25 Years of Implementing Ka Paʻakai: Honoring Native Hawaiian Rights in Land Use Decisions
By Kahinu Hayashida, Summer PIPES Intern | Reading time: 5 minutes
ʻĀina, the Hawaiian word for land, meaning that which feeds. It captures the Hawaiian understanding of the reciprocal relationship between kānaka (people) and ʻāina. ʻĀina is not just land, property, or a commodity to be owned, but moʻokūʻauhau (genealogy), kūpuna (ancestor), and the foundation of everything in Hawaiʻi. The connection between ʻāina and kānaka has the potential to be protected or disrupted when decisions impacting our lands and waters are made. That is why the Ka Paʻakai Analysis, a legal framework rooted in the protection of Native Hawaiian rights, is so important. Established in the 2000 Ka Paʻakai O Ka ʻĀina v. Land Use Commission Hawaiʻi Supreme Court decision, the analysis aims to protect constitutionally-protected Native Hawaiian traditional and customary rights in government decisions affecting ʻāina. However, over two decades after the supreme court decision, the implementation of the analysis remains inconsistent, sometimes reduced to a box to be checked rather than a genuine process of consultation and protection.
The Ka Paʻakai framework is a three-part process that requires state and county agencies to partake in detailed investigations that aim to:
Identify the specific valued cultural history or natural resources in the project area. (Whatcha got?)
Evaluate the extent to which they will all be affected by the action proposed. (Whatcha doing?)
Mitigate and determine the feasible action to be taken by the agency to protect those resources, if found. (Whatcha gonna do?)
Some agencies, like the Land Use Commission, have embraced this clear and logical structure in engaging in fact-finding and making decisions that are consistent with their constitutional duty to protect and enforce Native Hawaiian traditional and customary rights, and the natural and cultural resources and sites those rights rely upon. In addition to upholding the spirit and intent of the law, such analyses can significantly reduce conflict, as well as protect our environmental and cultural integrity, and social fabric. However, implementation of a Ka Paʻakai analysis can vary widely across agencies, and in many cases it can be found to lack substance when conducted. This can often be seen when agencies conduct an analysis simply to mark it off a checklist, rather than to truly understand the significance of an area or the potential impacts of their decisions. In some cases, agencies claim that there are no cultural practices or significant resources in a given area, even when community members and cultural practitioners would testify otherwise. This emphasizes the need for continued agency and public education, advocacy, and community engagement in the process.
To understand how the implementation of Ka Paʻakai could be strengthened, I spoke with advocates and practitioners like Ashley Obrey, David Kimo Frankel, and Aunty Lei Leightner.
Interviews with those mentioned above gave rise to a common theme: there needs to be more community outreach from government agencies to properly conduct a Ka Paʻakai Analysis. For example, attorneys and advocates Ashley Obrey and David Kimo Frankel both shared the challenges they have encountered with the lack of substance in the application of Ka Paʻakai, particularly when agencies treat the analysis as a checkbox rather than a serious legal requirement and constitutional obligation. Ashley shared that her main concern regarding this way of thinking is that the second step, understanding the impact of a decision, is often overlooked. This is one of the many places where engagement from the community and cultural practitioners would be vital. Community members and cultural practitioners can provide ʻike Hawaiʻi (Hawaiian knowledge) on the impacts projects would have on ʻāina because they are the ones who are deeply tied to it. However, without adequate and effective community outreach, agencies deprive themselves of such critical information, resulting in superficial analyses that fail to account for, much less mitigate, impacts to natural and cultural resources and associated Hawaiian rights.
These interviews also emphasized the potential value of Ka Paʻakai in proactively restoring and protecting Native Hawaiian traditional and customary rights, when fully embraced by particular agencies. As both a community member and source of knowledge for her kaiāulu (community), Aunty Lei Lightner spoke of her experience interacting with government agencies during the creation of Kalaemanōʻs Try Wait initiative, a 10-year rest period for Kaʻūpūlehuʻs reef to combat the decimation of the shoreline ecosystem, due to overfishing following the development of vehicular access to the coastline. In relation to the manaʻo (idea) that Ashley shared, Aunty Lei discussed that she knew the impacts of overfishing and lack of management were having on the ʻāina because of her connection to it. Growing up in Kaʻūpūlehu and gathering paʻakai (salt) in Kalaemanō allowed Aunty Lei to listen to her ʻāina carefully; this sacred bond between the two allowed her to give the Board of Land and Natural Resources crucial insight into and substantial justification for their eventual approval of the initiative. The Try Wait initiative began in 2016, 16 years after the Ka Paʻakai decision was made - and notably, in the same ahupuaʻa (land division) where the Ka Paʻakai decision had originated.
Accordingly, the Ka Paʻakai framework could allow kūpuna and cultural practitioners with ties to ʻāina, like Aunty Lei, a legal argument for agencies to proactively protect their ʻāina and the culture and practices that live within it.
While the implementation of Ka Paʻakai is not perfect, it offers a path for ʻike Hawaiʻi to walk on through kānaka, who have lived, breathed, and honed their ability to listen to ʻāina. It is through these kānaka and frameworks, like Ka Paʻakai, that decisions made about ʻāina are met with cultural sensitivity and the desire to protect Hawaiʻi. My interviews made it obvious that when the analysis is done well, it can serve as a powerful legal tool to be used by the kaiāulu and cultural practitioners to protect their rights as Native Hawaiians, and their special connection to ʻāina. True implementation of Ka Paʻakai emphasizes that culture, kānaka, and ʻāina are dynamic, breathing forces that define who we are and how we move forward. We must endeavor to ensure that agencies recognize this, and embrace the opportunity it provides to build a better future for kānaka, our ʻāina, and Hawaiʻi as a whole.