 221

Court remains the only one of its kind. The predicted rush of Ainu-rights

related cases never materialized. In fact, litigation filed by Ainu activists in

the Sapporo District Court was rejected in 1999.

120

It is unclear whether the

Nibutani Dam Decision played any role in the Diet’s decision to officially

recognize the Ainu. The resolution was passed in 2008, fifteen years after the

Nibutani Dam Decision.

121

Critics also noted that the resolution’s passage was

timed with Japan’s hosting of an international conference of indigenous

peoples in Hokkaido.

122

Most importantly, most of the major socio-economic

disparities between the Ainu and the general population remain.

123

The idea

that Japan’s judiciary—a notoriously conservative institution

124

—will

continue to create legal pressure for change seems slim. Nevertheless, the door

is open for change and greater recognition of minority Ainu rights. As the

population of Japan’s wajin continues to decline, those voices may become

louder.

IV. MĀORI IN NEW ZEALAND

A. Historical Background

The Māori discovered New Zealand and named it Aotearoa, which

translates into “long white cloud.”

125

Like the Native Hawaiians, the Māori

descended from Polynesian explorers who ventured from Central Polynesia

across the Pacific Ocean.

126

According to Māori legend, a demigod named

Māui discovered Aotearoa’s north island after catching it with a magic fishing

hook.

127

The first explorer to arrive in Aotearoa was named Kupe.

128

Kupe

120

McGrogan, supra note 42, at 359.

121

Norimitsu Onishi, Recognition for a People Who Faded as Japan Grew, N.Y. TIMES (July 3, 2008),

http://www.nytimes.com/2008/07/03/world/asia/03ainu.html.

122

Id.

123

Id.

124

Koji Tonami, Judicial Review in Japan and Its Problems, 33 WASEDA BULL. COMP. L. 1, 3–4 (2012).

125

James O. Oakely Wilson, Aotearoa, ENCYCLOPEDIA OF NEW ZEALAND (A.H. McClintock ed. 1966),

https://teara.govt.nz/en/1966/aotearoa.

126

Rebecca Lenihan, Māori Arrival and Settlement, OXFORD DICTIONARY PLUS HISTORY (2016)

http://www.oxfordreference.com/view/10.1093/acref/9780191823497.001.0001/acref-9780191823497-e-

110.

127

See W.D. WESTERVELT, LEGENDS OF MAUI, A DEMI-GOD OF POLYNESIA (1910), republished in

SACRED-TEXTS.COM (Nov. 1999), http://www.sacred-texts.com/pac/maui/maui05.htm (Interestingly, Māui

is a cultural hero and demigod in Native Hawaiian mythology and his magic fish-hook is credited for creating

the Hawaiian islands.).

128

The Arrival of Māori, 100% PURE NEW ZEALAND, https://www.newzealand.com/us/feature/early-

settlement/ (last visited Oct. 27, 2018).

222 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

used the stars to navigate across the Pacific on his waka hourua (voyaging

canoe). Kupe arrived at Hokianga Harbor in Northland, around one thousand

years ago. Western historians still debate when the Māori arrived in New

Zealand but scientific and archaeological evidence suggest that first

permanent settlement was established around 1300 A.D.

129

The Māori developed into organized, autonomous communities that

were connected through political alliances and kinship.

130

The largest unit in

Māori society was the iwi, which derived from common ancestry and did not

include a permanent leader.

131

Instead, decisions resulted from negotiations

among chiefs and family leaders.

132

Disputes were resolved through custom

according to tikanga Māori,

133

which loosely translates into the correct or

ethical way of doing things according to Māori culture.

134

The first Europeans “discovered” New Zealand in 1642 during Dutch

explorer Abel Tasman’s expedition.

135

However, Tasman departed before

landing after his men engaged in a skirmish with the Māori.

136

James Cook

was the next European explorer to interact with the Māori in 1769.

137

European contact accelerated as the whaling and sealing trade grew and

required port settlements.

138

By the 1830s, the British coveted a colony to

protect their trade interests and preempt French interest in Aotearoa.

139

The British obtained sovereignty over New Zealand following the

signing of a treaty with Māori chiefs. In 1840, Great Britain and 500 Māori

chiefs signed the Treaty of Waitangi, which purported to make a political

129

Geoff Irwin & Carl Walrond, When Was New Zealand First Settled?, TE ARA - THE ENCYCLOPEDIA

OF NEW ZEALAND (May 20, 2006), http://www.TeAra.govt.nz/en/when-was-new-zealand-first-settled/.

130

Traditional Māori Society, RUAPEKAPEKA, http://www.ruapekapeka.co.nz/read/traditional-māori-

society (last visited Oct. 27, 2018)

131

Id.

132

Id.

133

Id.

134

Id.

135

A Brief History, NEW ZEALAND NOW (Aug. 30, 2016), https://www.newzealandnow.govt.nz/living-

in-nz/history-government/a-brief-history.

136

Merata Kawharu, Cook, Tupaia and Māori, BBC HISTORY (Feb. 17, 2011),

http://www.bbc.co.uk/history/british/empire_seapower/cook_tupaia_Māori_01.shtml.

137

Id.

138

A Brief History, supra note 135.

139

Id.

January 2019 Protecting Indigenous Cultural Rights 223

compact between the British and the Māori.

140

However, significant

controversy remains over differences between the English and Māori text.

Different interpretations of the Māori and English translations resulted in the

belief that the Māori did not intentionally cede their sovereignty to the Crown.

The English version declared that the Māori ceded sovereignty but retained

“full exclusive and undisturbed possession” of their land, estates, property,

forests, and fisheries.

141

However, the Māori version translated the word

“sovereignty” as kawatanga, which means governance.

142

This led the Māori

signatories to believe that the Crown would have authority over British settlers

alone and the Māori chiefs would retain tino rangatiratanga (sovereignty)

over their taonga (treasures), including control over property and people.

143

Disputes over interpretations of the Treaty of Waitangi resulted in

conflict between Māori and Europeans as more Europeans arrived and sought

Māori land. In 1859, a minor chief agreed to sell land to the Crown in Taraniki,

a mountainous region on the north island.

144

When a higher ranked chief

disputed the sale, war broke out between the British settlers and Māori.

145

Although the Māori achieved some military success, they were outnumbered

by British soldiers 18,000 to 4,000.

146

Conflict persisted until 1872 when the

last Māori chiefs surrendered.

147

The Land Wars resulted in a new phase of

land redistribution that was arguably as destructive as the wars themselves.

