By Terina Faʻagau, NHLC Staff Attorney
In June we wrote about the Ka Paʻakai decision from the Hawaiʻi Supreme Court that resulted in criteria for an analysis that state agencies must complete before making a decision that may impact the exercise of Native Hawaiian traditional and customary practices.
However, Ka Paʻakai is not the only legal framework or analysis that requires the consideration of a proposed action’s impacts to Native Hawaiian traditional and customary rights. Proposals that trigger Hawaiʻi’s environmental review process require the assessment of cultural impacts in determining whether an action will have a significant effect on the environment.
In the early 1970s, the Hawaiʻi State Legislature passed the Hawaiʻi Environmental Protection Act (HEPA), a landmark statute establishing the “environmental review process” with which individuals and agencies must comply before land use approval and/or construction of a proposed development may begin.
Codified under chapter 343 of the Hawaiʻi Revised Statutes (HRS) and Hawaiʻi Administrative Rules (HAR) chapter 11-200.1, the environmental review process mandates that when a proposed action may affect the environment, state and county agencies must consider and evaluate the action’s sum of effects – or its “significance” – on the quality of the environment through an environmental assessment (EA) and/or environmental impact statement (EIS).
A project or action may trigger the environmental review process if it proposes a use of state or county lands; any use within a conservation district or designated historic site; any use within the Waikīkī Special District; a reclassification of any land classified as conservation; construction that may affect conservation district classified land; a shoreline area under the Coastal Zone Management Act; a historic site; or any landfills, wastewater treatment units, or power-generating facilities.
In 2000, the legislature amended HEPA to remedy the loss and destruction of many important cultural resources due, in part, to prior decades of failing to assess cultural resources as part of the environmental review.
Since then, HRS chapter 343 has required the environmental assessment of “cultural practices of the community and state” in determining the significance of a proposed project by mandating that any EA or EIS must include a “cultural impact assessment” (CIA).
A cultural impact assessment must include information relating to cultural or ethnic groups’ practices and beliefs, which may be obtained through scoping community meetings, ethnographic interviews, oral histories, or other information provided by knowledgeable informants, including traditional and customary practitioners.
Importantly, the geographical extent of the CIA “should, in most instances, be greater than the area over which the proposed action will take place…to ensure that cultural practices which may not occur within the boundaries of the project area, but which may nonetheless be affected, are included in the assessment.”
Further, a CIA should reference historical data dating back to the initial presence in the area of the group whose cultural practices are assessed and may refer to “traditional cultural properties or other types of historic sites, both man made and natural, including submerged cultural resources, which support such cultural practices and beliefs.”
Cultural impact assessments may be another effective tool for practitioners to protect the exercise of their traditional and customary rights that may be impacted by major development projects or other actions subject to environmental review. Because environmental review happens relatively early in the development process, though, community diligence remains key in ensuring protection of ʻāina and Native Hawaiian traditional cultural practices.
E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC 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 nativehawaiianlegalcorp.org.
