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OHA: Office of Hawaiian Affairs

2020 OHA Legislative Package

UPDATE – July 2020:

OHA-2, via SB2193 HD2, has been passed by the 2020 legislature and is now awaiting the Governor’s signature. In its final, amended form as SB2193 HD2, this bill would reduce the “lookback period” for the use of convictions in employment decisions from the current 10 years for all convictions, to 7 years for felony convictions, and 5 years for misdemeanor convictions (OHA-2 originally sought to reduce the lookback period to 5 years for felony convictions, and 3 years for misdemeanor convictions). Upon its adoption, this measure would mean that former pa‘ahao will be less likely to experience discrimination due to years-old convictions, giving them a more meaningful opportunity to support themselves and their families through legitimate and gainful employment. See below for more information regarding this bill.

OHA-1: Restoring Hawaiian Expertise in Land Use and Resource Management

HB1781/SB2192: This bill will ensure more consideration of Native Hawaiian rights, knowledge, values, and practices in state decision making for lands critical to Native Hawaiian culture and well-being.

Since 2016, a number of state boards and commissions with land use and resource management responsibilities have been required to attend a Native Hawaiian law and public trust training course; in addition, several of these boards are required to have at least one member possess experience or expertise in relevant Native Hawaiian traditional and customary practices or resource management approaches. Combined, these requirements seek to ensure that decisions impacting our lands and resources are more informed as to the rights, values, and practices of Native Hawaiians, and have the potential to enhance our islands’ sustainability and resilience for present and future generations.

Unfortunately, despite the regular provision of notice to board and commission administrators, the vast majority of boards and commissions subject to the training course requirement have failed to fully comply with their training responsibilities. As a result, land use and resource management decision-making may continue to be less than fully informed on Native Hawaiian concepts, practices, and rights associated with the ‘āina. Moreover, requiring only a single member of critical decision-making bodies, such as the Land Use Commission (LUC) and Board of Land and Natural Resources (BLNR), to have experience or expertise in Hawaiian practices or resource management approaches, has not resulted in decisions that consistently recognize or incorporate Native Hawaiian knowledge, values, and rights. These issues in turn have led and continue to lead to substantial conflict, distrust in government decisions and processes, and even legal action against the state, and may further foreclose critical opportunities to ensure our islands’ resiliency and self-sufficiency through culturally-informed land use and resource management.

This measure would seek to address the above challenges and ensure greater recognition and incorporation of Hawaiian perspectives, expertise, and rights in land use and resource management decision-making. First, it would provide clear statutory remedies for noncompliance with the Native Hawaiian law and training course requirement, including by

  • Requiring an annual report by OHA and the Department of Land and Natural Resources of all individuals who have failed to meet the one-year training deadline under the law;
  • Prohibiting individuals who have failed to meet their requirement from serving on a permitted interaction group or voting on any matter before their respective boards or commissions, until they have attended a training course;
  • Removing untrained individuals from their respective boards or commissions at the end of the regular legislative session following their deadline to complete the training course, unless they complete the training course or are reconfirmed by the Senate before the session ends; and
  • Allowing the individual votes of untrained council, board and commission members to be challenged and subject to being nullified and voided following a contested case proceeding.

Second, this measure would require that four of the nine-member LUC and four members of the seven-member BLNR be appointed from a list of nominees submitted by OHA, similar to the way in which OHA nominees are appointed to the various island burial councils; this requirement would take effect after the end of the current terms of all sitting BLNR and LUC members. Such meaningful representation of Native Hawaiian perspectives will particularly ensure that land use and resource management decisions incorporate and benefit from Native Hawaiian practices, values, and knowledge relating to the ‘āina.

Learn more about OHA-1: Read the bill and read the whitepaper.

OHA-2: Addressing Employment Discrimination Against Former Pa‘ahao

HB1782/SB2193: This measure seeks to improve the potential for people who have old convictions on their record to obtain and keep legitimate employment, thereby supporting their rehabilitation and continued law-abiding conduct over the long-term.

As noted in OHA’s 2010 report on The Disparate Treatment of Native Hawaiians in the Criminal Justice System, the inability of former pa‘ahao to find stable employment and support their families after their release is one of the major “collateral consequences” of incarceration, which particularly burden the Native Hawaiian community. Criminal background checks as part of the employment process may exacerbate this burden by allowing prospective employers to effectively discriminate against pa‘ahao even after they have paid their debt to society. Notably, national studies show that employers may be far less inclined to hire individuals with even a misdemeanor criminal conviction record – particularly for individuals of color – and despite the length of time from their past illegal activity.

While existing state laws generally prohibit employment discrimination based on arrest and court records, Hawai‘i statutes still allow employers to rescind job offers or make other employment decisions based on convictions up to ten years old, as long as the conviction has a “rational relationship” to the job. This express allowance and the ten-year criminal background checks it encourages may substantially and unreasonably hinder pa‘ahao efforts to earn a legitimate income and support their families, potentially leading to recidivist behavior and otherwise frustrating state investments in their rehabilitation and reentry into society.