148

The British targeted the land of Māori that had fought and lost. After passage

of the New Zealand Settlements Acts 1863, the Crown confiscated around one

million hectares.

149

140

Treaty of Waitangi, 100% PURE NEW ZEALAND, https://www.newzealand.com/us/feature/treaty-of-

waitangi/ (last visited Oct. 27, 2018).

141

The Treaty in Brief, NEW ZEALAND HISTORY (May 23, 2018),

https://nzhistory.govt.nz/politics/treaty/treaty-faqs#WhatistheTreatyofWaitangi.

142

Id.

143

Id.

144

War in Taranaki 1860-63, NEW ZEALAND HISTORY (Aug. 5, 2014)

https://nzhistory.govt.nz/war/taranaki-wars.

145

Id.

146

Tom O’Connor, The Land Wars Were a Civil War, WAIKATO TIMES (Aug. 27, 2016),

https://www.stuff.co.nz/waikato-times/opinion/83629039/the-land-wars-were-a-civil-war.

147

Danny Keenan, New Zealand Wars, TE ARA - THE ENCYCLOPEDIA OF NEW ZEALAND (Feb. 8, 2017),

http://www.TeAra.govt.nz/en/new-zealand-wars/page-11.

148

Id.

149

Id.

224 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

The Native Land Court, the predecessor to the Māori Land Court, was

established in 1865.

150

The Court allowed Māori customary land to be re-

classified as freehold land—the most common form of land ownership in New

Zealand. The reclassification made it easier to transfer land from Māori to

European settlers because encumbrances on the land were removed and the

government could control the price and size of parcels sold.

151

Even at the

time, the Native Land Court’s role in land redistribution was criticized. In

1890, an Auckland lawyer named William Rees led an investigation into the

validity of Māori land sales. The findings concluded that the Native Land

Court was responsible for “the difficulties, the frauds, and the suffering of

Māori landowners.”

152

Although several other investigations and

commissions, including one headed by a Supreme Court justice resulted in the

Crown paying annual reparation payments to Māori landowners, other statutes

were used to justify the transfer of Māori land. In particular, public works acts

dating as far back as the 1880s provided the Crown with the power to

confiscate land in the name of public infrastructure projects and Māori land

was often disproportionally targeted.

153

The Waitangi Tribunal set up a clear institution for Māori claims for

breach of the Treaty. The Waitangi Tribunal is a standing quasi-judicial

institution that possesses exclusive jurisdiction to interpret the “meaning and

effect of the Treaty of Waitangi.”

154

The Tribunal’s authority extends to

identifying and responding to Treaty-related issues, including the power to

review acts or omissions by the Crown for compliance with the Treaty’s

principles.

155

However, the Tribunal’s enforcement powers are limited. In

most cases, the Tribunal can only give recommendations. The notable

150

Christopher C. Hilliard, The Native Land Court: Making Property in Nineteenth-Century New

Zealand, in NATIVE CLAIMS: INDIGENOUS LAW AGAINST EMPIRE, 1500–1920 (Oxford Univ. Press 2011),

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199794850.001.0001/acprof-

9780199794850-chapter-9.

151

Alice Eager, Enough is Enough: Achieving the Protection of Māori Freehold Land from Public

Works Acquisition 6–8 (Oct. 2015) (unpublished L.L.B. thesis, University of Otago) (on file with University

of Otago), https://www.otago.ac.nz/law/research/journals/otago451208.pdf.

152

Mark Derby, Ngā Take Māori – Government Policy and Māori, TE ARA - THE ENCYCLOPEDIA OF

NEW ZEALAND (June 20, 2012), http://www.TeAra.govt.nz/en/nga-take-Māori-government-policy-and-

Māori/page-3).

153

Eager, supra note 151, at 8–9.

154

Treaty of Waitangi Act 1975, sec. 5, Oct. 10, 1975 (N.Z).

155

Edward Willis, Legal Recognition of Rights Derived from the Treaty of Waitangi, 8 N.Z. J. PUB. &

INT’L L. 217, 221–22 (2010).

January 2019 Protecting Indigenous Cultural Rights 225

exception relates to Māori land. The Tribunal can direct State Enterprise and

Crown Forest lands to be returned to the Māori.

156

Māori custom is also an important source of law in New Zealand. Along

with the passage of the Treaty of Waitangi Act, Māori customs have played

an increasingly important role in New Zealand’s legal development. Known

as tikanga Māori, the individual Māori tribes had firmly established rules of

governance, social structures, and accepted norms and customs relating to

trade and land rights, protecting the environment, and conflict resolution.

157

New Zealand’s courts now recognize that applying Treaty principles requires

consideration of tikanga Māori.

158

The former chief judge of the Māori Land

Use Court cites the Treaty for the proposition that New Zealand law has “its

source in two streams”—both English law and tikanga Māori.

159

Under New

Zealand common law, Māori custom is also applicable in cases where there is

no controlling treaty or statutory authority in cases involving aboriginal rights

and aboriginal title. Under these doctrines, customary laws or practices that

are continuous must be protected by courts if they have not been extinguished

by statute. This has included fishing, hunting, and gathering rights.

160

New

Zealand courts hold that “customs and practices which include spiritual

elements are cognizable in a Court of law provided they are properly

established[.]”

161

The Māori Land Court is an important institution adjudicating disputes

related to Māori land and title rights. The court hears matters relating to the

status, ownership, management, and use of Māori land.

162

The Māori Land

Court holds a register of all Māori land and has the power to accept

applications to transfer Māori land ownership, establish Māori land trusts or

incorporations, or recommend the establishment of a Māori reservation.

163

156

C. J. J V Williams, Reparations and the Waitangi Tribunal to “Moving Forward Conference”,

Speech at Australian Human Rights Commission Moving Forward Conference (Aug. 15–16, 2001),

https://www.humanrights.gov.au/reparations-and-waitangi-tribunal.

157

Kelly Buchanan, Legal Research Guide: Māori Customary Law, THE LAW LIBRARY OF CONGRESS

(July 2012), https://www.loc.gov/law/help/Māori-customary-law.php.

158

Id.

159

Id.

160

Multiculturalism Policies in Contemporary Democracies: New Zealand, QUEEN’S UNIVERSITY,

http://www.queensu.ca/mcp/indigenous-peoples/evidence/new-zealand (last visited Nov. 18, 2018).

161

Id.

