Office of Hawaiian Affairs trustees and Hawai'i Attorney General Mark Bennett yesterday vowed to continue pressing for legislative approval of a $200 million ceded lands settlement this year. But a key senator was skeptical that a resolution could be reached in the remaining six weeks of the Legislature.

"We want to make it clear that we are not giving up," OHA Chairwoman Haunani Apoliona said at a news conference, with five of her eight colleagues flanking her.

But Sen. Jill Tokuda, who chairs the Senate's Agriculture and Hawaiian Affairs Committee, said Tuesday's decision to hold House Bill 266, which contained the settlement offer, speaks for itself.

"I think by holding the measure, that was a pretty definitive message that we do not intend to pass the bill this year," said Tokuda, D-24th (Kailua, Kane'ohe).

Tokuda stressed that she and other senators want the parties to get more feedback from the public, work on the bill and come back next year.

Bennett, the Lingle administration's chief negotiator in settlement talks with OHA, said, "We are going to do everything we can to try to still get this passed in this legislative session."

The agreement would transfer to OHA three state land parcels on O'ahu and the Big Island with an assessed value of $187 million, plus $13 million in cash, as settlement for OHA's share of the revenues derived during the past 30 years from ceded lands — lands that once belonged to the Hawaiian government.

OHA also would get a minimum of $15.1 million annually as its share of future revenues.

In return, OHA would give up all rights to make further claims.

Opponents of the agreement, who dominated the testimony Monday before the three Senate committees voted, believe the settlement gives up too much, offers too little and is fraught with issues beyond that of revenues derived from ceded lands.

Yesterday, OHA trustees said those arguments are groundless.

"All we are talking about is rent that is past due, that's all," said trustee Walter Heen.

THE OBJECTIONS

There has been no discussion of who should own ceded lands or the larger issue of sovereignty for Native Hawaiians, he said. "The effort of OHA should not be confused with the effort toward sovereignty," Heen said.

Once the parcels transferred to OHA are developed, they would be able to generate income to help sustain its programs for Native Hawaiians, Heen said.

Trustee Oswald Stender reiterated that a recent poll conducted for OHA found that a majority of Hawai'i residents, and even more Native Hawaiians, support legislative approval of the agreement. "I am disappointed that the senators responded only to the concerns of a vocal minority," Stender said.

Not all OHA trustees are on board with the settlement agreement as it is written.

Trustee Rowena Akana said she has concerns with wording of the agreement, which she believes extinguishes the rights of Native Hawaiians to legally challenge the state for future claims.

"The right to sue came really hard for us. I don't want to give up that right," said Akana, reached by phone on the Mainland.

OHA attorney Robert Klein, however, said the wording deals only with claims to ceded land revenues, and that how much OHA should receive has always been the Legislature's prerogative.

"OHA is entitled to manage income and proceeds derived from the Public Lands Trust; that's all OHA's kuleana is," Klein said. "It's up to the Legislature to provide those incomes and proceeds. OHA's entitled to a pro rata share, that's constitutional. All you can waive is the right that you have. We don't have the right to ownership of the ceded lands."

Klein said the Hawai'i Supreme Court, in three decisions related to ceded lands, has talked about the need for lawmakers to resolve the revenues issue. Failure to do so could constitute a breach of fiduciary duty, he said. Failure to pass a settlement could make a legal case against the state stronger, he said.

LEGISLATIVE ISSUES

Klein stressed, however, that he and trustees have not discussed seeking a judicial resolution to the issue and won't do so unless legislative options have been exhausted.

Senate Bill 2733, the Senate's version of the agreement, crossed over to the House earlier this month. Procedurally, the House could change the language of the Senate bill to reflect HB 266. If that happens, House and Senate members could try to hammer out an agreement in conference committee at the end of the session. But that could only be done if the Senate leadership assigns conferees to discuss the matter, which it is not required to do.

House Majority Leader Kirk Caldwell, D-24th (Manoa), said he believes there's still a chance a settlement can be approved by the Legislature this session.

House leaders have not yet discussed what to do, pending a report by OHA and the state summing up comments made at more than 40 public hearings on the agreement as requested by the Legislature, Caldwell said.

OHA trustees said it was unfair that the Senate made its decision before the March 26 deadline it itself had imposed on the report it had requested.

Sen. Clayton Hee, a former OHA trustee who has opposed the agreement in part because he believes OHA is not getting enough, said the parties have not yet clearly defined how they arrived at $200 million as the amount that should be paid.

"If the devil is in the details, then clearly it's a reasonable request to see the details — and so far as I'm aware, there are no details," he said. "It's a complicated accounting process and it begs disclosure."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.