This measure would mitigate the impacts of the ten-year criminal background checks encouraged under state law, by limiting the length of time that convictions may be used in employment decisions from a maximum time period of five years for felonies and three years for misdemeanors (subject to existing exceptions for certain occupations and agencies such as those related to law enforcement). (note: SB2193 HD2, one of the vehicles for OHA-2, was passed by the legislature, and was amended to limit the period of time that convictions can be used to seven years for felonies, and five years for misdemeanors). These new limits will discourage most employers from using old and possibly irrelevant convictions in making employment decisions; shorten the unreasonably long ten-year background check period used by employers in evaluating job applicants; and ensure that those who have long past paid their debt to society receive a more meaningful opportunity to support themselves and their families and become contributing members of the community. By striking a better balance between employers’ liability concerns and the need to provide pa‘ahao with meaningful employment opportunities, this measure will help to reduce recidivism, facilitate successful pa‘ahao reentry, and enhance public safety in the long-term.

Importantly, this measure will not apply to employers who are expressly permitted to inquire into their employees’ or prospective employees’ criminal history pursuant to federal or state laws (e.g. DOE to determine suitability to work with children, public safety to insure against risks to the department or the public, etc.), nor will it affect existing reporting requirements (e.g. for sex offender registries).

Learn more about OHA-2: Read the bill and read the whitepaper.

OHA-3: Prevention of Historic Preservation Review Evasion and Other Violations

HB1783/SB2194: This bill establishes and enhances enforcement mechanisms to meaningfully deter violations of state historic preservation laws and better protect culturally invaluable historic sites and burials.

State historic preservation laws provide a process by which county grading- and construction-related permit applications can be vetted for potential impacts to iwi kupuna and archaeological/historical sites; this process includes the opportunity to attach permit conditions as well as develop and apply other protective measures to mitigate any potential impacts. Historic preservation laws further impose criminal and civil penalties for the knowing desecration of iwi kupuna, burials, and archaeological/historical sites, and for failing to stop work upon the discovery of a burial.

Despite these laws, concerns have been raised regarding landowners and contractors who ignore county permitting requirements before beginning construction work, thereby avoiding the procedural protections established under our historic preservation laws, and likely impacting countless iwi kupuna and archaeological/historical sites as a result. These concerns have been compounded by written statements from the State Historic Preservation Division that impacts to iwi kupuna from unpermitted grading or construction activities cannot be investigated or enforced after-the-fact, due to the likelihood that any evidence of such impacts have already been destroyed. For unscrupulous landowners and contractors, this admitted lack of after-the-fact enforcement may even represent a significant financial incentive to engage in unpermitted work especially where iwi kupuna may be found, as the otherwise minimal penalties for unpermitted work may be far less than the costs of complying with permitting processes and conditions protecting iwi kupuna and historic sites.

Accordingly, this measure would seek to better protect Native Hawaiians’ ancestors by

  • Providing for increased maximum fines for violations to the chapter, including unpermitted grading or construction activities that would have otherwise involved historic preservation review;
  • Prohibiting any further work or permit issuance for the subject property where unpermitted activities occurred, until the submission and approval of a work schedule that includes recommended actions from SHPD staff or a department-approved archaeologist who has inspected the worksite for evidence of potential impacts to iwi kupuna or historic sites;
  • Holding landowners and contractors jointly liable for all assessment and mitigation costs associated with unpermitted activities;
  • Requiring the establishment of a citizen complaint intake process and the development of informational resources for citizens to document/report potential HRS 6E violations and impacts to iwi kupuna or historic sites;
  • Requiring the posting of notice at worksites regarding iwi kupuna and historic preservation laws, and informing workers and the public of the citizen complaint intake process; and
  • Amending the historic preservation special fund, which collects historic preservation fines and fees, to explicitly allow fund monies to be dedicated towards enforcement related activities.

Learn more about OHA-3: Read the bill and read the whitepaper.

OHA-4: Protecting Our Ancestors via SHPD Admin Rules (Resolution)

HCR5/SCR3 This resolution urges DLNR and its State Historic Preservation Division (SHPD) to engage in long-awaited and much needed administrative rulemaking that will better protect iwi kūpuna and cultural sites in the state historic preservation review process.

Both OHA and the federal government have noted concerns that support amendments to SHPD’s administrative rule. Over the years, OHA’s compliance division has chronicled and commented on persistent procedural inconsistencies relating to the identification and protection of iwi kupuna and burial sites, which have led to inconsistent and inadequate protection for iwi kupuna. Concerns about SHPD were also noted by a 2010 review of the Hawaii SHPD by the National Park service, who found significant operational problems with the division. Despite the apparent need for greater regulatory guidance to address these issues, no rule amendments have been made to the administrative rules for burial sites, iwi kupuna, or archaeological/historical sites and resources for many years. Specifically, there have also not been any updates to the administrative rules relating to the protection of iwi kupuna and burial sites for over 23 years, and the protection of archaeological/historical resources and sites for over 16 years.

