THE SENATE

S.B. NO.

2854

TWENTY-SIXTH LEGISLATURE, 2012

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO A STATEWIDE ISLAND BURIAL COUNCIL.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that the island burial councils have been having difficulty meeting quorum, in large part because of the difficulty of finding qualified large landowner representatives to serve on the island burial councils. The Molokai island burial council has not been able to meet since April 2008 because the State has not been able to attract large landowners on Molokai to serve on the island burial council.

Recently, this has also become a problem for the other island burial councils. Maui and Hawaii have canceled nine meetings due to quorum issues and Kauai has lost two regional representatives and is seeking an additional large landowner.

The purpose of this Act is to address the quorum issue by reducing the number of island burial councils to one statewide island burial council with equal representation from all islands, while maintaining the quorum ratio of large landowners to regional representatives. In addition to fixing long-standing quorum problems, a statewide island burial council will also address the following long-standing concerns of the island burial councils:

(1) It will allow for statewide coordination when dealing with burials. This has been a concern for the island burial councils who have been unable to have statewide meetings due to funding issues.

(2) It will distribute the need for large landowners across a broader base, and allow landowners who have lands on multiple islands (Crown Trusts) to sit one person, rather than commit staff from multiple islands.

SECTION 2. Section 6E-7, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) The State shall not transfer any historic property or aviation artifact under its jurisdiction without the concurrence of the department, and shall not transfer any burial site under its jurisdiction without consulting the [appropriate] statewide island burial council."

SECTION 3. Section 6E-43, Hawaii Revised Statutes, is amended by amending subsections (b), (c), and (d) to read as follows:

"(b) All burial sites are significant and shall be preserved in place until compliance with this section is met, except as provided in section 6E-43.6. The [appropriate] statewide island burial council shall determine whether preservation in place or relocation of previously identified native Hawaiian burial sites is warranted, following criteria which shall include recognition that burial sites of high preservation value, such as areas with a concentration of skeletal remains, or prehistoric or historic burials associated with important individuals and events, or areas that are within a context of historic properties, or have known lineal descendants, shall receive greater consideration for preservation in place. The criteria shall be developed by the department in consultation with the [councils,] statewide island burial council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations, [such as Hui Malama I Na Kupuna O Hawaiʻi Nei,] through rules adopted pursuant to chapter 91. [A] The council's determination shall be rendered within forty-five days of referral by the department unless otherwise extended by agreement between the landowner and the department.

(c) Council determinations may be administratively appealed to a panel composed of [three council chairpersons and three] two island representatives and two members from the board of land and natural resources, as a contested case pursuant to chapter 91. In addition to the [six] four members, the chairperson of the board of land and natural resources shall preside over the contested case and vote only in the event of a tie.

(d) Within ninety days following the final determination, a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, the [respective] statewide island burial council, other appropriate Hawaiian organizations, and any affected property owner."

SECTION 4. Section 6E-43.5, Hawaii Revised Statutes, is amended to read as follows:

"6E-43.5 [Island] Statewide island burial [councils;] council; creation; appointment; composition; duties. (a) The department shall establish a statewide island burial [councils for Hawaii, Maui/Lanai, Molokai, Oahu, and Kauai/Niihau,] council to implement section 6E-43.

(b) [Appointment] Notwithstanding any other law to the contrary, appointment of members to the [councils] statewide island burial council shall be made by the governor[, in accordance with section 26-34,] from a list provided by the department, provided that a minimum of twenty per cent of the [regional] island representatives shall be appointed from a list of at least nine candidates provided by the office of Hawaiian affairs[. The department shall develop the list in consultation with appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawaiʻi Nei.], and provided further that the governor may appoint council members to serve three- or four-year terms. The membership of [each] the statewide island burial council shall include [at least one representative from] no more than two representatives each [geographic region of the island as well as representatives of development and large property owner interests. Regional representatives] from Kauai, Oahu, Maui, Molokai, Lanai, and Hawaii, provided that a portion of the members will also represent development and large landowner interests. Representatives shall be selected [from the Hawaiian community] on the basis of their understanding of the culture, history, burial beliefs, customs, and practices of native Hawaiians[.] and of their understanding of land use in the State. The [councils] statewide island burial council shall have a minimum of [nine] six and a maximum of [fifteen] twelve members, and [have a ratio of not more than three to one and no less than two to one in favor of regional representatives.] a majority of seated members shall constitute a quorum to do business. Island representatives that represent development and large landowner interests shall constitute no more than thirty-three per cent and no less than twenty-five per cent of the total number of all island representatives. The chairperson of the board of land and natural resources or the chairperson's designee shall serve as the chair of the statewide island burial council.

(c) The department, in consultation with the [councils,] statewide island burial council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations, [such as Hui Malama I Na Kupuna O Hawaiʻi Nei,] shall adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section. The statewide island burial council members shall serve without compensation, but shall be reimbursed for necessary expenses incurred during the performance of their duties. The [councils] statewide island burial council shall be a part of the department for administrative purposes.

(d) The [councils] statewide island burial council shall hold meetings and acquire information as [they deem] it deems necessary and shall communicate [their] its findings and recommendations to the department. Meetings shall rotate to each different island, with no one island hosting more than two meetings per year. Notwithstanding section 92-3, whenever the location and description of burial sites are under consideration, the [councils] statewide island burial council may hold closed meetings. Concurrence of a majority of the members present at a meeting shall be necessary to make any action of [a] the statewide island burial council valid.

