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When pathways creep: institutionalizing vulnerabilities

September 26, 2016
Fed Rec is nothing to smile about.

Federal Recognition is nothing to smile about.

(Note: this was revised to include Regulation and Regulatory Review. 2016 October 20)

The federal recognition debate often misses a really fundamental point, which is that a government-to-government pathway enables a kind of self-determination that divides communities, and may be more about streamlining investment and development.  I’ve posted on this issue before, and now that the Pathway to Reestablish a Formal Government-to-Government Relationship with Native Hawaiian Community has been announced by the DOI, I thought I’d revise this argument and refer to Federal Recognition as a kind of regulatory liability shelter for the State.

As a fast track towards Federal Recognition, the various Government-to-Government programs between the Federal Government and the Native Hawaiian community may be in line with new international rules that are taking place across multiple legal jurisdictions and have but one convoluted global objective: streamline development/investment policy to be cohesive with indigenous/native governing bodies. Internationally, for example, the minerals and mining consortium has faced a lot of challenges over rights and access issues, and the harmonization of new rules across these seemingly disparate venues have but one goal–  agree upon a normative framework through which industries can negotiate with indigenous rights holders over access to various resources or projects.

For Hawaii, although independence and kingdom advocacy is central in this debate, I would suggest that in some ways the issue of sovereignty is a distraction to more immediate threats. The Department of the Interior’s “Final Rule Part 50″ (full pdf here) creates new vulnerabilities by adopting what may seem like new legal pathways, but are based on streamlined regulatory review, a procedural process “promoting predictability and reducing uncertainty” for promoting economic growth. (p.149)

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA determined that this final rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends.”

Recent discussions continue to cite the Final Rule as being primarily a federal acknowledgement that establishes a “special political and trust relationship” with the Native Hawaiian Community.  Although the Final Rule claims that trusteeship will not expropriate land, resources or Hawaiian Home Lands, a closer reading finds that this only applies to Federal Lands and not the Ceded or Crown Lands that are managed by the State of Hawaii. Hawaiian Home Lands accounts for about 194,00 acres of the 1.5 million acres of disputed land. By streamlining the regulatory consent process over the ceded/crown lands conveniently removes State responsibility/liability from negotiating all the burdensome tools for achieving those regulatory ends.

The reference to President Obama’s Executive Order 13563 in the Final Rule, “Improving Regulation and Regulatory Review,” highlights the duplicity through which Government-to-Government trusteeship takes place. Historically, the RRR reaffirms the 1993 Executive Order 12866, the Regulatory Planning and Review signed by President Clinton the same year he signed the Apology Resolution, and a year before NAFTA, the North American Free Trade Agreement went into effect.

Why this procedural technicality is so important, is that this new Regulatory Planning and Review empowers the Office of Information and Regulatory Affairs (OIRA) with expanded statutory oversight in the Federal Office that would override and adjust the responsibilities of  various governmental agencies in order to mainframe, streamline and harmonize policy.  What this policy is however, weighs environmental, labor, indigenous or well-being related regulations against private sector and private markets.  In other words, OIRA was tasked to find the legal parameters that would resolve disputes or discrepancies between conflicting regulations and jurisdictions that would firmly privilege investor-rights over other sectors and jurisdictions.

“The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable.”

We know little about international investment tribunals and even less about our own indigenous justice system and how that would work. Internationally for example, the envisioned aspirations of Indigenous Peoples’ Free Prior and Informed Consent are being negotiated against State/Corporate-driven Intellectual Property rights, seeking to mainframe potential conflicts between Indigenous Peoples and industries and transnational corporations. In other words, legal disputes are going to likely be resolved in jurisdictions outside the state and federal system, in binding third-party tribunals.

Certainly there are degrees of complicity where indigenous peoples should have the right to mineral and mine their own resources, but at the end of the day, we’re really talking about how a potentially unvetted indigenous governing body can lead a community to sell or lease resources in exchange for “development/aid” (or in the parlance of Federal Recognition: preferences and entitlements).

For this reason, critically examining the proposed World Conference of Indigenous Peoples one-state/one IP agenda that never came to pass, we should consider that structurally, the Advance Notice of Proposed Rulemaking was simply another route to streamline the process for industries and investors. It’s an important issue, one that should be discussed with greater urgency.

In real world terms, we can refer to the Thirty Meter Telescope to see how this plays out. Investors believed that the UH and the State of Hawaii performed their due diligence and received the proper consent from the Native Hawaiian community as part of the investment agreement. Although the State received consent from some Native Hawaiians, it was clear that whoever gave that consent did not have the mandate to do such.

Through whatever process the state “fraudulently” received its authority is now challenged by both defenders of Mauna a Wakea and institutional investors and developers. If the process was streamlined, then all the responsibilities for free prior and informed consent would fall not on the State, but on the recognized “indigenous” authority.

The controversy that arises is that Federal Recognition proponents argue that a governing authority would protect native land and resources, but governing boards being what they are, could easily succumb to the demands, trojan horses, and trade-offs promised by investors and industries. Corruption is easy unless there is an equally strong regulatory agency built into the governance structure, but that is a huge expense and no one is seriously considering regulating the regulators.

NOT appointing a governing body or administration that will enforce the liability of industries and corporations, will likely prolong the divisiveness of chaos, disunity and dysfunction. Although disunity may give the State of Hawaii terrible marks for business and investment, a federal government-to-native government pathway might shelter the State from having any liability in negotiating consent. Streamlining, mainframing, coordinating, harmonizing consent is not always a good thing, because at the end of the day, it puts the dispute in a jurisdiction, whereby the indigenous governing body could be liable for its own consent process, and that, by itself, is a huge risk.  This could irrevocably fracture communities over repercussions of who pays, and how enforcement and compliance will be delivered .

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