The State Historic Preservation Division has been contemplating rulemaking action in the near future and this resolution would send a clear legislative message to the division that any such rulemaking must address specific, long-standing issues that have inhibited the consistent and appropriate protection of iwi kupuna, burial sites, and archaeological/historical resources and sites that embody the physical and spiritual legacies and final resting places of our ancestors. The resolution will point to general and specific rule provisions that SHPD should consider, and will likely include:

  • Improving accountability for archaeologists responsible for surveying development sites;
  • Developing an alternative or streamlined historic preservation process for projects specifically aimed at preserving or stewarding historic resources or cultural resources;
  • Standardizing the archaeological inventory survey sampling and reporting requirements to improve consistency;
  • Creating a process to reclassify “inadvertently discovered” burials as “previously identified” burials, especially where burials are discovered during exploratory testing or where burials are found in concentrations;
  • Empowering the Island Burial Councils;
  • Providing stronger and periodic training to Island Burial Councils on their statutory and administrative authorities and responsibilities;
  • Improving requirements for consistent consultation with descendants and knowledgeable individuals throughout the historic preservation review process;
  • Requiring the metes and bounds recordation of preservation sites at the Bureau of Conveyances; and
  • Creating a process to document and address rule violations by cultural resource contractors.

Learn more about OHA-4: Read the resolution and read the whitepaper.

OHA-5: Facilitating Practitioner Access Onto Private Lands

HB1784/SB2195 This measure reinforces Native Hawaiian constitutional rights by encouraging landowners to accommodate cultural practitioners’ access to their lands.

The Hawai‘i constitution provides cultural practitioners with the right to access less-than-fully-developed lands in the reasonable exercise of their Native Hawaiian traditional and customary practices; in recognition of Hawai‘i’s unique history of land ownership, land tenure, and native displacement, this right extends to both government and privately held lands. Unfortunately, both private and government landowners may be reluctant to provide explicit permission or otherwise accommodate practitioners seeking to access their lands, due to liability concerns. Such landowner reluctance may force practitioners to risk physical conflict or even the possibility of citation and/or arrest in order to access lands they do not have permission to be on. In the latter case, practitioners would also have the costly burden of proving in court that they were in fact engaged in the reasonable exercise of their traditional and customary practices, in order to avoid conviction and a criminal record. Faced with such risks and burdens, Native Hawaiian practitioners may choose to forego the continuation of their practices and the perpetuation of their culture, undermining the vision and intent of our unique constitutional protections.

This measure would address the liability concerns of private landowners and government entities (in the case of government lands not otherwise open to the public) who grant explicit permission to cultural practitioners to access their lands to specifically engage in Native Hawaiian traditional and customary practices. By protecting landowners from legal claims arising from such access, this measure would encourage their accommodation of practitioners and facilitate the perpetuation of Native Hawaiian traditional and customary practices, as envisioned in our constitution and otherwise protected under the law.

This measure does not require practitioners to obtain permission to exercise their constitutionally protected rights, but increases the likelihood that a landowner would grant permission, and thereby facilitate the perpetuation of Native Hawaiian cultural practices.

Learn more about OHA-5: Read the bill and read the whitepaper.

OHA-6: Capital Improvement Project Budget Request for OHA’s Wahiawā Lands

HB1780/SB2191 This bill appropriates $3 million for the construction of a water storage and distribution system on agricultural lands owned by OHA in Wahiawā, Oʻahu.

OHA is working to plan, design, permit, and otherwise prepare for the construction of a water storage and distribution system on OHA’s 511-acre property in Wahiawā. This activity aligns with OHA’s Conceptual Master Plan (Plan) for the property, approved by the BOT in 2018, which requires a consistent and reliable water source for its implementation. This activity is also necessary to amend the conservation easement that accompanied OHA’s acquisition of the property in 2012; the City and County of Honolulu (the holder of the easement) has communicated that OHA will need to demonstrate agricultural uses before the easement can be amended to accommodate the Plan’s commercial elements. Notably, OHA has secured an allocation of water from the Agribusiness Development Corporation (ADC), which would provide OHA with one million gallons of water per week from ADC’s Bott Well; however, ADC cannot provide the water to OHA without a water storage system. OHA has committed OHA funds for FY 20 ($200,000.00) and FY21 ($300,000) for the planning, designing, and permitting of the system and is starting the procurement process. Bill OHA-6 would request state CIP funds raised by the issue of general obligation bonds to pay for the actual construction of the system, estimated by our research to be approximately $3 million.

Learn more about OHA-6: Read the bill and read the whitepaper.


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