Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 9, 1 September 2001 — Water law protects native use [ARTICLE+ILLUSTRATION]

Water law protects native use

By Naomi Sodetani

Since ancient times, Hawaiians treasured water, wai, as the spiritual fount of all life, as signifted in their language: waiwai (wealth), pu'uwai (heart), and kānāwai (law). Hawai'i's water law encodes this cultural perspective that water is a precious resource that must be preserved for the benefit of all. Hawai'i's constitution guarantees the protection of certain native rights of traditional and customary access and use. This stance is unique in U.S. law; in other states. water is considered a commodity that ean be privately owned. Since the 1970s. a scries of legal decisions has strengthened native rights and clarified the state's role as trustee of public resources, akin to konohiki who managed water use and mediated disputes in olden times. In the 1973 McBryde vs. Gay and Robinson decision, the Hawai'i Supreme Court ruled that water cannot be owned and that McBryde Sugar could not insist on taking water out of the originating watershed. The Hawai'i Constitution was amended in 1978 to establish an agency to protect the state's water resources and taro water rights. The passage of the Water Code in 1987 established the Commission on Water Resource Management to assume the primary role of water regulation in designated areas of the state. In the 1995 PASH decision, the Hawai'i Supreme Court See RIGHTS on page 5

affirmed unique property principles that respected the rights of Hawaiians while compelling agencies to Drotect them.

RIGHTS from page 1

Last year, the high court further cemented the notion that state agencies regulating water and land use must protect Hawaiians' special rights. Reversing the "flow" of nearly a century of exclusive use, the court's landmark Waiāhole decision eom-

pelled the return of Waiāhole Ditch water to three windward streams. The decision is already being cited in environmental law classes across the nation as an example of the precept of resource steward-

ship. The public trust doctrine and the "precautionary"obligation of the state to prevent possible harm to water resources is expected to affect future agency proceedings in Hawai'i and other states. The court's recent Ka Pa'akai o Ka 'Āina decision stopped a development from interfering with native access to salt ponds located in Ka'ūpūlehu in north Kona. For over a year, the court has been wrestling with the pivotal question of how mueh priority it will give to water reservations for Hawaiian Homelands on Moloka'i. That decision will be the court's first pronouncement on homesteaders' water rights in an area with limited water available to share with non-Hawaiian farm and resort water users.

These historic decisions and the current battles over water throughout the Islands signify a shifting paradigm in the balance of power between public and private entitlements over this precious resource. Native Hawaiians and environmentalists now condemn the Department of Land and Natural Resources of favoring the successors to the "Big Five" sugar factors that dominated the Hawaiian eeonomy during the 19th century, and who still virtually monopolize

public water resources in the name of preserving jobs. DLNR manages and dispenses leases to public lands and waters in the state — whieh largely eonsist of ceded lands. In response to petitions filed by

Hawaiian taro farmers to restore water that has all but vanished from 1 1 6 East Maui streams, CWRM has begun the formidable groundbreaking task of setting instream standards for East Maui streams. The commission's findings will determine how mueh water belongs in the streams to provide for native uses and to ensure stream health. The Waiāhole decision underscored the importance of CWRM's role, thus ensuring that the commission will be at the epicenter of future "water wars" that will inevitably occur given the limited supply and growing demand. ■ Naomi Sodetani is OHA 's publications editor. She is married to Native Hawaiian LegaJ Corporation attomey Alan Mumkami, who represents several plaintiffs noted in this story.

Ke'anae kalo farmers are fighting for water essential to their crops. Photo: Naomi Sodetani