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HomeMy WebLinkAboutCOM 1051.015 1996-1998 -P.K.O.. 'a tlQb3L76»~ WI///t.rm v u.w rm u+ TESTIMONY OF KA PA'AKAI O KA'AINA November 13, 1998 THE HAWAII COUNTY COUNCIL'S COMMITTEE ON PLANNING ? Rmw® ,r PUBLIC HEARING ON BILL 332 AND BILL 332 DRAFT 2 r T sy_ RE: KA'UPULEHU DEVELOPMENTS CHANGE OF ZONE Do% Ca,nt, C«a~ My name is Karen Eoff and I present the following testimony on behalf of KA PA'AKAI O KA 'AINA. We offer this testimony,,- to continue efforts to preserve, our rights and interests as Intervenors established in orlor contested case proceedings before the State Land Use Commission, in which approval of a ? ^~p^' Amendment is currently on appeal to the State Supreme Court, and also our rights and interest as intervenors before the Hawaii County Planning Commmission. We have presented evidence and obtained various expert testimony from cultural experts in both intervenor cases to attempt to resolve certain culiural/historical issues which were not included in the decision-making process and which we strongly believe must first be adequately evaluated and assessed in order that a fair decision can be made. Rights and privileges of native Hawaiians are not a Hawaiian `sovereignty' issue as some may assume. On the contrary, there are certain "rights" and "privileges" given to the public and specifically to native Hawaiians under state and federal law. These rights and privileges are found In the Hawaii Revised Statutes, the Hawaii state constitution and federal law. Under Hawaii Revised Statutes are Section 1-1, Section 7-1 and Chapter 6E. Section 1-1 relates to USAGE, Section 7-1 relates to WAYS, and Chapter 6E relates to HISTORIC PRESERVATION. Under our Hawaii state constitution we find sources in Oooue. No. /0-T/, !S Me No. ZIWCo kN Ref. Tot P'es'"r° PC p.0. W. Dste !n 1 3 1998 y P.K.O. 'C B08.32s-s3T2 ®I, i:rxa v.a.~a rn. u,~ Article XI, Section relating to the PUBLIC TRUST, and Article XII, Section 7 relating to ACCESS and GATHERING. Under federal law sources, among others, include the National Historic Preservation Act. These are what the coalition refers to as the Bundle of Rights, Privileges and Practices. As an example, within the SMA land use process, certain mechanisms are in place to protect these rights and some are not. The SMA provisions for the protection of these Bundle of Rights lie within Hawaii Revised Statutes, Chapter 205A, Sections 2(b), 2(c), 4(a) and 28(2). The "Kohanaikl" (PASH/PILAGO) Supreme Court decision is the Supreme Court's reminder to governmental agencies (particularly the Hawaii County Planning Commission) of its obligation to protect these Bundle of Rights. In order for governmental agencies to properly determine whether hislorical/cultural properties have been properly Identified and which of the potential historical/cultural properties identified within the area of potential effect can be iegitamately regarded to be traditional cultural properties, it should, at a minimum, be guided by specific criteria which would result in well Informed and fair decisions. What is glaringly noticeable is the absence of many rules or guidelines which are critical to proper decision-making. Under Section 1-1 USAGE, and Section 7-1 WAYS, there are no mechanisms. Under Chapter eE HISTORIC PRESERVATION we find mechanisms such as the Burial Program, State Register Program and Unofficial "Draft' rules. Under Article XI, Section 1 PUBLIC TRUST, there is no mechanism. Under Article XII, Section 7 ACCESS and GATHERING there is alo no mechanism. Under the National Historic Preservation Act HISTORIC PRESERVATION, there are agency rules (Code of Federal 'Q- ®lIII YSO lYO[w rm uut P.K.O. Regulations) and the National Register, Bulletin 15 and 38. In any decision-making process there must be an established criteria to IDENTIFY, ASSESS and EVALUATE culturalhristorical resources; second, all relevant facts must have been gathered; and lastly, based upon the facts so gathered which have been deemed to be relevant in the case, made a finding that no adverse impacts exist and that the decision is consistent with the laws of this state. It has been the coalitions' position before the State Land Use Commission and the Hawaii County Planning Commision that absent such established crtteria or decision-making mechanisms, it would be extremely difficult, if not impossible to make a fair and accurate decision whether all traditional culturallhistorical properties have in fact been identified and of the traditional cuiturallhistodc properties so identified, whether they can be legitimately regarded as such. That absent such published rules for evaluating and documenting traditional cultursOlstoric properties, the agency has no guidelines to follow in order for It to make a fair determination, fair to all parties, of whether a particular cultural/historic property is significant enough to preserve, or if not significant, can be destroyed after first having retained data by photographs and field notes or other forms of recovery and retention. It is the coalition's position that such a methodology can be established. Lacking specific evaluation and assessment guidelines, identification and assessment of what is "culturally significant is left to the persuasion of the developer. It would be much more cost effective and sensible to start the process now and eliminate the need for future development delays stemming from Intervenor Petitions and contested P.K.O. 'Q 808-325-6322 I11113►90 3:40 case hearings. This case is important because the County Council must now decide whether to follow the State Land Use Commission and Hawaii County Planning Commission in making a case-by-case decision without first having made certain that all relevant facts have been obtained up front and properly evaluated for its significance. Is the Hawaii County Council the governmental agency that will fulfill the obligations and directives set forth in the Kohanaiki PASH/PILAGO Supreme Court Decision. The entire state and Hawaiian Community are watching in hopes that someone will finally"do the right thing." In closing, the State Supreme Court has recently advised the Coalition that it is ready to render a decision regarding the Coalition's appeal of the State Land Use Commission's Boundary Amendment. It may very well be in the best interest of all concerned that no action be taken until the Supreme Court issues its decision. Mahalo.