162

See Māori Land and the Land Court, CITIZENS ADVICE BUREAU (Aug. 23, 2017),

http://www.cab.org.nz/vat/hle/ml/Pages/MāoriLandCourt.aspx.

163

Id.

226 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

Although the Māori Land Court performs an important function, it has been

severely criticized. In the late 1800s and early 1900s, the court played an

important role in the loss of Māori control of land by registering and alienating

Māori land. However, today the Māori Land Court aims to promote

reconciliation and the protection Māori land claims.

164

The court is mandated

by statute to “promote and assist in retention of Māori land . . . in the hands

of the owners; and the effective use, management, and development . . . of

Māori land or General land owned by Māori.”

165

Today, Māori, make up almost fifteen percent of the national

population.

166

They are younger and more urban. Eighty-seven percent live on

the northern island with a quarter in the Auckland metropolitan area.

167

The

median age of Māori is twenty-two years old—compared to the national

population median of thirty-three.

168

Māori are more likely to be

underemployed than the general population.

169

Māori land makes up less than

six percent of New Zealand’s land area. Māori land is also mostly

concentrated on the northern island (where most iwi resided before European

contact).

170

Nevertheless, a large portion of Māori land is regarded as poorer

quality because the most fertile land was confiscated by British settlers. Māori

land is also less likely to have productive potential because significant areas

are in forests, coasts, or areas bordering rivers or lakes with more local land

controls.

171

B. Grace v. New Zealand Transport Agency

The Māori Land Court decided Grace v. New Zealand Transport

Agency in March 2014, affirming the conversion of Māori freehold land into

a reservation and imposed stricter limitations on the Crown’s ability to acquire

164

Daniel J. Pannett, The Māori Land Court: A Preference for Deference?, 2 N. Z. L. STUDENTS J. 191,

191 (2009).

165

Te Ture Whenua Māori Act 1993, sec. 17(1)(a)-(b) (N.Z.).

166

Tanira Kingi, Māori Landownership and Land Management in New Zealand, in Reconciling

Customary Ownership and Development, in MAKING LAND WORK, VOLUME 2: CASE STUDIES ON

CUSTOMARY LAND AND DEVELOPMENT IN THE PACIFIC 139, 132 (2008).

167

Id.

168

Id.

169

Id.

170

Id.

171

Id.

January 2019 Protecting Indigenous Cultural Rights 227

land to advance public works.

172

In doing so, the court restricted the Crown’s

ability to convert land under the Public Works Act. While the decision alone

cannot redress long-standing inequities, Grace represents an important step

for the Māori Land Court in restricting one of the remaining ways that the

Crown could acquire Māori land. Moreover, because the case involved a great

deal of publicity, it has the potential to change the national conversation in a

way beyond its strict legal application.

Patricia Grace is an acclaimed Māori author whose book, Potiki, won a

national literary award in 1987.

173

In the book, the Māori protagonist and her

husband oppose the development of a resort along an unspoiled coastline.

174

In a strange twist of fate, real life mirrored Grace’s fictional work. Grace and

her case captured national headlines with another tale of a small Māori

community seeking to prevent development. In 2010, the New Zealand

Transport Agency (NZTA) began construction of an expressway from

Wellington’s northern suburbs to Peka Peka, a small seaside town along the

Kapiti coast north of the capital.

175

The original plan proposed acquiring land

that had belonged to Grace’s ancestors along the Kapiti coast. As a result,

Grace and the local community protested to prevent the NZTA’s acquisition

of Māori land.

Grace commenced her litigation in 2013 by petitioning the Māori Land

Court to set aside Māori freehold land as a reservation.

176

Grace was the sole

owner of the land and direct descendant of the original owner.

177

Grace argued

that the land was also one of the last undeveloped blocks on the Kapiti Coast

and she had spent years seeking its preservation.

178

Soon thereafter, a second

case was filed in New Zealand’s Environmental Court.

179

As a result, the

controversy proceeded in two stages: (1) the Māori Land Court ruled on the

172

Māori Reservations Cannot Be Acquired for Public Works, SIMPSON GRIERSON (May 19, 2014),

https://www.simpsongrierson.com/articles/2014/māori-reservations-cannot-be-acquired-for-public-works.

173

Eager, supra note 151, at 1–2.

174

Patricia Grace, POTIKI (Penguin Books 1986).

175

Mackays to Peka Peka, NEW ZEALAND TRANSPORT AGENCY (2018), http://www.nzta.govt.nz/

projects/wellington-northern-corridor/mackays-to-peka-peka/.

176

Eager, supra note 151, at 25.

177

Id.

178

Id.

179

Anna Brenstrum, Not Giving Ground: Patricia Grace’s Successful Opposition to Compulsory

Acquisition of Her Ancestral Land, MĀORI L. REV. (Feb. 2015), http://maorilawreview.co.nz/2015/02/sir-

edward-taihakurei-durie-student-essay-competition-2014-not-giving-ground-patricia-graces-successful-

opposition-to-compulsory-acquisition-of-her-ancestral-land/.

228 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

parcel’s status as a Māori reservation and (2) the Environmental Court

determined whether the Public Works Act allowed the NZTA to acquire the

land.

180

In both instances, the courts sided with Grace against the NZTA.

In order to designate Grace’s land as a Māori reservation, the Māori

Land court was required to consider whether her application fulfilled the

statutory requirements of the Māori Land Act 1993.

181

The statute requires the

proponent of reservation status to show that the parcel meets one of two

conditions. The parcel can be a place of special “cultural, historic, or scenic

interest” or wahi tapau, which means “a place of special significance

according to tikanga Māori.”

182

The court was persuaded by Grace’s

arguments on both issues, noting three important factors. First, the absence of

Māori land in the Kapiti area favored designating Grace’s land a reservation

because it heightened the need to protect Māori interests.

183

Second, because

Grace’s ancestors were the original owners, the court considered the

likelihood that there had been burials on the land.

184

Grace testified that she

believed there were burials and her testimony was strengthened by the

discovery of burials nearby.

185

Finally, the court considered the association of

the land with key historical and cultural events. Here, the court took a broad

view of the meaning and importance of historical and cultural events.

The NZTA had argued that before land could be designated a

reservation for historical reasons, there should be tangible physical evidence

including archaeological remains to prove its historical importance.

186

The

court rejected this argument, holding that cultural and historical importance

includes evidence of spiritual connections with the land.

187

The court

concluded that to do otherwise would ignore Māori culture and customs.

