Sunday, November 29, 2015         


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Ruling on burials highlights need for careful planning


The state Supreme Court last week reinforced the legal principle, around for roughly two decades, that ancient Hawaiian burials must be approached with care.

Bolstered by a federal statute, the state's burials law ensures that native burials, by tradition occupying unmarked gravesites, are nonetheless accorded the same respect as those in Western cemeteries clearly marked for that purpose.

In a ruling issued Wednesday, the high court overturned a state Circuit Court decision in the case Kaleikini v. Thielen. This effectively cleared the way for the native Hawaiian plaintiff to have a contested case hearing on the treatment of burials in a Kakaako project, developed by General Growth Properties.

Compounding the delays caused by the economic downturn, the dispute over how to treat sets of remains, unearthed by the dozen, put on indefinite hold the completion of an Auahi Street complex.

The takeaway from all this: First, it's better for all concerned if surveys for burials and archaeological artifacts are done thoroughly and as early in a project's planning phase as possible. This reality has been faced by more than the large private developer in recent years. The discovery of unmarked remains on the site of a Kawaiahao Church expansion, for example, set off a fiery debate and sidelined that project as well.

Second, with the city's immense Honolulu rail project looming on the horizon, the fact that contested case hearings will remain wide open as an avenue of appeal strongly suggests potential trouble for large, complex construction projects.

Among the final T's to be crossed in the environmental impact statement for the proposed project will be a programmatic agreement with the state over the treatment of burials and historic sites.

Repeated appeals over the displacement of buried remains all along the 20-mile route could be the death knell for the rail itself, as well as all the related redevelopment projects that would ensue.

As the rail lines are planned and transit oriented development blueprints are drawn up, they need to include extensive archaeological surveys before the final design phase to minimize disturbance of burials.

And, because displacement of some burials will be impossible to avoid in some of the more historically dense population areas, contingency plans must be mapped out well in advance with interested family advocates and Hawaiian groups, who should acknowledge that reburial with respect doesn't have to be a nightmare scenario.

The decision in Kaleikini v. Thielen makes it unlikely that the state will back away from affirmative laws that protect burials through a careful approach to burial sites. Adhering to that value should be a point of pride for Hawaii.

But island communities will continue to grow and change over time. The agents of that change must assume archaeological studies to be part of their job; however, they also deserve a clear road map showing them how to proceed without random detours popping up at every turn. State and federal burial laws sought to preserve dignity, an interest that's not served by needless conflict.

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