Ka Wai Ola - Office of Hawaiian Affairs, Volume 30, Number 4, 1 April 2013 — Mālama i ka wai: The evolving 'sisterhood' of OHA and the Water Commission [ARTICLE+ILLUSTRATION]

Mālama i ka wai: The evolving 'sisterhood' of OHA and the Water Commission

Trnstee' s note: This month's eolumn was contributed by Jonathan Likeke Scheuer, aformer īand management director at OHA. Last month I raised the idea that OHA' s closest "sister agency" might be the state Commission on Water Resource Management. Of the many things they have in eommon, both are trusts founded by the 1978 Constitutional Convention and they have overlapping duties to

protect Hawaiian water rights. My interest in writing about this eame in part after I heard impassioned, articulate testimony at a recent meeting urging that all the Hawaiian trusts work together on water issues. The comment was excellent, but I realized that few people in the room appreciated that while the puhlie trust in water took its current form in 1978, its roots are deeper. Indeed the protection of Hawaiian water rights in a trust was initially codified during the Mahele, and in a real sense is a "Hawaiian trust," even if it is not run by Hawaiians. I also realized that few people appreciate how consistent OHA's work with the water trust has been. Like OHA, the Water Commission has been the subject of mueh controversy since 1978. One measure of that controversy is that most of its major decisions since its founding have been appealed to the Hawai'i courts. Sadly, in these cases the Water Commission's initial rulings have been overturned, with the courts ruling that the commissioners have not followed the Water Code, and specifically have not protected Native Hawaiian rights to water. OHA has played a critical role in the ongoing evolution of the Water Commission and implementation of the code. OHA has eaeh year asked the Legislature to require an OHA appointee to the Water Commission, and has regularly urged Hawaiians with knowledge of water issues to apply. The fact that one commissioner is now required

to have expertise in traditional Hawaiian practices is due in part to OHA's efforts. OHA staff monitors and comments on water-use permit applieations and other matters before the commission. One of the most critical - if not sisterly - roles that OHA has played has been in litigation. Directly or indirectly, OHA has played a role in all the major court decisions that upheld the interests of Hawaiians to water. In the landmark

Waiāhole water case, OHA was a formal party, standing alongside kalo farmers, Hawaiian community members and others against powerful interests that wanted all of that ditch's water to How to the Leeward side, even when there was no longer productive use there of most the water. On Moloka'i in two famous cases, OHA worked with the Department of Hawaiian Home Lands to successfully protect both homesteader rights and those of native practitioners who depend on groundwater How to the coast. In the recent efforts to protect the streams of Nā Wai 'Ehā, OHA has worked for years to see that mauka-to-makai stream llow be restored. OH A has funded the Native Hawaiian Legal Corp. as well, whose work in these and other cases is storied. It is noteworthy that since 197 8, while trustees have eome and gone, OHA's portfolio has fallen and risen, and OHA has been organized and reorganized - OHA's defense of the traditional and customary rights to water has been generally consistent. However, there have been and are still are occasional calls for OHA to avoid these controversial issues. But as Hawaiian leader Calvin Hoe has aptly said, "Whoever controls the water, controls the future." OHA must eontinue to take a culturally grounded and legally active role in managing the water resources of our Islands. 4/48 ■

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