188

As a result, the court found Grace’s testimony to be persuasive regarding both

180

Id.

181

Id.

182

Id.

183

Grace v. New Zealand Transport Agency (2014) 317 Aotea MB 268 at 296 (N.Z.).

184

Id. at 295–96.

185

Id. at 275–76.

186

Id. at 296.

187

Id.

188

Id.

January 2019 Protecting Indigenous Cultural Rights 229

her ancestral connection with the land and her desire to protect it in a culturally

appropriate way.

189

The court’s broad approach to designating land with Māori reservation

status may have important consequences. Once a parcel is designated a

reservation, the Court held that it cannot be alienated, including by the

Crown.

190

As a result, the designation of Māori land as a reservation has the

potential to be a powerful restriction on future uses and transfers. Moreover,

the potentially broad list of criteria means that more parcels could be

designated as reservations in the future.

The Environmental Court affirmed the ruling of Māori Land Court by

holding that land designated as a Māori reservation could not be alienated or

sold to the Crown.

191

The Environmental Court also contemplated the

acquisition of the Māori land based on the Public Works Act. The Court held

that acquisition of land under the Act must be “fair, sound, and reasonably

necessary” to achieve the government’s objectives.

192

The Court held that the

NZTA failed to meet this standard in proposing the expressway. Instead, the

Court wrote that Section 24(7)(b) required adequate consideration of

alternative sites, routes, or methods.

193

The Court concluded that the NZTA

failed to adequately consider alternatives to building the expressway on

Grace’s land.

194

In light of the evidence favoring the land’s historical and

cultural significance, the Court held that it was not fair or reasonably

necessary to compel the acquisition of land where alternative routes were

available.

195

As a result, the Court found that the Crown’s attempted

acquisition was unnecessary and should not proceed further.

196

The Court’s

ruling was a victory for Māori land rights, particularly given the public

attention that the case received. Nevertheless, the case highlights the need for

reforming the Public Works Act with legislation providing for stronger Māori

189

Id. at 297.

190

Id. at 294

191

Jacinta Ruru, Public Works – Proposed Taking Not Fair, Sound, or Reasonably Necessary, MĀORI

L. REV. (Sept. 2017), http://Māorilawreview.co.nz/2014/09/public-works-proposed-taking-not-fair-sound-

or-reasonably-necessary-grace/.

192

Grace v. Minister for Land Information [2014] NZEnvC 82 (N.Z.).

193

Id.

194

Id.

195

Id.

196

Id.

230 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

protections since the Court’s opinion suggested that had the NZTA given

more adequate consideration of alternative routes, it may have been legal.

V. NATIVE HAWAIIANS IN THE STATE OF HAWAIʻI

A. Historical Background

Native Hawaiians are the indigenous people of Hawaiʻi, who settled the

Hawaiian islands, founded the Hawaiian nation, and exercised sovereignty

over the islands.

197

The earliest Hawaiian colonies were established in 300

A.D. by Polynesian explorers.

198

Over centuries of isolation, the Native

Hawaiians developed their own language, culture, system of governance,

religion, and social system.

199

Even today, the landscape of Hawaiʻi bears the

imprint of a sophisticated social system ordered around the cultivation of the

land and ocean. As a result, the land, or ‘Āina in Hawaiian, plays a significant

role in Hawaiian religious, cultural, and ceremonial activities.

200

The Kingdom of Hawaiʻi originated in 1795 after the unification of the

Hawaiian Islands under King Kamehameha I.

201

The Kingdom exercised

sovereignty over the islands and conducted foreign policy with other nation

states. The United States was the first foreign power that the Kingdom entered

into a treaty with in 1826.

202

The original treaty benefited American whalers

and traders while providing some assurances that the Kingdom could remain

neutral in the event that the United States and Britain—then one of the

Kingdom’s closest diplomatic partners—went to war.

203

Moreover, it also

provided Americans with standing to sue Hawaiian subjects and

197

Laurie D. McCubbin & Anthony Marsella, Native Hawaiians and Psychology: The Cultural and

Historical Context of Indigenous Ways of Knowing, 15 CULTURAL DIVERSITY & ETHNIC MINORITY PSYCHOL.

374, 374–87 (2009).

198

DAVIANNA PŌMAIKAʻI MCGREGOR & MELODY KAPILIALOHA MACKENZIE, HISTORY OF NATIVE

HAWAIIAN GOVERNANCE IN HAWAIʻI 21–22 (2014), https://www.doi.gov/sites/

doi.opengov.ibmcloud.com/files/uploads/Mo%CA%BBolelo%20Ea%20O%20N%C4%81%20Hawai%CA

%BBi(8-23-15).pdf (prepared for Office of Hawaiian Affairs).

199

Chad Blair, Ancient Hawaii Was a Cradle of Civilization, Says New Book, HUFFINGTON POST, (Dec.

16, 2013), https://www.huffingtonpost.com/2013/12/16/ancient-hawaiian-state-book_n_4455960.html.

200

Stephen T. Boggs, The Meaning of ʻAina in Hawaiian Tradition (June 1977) (unpublished scholarly

paper, University of Hawaii) (on file with ScholarSpace, University of Hawaii),

https://scholarspace.manoa.hawaii.edu/handle/10125/34232.

201

Kamehameha Unites the Hawaiian Islands, HAWAIIANHISTORY.ORG,

http://www.hawaiihistory.org/index.cfm?fuseaction=ig.page&PageID=272 (last visited Oct. 27, 2018).

202

Robert H. Stauffer, The Hawai’i-United States Treaty of 1826, 17 HAWAIIAN J. HIST. 40, 57(1983).

203

Id.

January 2019 Protecting Indigenous Cultural Rights 231

foreshadowed future demands for the extraterritorial application of U.S.

law.

204

Nevertheless, the United States federal government had not dealt with

the Kingdom in the same government-to-government fashion compared to

North American tribes based in Alaska and the continental states.

205

American missionaries from New England began arriving in the

1820s.

206

Their arrival contributed to a gradual deterioration of Native

Hawaiian traditions, culture, and land rights. Much like the Ainu, traditional

dress, dance, and other symbols were either banned or discouraged at the

behest of the missionaries.

207

Small pox and measles reduced the Native

Hawaiian population by seventy-five percent from the time James Cook

arrived in 1778 to 1853.

208

As descendants of the American missionaries

became wealthy from the sugar trade, their political influence became the

dominating force in Hawaiian politics.

