Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 4, 1 April 1993 — People's Water Conference addresses Hawaiian rights [ARTICLE+ILLUSTRATION]

People's Water Conference addresses Hawaiian rights

Satisfactory resolution of water issues ci

bv Patrick Johnston In Hawai'i water means power, and if Hawaiians ever hope to realize sovereignty they will have to establish clear and precise water rights that provide for present and future needs. This was the central argument presented by hydrologist and native rights activist, Dr. Kate Vandemoer, keynote speaker at the 9th annual People's Water Conference held in February at the Kawaiaha'o Church in downtown Honolulu.

The conference, whieh brought together scientists, lawyers, and government officials from both Hawai'i and the mainland, focused entirely on the issue of native Hawaiian water claims and sought to address both immediate and future concems. "Rights whieh are supposed to be reserved'are currently in jeopardy," Vandemoer said. "You must identify your rights now." Vandemoer stressed that, whether recognized or not, the Hawaiian people are a sovereign nation, and, like their Native American counterparts, enjoy the rights and privileges of a sovereign people. With this in mind, Hawaiians should take the next step in establishing their resource claims.

"Hawaiians are not just ethnic minorities. They are sovereign entities, sovereign govemments with rights to what all sovereign nationals have." Despite sovereignty aspirations, the state controls the water, decides who gets what, and has plenty of thirsty constituents who feel they have as mueh elaim to the water as the next person. Native Hawaiians have had to compete against other, usually more affluent users, and have often eome out short. State laws theoretically protect present and future native Hawaiian water needs but, according to Vandemoer, their language is too imprecise for it to have any substantive value for Hawaiians.

"We feel the state law is inadequate to protect native Hawaiian water rights. The laws have no meaning without the correct technical and administrative guidelines... meanwhile the eommission is handing out permits and the water level is going down. Where is the reserved water?"

Vandemoer added that identification, meticulously quantifying present and future needs, and

establishing legal procedures to make sure those needs are met, are vital steps for native Hawaiians. Without control of natural resources, Vandemoer argued, Hawaiians can't realistically exercise sovereignty because these resources are the structure on whieh the economy, culture and politics of a nation are built. Hawaiians will build on the home la'nds, develop Moloka'i, and

rejuvenate Kaho'olawe only if they have access to Hawai'i's water resources. The task will not be easy given the organized, aggressive eompe-

tition said Robert McKusick,

Vice President of North West Eeonomics Association, the other keynote speaker at the conference. "A tremendous amount of technieal and legal information is

needed in this process (identification). When you want to identify

your water rights you have to have

your DacKgrouna preparea because people who want to take that water away from you will literally out-information and out-

political you." Identifying claims involves gathering information on sources of water, quantity of water, priority dates, points of diversion and purposes of use. For native Hawaiians this includes the water claims of Hawaiian home lands, traditional farmers owning land outside the home lands, and Hawaiians engaged in traditional gathering activities.

Like Vandemoer, McKusick also emphasized establishing reserved water claims, making sure that future Hawaiian generations will have the water for

anticipated home lands develop-

ment and taro cultivation, integral parts of building a Hawaiian

nation and preserving its culture. "You need laws that recognize, not only current but, most importantly, future water rights. ... that is your best bargaining ehip." McKusick added that the water doesn't have to be put to use right away, and ean even be leased out, but

control must be established now if Hawaiians want to have a say in future development. Constitutionally, legally, and,

many would argue morally, native Hawaiians have all the rights they need. The 1920 Hawaiian Homes Commission Act makes all water licenses subject to DHHL's Tirst eall.'

The Act also gives DHHL the rights to revenues from water leases. In 1987, the Hawai'i state

Legislature passed the State

water Code, whieh restated the reservation rights of the HHCA, and also affirmed native Hawaiian rights to grow taro and gather items of t r a d i t i o n a 1

importance and value. A six-member commission on

water resource management was put

together to administer the code.

Despite paying lip-service to the needs of Hawaiians and Hawaiian home lands, the

Commission, some conference member argued has yet to create the necessary rules and regulations guaranteeing native Hawaiian reserved water rights. The situation contrasts signifi-

cantly with Native Americans, who, McKusick pointed out, have a specific reserve clause, standards to quantify irrigation, arable lands criteria, and a federal trust responsibility that obligates the federal government to put money into assisting Native Americans in quantifying needs and with litigation if necessary. Alan Murakami of the Native Hawaiian Legal Corporation said at the conference that one reason officials aren't moving very fast on Hawaiian water rights is because, when the scope of the needs are really uncovered, it would "send the conflict to a deeper pitch" and would significantly affect the way we look at water today.

Murakami added that it is important to tum what he called 'paper water' into 'wet water,' pressuring the state to act promptly to get water out of the government offices and into the homes of Hawai'i homesteaders. The task of quantifying Hawaiian home lands water rights, and ensuring that water gets to homesteaders, has gone to the Department of Hawaiian Homelands. Speaking at the eonference, DHHL legal counsel Ben Henderson argued that DHHL has done the groundwork to quantify present and future needs for the projects it has planned, and, given the large supply of water on most of the islands, the issue is less reserved water, than developing the infrastructure to service the need of homesteaders.

In an interview after the eonference, Henderson said that DHHL has requested as mueh as $100 million for homestead improvements, a significant amount of money that would take time to be realized, given other state priorities. Henderson stressed that eaeh island is different. Although an integrated water supply is available in O'ahu, less populated islands, such as Maui, contain isolated locations whieh require extensive infrastructure improvements. Contrary to positions stated by others at the conference, Henderson argued that the provisions (set out in the Hawaiians Homes Act and the Water code)

"We feel the state law is inadequate to protect native I Hawaiian water rights."

