Hawaiian rights scrutinized, not considered, during TMT contested case – from The Hawaii Independent 4/30/2015


A response to Ian Lind’s Civil Beat column, “Dangerous Intersection of Social Policy and the ‘Sacred.’”

Ian Lind’s April 29 Civil Beat column “Dangerous Intersection of Social Policy and the ‘Sacred’” offered that understanding and appreciating the state’s discussion of Hawaiian petitioners’ rights would “open up” ways “to resolve the current impasse.” I take up the discussion with Lind on this point (and not his disingenuous comparison between historically dispossessed kānaka maoli Mauna Kea protectors and the well-funded, orthodox religious right) to clarify exactly where the state has stood in its address to Hawaiian rights on Mauna Kea.


Lind notes that, “the record doesn’t reflect an absence of attention” (emphasis added) to Native Hawaiian rights by UH, BLNR, or Aoki, meaning that the record appears to show that a great deal of attention was paid to these rights. This may technically be true, but the attention given to Hawaiian rights consisted of a carping scrutiny that subjected Hawaiian cultural practices to a labyrinthine inquiry. The purpose of this “attention” was solely to craft an elusive standard under which Hawaiian cultural practices could be corralled towards the tightest of times and smallest of spaces.

At the outset, UH/BLNR said Petitioners’ cultural “practices” were not protected under CDUP criterion #4 (prohibiting substantial adverse impacts to “natural resources,” defined to include cultural resources) because they were “practices” and not “resources”. This illogic would abstract cultural resources from the very culture that makes them into resources in the first place!

UH/BLNR also said that, even if practices were relevant to criterion 4, the Petitioners’ cultural practices were “contemporary” and not “traditional and customary.”

First, Lind’s conclusion that, “the TMT opponents did not document that their practices had been established use prior to the Nov. 25, 1892, trigger date” is limited by the restricted scope of his own archive. Petitioners’ filings contain volumes of evidence of traditional and customary practices. Second, and perhaps more importantly, the distinction between “contemporary” from “traditional” practices presumes a stagnant, colonial version of Hawaiian culture. Third, UH’s own Cultural Impact Assessment (CIA) states that, “no purpose would be served by distinguishing [contemporary cultural practices] as something different,” and cultural practices currently associated with Mauna Kea summits “would seem to qualify as traditional and customary cultural practices within the meaning of the Hawaiʻi State Constitution[.]” (UH Exhibit A-21, Master Plan for the Mauna Kea Science Reserve, Appx. N at 45.)


Furthermore, siting the TMT on the northern plateau would obstruct the last open viewplane between Mauna Kea’s summit and Haleakalā, which is an important alignment for practitioners, including Kumu Hula-Petitioner Paul Neves. Petitioner Neves explained the cultural significance of this alignment and further stated: “these are alignments not of the eye but of the heart,” and “‘ike is to know and see the event . . . so the view plane begins in the naʻau and not just in the maka (eyes).”


The shell game played during the contested case elaborated a complicated set of rules that are aimed at narrowing Hawaiian cultural practitioner rights in general, and at arguing into inexistence the rights of these Petitioners in particular. The law protects cultural “resources,” not cultural practices; traditional and customary practices, not “contemporary” cultural practices; cultural resource impacts, not “emotional” impacts; TMT-sited impacts, not Mauna Kea impacts; historic properties, not shrines “of more recent vintage.”

UH Professor of Hawaiian studies Jonathan Osorio offered a cogent comment on where UH/BLNR’s acrobatic arguments and the public process has left us: “Powerful institutions [such as] OHA and DLNR, and not only the courts (the Third Circuit affirmed BLNR’s decision), by disregarding reasonable objections to the TMT from the very beginning, have brought us to this point where all we have left are our voices.” How could anyone in good conscience ask the Kū Kiaʻi Mauna movement to be silent after decades of “this is the last telescope” promises? How could anyone ask them to be silent after patient participation in a process that proliferated such sophistries described here, all to justify what looks very much like a preordained result? As in its decision to permit solar telescope construction on Haleakalā, BLNR voted to approve the TMT permit before any contested case was held.

The extensive record of efforts to protect Mauna Kea, by both kānaka and non-Hawaiians, through public hearings, commenting, education, advocacy and litigation, should not be read as evidence of the goodwill of the state and the TMT, or of their patience in sitting through seven years of a permitting process. This is also a record of how decision makers and their development partners have evaded the questions Mauna Kea protectors are raising about whose futures, knowledges and histories are to thrive in Hawai’i.

So, in response to Lind: Only by making the TMT project truly answerable to these questions, and not by creating another venue for legal rhetorics, will we discover how to get past the impasse.

(read full article here)

Source: Bianca Isaki for the Hawaii Independent

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