209

In 1848, Western advisors to King

Kamehameha III persuaded him to adopt land reform known as the Great

Mahele, transitioning the Kingdom to a Western-style fee simple system with

no restrictions on foreign ownership.

210

The policy helped entrench the power

and wealth of non-Native interests. After the reform, non-Native Hawaiians

owned over sixty percent of fee simple lands.

211

By 1893, conditions were ripe to overthrow the constitutional

monarchy of Hawaiʻi.

212

With Marines landing in Honolulu, Queen

Liliʻuokalani yielded her authority to a provisional government established by

descendants of the original American missionaries.

213

Hawaiʻi was formally

204

Id.

205

Anderson, supra note 7, at 875.

206

Joy Schulz, Empire of the Young: Missionary Children in Hawai'i and the Birth of U.S. Colonialism

in the Pacific, 1820–1898 (May 2011) (unpublished Ph.D. dissertation, University of Nebraska) (on file with

History Department DigitalCommons, University of Nebraska),

http://digitalcommons.unl.edu/historydiss/35.

207

Paul F. Nahoa Lucas, E Ola Mau Kakou I Ka 'Olelo Makuahine: Hawaiian Language Policy and

the Courts, 34 HAWAIIAN J. HIS. 1, 8–9 (2000), https://evols.library.manoa.hawaii.edu/

bitstream/10524/431/2/JL34007.pdf.

208

Malia Boyd, The Other Side of Paradise: 'Lost Kingdom,' a History of Hawaii, N.Y. TIMES (Mar.

9, 2012), http://www.nytimes.com/2012/03/11/books/review/lost-kingdom-a-history-of-hawaii.html.

209

John McDermott, Big Five Had DeepRroots in Hawaii Business and Politics, PAC. BUS. NEWS (July

31, 2008), https://www.bizjournals.com/pacific/stories/2008/08/04/story15.html.

210

Anderson, supra note 7, at 866.

211

Id.

212

Boyd, supra note 208.

213

Id.

232 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

annexed five years later and was admitted into the United States in 1959.

214

1978, Hawaiʻi adopted its State Constitution. During the seventies, Hawaiʻi

experienced a wave of activism supporting greater Native Hawaiian rights and

protections.

215

The Constitution included protections of Native Hawaiian

culture and land rights.

216

Moreover, the Office of Hawaiian Affairs (OHA)

was established.

217

OHA was a semi-autonomous department to manage lands

once owned by the Hawaiian Kingdom.

218

In 1993, President Clinton signed a joint-resolution apologizing to the

Native Hawaiian people for the United States’ role in the overthrow and

recognizing them as “indigenous people.”

219

However, the resolution stopped

short at granting Native Hawaiians the same federal recognition as Native

Americans and Alaskans.

220

By 2000, Native Hawaiians made up twenty

percent of Hawaiʻi’s population.

221

The socio-economic statistics indicate

disparity between Native Hawaiians and Hawaiʻi’s Chinese, Japanese, and

Caucasian populations.

222

Native Hawaiians are disproportionately

represented in the criminal justice system and suffer higher rates of

homelessness.

223

Hawaiʻi’s attempts at reconciliation have at times been frustrated by

U.S. federal courts. For example, in Rice v. Cayetano, the U.S. Supreme Court

held that Hawaiʻi’s Constitutional provision that restricts voting in OHA

elections to persons of Native Hawaiian descent violated the Fifteenth

Amendment.

224

The challenge was brought by a resident of European descent

and the Court accepted his argument that it was an unconstitutional race-based

214

See The Learning Network, Jan. 17, 1893 – Hawaiian Monarchy Overthrown by America-Backed

Businessmen, N.Y. TIMES BLOG (Jan. 17, 2017 4:01AM); see also David Stebenne, The Political Dealmaking

That Finally Brought Hawaii Statehood, SMITHSONIAN.COM (June 15, 2017),

https://www.smithsonianmag.com/history/what-puerto-rico-learn-hawaii-180963690/.

215

Ruby Faʻagau, Hawaiian Cultural Rejuvenation, 7 HOHONU 34, 35 (2009).

216

D. Kapuaʻala Sproat, Avoiding Trouble in Paradise: Understanding Hawaii’s Law and Indigenous

Culture, BUS. L. TODAY (Nov./Dec. 2008), https://apps.americanbar.org/buslaw/blt/2008-11-

12/sproat.shtml.

217

Fa’agau, supra note 215, at 36.

218

Id.

219

McGregor & MacKenzie, supra note 198, at 56.

220

The Associated Press, Movement for Sovereignty Is Growing in Hawaii, N.Y. TIMES (June 5, 1994),

https://www.nytimes.com/1994/06/05/us/movement-for-sovereignty-is-growing-in-hawaii.html.

221

McGregor & MacKenzie, supra note 198, at 10.

222

Id. at 11–12.

223

Id.

224

Rice v. Cayetano, 528 U.S. 495 (2000).

January 2019 Protecting Indigenous Cultural Rights 233

voting classification.

225

Nevertheless, while the State of Hawaiʻi’s attempts at

redressing historical injustices have been challenged in federal courts, the

United States’ federalist system protects the State’s broad power to protect

Native Hawaiian rights in areas that do not conflict with federal law and the

State Constitution has played an important role in institutionalizing Native

Hawaiian rights.

B. Background: Mauna Kea and the Thirty Meter Telescope

In recent years, the conflict over the fate of Mauna Kea has defined the

struggle between the State’s balancing of Native Hawaiian land rights and

other private and public interests. The Hawaiʻi Supreme Court unanimously

vacated the permit for the construction of the Thirty Meter Telescope (TMT)

planned atop Mauna Kea in 2015.

226

The Court’s decision reflects Hawaiʻi's

unique State Constitution, a greater respect for procedural due process rights

than Japan, and—as a result—an administrative process that is more

responsive to the indigenous rights of Native Hawaiians to practice their

culture.

Located on the east side of the island of Hawaiʻi, Mauna Kea rises to

13,796 feet above sea level and is one of the tallest mountains in the world

measured from the seafloor.

227

Astronomers regard the mountain’s summit as

one of the best places in the world for observing distant solar systems and one

of the few places in the world that is dark, dry, and calm enough for a billion

dollar telescope.

228

There are already thirteen telescopes on Mauna Kea,

involving NASA and international partners such as Japan.

229

Nevertheless, the

TMT project is the biggest, most powerful telescope in the world—stronger

than the Hubble Telescope—at a cost of $1.4 billion.