(e) Department records relating to the location and description of historic sites, including burial sites, if deemed sensitive by [a] the statewide island burial council or the Hawaii historic places review board, shall be confidential.

(f) The [councils] statewide island burial council shall:

(1) Determine the preservation or relocation of previously identified native Hawaiian burial sites;

(2) Assist the department in the inventory and identification of native Hawaiian burial sites;

(3) Make recommendations regarding appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites;

[(4) Elect a chairperson for a four-year term who shall serve for not more than two consecutive terms;] and

[(5)] (4) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of remains."

SECTION 5. Section 6E-43.6, Hawaii Revised Statutes, is amended as follows:

(1) By amending subsections (b), (c), and (d) to read as follows:

"(b) The discovery shall be reported as soon as possible to the department, the appropriate medical examiner or coroner, and the appropriate police department. As soon as practicable, the department shall notify the [appropriate] statewide island burial council and the office of Hawaiian affairs.

(c) After notification of the discovery of multiple skeletons, the following shall be done within two working days, if on Oahu, and three working days, if in other statewide island burial council jurisdictions:

(1) A representative of the medical examiner or coroner's office and a qualified archaeologist shall examine the remains to determine jurisdiction. If the remains are the responsibility of the medical examiner or coroner, the department's involvement shall end. If the remains are historic or prehistoric burials, then the remainder of this section shall apply;

(2) The department shall gather sufficient information, including oral tradition, to document the nature of the burial context and determine appropriate treatment of the remains. Members of the [appropriate] statewide island burial council shall be allowed to oversee the on-site examination and, if warranted, removal; and

(3) If removal of the remains is warranted, based on criteria developed by the department, in consultation with the [councils,] statewide island burial council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations, [such as Hui Malama I Na Kupuna O Hawaiʻi Nei,] through rules adopted pursuant to chapter 91, the removal of the remains shall be overseen by a qualified archaeologist and a mitigation plan shall be prepared by the department or with the concurrence of the department.

(d) In cases involving the discovery of a single skeleton, the requirements of subsection (c) shall be fulfilled in one working day if on Oahu, and two working days if in other statewide island burial council jurisdictions."

(2) By amending subsection (f) to read as follows:

"(f) In cases where remains are archaeologically removed, the department shall determine the place of relocation, after consultation with the [appropriate] statewide island burial council, affected property owners, representatives of the relevant ethnic group, and any identified lineal descendants, as appropriate. Relocation shall conform with requirements imposed by the department of health, and may be accompanied by traditional ceremonies, as determined by the lineal descendants, or, if no lineal descendants are identified, the [appropriate] statewide island burial council or representatives of the relevant ethnic group that the department deems appropriate. Specific or special reinterment requests from lineal or cultural descendants may be accommodated provided that the additional expenses incurred are paid by the affected descendants."

SECTION 6. Section 6K-6, Hawaii Revised Statutes, is amended to read as follows:

"6K-6 Responsibilities and duties of the commission. The general administration of the island reserve shall rest with the commission. In carrying out its duties and responsibilities, the commission:

(1) Shall establish criteria, policies, and controls for permissible uses within the island reserve;

(2) Shall approve all contracts for services and rules pertaining to the island reserve;

(3) Shall provide advice to the governor, the department, and other departments and agencies on any matter relating to the island reserve;

(4) Shall provide advice to the office of planning and the department of the attorney general on any matter relating to the federal conveyance of Kahoʻolawe;

(5) May enter into curator or stewardship agreements with appropriate Hawaiian cultural and spiritual community organizations for the perpetuation of native Hawaiian cultural, religious, and subsistence customs, beliefs, and practices for the purposes stated in section 6K-3;

(6) Shall carry out those powers and duties otherwise conferred upon the board of land and natural resources and the land use commission with regard to dispositions and approvals pertaining to the island reserve. All powers and duties of the board of land and natural resources and the land use commission concerning dispositions and approvals pertaining to the island reserve are transferred to the commission;

(7) Shall carry out those powers and duties concerning the island reserve otherwise conferred upon the county of Maui by chapter 205A. The powers and duties of the county of Maui and its agencies concerning coastal zone dispositions and approvals pertaining to the island reserve are transferred to the commission;

(8) Shall carry out those powers and duties concerning the island reserve otherwise conferred upon the statewide island burial [councils] council and the department with regard to proper treatment of burial sites and human skeletal remains found in the island reserve;

(9) Shall adopt rules in accordance with chapter 91 that are necessary for the purposes of this chapter and shall maintain a record of its proceedings and actions;

(10) May delegate to the executive director or employees of the commission, by formal commission action, such power and authority vested in the commission by this chapter as the commission deems reasonable and proper for the effective administration of this chapter; and

(11) May solicit and accept grants, donations, and contributions for deposit into the Kahoʻolawe rehabilitation trust fund to support the purposes of this chapter."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2012.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Statewide Island Burial Council

 

Description:

Consolidates the five Island Burial Councils into a single Statewide Island Burial Council as a means to address long-standing quorum issues.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.