Despite Hawaiian sovereignty aspirations, the state controls the water, decides who gets what, and has plenty of thirsty eonstituents who fee! they have as mueh right to the water as the next person.

"When you get down and start calculating 'wet water' all the conflicts will arise."

Constitutionally, legally, and, many would argue, morally, native Hawaiians have all the water rights they need.

Traditional taro cultivators: Hawaiian farmers face an uncertain future under present water laws.

Kate Vandemoer

Alan Murakami

itical for future of Hawaiian nation

are clear enough-DHHL has first eall rights to water it needs, now and in the future-and that there is no need for more rules regulations. Developers have a clause in their contracts stating that first priority for water always goes to

Hawaiian Homes. State Water

C o m m i s s'i o n deputy director Rae Loui stated a similar position at the conference, arguing that the HHCA and the Water Code had established reserved rights for native Hawaiians and that the abundance of water on most Hawai'i

islands makes more explicit instructions unnecessary. Loui, however, expressed eoneem about the "uncertainty" in the development community regarding DHHL and Hawaiian water rights. "There is a potential," she

pointed out, that developed water [water being used for present developments] will be rolled back should DHHL exercise its first eall rights." Since this has obvious ramifications for developers wishing to put money into the state, Loui suggested that DHHL nego-

tiate with users near homestead land in order to ease the concems

of present users. Like Henderson she stressed, that the problem was not so mueh the supply of water as it was paying for infrastructure, especially on islands other than O'ahu and Moloka'i.

"On Maui ... the sustainable

level of ground water is 475 million gallons

per day. The needs of DHHL are 3 million gallons per day. Maui is currently pumping 40 million gallons per day. The difference on the Big Island is a little bigger. ... It is not that the water is running out. The issue is of trans-

porting that water from where it is to

DHHL homesteaders.

Every other use has been covered by administrative rules but not Hawaiian reseved water rights."

"The basic assumptions we have about water are not value-free."

On Moloka'i, Loui explained,

while there is plenty of water now, DHHL's future development demands for water, whieh are largely agricultural based, exceed the present sustainable level. Island residents, she added, are now trying to agree upon what course to take-agriculture or resort development. A dilemma brought up by the DHHL water demand, Loui added, is that it would force the development of the pristine Pelekunu Valley, affecting ground water levels there whieh would, in tum, affect the traditional gathering practices of loeal Hawaiians. Given the complexities of the issues involved, not only on Moloka'i but wherever there is a native Hawaiian water elaim, and the fact that the Commission is short-staffed, Loui encouraged community participation "to get experts to help us with our job." She explained that "in most cases the water issues are so complicat-

ed that we need input from all the people involved." On Moloka'i, she noted, there is a good example of community participation in a task force called the

Moloka'i Working Group, community leaders who are sorting out future land and water development on the island. In addition to home lands needs, water issues on Moloka'i, and other islands, also involve appurtenant rights, the rights of farmers living beside or near streams to use that water to cultivate traditional Hawaiian foods. Issues here involve filing claims for water and making sure that ground water use doesn't affect stream levels to the point that the water cannot be used for taro eultivation.

Because of the problems facing future water development, Moloka'i has recently been designated a 'water management area' by the Water Commission. Despite being legally entitled to the use of the water, taro farmers have been asked to submit applications to the state requesting use of stream water. A Moloka'i farmer asked Loui at the conferenee why it is he now must ask for permission to use water that has provided sustenance to his family for generations. "Why are you restricting me from using my land and stream," he questioned. "The land is mine. ... When the king issued this land to my family it included use of the river." Loui answered that the eommission is not trying to restrict stream use but only to protect the present stream flow. This, she claimed, ean only be ensured through the application process.

Issues like this, said conference speaker Williamson Chang, a UH law professor, reveal a fundamental division in Hawaiian society as a whole. "We are divided into two

groups. One is the bean-counters, the professionals, people who think water is the business of government ... 'you have to have rules,' ... 'you have to get things

done so that life ean go on. ...' The other group is passionate about water, emotionally they are drawn here, they are concerned about the protection of the environment, they are concerned about Hawaiians."

Chang explained that the first group approaches the issue of water rationally, recognizlng that water is a basic need and that all must have access to it, while the second group looks at water more emotionally, either because of an ancient tie to the land or through the recognition that we, as natural creatures, all have a eommon bond to nature.

Chang added that people who have eome to Hawai'i recently have no reason to question the rules, but for many native Hawaiians, the laws represent an attempt to strip them away from their natural bond to the land. "The basic assumptions we have about water are not valuefree. They reinforce certain situations in society that are oppressive for a variety of groups. The people who are passionate (about water) ... suddenly realize that there is something wrong with the status quo. ... that the diver-

sion of water from streams to a subdivision of Kāne'ohe is not necessarily a higher use than growing taro." Like Loui and Henderson,

Chang stressed that water is really not in short supply on the Hawaiian islands. What is in short supply is the political will to subsidize the cost of taking that water to the people that are legally entitled to it.

DHHL has done the groundwork to quantify present and future need and argues the main issue is developing the infrastructure necessary to service the needs of homesteaders.

Maui stream: Most islands have more than enough groundand surface water to suit present needs.

Mililani Trask

Williamson Chang

Charles Ka'ai'ai, homesteader