230

The telescope is thirty

meters in diameter with attached instruments to record data and an enclosed

dome.

231

The TMT project involves building an astronomy observatory and

225

Id.

226

Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 63 P.3d 224 (Haw. 2015).

227

Remy Melina, Which Mountain is the Tallest in the World, LIVE SCI. (May 17, 2010),

http://www.livescience.com/32594-which-mountain-is-the-tallest-in-the-world.html.

228

Dennis Overbye, Under Hawaii’s Starriest Skies, A Fight Over Sacred Ground, N.Y. TIMES, (Oct.

3, 2016), https://www.nytimes.com/2016/10/04/science/hawaii-thirty-meter-telescope-mauna-kea.html.

229

Id.

230

Id.

231

Mauna Kea, 63 P.3d at 229.

234 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

construction of ancillary facilities for the astronomers and access roads on

five-acres of Mauna Kea’s upper slopes.

232

The land on Mauna Kea once belonged to the Kingdom of Hawaiʻi and

is classified as “ceded lands.”

233

The State of Hawaiʻi administers them for

the benefit of Native Hawaiians. As a site of ancient Hawaiian burials and a

place of worship, Native Hawaiians regard the mountain as sacred. The upper

slopes are also classified by the State as a “conservation district”—requiring

special approval from the State including permits for construction.

234

C. The Hawaiʻi Supreme Court’s TMT Decision

In Mauna Kea Anaina Hou v. Board of Land and Natural Resources

(hereinafter referred to as “the TMT Decision”), the plaintiffs challenged the

State’s issuance of a construction permit before the occurrence of public

hearings, which would have allowed Native Hawaiian viewpoints to be heard.

The University of Hawaiʻi at Hilo (UHH) submitted an application to

the Board of Land and Natural Resources (BLNR) for construction of the

TMT telescope.

235

The BNLR held a series of public hearings.

236

Native

Hawaiian opponents of the construction stated that the proposed site was on

sacred land and that construction would be a desecration of Native Hawaiian

culture.

237

The hearings drew high attendance and speakers were only allowed

to speak for five minutes each.

238

At a meeting in February 2011, Native

Hawaiian opponents requested a contested case hearing before the BLNR

reached its final decision.

239

Under Hawaiʻi law, a contested case hearing is “a proceeding in which

the legal rights, duties, or privileges of specific parties are required by law to

be determined.”

240

The benefits of a contested case include the fact that parties

may be represented by counsel and that they have the right to present

232

Overbye, supra note 228.

233

Id.

234

Mauna Kea, 63 P.3d at 229.

235

Id.

236

Id. at 229–30.

237

Id. at 228.

238

Id. at 229–30.

239

Id. at 230–31.

240

HAW. REV. STAT. § 91-1(5) (approved 2004).

January 2019 Protecting Indigenous Cultural Rights 235

evidence, including calling witnesses sworn under oath and cross-examining

opposing witnesses.

241

Contested case hearings are mandatory if the party

seeking a contested hearing has a property interest as defined in the State

Constitution.

242

In that same February 2011 meeting, BLNR granted the opponent’s

request for a contested hearing and approved the permit requested by TMT.

243

The BLNR held the hearing in August 2011.

244

At the hearing, opponents

raised the argument that their due process rights were violated by its prior

approval of the construction permit.

245

After the hearing, the officer approved

the BLNR’s decision to grant the permit. The plaintiffs appealed to the State

circuit court, which affirmed BLNR’s decision to grant the TMT permit before

the contested case hearing.

246

The circuit court reasoned that the BLNR’s

grant was “preliminary” and depended on a “final grant after a contested case

hearing.”

247

On appeal, the plaintiffs requested and received a transfer to the

Hawaiʻi Supreme Court.

248

The Hawaiʻi Supreme Court held that the Native Hawaiian opponents

of TMT were entitled to a contested case hearing before the BLNR issued the

construction permit.

249

The BLNR violated the due process rights of the

plaintiffs by issuing the permit before the hearings.

250

As a result, the permit

approved by the BLNR was ruled to be invalid.

251

The Hawaiʻi Supreme Court found that the Native Hawaiian plaintiffs

were entitled to a contested case hearing as a matter of constitutional due

process.

252

The Native Hawaiians were entitled to exercise their rights and

241

Mauna Kea Anaina Hou v. Board of Land and Natural Resources, 63 P.3d 224 (Haw. 2015).

242

Id. at 238–39.

243

Id. at 231.

244

Id. at 233.

245

Id. at 234.

246

Id. at 236.

247

Id.

248

Id.

249

Id. at 239.

250

Id.

251

Id. at 247.

252

Id. at 239.

236 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

practice their culture.

253

The Hawaiʻi Supreme Court noted the explicit

protections of Article XII, Section 7 of the Hawaiʻi Constitution, which states:

The State reaffirms and shall protect all rights, customarily and

traditionally exercised for subsistence, cultural and religious

purposes and possessed by ahupua‘a

254

tenants who are

descendants of native Hawaiians who inhabited the Hawaiian

Islands prior to 1778, subject to the right of the State to regulate

such rights.

255

Throughout the dispute over TMT, the Native Hawaiian plaintiffs

alleged that TMT’s construction would have significant negative effects on

Native Hawaiian cultural practices on Mauna Kea.

256

As a result of the

Hawaiʻi Constitution, the Hawaiʻi Supreme Court concluded that Native

Hawaiian interests in the dispute were “substantial” and a contested case

hearing was “required by law” in light of the risk to Native Hawaiian cultural

rights.

257

The Hawaiʻi Supreme Court then considered the sequencing of the

contested case hearing and the BLNR’s approval of the construction permit.

The Hawaiʻi Supreme Court concluded that contested case hearings

must occur before any approval for the construction permits.

258

Article I,

Section 5 of the Hawaiʻi Constitution provides that “no person shall be

deprived of life, liberty, or property without due process of law.”

259

The court

reasoned that the basic elements of due process include “the opportunity to be

heard at a meaningful time and in a meaningful manner.”

260

The court

concluded that due process rights extend to administrative hearings and that

giving plaintiffs “a day in court” alone did not guarantee that a process is

fair.

261

Due process requires unbiased hearings and forbids decision-makers

253

Id. at 238.

254

Ahupua‘a refers to the traditional Hawaiian land unit, which runs from the mountainous uplands to

the sea. See Dieter Mueller-Dombois, The Hawaiian Ahupua‘a Land Use System: Its Biological Resource

Zones and the Challenge for Silvicultural Restoration, 3 BISHOP MUSEUM BULL. CULTURAL & ENVTL. STUD.

