Clarence Ching Testifying for MAUNA KEA HUI Oppose HB2024
Testimony before Senate Committee on Higher Education, March 23, 2022, pgs 59-61
This constitutes TESTIMONY IN OPPOSITION to HB2024 HD1 "RELATING TO MAUNA KEA" - as it relates to myself, CLARENCE "KU" CHING AND the following - MARY MAXINE KAHAULELIO, BILLY FREITAS, CINDY FREITAS, and members of The Mauna Kea Hui, specifically KEALOHA PISCIOTTA (and MAUNA KEA ANAINA HOU), PAUL K. NEVES, and DEBORAH WARD.
While the bill references "Mauna a Wakea," it conjures up a lot of emotion for Mauna Kea and the Lahui (Hawaiian Nation) - if the Bill becomes law, its actual outcome may NOT be as it seems!
While the latest HB2024 HD1 draft appears on its face to be a very pro-Hawaiian and pro-Mauna Kea activity, there are major issues that are hidden between its lines! For example, in its present iteration, while the main impetus is touted as being pro-Hawaiian, and a number of Hawaiian "Stewards" is being seated, the process, including (Governor) nominations and appointments of "non-beneficiary" interests (not being beneficiaries), is far from being Hawaiian! (Therefor, a nominator may have it's own special interests in mind, that may NOT necessarily be that of the beneficiary class in common!) So if HB2024 HD1 is enacted, Mauna Kea being a part of the Public Trust, what then will be the Entity that will retain the obligation of maintaining the fiduciary duties and responsibilities that the "State of Hawaii" Trustee is charged with? Will this new entity be charged with the fiduciary duties and responsibilities of the Trustee? Or will the duties and responsibilities be bifurcated, being retained by DLNR/BLNR (as it is now) AND the ownership, control and management to be in the new entity? Will this discrepancy "violate the Public Trust?"
OR, if there are any benefits that may accumulate in this new entity - How will those benefits transfer to the Beneficiaries of the Public Trust (as is required by the Law of Trusts)? In Ching vs. Case, the Hawai'i Supreme Court mandates that the Public Trust must have benefits, AND the benefits "must" go to the beneficiaries! This Bill DOES NOT provide for any benefits, or any procedure for such benefits to transfer to the beneficiaries. Will this discrepancy "violate the Public Trust?"
On the other hand, Will this new entity be charged with the duties and responsibilities of protecting the Trust's resources for the benefit of the Public Trust's beneficiaries? If so - Where does it say that it does? Bottom line - There are elements in the Bill that ARE NOT consistent with maintaining the Public Trust (in other words, it violates the Public Trust)! So, YES, the Bill is inconsistent with the requirements of being a Public Trust. Will this discrepancy "violate the Public Trust?"
Lastly, as long time Mauna Kea cultural and traditional Practitioners, we would like to affirm that Mauna Kea IS the traditional name of our Mauna. It is important to protect and maintain the integrity of the traditional place names of our ancestors. The term “Kea” has deep and profound meaning that doesn’t simply translate to the Astronomers' definition of it as “White Mountain” and while we respect the reference to “Mauna a Wakea,” we must continue to be aware of its traditional name. Queen Liliuokalani on March 30, 1908 wrote about Mauna Kea (see Queens song book). She didn’t refer to it as Mauna a Wakea. So if the Queen called it Mauna Kea, shouldn’t it be good enough for us to carry on this sacred name? We know the TMK for Mauna Kea but what would the TMK for Mauna a Wakea be? Shall we now change the names of Haleakala, Mauna Loa, Kilauea, Hualalai etc.? The place names help us navigate back to our genealogy and sense of place and when we change our place names it changes our path home — even our Pacific Brothers and Sisters recognize our Mauna as Mauna Kea and have similar place names as well. That is why so many came to stand with us on the Mauna - as they continue to remember it’s name and it sacredness.
In conclusion - HB2014 HD1 violates the Admission Act (that created and initiated the Public Trust) and the Constitution of the State of Hawaii!
Therefore - we stand in OPPOSITION to HB2024 HD1!
/s/ Clarence "Ku" Ching on Behalf of the following Mauna Kea Hui and Kia'i Mauna:
/s/ Kealoha Pisciotta and Mauna Kea Anaina Hou
/s/ Kumu Hula Paul K. Neves
/s/ Deborah Ward
/s/ Kupuna Maxine Kahaualio
/s/ Cindy Freitas
/s/ Billy Freitas
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HB2024 RELATING TO MAUNA KEA
Office of Hawaiian Affairs Testimony before Senate Committee on Higher Education, March 23, 2022, pgs 28-30
The Office of Hawaiian Affairs (OHA) offers the following COMMENTS on HB2024 HD1, intending to establish the Mauna a Wākea stewardship authority (“MWSA”), and, produced from the work and report of the Mauna Kea Working Group (“MKWG”), created by House Resolution No. 33, H.D. 1, (Regular Session of 2021), where OHA was named as one of fifteen MKWG members.
Authority Placed Within DLNR. HB2024 HD1 amended to place the MWSA within the department of land and natural resources (“DLNR”) for administrative purposes.1 OHA reiterates and raises several concerns with the historical actions and inactions of the DLNR on a breadth of matters related to governance and management of lands, water, cultural and natural resources, including but not limited to iwi kupuna, island burial councils, length of leases, revocable permits, interim instream flow standards, proper accounting and reporting of public land trust revenues---are a few areas of top of mind concerns. In addition, the board of land and natural resources (“BLNR”) as the governing entity of the DLNR, has been at the forefront of the current governance and mismanagement of Mauna Kea by the University of Hawaii, due to the permissions provided or absence of accountable leasing requirements by the BLNR.
