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Sweeping reforms of the Department of Hawaiian Home Lands are among a number of bills lawmakers are considering this session that could affect Native Hawaiians in the state.
Some measures could give cultural practitioners better access to lands and several others look at the siting of controversial projects, like giant windmills. A handful of the DHHL measures have already cleared their first hearings in the Senate.
While House and Senate leaders have managed to work with Gov. David Ige’s administration in pushing for a joint package on easing the cost of living, less has been said about issues affecting the state’s Native Hawaiian organizations and people.
Still, many of those bills could face high hurdles. Some have been proposed in the past and never made it through session, as was the case with increasing the Office of Hawaiian Affairs’ share of ceded land money. And others, like the DHHL reforms, could run into problems at the federal level if they clear the Legislature.
Some of the most significant measures seek to change the way DHHL operates. They were put forward by the Sovereign Council of Hawaiian Homestead Associations.
The group gathered ideas from some of their member associations last year and put them into bills for this session, which opened in January and wraps up in early May. The push in the Legislature is the culmination of a broader movement across the state to lobby for such reforms.
One of those measures, Senate Bill 2113, would prohibit the department from using other state laws not found in the Hawaiian Homes Commission Act to bar Native Hawaiian beneficiaries from getting leases to run businesses on DHHL parcels.
Outside of homesteading, the HHCA empowered its beneficiaries to own mercantile operations on Hawaiian Home Lands. Another section of the law says the commission is only allowed to lease land to non-beneficiaries if there are none needing homesteads.
But the department has a policy to lease lands on property it deems unnecessary in order to generate revenue. In 2018, the most recent year data is available, DHHL reported over $15 million in revenues from all of those leases. One example is an energy project in Kalaeloa that stirred controversy after the commission approved it last year.
The department considers a land’s “highest and best use” when making those leases. Some have been irked by the department’s use of that provision since it’s not found in the HHCA.
That was the case with a 10 megawatt photovoltaic project proposed by the O’oma Homestead Alliance on the Big Island. It stalled after DHHL Director William Aila wrote a letter to the homesteaders in October denying their request for access.
He cited a provision under Hawaii’s public lands law that could require the department to open the proposal to other energy producers.
“We want to make sure Hawaiians can be self-sufficient, independent and successful,” Bo Kahui, a partner in the O’oma Homestead Alliance, said. “How can we reach that with these roadblocks?”
The current version of SB2113 actually contains the contents of SB 2525. The Senate Hawaiian Affairs Committee on Wednesday gutted the first bill and replaced it with the second to keep certain provisions alive this session.
One bill in the package is already dead for the session. SB 2526 would have changed the way DHHL determines the value of its properties and put foreclosure protections into place by holding the department to more stringent guidelines. The Senate Hawaiian Affairs Committee killed it on Tuesday.
However, the same committee passed SB 2393 Thursday afternoon. That bill would restructure the membership of the Hawaiian Homes Commission by requiring that five of its nine members be Native Hawaiian beneficiaries. Of those, three must be on the waitlist and two must be current lessees.
The committee, chaired by Sen. Maile Shimabukuro, took out a provision that would separate the chair of the commission from the head of the department. Currently, the DHHL director also heads the commission.
Senators changed the bill to have the Legislative Reference Bureau study the issue.
“The issues of the separation of director and chair is very thought-provoking. It’s something many beneficiaries have asked for,” Shimabukuro said shortly before the vote.
Others have raised concerns on SB2393 and other bills that could change how DHHL operates. Deputy Attorney General Craig Iha said during a hearing Thursday that the Attorney General’s Office will need to examine what parts of the bill could require congressional approval.
Homelani Schaedel, a founder of the Kapolei Community Development Corporation, has raised concerns that the bills put forward by the SCHAA are not inclusive of all the Hawaiian Homestead Associations.
While she isn’t necessarily against any of the measures they propose, she raised concerns over uncertainties of how SB2393 could affect the stability of the commission.
“I just don’t have sufficient information and was not part of the discussion to support this bill,” Schaedel said.
OHA has proposed a bill that could make it easier for Native Hawaiian cultural practitioners to access areas for their practice while also relieving landowners of liability.
SB 2195 would give both the state and public landowners liability protection so long as they explicitly state that practitioners are allowed to access their lands.
The bill, which is part of OHA’s legislative package, received support from the Department of Land and Natural Resources.
“The Department recognizes and upholds the legal exercise of Native Hawaiian traditional and customary rights on public lands managed by the Department,” DLNR wrote in its testimony to lawmakers.
At a committee hearing Jan. 28, Jocelyn Doane, OHA’s public policy manager, said that government lands are likely those that practitioners would like to access.
“These lands are for the most part ceded lands, stolen from the (Hawaiian) Kingdom, which our people continue to have claims to,” Doane said, adding that DLNR manages many of those lands that include forests and watersheds.
A separate proposal from Sen. Kai Kahele would exempt kalo farming on kuleana lands from needing permits for water diversions. Those lands are certain ancestral lands that have been in some families for decades and in some cases centuries.
“The legislature finds that native Hawaiians have been farming on lands throughout the Hawaiian islands for nearly two thousand years. They have done so successfully and without creating adverse impacts to the land and ahupuaa in which they operated,” the preamble to SB3018 says.
Several bills that are already likely dead for this session looked at where new construction projects should be sited.
SB 3066 would require projects to place more public notices in the newspaper, by mail and online to better inform neighborhoods that something could impact them.
“Recent community reactions to the Kahuku windmill project and the Thirty Meter Telescope have demonstrated that the permitting process lacks the requisite level of transparency and public notice to inform neighborhoods and cultural communities of proposed construction projects,” the bill, put forward by Sen. Kurt Fevella, says.
The bill would also require any project on Mauna Kea to be voted on by Big Island residents.
SB 3066 is unlikely to move anywhere this session, but lawmakers are considering how to better involve the public in siting projects.
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