23 (2007).

255

HAW. REV. STAT. ANN. § 7 (West, 2018).

256

Mauna Kea, 63 P.3d at 228.

257

Id. at 238.

258

Id. at 239.

259

HAW. REV. STAT. ANN. § 5 (West, 2018).

260

Mauna Kea, 63 P.3d at 237.

261

Id.

January 2019 Protecting Indigenous Cultural Rights 237

from “prejudging matters and the appearance of prejudging matters.”

262

Applying these rules to the TMT dispute, the Hawaiʻi Supreme Court

found that the BLNR improperly awarded the TMT permit before the actual

contested hearing.

263

The Hawaiʻi Supreme Court wrote that the entire

purpose of the contested case hearing is to ensure that the factual record is

fully developed and subject to adversarial testing before decisions are made.

264

The Supreme Court rejected the argument that the permit was “preliminary”

and dependent on final approval based on the contested case hearing.

265

After

the February 2011 hearing, the Hawaiʻi Supreme Court noted that the BLNR

sent numerous letters to UHH describing the TMT project as “approved” and

referred to the permit as “the permit” rather than as “a preliminary permit.”

266

Furthermore, the beginning of construction was not “conditioned” on the

contested hearing but on pre-construction requirements and mitigation

measures.

267

As a result, the original permit was a decision on the merits of

TMT’s application and supported the Native Hawaiian appellant’s argument

that the BLNR had pre-judged the outcome before the contested case

hearing.

268

The Hawaiʻi Supreme Court unanimously found that the TMT permit

was invalid based on the right of Native Hawaiians to raise claims asserting a

cultural and property interest in Mauna Kea. This framework—with an

emphasis on procedural due process rights—leaves open the possibility that

the permit could be subsequently approved. As a result, although TMT and

UHH were halted from construction related to the project, the Hawaiʻi

Supreme Court could likely hear the case again if the BLNR approves the

permit after a contested case hearing.

269

262

Id.

263

Id. at 239.

264

Id. at 228, 239.

265

Id. at 239–41.

266

Id.

267

Id. at 240.

268

Id. at 241.

269

This article was written before the Hawaii Supreme Court’s most recent decision on the matter on

August 8, 2018. See Flores v. Board of Land and Natural Resources, 424 P.3d 469 (Haw. 2018). However,

the final status of the TMT project remains unresolved. In 2017, the BLNR approved a construction permit

allowing construction. The BLNR’s decision was appealed to the Supreme Court on grounds that another

contested case hearing was required before the BLNR could consent to sublease portions of State land to

allow for construction of TMT. Id. at 471. The Court held that a contested case hearing was not required

before the BLNR could approve the sub-lease and that the specific appellant had participated in numerous

238 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

Nevertheless, the concurrence of Associate Justice Pollack—which was

also signed by Associate Justice Wilson—suggests that Hawaiʻi courts could

go even further in future disputes and reject the permit outright. According to

Justice Pollack, Article XII, Section 7 of the State Constitution creates an

affirmative obligation on the government to engage in “heightened inquiry”

when Native Hawaiian individuals assert that traditional customs will be

adversely impacted by a project requiring BLNR approval.

270

In addition,

Justice Pollack argued that Hawaiʻi’s public-trust doctrine applies based on

Hawaiʻi common law and Article XI, Section 1 of the State Constitution.

271

According to Justice Pollack, Hawaiʻi case law establishes that one purpose

of the public-trust doctrine is to protect Native Hawaiian culture.

272

Thus,

since the land in question was public land, the BLNR had a duty to ensure that

the proposed use by TMT satisfied all requirement of the public trust doctrine,

including the protection of Native Hawaiian culture.

273

Accordingly, if the

BLNR could not reconcile the project’s aims with protecting Native Hawaiian

culture, Justice Pollack seems to be hinting that the courts could reject the

permits based on the merits as well as procedural grounds.

VI. COMPARISON

The Nibutani Dam Decision, Grace cases, and the TMT Decision each

reflect different constitutional designs and legal systems. In addition, the

decisions produced different results for the Ainu and Native Hawaiian

plaintiffs. Both the Sapporo District Court and the Hawaiʻi Supreme Court

agreed to the general principle that indigenous minorities were entitled to a

right to practice their own culture. However, the Hawaiʻi Supreme Court

resolved this question relatively quickly and easily because Article VII,

Section 7 of the Hawaiʻi Constitution explicitly requires the protection of

Native Hawaiian culture. Meanwhile, the Sapporo District Court was required

to infer Ainu cultural rights from Japan’s international legal obligations under

the ICCPR and Article 13 of the Constitution of Japan—neither of which

explicitly referred to the Ainu. Furthermore, New Zealand’s specialized courts

involved a somewhat more complicated process between the Māori Land

Court and the Environmental Court. Nevertheless, these specialized courts

public hearings regarding the project. Id. at 483. Nevertheless, an appeal of the construction permit itself

remains pending at the Supreme Court.

270

Mauna Kea, 63 P.3d at 250 (Pollack, J., concurring).

271

Id. at 251.

272

Id. at 252.

273

Id. at 255.

January 2019 Protecting Indigenous Cultural Rights 239

could refer to protections for Māori reaffirmed by the Waitangi Tribunal and

Māori Lands Act.

The importance of the explicit protection of indigenous rights cannot

be understated. Because it was easy for a court to find that indigenous rights

are constitutionally protected, the Hawaiʻi Supreme Court was able to dispose

of the matter quicker and address the real question of whether Native

Hawaiians were deprived of their due process rights by the BLNR’s permit.

After finding a due process violation, the project was halted until the BLNR

held the hearings that the State Constitution required. Similar to Hawaiʻi

courts, New Zealand’s creation of land courts with special jurisdiction served

to facilitate the disposition of Grace’s claims. Although the Māori Land

Court’s history is undoubtedly complicated by the legacy of its predecessor—

the Native Lands Court—it has proved to be an effective mechanism for

reconciling historical grievances and disputes since the late seventies.

In contrast to the plaintiffs in Hawai‛i and New Zealand, the Ainu

plaintiffs raised their initial complaint in 1989, brought suit in the Sapporo

court in 1993, and received a decision in 1997. In the meantime, dam

construction proceeded and destroyed many of the sites the plaintiffs sought

to protect. If Japanese courts had understood the dispute as a rights-based

question from the beginning, it is conceivable that the case would have been

decided more quickly and that construction would have been halted until the

plaintiff’s claims were adjudicated.

