STAND. COM. REP. NO. 431

 

Honolulu, Hawaii

                  

 

RE:    S.B. No. 1409

       S.D. 1

 

 

 

Honorable Ronald D. Kouchi

President of the Senate

Thirty-First State Legislature

Regular Session of 2021

State of Hawaii

 

Sir:

 

     Your Committee on Hawaiian Affairs, to which was referred S.B. No. 1409 entitled:

 

"A BILL FOR AN ACT RELATING TO TRAINING IN NATIVE HAWAIIAN RIGHTS,"

 

begs leave to report as follows:

 

     The purpose and intent of this measure is to prohibit council, board, and commission members from serving if the member has not completed, within an established time, a required training course related to native Hawaiian traditional and customary rights, resource protection and access rights, and the public trust, including the State's fiduciary responsibility.

 

     Your Committee received testimony in support of this measure from the Office of Hawaiian Affairs, Hawaiian Affairs Caucus of the Democratic Party of Hawaii, Native Hawaiian Legal Corporation, and eight individuals.  Your Committee received testimony in opposition to this measure from the Center for Hawaiian Sovereignty Studies.  Your Committee received comments on this measure from the Department of Land and Natural Resources.

 

     Your Committee finds that in Act 169, Session Laws of Hawaii 2015, the Legislature found that pursuant to Hawaii's constitution, statutes, and case law, the State recognizes a mandate to protect native Hawaiian traditional and customary rights.  Accordingly, Act 169 amended chapter 10, Hawaii Revised Statutes, to require the Office of Hawaiian Affairs to establish, design, and administer a training course on Hawaiian rights, the sources of these rights, and how the infringement of these rights affects the Hawaiian people, and further required new members of certain state councils, boards, and commissions to complete the training course within one year of their appointment.

 

     Unfortunately, despite the regular provision of notice to board and commission administrators and overwhelmingly positive feedback from training course attendees, a significant number of board and commission members subject to the mandatory training course continue to fail to comply with their training course completion responsibility.  Additionally, although certain critical decision-making bodies are required to have one member with experience or expertise in native Hawaiian culture and well-being, this single individual membership requirement has not resulted in decisions that consistently incorporate or even acknowledge native Hawaiian knowledge, values, rights, and practices.  Such decisions have led to substantial conflict, distrust, and legal action against the State, and may further foreclose critical opportunities to enhance our islands' resiliency and self-sufficiency through culturally informed land use and resource management approaches.  As a result, critical land use and resource management decision-making may continue to be less than fully informed on native Hawaiian rights.  The courts have held that the State "must take the initiative in considering, protecting, and advancing public rights in the resource at every stage of the planning and decision[-]making process."  In re Water Use Permit Applications, 94 Hawaii 97, 143, P.3d 209, 255 (2000).  Therefore, this measure strengthens requirements of the completion of the training course, which will ensure greater recognition and incorporation of native Hawaiian knowledge, values, and rights in land use and resource management decision-making.

 

     Your Committee has also heard concerns from the Department of Land and Natural Resources that the Department does not believe that members who are unable to complete the course within one year should be prevented from voting or serving on permitted interaction groups, removed from their seats, or have their votes challenged and subject to being nullified and voided following a contested case hearing.  This provision may cause undue hardship for parties needing to complete business before the board if the board loses quorum because of this measure.  Board members normally only have two opportunities per year to take the course, and sometimes the training is scheduled with board meetings or other commitments conflict.

 

     Your Committee has amended this measure by making technical, nonsubstantive amendments for the purposes of clarity and consistency.

 

     As affirmed by the record of votes of the members of your Committee on Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 1409, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 1409, S.D. 1, and be referred to your Committee on Judiciary.

 

Respectfully submitted on behalf of the members of the Committee on Hawaiian Affairs,

 

 

 

________________________________

MAILE S.L. SHIMABUKURO, Chair