Act 55–DLNR’s Public Land Optimization Plan: PLOP, Colonialism 4.0 Sneak-Attack
Today, July 1st, 2011, Act 55 goes into effect in Hawaii, an act that gives the State of Hawaii, through the Department of Land and Natural Resources (DLNR), a new for-profit entity directed by DLNR, the Department of Business, Economic Development and Tourism (DBEDT), and the Department of Budget and Finance (DBF), headed by William Aila, Richard Lim, and Kalbert K. Young, respectively, called the PUBLIC LAND DEVELOPMENT CORPORATION to establish a PUBLIC LAND OPTIMIZATION PLAN that will create public-private investment opportunities to develop all public lands currently under the authority of DLNR, which could include the controversial “ceded” lands, the roughly 1.8 million acres of Crown Lands that were “ceded” to the Territory during the fraudulent transfer to the U.S by the Republic of Hawaii, and transferred to the administration of the State of Hawaii during statehood.
Mission Statement for Department of Land and Natural Resources
“Enhance, protect, conserve and manage Hawaii’s unique and limited natural, cultural and historic resources held in public trust for current and future generations of visitors and the people of Hawaii nei in partnership with others from the public and private sectors.”
There was a lot of expectation for William Aila, an environmental and land rights activist, when he was appointed by Governor Neil Abercrombie in 2010 to become the new Director for DLNR. He served on the boards and commissions as Hawai‘i Community Development Authority, Wai‘anae Coast Weed and Seed Steering Committee, Makaha Elementary School Community Management Board, Wai‘anae Coast Neighborhood Board, Wai‘anae Coast Comprehensive Health Center Board, Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Council, and is the kind of public figure many in the Hawaiian and environmental rights communities supported. How then, with a man of his credibility, was the state able to push SB1555 into law with no public outcry?
Senate and House Bill 1555 history
When SB1555 was introduced by Sen. Donavan Dela Cruz in January 2011, it passed its first reading and was referred to the Committee on Water, Land and Housing (WLH) and the State Senate Ways and Means Committee (WAM). DLNR Director, William Aila was the only one who presented testimony on February 8th, a proposition to establish a public corporation to administer an “appropriate and culturally-sensitive public land development program,” allowing for “limited issuance of commercial use permits for vessels in Ala Wai and Keehi harbors,” and directs DLNR to request proposals to enter into “a public-private partnership for the development of portions of Ala Wai small boat harbor facilities” to offset DLNR’s own limited funding and was to take effect upon legislative approval.
His testimony sought the establishment of a non-profit managing entity of which he would administer to seek private investments for development of Ala Wai and Keehi lagoons. How that turned into a managing entity that will seek public/private investments for development of all DLNR land is the question.
Aila’s testimony was likely the Red Herring, a misdirected measure, focusing on harbor usage, that took focus away from what, upon first reading, can only be read as divisive and troubling. It reads: “DLNR is hamstrung by its limited mission,” further, the purpose of this bill creates a “vehicle and process to make optimal use of public land for the economic, environmental, and social benefit of the people of Hawaii.” Deeper yet, the bill clearly states, that the establishment of this DLNR corporation is to attract investment opportunities for the development of public lands for revenue-generating “commercial uses; hotel, residential, and timeshare uses; fueling facilities; storage and repair facilities; and seawater air conditioning plants.” The meat of this 45-page bill is barely about Ala Wai Harbor or Keehi Lagoon development at all, and I am concerned that our trusted ally– someone we anticipated would steward the protection of Hawai’i lands, has either made a huge error, was duped, or was complicit in this craft.
Consider the timing of this Bill– four months before the upcoming APEC meetings in November where CEOs, financiers, bankers, trade ministers, business executives and government officials are meeting– now think, Disneyland, Monsanto, shopping malls, energy/gmo bio-tech/fuels, water, large transnational private investment firms leasing and developing our resources as public funds gets redirected to develop infrastructure projects like roads, utilities, security, etc…
For those unfamiliar with APEC, the Asia Pacific Economic Cooperation is a forum for 21 (soon to be 23) Pacific Rim countries or “Member Economies” that seeks to promote free-trade and economic cooperation throughout the region, key among this definition being “free-trade” and “cooperation.” This is another way of asserting economic hegemony in the region, including Pacific Islands and our resources through trade bullying mechanisms like regional agreements that deplete our resources in exchange for military security or other Development Aid packages that have only created debt crises and dependencies of Pacific Island Countries. In Hawaii, we may be less accustomed to this language as many of us have economic privileges as a result of statehood, but we face the same obstacles and challenges as the other Pacific Island nations in that we are intrinsically tied to the same body of water– historically, part of the same liquid nation, the same cultural roots– and will suffer the same environmental degradation and resource depletion, the same threat to food and water security as the rest of the Pacific, except we may be one step worse, in that we are also the home of the U.S. Pacific Command.