The different outcomes in Nibutani, the Grace cases, and TMT also

raise important comparisons with regard to each legal system’s commitment

to procedural due process. Requiring contested case hearings before the

BLNR issued a permit for TMT allowed the plaintiffs the right to be heard

with the full benefit of an adversarial process, demonstrated a commitment to

public transparency, and—most importantly—prevented the actual

construction before it was deemed illegal. Although the Ainu plaintiffs were

allowed an administrative appeal in 1989, a Hawaiʻi court would likely have

found that Ainu plaintiffs’ rights to procedural due process were violated

because the construction actually occurred without an adequate opportunity

for the plaintiffs’ claims to be heard. Similarly, the New Zealand Transport

Agency was unable to proceed with construction of the Mackays to Peka Peka

Expressway until Grace’s claims were adjudicated by both the Māori Land

Court and the Environmental Court. Moreover, once Māori reservation status

was established, the Public Works statute placed the burden on the NZTA to

240 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

establish that its proposal was reasonably necessary compared to alternative

routes.

Although Article 31 of the Japan Constitution has been interpreted to

require due process, the plaintiffs in Nibutani never raised a due process claim

and the Sapporo court never seemed to have considered due process within its

analysis. This suggests that the Japanese conceive of due process differently

than in the United States and in New Zealand, especially when a plaintiff’s

claims are rooted in administrative claims.

Differences in the long-term meaning of Nibutani and TMT also speak

to Japan’s civil law traditions compared to New Zealand and Hawaiʻi’s

common law systems. Ironically, the Sapporo District Court decision itself

resembles a common law decision because—in breaking from the traditional

narrative that Japan is composed of one culture and heritage—a judge played

an active role in fashioning a new rule recognizing the cultural rights of the

Ainu. Nevertheless, at least part of the limited impact of the Nibutani can be

explained by its status as a civil legal system.

Since precedent in Japan is a mere guide, courts have not been

pressured to follow Nibutani in similar cases or with similar plaintiffs. Hence,

even the Sapporo District Court ruled against Ainu plaintiffs several years

later.

274

Furthermore, Japan’s civil law system explains one reason why

Nibutani will not be applied to other indigenous groups with similar

complaints to the Ainu, like the Ryukyu people of Okinawa. Hawaiʻi and New

Zealand, by contrast, are common law jurisdictions and the TMT Decision and

Grace cases will add another layer to the developed body of case law on

Native Hawaiian and Māori rights that will bind future courts. By virtue of

being set in a common law system, therefore, the importance of the TMT

Decision is enhanced for future Native Hawaiian plaintiffs and the same can

be said about the Grace cases for Māori plaintiffs seeking to designate land as

Māori reservation land.

Finally, the differences in Nibutani and TMT also speak to the role of

the judiciary itself, judicial review, and culture. Although Japan has judicial

review, Japanese courts are notoriously conservative and rarely strike down

laws or rulings of the government. Hawaiʻi courts, like their counterparts in

most U.S. jurisdictions, are much more willing to strike down government

274

McGrogan, supra note 42, at 360.

January 2019 Protecting Indigenous Cultural Rights 241

laws, rulings, and policies. Indeed, Associate Justice Pollack’s concurrence

suggests that the Hawaiʻi Supreme Court could have been more aggressive

and ruled on the merits. In New Zealand, the creation of specialized courts

serves to demonstrate another possible mechanism to adjudicate indigenous

land claims. Nevertheless, the role of the Māori Land Court is complicated by

its legacy aiding European confiscation of Māori land. Although the Land

Court is now statutorily required to protect Māori interests in Māori land and

the Grace cases demonstrate its contemporary commitment to doing so, the

court’s history suggests that specialized adjudicatory bodies are not inherently

better for indigenous people. Instead, the legal, political, and cultural forces

that shape jurisprudence are critical to outcomes.

VII. CONCLUSION

The experiences of the Ainu in Japan, the Native Hawaiians in the State

of Hawaiʻi, and the Māori of New Zealand reveal similar dilemmas that courts

face between recognizing the rights of indigenous groups and addressing

questions of land development that supposedly benefit the majority

population. The Nibutani Dam Decision reveals that explicit constitutional

recognition of indigenous rights is not always necessary for courts to

recognize indigenous protections. Courts can infer that indigenous rights

should be protected through other constitutional guarantees and a nation’s

treaty commitments. Nevertheless, explicit constitutional recognition of

indigenous rights puts developers and government agencies on notice and

leads to quicker recognition by courts of indigenous rights. Ultimately, this

gives litigants the benefit of knowing that courts must acknowledge their

rights and leads to rulings that halt construction before it begins. In addition,

the importance of explicit constitutional recognition is also preferable to the

patchwork of rights and restrictions on government power found in New

Zealand’s unwritten constitution.

Because the Nibutani Dam Decision is the only court decision of its

kind, it is difficult to assess whether it will force Japan’s government agencies

to acknowledge indigenous rights and halt development projects when

plaintiffs raise claims of violations of indigenous rights. Therefore, Ainu

activists might consider seeking a constitutional amendment that explicitly

protects indigenous rights. However, constitutional amendments are

controversial in Japan and the strongest political block, the conservative

Liberal Democratic Party, is unlikely to support indigenous rights or any

further recognition of the Ainu beyond the 2008 resolution.

242 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 28 NO. 1

A more realistic path to stronger protections of indigenous rights in land

development cases may include focusing on the reform of the administrative

hearing process and pushing courts towards greater recognition of procedural

due process. Since the Japanese Constitution recognizes due process, this

battle will be less uphill than amending the Constitution to grant indigenous

rights. The Ainu should push for procedural mechanisms like Hawaiʻi’s

contested case hearings. Even if Japan’s version of case hearings becomes less

adversarial, hearings that fully develop the factual record and occur before

construction have a better chance of ensuring that projects do not commence

until indigenous rights are fully considered. In the alternative, prefectures like

Hokkaido with a disproportionate amount of Ainu could follow New

Zealand’s example and consider the establishment of specialized land courts

to hear Ainu claims. In the language of the Hawaiʻi Supreme Court, the

Nibutani Dam Decision suggests that the Ainu have the “right to be heard in

a meaningful manner.” With any luck, Japanese courts will adequately protect

the “right to be heard in a meaningful time.”