By Ashley K. Obrey,
Senior Staff Attorney

The “Ka Paʻakai” analysis is a legal framework that government agencies must follow when considering proposals that may impact the exercise of Native Hawaiian traditional and customary rights.

Developed by the Hawaiʻi Supreme Court in Ka Paʻakai O Ka ʻĀina v. Land Use Comm’n, the three-part inquiry operationalizes constitutional protections for Native Hawaiian rights by requiring that state and county agencies conduct detailed investigations and make specific findings as to:

  1. The identity and scope of valued cultural historical, or natural resources in the…area, including the extent to which traditional customary native Hawaiian rights are exercised in the…area;
  2. The extent to which those resources – including traditional and customary Native Hawaiian rights – will be affected or impaired by the proposed action; and
  3. The feasible action, if any, to be taken by the agency to reasonably protect such practices if they are found to exist.

The framework seeks to balance “the competing interests of protecting Native Hawaiian culture and rights, on the one hand, and economic development and security on the other.” When done properly, the analysis helps the state evaluate “whether it fulfilled its constitutional obligation to preserve and protect” traditional and customary practices.

Since 1978, Article XII § 7 of the Hawaiʻi constitution has mandated that the state “protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes…subject to the right of the State to regulate such rights.” Several statutes and nearly two decades’ worth of case law clarified this mandate. However, it was the Supreme Court in the 2000 Ka Paʻakai decision that acknowledged that, in order to be meaningful, the law must be enforceable. Together with Act 50 (2000) requiring that developers address effects on cultural practices in environmental impact statements, Ka Paʻakai began to change the way agencies approached the protection of Native Hawaiian rights.

At issue in Ka Paʻakai was the Land Use Commission’s (LUC) decision to reclassify approximately 1,000 acres of land in Kaʻūpūlehu, Kona, from conservation to urban for a luxury development. The community provided critical and substantial testimony establishing the rich history of cultural and traditional use of the property to the LUC, which it failed to consider.

In overruling the LUC, the Court held that the constitution “places an affirmative duty on the State and its agencies” to protect traditional and customary rights. This means that the state is obligated to act to further the constitutional mandate. And it must do so independently; it may not delegate its kuleana to the project proponent. Nor may it treat the process as a simple box-checking exercise. The goal is to truly understand impacts in order to ensure protection of cultural resources and practices.

Since the Ka Paʻakai decision, practitioners, ʻohana and communities have asserted their constitutional right to be heard before agencies making decisions on matters impacting nearshore environments, rights to water, culturally sensitive/significant areas, iwi kūpuna and gathering rights. The Hawaiʻi Supreme Court has also applied Ka Paʻakai in cases addressing construction on Mauna Kea, interim instream flow standards in central Maui and a groundwater use permit on Molokaʻi.

With the Court’s recent holding that Ka Paʻakai applies to agencies whenever they act, including rulemaking, it can continue to be a meaningful tool in community advocates’ toolboxes whenever new land or water proposals seek government approvals.

This article was originally published in the June 1, 2024, edition of Ka Wai Ola. NHLC partners with the Office of Hawaiian Affairs to publish an article in Ka Wai Ola each month that responds to community questions. You can access this article on the Ka Wai Ola website here.

Ask NHLC provides general information about the law. Ask NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302.

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