Except for the larger economies of New Zealand and Papua/New Guinea, the Pacific Islands are not part of APEC. Most of the islands are under economic subjugation or authority of the dominant economic powers– the U.S., Australia, Chile, France, Indonesia and China, and to a far lesser extant, New Zealand and the PNG. Currently the Pacific region is undergoing significant changes to regulations on Deep Sea mining, for example, as well as military development projects that will further exploit and threaten the bio-diversity and fragile reef systems and magnify the already unstable social and economic conditions of the people.
Much of the negotiations that will be going on in the November APEC meetings, will be of large multi-national corporations giving franchise rights more-or-less on a first-come, first-serve basis–with some bidding, of course to the development of large private-equity projects like resorts, mining, water or food industries, or other capital enhancement projects. The first-comers–the largest corporations that are able to secure markets of an entire region (like the Pacific)– stake out the boundaries of their franchise (sometimes on their own, sometimes prompted by the franchiser). Often those boundaries are what would be called ’extraterritorial’ in international law. To many corporations, Hawaii (as part of the US) may be seen as first choice for certain industries and markets, however, the cost may be too great and so, certain corporations may go down the list, until they are able to maximize cost/security/access etc… The point is, is that these negotiations are not simply about Hawaii residents and what’s good for our own public consumption, but about a kind of corporate colonial regionalism. In order for Hawaii to participate in this “regional” market, the state has to deregulate our environmental and land- use safeguards in order to lease out our resources, and make it attractive for investors and stakeholders.
Reminiscent of the 1959 Statehood Act which opened the doors of international investment causing Hawaii’s development explosion in the 1960s, resulting in the tenant-land struggles that immediately followed, the fact that this SB1555 was passed with nearly no public opposition suggests that somewhere between its introduction to its final passage, this bill was surreptitiously motivated by the business and development arm of the state. How is it that public opposition is almost entirely in the form of nimby-ism where residents or land owners are concerned about their views being compromised, or further traffic congestion around the Ala Wai Small Boat Harbor.
Only the budgetary testimony by Kalbert Young, the Director of DBF, a member of the governing board of the newly created Public Land Development Corporation, addresses the bill in a tangible and comprehensive way. His testimony advised that this bill provide an appropriate means of financing the management program, directing it to be financially self-sustaining, and operating as a for-profit entity rather than a non-profit, as was changed in the final version.
SB1555 creates a corporate arm of DLNR and places lands and resources in its jurisdiction, including the controversial “ceded” lands, into what essentially amounts to a for-profit development corporation. This flies counter to what many assumed with the passage of SB 1520, the state’s “Akaka Bill,”that the “indigenous, aboriginal, maoli population of Hawaii” would somehow oversee and regulate any use of the ceded lands.
On May 6, 2011, Abercrombie established a governor-appointed five-person organization from each county (Hawaii, Maui, Kauai and Honolulu) and a fifth, at-large appointee, to reaffirm the U.S. authority to address the conditions of the indigenous, native people, a role that Department of the Interior oversaw during Hawaii’s territorial years. Previous to Statehood, and consistent with the policies of the State of Hawaii, members of this organization shall be acknowledged as the “indigenous, aboriginal, maoli population of Hawaii” and will report to the governor and legislature no later than 20 days before the convening of the 2012 regular session– January 1st, 2012– a little over one month after the conclusion of the APEC meetings in which development deals will have likely already been signed and under way.
Who makes up the Governing Board of the Public Land Development Corporation
In the first draft of this Bill, the Board of Directors of this corporation consisted of eleven voting members, eight who were to be appointed by the governor. Appointees would be selected by their knowledge and experience in “small and large businesses within the development an recreational industries; banking; real estate; finance; promotion; marketing; and management. Of these eight, one would be from each county (Hawaii, Maui, Kauai and Honolulu). the ex-officio voting members would be the Director of Business, Economic Development and Tourism (DBEDT), and the Chairperson of DLNR.
In the Second draft as provided in a second testimony by Aila on March 18, 2011, one of his revisions recommended that the deputy director of DLNR should serve as the executive director of the corporation.
Curiously, in the second Senate Draft from March 8th, this Act was to take effect on July 1, 2050 and in the second House Draft from April 8th, this Act was to take effect on July 1, 2030. In the final draft, this Act goes into effect next week.
