2020 OHA Legislative Package

Ka Wai Ola


2020 Legislative Session

How can state decisions impacting the ʻāina better reflect the knowledge, values and perspectives of Native Hawaiians whose culture, identity and well-being are intrinsically tied to their ancestral lands?

What’s to stop a developer from illegally breaking ground without a permit, and destroying iwi kūpuna and historic sites that might have otherwise been protected, when the consequences for doing so are often less than the costs of complying with the law in the first place?

How impactful are the state’s investments in prisoner rehabilitation, when their conviction records can prevent them from obtaining legitimate employment for up to a decade after they’ve repaid their debt to society?

OHA’s 2020 legislative package seeks to address these and other critical questions with measures that will bring concrete and positive change for Native Hawaiians, and all who live in and love these islands.

Developed through internal and targeted outreach, an intensive vetting process, and discussion with OHA leadership and the Board of Trustees, the final Board-approved package measures include the following:

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

For many, the conflict over Maunakea is emblematic of the government’s continual failure to meaningfully incorporate Native Hawaiian perspectives into decisions impacting the ʻāina. This measure would better ensure that Native Hawaiian rights, values and cultural expertise are reflected in land use and resource management decisions going forward by: 1) ensuring that four members of both the Land Use Commission and the Board of Land and Natural Resources are selected from lists submitted to the Governor by OHA; and 2) reinforcing the existing requirement that members of certain state boards and commissions attend a Native Hawaiian Law and Public Trust training course.

OHA-2: Reducing Barriers to Legitimate Employment for Former Convicts

Despite a general prohibition against employment discrimination based on arrest and court records, state law explicitly allows and implicitly encourages employers to review their employees’ and prospective employees’ convictions over the previous decade, excluding time served. Accordingly, employment discrimination and the stigma of a decade-old conviction may continue to haunt those convicted of a crime well after their debt to society has been paid, frustrating their hopes for legitimate employment, and undermining the state’s investments in convict rehabilitation and recidivism reduction. This measure would strike a better balance between employers’ liability concerns and the need to provide legitimate employment opportunities for those with old and minor convictions, by reducing employers’ review and use of conviction records to five years for felonies, and three years for misdemeanors. This measure would not effect the legally permitted use of criminal history-related information from certain offender registries, or for jobs at schools and in prisons.

OHA-3: Enforcing Historic Preservation Review Evasion

County grading and construction-related permits are the trigger for historic preservation review processes that protect iwi kūpuna and historic sites from being unnecessarily disturbed, or worse. However, if work commences without a county permit, no historic review is conducted and any evidence of iwi or historic sites is often destroyed, making after-the-fact enforcement of current historic preservation laws difficult, if not impossible. For some contractors, the unenforceability of historic preservation laws after-the-fact may even create a financial incentive to “build first, get permits later.” This measure would better protect iwi kūpuna and historic sites by making unpermitted work that evades historic preservation review a clear violation of historic preservation laws, and increase the fines for violations of these laws for the first time in over 15 years.

OHA-4: Fixing Rules for Iwi Kūpuna and Historic Sites

Despite longstanding concerns regarding regulatory protections for iwi kūpuna and historic sites, state historic preservation rules concerning the same have not been updated in over 15 years. This concurrent resolution would urge the State Historic Preservation Division to ensure that their anticipated rule amendments finally address recurrent issues relating to iwi, burials and historic sites, including improved accountability for contracted archaeologists, more consistent standards for archaeological inventory surveys and clearer, expanded authorities for the island burial councils.

OHA-5: Encouraging Access for Cultural Practitioners

While cultural practitioners may reasonably exercise their Native Hawaiian traditional and customary rights on certain public and private lands, landowners often fail to enable their access to such lands, due to liability concerns. As a result, practitioners must often risk confrontation or even arrest in order to exercise their constitutional rights. This measure would encourage landowners to accommodate practitioners’ rights by limiting their liability when they allow practitioners to access their lands for the purpose of engaging in Native Hawaiian traditional and customary practices.

OHA-6: Revisioning Sustainable Agriculture in Wahiawā

OHA’s vision for its Central Oʻahu lands provides a model for sustainable agriculture in Hawaiʻi, supporting small farmers, local food production and the protection of one of Hawaiʻi’s most sacred places. Realizing this vision will require reliable access to water; while OHA has identified a water source and has already set aside funds for the planning and permitting of a water distribution system, the actual construction of such a system will require substantial additional funds. Accordingly, this measure would request $3,000,000 in state capital improvement funds for the development of water storage and distribution infrastructure, as a critical step towards realizing OHA’s vision.

In addition to advocating for the passage of the above measures, OHA’s Public Policy staff and in-house experts will review, track and, consistent with the manaʻo of the Board of Trustees, testify on the hundreds of other measures impacting the Native Hawaiian community that will be introduced in the 2020 session.

Of course, the success of these efforts may ultimately rest in the willingness and ability of Native Hawaiians and other community members to engage in the legislative process, contacting their legislators and submitting testimonies voicing their support for, or opposition to, the bills and resolutions of importance to them. To learn more and to sign up for updates on OHA’s legislative package and other important measures this 2020 session, visit www.oha.org/legislation.