A construction project is being planned in an area that may have iwi kūpuna. Can the developer build there?
By Kauila Kopper, Litigation Director, NHLC Lāhui Services
Mahalo for your question and your diligence in the mālama of iwi kūpuna threatened by development. Respect and care for iwi kūpuna is an enormous challenge for the lāhui requiring continuous advocacy.
Whether a project can be built in an area that may contain iwi kūpuna depends on the results of a “historic preservation review process.” This process, established by Hawaiʻi Revised Statutes chapter 6E, requires the counties and the State to review a project’s effect on historic properties, including iwi kūpuna, before any permits or other government approvals for the project can be issued. The goal of this process is to identify any potential impacts to iwi kūpuna and other historic sites, and determine the best way to avoid those impacts before a project begins. If the planned project may affect iwi kūpuna or other historic sites, before approving or issuing a permit for the project, the government agency reviewing the project must refer it to the Department of Land and Natural Resources – State Historic Preservation Division (SHPD) to lead a historic preservation review.
When conducting a historic preservation review, SHPD may require the developer to prepare an archaeological inventory survey (AIS), an archaeological study, resulting in a report, that is intended to identify iwi kūpuna and historic sites and assess a project’s expected impacts on those sites. If SHPD believes that iwi kūpuna or other historic sites are present at the project, they must require the developer to prepare an AIS that (1) identifies all historic properties at the project site, (2) is done before permits are given, (3) is comprehensive and complete, and (4) is prepared by an approved archaeological firm.
When done right, the AIS gives SHPD and the permitting agency important information to decide whether the project should be approved and how. The AIS benefits all parties because with the information in the AIS the developer and others involved in the project have an opportunity to reconsider the project or make appropriate changes to the project plan that preserve and protect iwi kūpuna before development begins. Preparation of the AIS also provides the community an opportunity to participate and iwi kūpuna identified in an AIS receive the greatest amount of protection afforded by law.
After an AIS is completed and accepted by SHPD, the historic preservation review process continues. SHPD and the relevant island burial councils determine appropriate steps to avoid or minimize impacts to iwi kūpuna and historic sites identified in the AIS. When the SHPD and burial council’s historic preservation review process is complete, the permitting agency then decides whether to issue the project permit.
Hawaiʻi law allows any person to sue to enforce Hawaiʻi laws protecting burial sites and historic properties – a lineal descendant relationship with the iwi kūpuna is not required. If you are questioning whether this process was or should be followed for a specific project, here is information that an attorney may need to determine whether the project complies with the law:
- Does the project need a permit? If so, did SHPD review the project before the permit was issued?
- Was an AIS done before the project started? Was it thorough?
- Were iwi kūpuna found during the AIS?
- Were iwi kūpuna “hit” during construction?
- Have iwi kūpuna been removed from the ground?
Community dilligence is one of the best safeguards we have to mālama iwi kūpuna. Together with the law, we can ensure that our kūpuna are preserved, protected, and treated with the dignity and respect they deserve.
Ola nā iwi.
Ninau iā NHLC provides general information about the law. It is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at www.nativehawaiianlegalcorp.org.