In the Final Conference Draft of SB1555 (CD1), the Governing Board consists of five voting members, which includes the chairperson of the board of DLNR; the Director of Budget and Finance; the Director of DBEDT, one person to be appointed by the Speaker of the House, and the other appointed by the President of the Senate, provided that the persons appointed possesses sufficient knowledge and experience in the fields described in the first draft. Nowhere in the governing board is there any representation of Native Hawaiians, environmental, cultural, or public health or education advocate.
The idea that previous regulations of land and resource usage of the “ceded” lands, for example, will be up for investment opportunities during the APEC meeting in November, suggests that the passage of this bill was timed to coincide with what can only be described as a Pacific Islands investment market free-for-all. With all the legal protections around land-use over the ceded lands wiped clean, we can expect new public-private investment agreements to develop the public lands for revenue-generating “commercial uses; hotel, residential, and timeshare uses; fueling facilities; storage and repair facilities; and seawater air conditioning plants.”
The approval of projects, plans and programs– all Public Land Optimization Projects and public land development plans shall be approved by the new DLNR board.
Hawaii Public Land Optimization Plan (PLOP)
The new Public Land Development Corporation will set up a HAWAII PUBLIC LAND OPTIMIZATION PLAN (PLOP), that will define and establish goals, objectives, policies and priority guidelines for its public land optimization strategy, which includes the inventory of public lands with suitable, adequate development potential that will become available to meet the needs of recreational, visitor-related, or land development. Further, the PLOP looks to appropriate public lands to develop, manage or create revenue-generating centers where “opportunities exist to exploit potential local, national and international markets.”
The second part of the plan is to protect culturally-sensitive areas
Support for this Bill
The conference committee passed CD1 with all the amendments on April 29th in House with with Representative(s) Awana, Belatti, Brower, Hanohano, Jordan, C. Lee, Luke, Saiki, Wooley voting no (9) and Representative(s) Carroll, Pine excused (2); and in the Senate with only one No: Senator(s) Ihara. 1 Excused: Senator(s) Kouchi.
The bill then passed the House and Senate on the May 4th and 5th of May, respectively, and enrolled to the Governor on the 6th. SB1555, now Act 055, passed Governor Abercombie’s desk on May 24th (Gov. Msg. No. 1158), and as stated in the final reading of the Conference Draft, this Act will take effect on July 1, 2011.
Mississippi Rising, Flood Gates are Opening
When we privatize public lands to transnationals, disputes of rights and violations become much more difficult. Keeping public lands public, at least constitutionally, guarantees our rights to resolve disputes. Transnational privatization and the leasing of our resources make dispute resolutions very costly and difficult. When the people have a dispute with transnationals under which court will disputes be heard? In SB1555, the Public Land Development Corporations writes that it can” sue and be sued,” as the first power of the corporation, as if this qualification offers a salve of protection or remedy to violations or disputes. Again, this language seems duplicitous when the venue for hearing international trade disputes is not the local state court. It may be the federal court depending where and under what jurisdiction the corporation is, but generally, violations of trade agreements are heard in third-party ICSID or WTO court in Geneva, and this is explicit in the Trans-Pacific Strategic and Economic Partnership Agreement (TPPA) which is the multi-headed hydra trade agreement aimed to be signed in Honolulu, in November.
These supra-national courts that decide upon disputes between governments and corporations cost a lot or money and take a lot of time to negotiate. Even if the courts rule in favor of the state, in this case, the federal government, there are still heavy penalties the government would have to pay for breaking the lease and investment agreements, and any dispute that may arise between the state and a transnational would likely be a long and costly road, particularly since one of the effects of the TPPA makes it easier for corporations to sue governments. For this reason, states are passing deregulatory policy that is aimed at conforming to these agreements, making it easier for investment, while protecting itself from engaging in these disputes.
Further, these DLNR deregulations are indeed a state issue that will affect residents and likely contribute to the further competition for our resources, as is fair game according to the principles of the free-market/free-trade. This is also part of a far-reaching Pacific wide program that affects all PICs, and as we are all connected to the same ocean and environment, it is important that we act in Pacific-wide cohesion to prevent further resource depletion and environmental degradation that will affect not only our indigenous rights, but also our regional bio-diversity, a likely result of these APEC/TPP security and trade negotiations.
APEC is the Mississippi rising and these state regulations are the only levees we have protecting us. We knew the levee was shoddily constructed, but I didn’t realize it was held together by duct tape and chicken wire.