Composition of the MWSA. Standing Committee Report 99-22 and HB2024 HD, refer to the consideration for adding a representative of the Maunakea Observatories (“MO”) and University of Hawaiʻi (“UH”) President (or designee), respectively. The MO and UH seats, advantages and privileges, two specific users of Mauna a Wākea that have not explicitly demonstrated a fundamental operating principal of Mauna Aloha – understanding the reciprocal value of the mauna and a long-term commitment to maintaining the integrity of Mauna a Wākea. Perhaps over time with intentional and explicit policies and activities, either or both MO and UH, will demonstrate the principles of Mauna Aloha, but not at this time, at the inception and formation of the MWSA.
Not Deemed Public Lands, HRS 171-2. OHA’s comments contained herein, specifically opposes the expansion of the section “-8 Transfer” provision on page 18, line 9, to state, “..The lands under the jurisdiction of the authority shall be held in trust as part of the public land trust; provided that lands under the jurisdiction of the authority shall not be deemed public lands as defined in section 171-2.” [emphasis added]. DLNR is a department of the State of Hawai’i charged with managing and administering the State's public lands pursuant to HRS section 26-15(b) and HRS Chapter 171. These are lands are government or crown lands previous to August 15, 1895, to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States and given the status of public lands in accordance with the State constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws.
The added language is a significant departure from title to the lands held in trust and precedent regarding constitutional duties of the State and OHA regarding the public land trust lands. The language is also conflicting, counterintuitive and an explicit change to exclude all income and proceeds derived from the public land trust; and the subsequent transfer of the full twenty per cent pro rata share of income and proceeds from the public land trust annually to OHA, for the betterment of the conditions of Native Hawaiians. OHA opposes the transfer of jurisdiction to the public land trust lands to the newly formed Authority, which would apparently hold title to the public land trust lands, yet apparently “not be deemed” public lands as defined in section 171-2, Hawaii Revised Statutes.
Nomination Process. The process nominating individuals to serve on the Authority would require consultation as opposed to coordination. OHA has adopted processes to consult with Edith Kanaka’ole Foundation, Native Hawaiian traditional practitioners, Native Hawaiian Organizations (“NHO”) having traditional ecological knowledge, in developing a list of names for approval by the Board of Trustees. It would also be appropriate to name persons who are lineal and cultural descendants under Native American Graves Protection and Repatriation Act (NAGPRA).
Consultation with Native Hawaiian Organizations. OHA is recognized and participating in ongoing consultation with federal agencies such as the Department of Interior (DOI), Department of Defense (DOD), Federal Highways (FHW), Advisory Counsel on Historic Preservation (ACHP), National Oceanographic Atmospheric Administration (NOAA), in the protection of public land trust lands, sacred sites, iwi kupuna, Traditional Cultural Properties regarding governmental action which significantly affects Native Hawaiians, religious and cultural practices of the indigenous peoples of Hawai’i. The change in management, status as a national landmark, governmental action on the mauna, requires federal consultation with native Hawaiians and NHOs before the action is taken. This consultation is not specifically tied to a State Environmental Impact Statement (EIS) and/or Cultural Impact Statement (CIS), rather, tied to the mauna in its entirety as a Traditional Cultural Property. The term “Traditional Cultural Property” (TCP) is used by the National Park Services (NPS) Bulletin 38, entitled “Guidelines for Evaluating and Documenting Traditional Cultural Properties.” The identification of those historic properties that are of traditional religious and cultural significance to a Native Hawaiian organizations must be made.
OHA as Collaborative Steward. OHA reiterates that during the MKWG convenings, particularly when discussions occurred regarding various governance models, OHA suggested a governance model in which OHA could function as a collaborative steward with state entities that have kuleana for the management of lands, water, cultural and natural resources, academic and scientific pursuits, and most importantly, our Lāhui. Although, ultimately, the suggested governance model did not advance, and was not included in the final report recommendations, OHA maintains that a collaborative stewardship model should be considered by the State more seriously given the many public and private interests and the powers and responsibilities that the bill envisions for the MWSA. The effective date of the measure to July 1, 3000, to encourage further discussion, should include further consideration and discussion regarding collaborative steward models.
The Office of Hawaiian Affairs. Established by our state’s Constitution,2 the Office of Hawaiian Affairs (“OHA”) is a semi-autonomous agency of the State of Hawai’i mandated to better the conditions of Native Hawaiians. Guided by a board of nine publicly elected trustees (“Trustees”), all of whom are currently Native Hawaiian, OHA fulfills its mandate through advocacy, research, community engagement, land management, and the funding of community programs. Hawai’i state law recognizes OHA as the principal public agency in the state responsible for the performance, development, and coordination of programs and activities relating to Native Hawaiians.3 Furthermore, state law directs OHA to advocate on behalf of Native Hawaiians;4 to advise and inform federal officials about Native Hawaiian programs; and to coordinate activities relating to Native Hawaiians.5
Mahalo for the opportunity to comment on this measure, highlighting areas of concern, opposition, opportunity and collaboration.
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HB2024: Text, Status
HRS171-2: Text
HPR: Native Hawaiians need bigger voice in mountain oversight, Mauna Kea Hui says in opposition of new bill
PRECISELY AS EXPLAINED: Calling OHA’s Bluff: HB2024 Would Strip Mountain of Telescopes, Hand it over to Hawaiian Activists
REALITY: OHA Does not Back HB2024: Wants to Make Money from Telescopes
2015: Telescope: For OHA, it’s all About the Rent Money