Ka Wai Ola - Office of Hawaiian Affairs, Volume 30, Number 5, 1 May 2013 — Water and Nationhood [ARTICLE+ILLUSTRATION]

Water and Nationhood

Trustee's note: This month's eoīumn, the īast in a three-part series, was contributed by Jonathan Likeke Scheuer, aformer īaneī management director at OHA. n my last two guest columns for Trustee Apoliona, I have focused on the relationship between OHA and the state Commission on Water Resource Management. I have suggested that OHA and the CWRM are sister agencies,

closer to eaeh other than any other entities, whose success (or failure) is intertwined. I have also argued that OH A should eonlinue to take a culturally grounded and legally active role in managing the water resources of our islands. This month I will expand my focus to discuss water and Nationhood. When we think of nations, we often think of their territorial boundaries - their outline on a map. That is of course a land-focused world view. For those who are water-focused, who know that water is life - ola i ka wai - we know that drawing lines on water makes little sense. It is not that people don't try and manage water based on lines drawn on a map. The State of Hawai'i currently regulates groundwater and surface water differently - even though they are hydrologically connected. The state also manages water differently based on whether an aquifer or watershed is "designated" or not. In designated areas, applicants are required to show that their proposed use does not hann the rights of the Department of Hawaiian Home Lands or the traditional and customary rights of Native Hawaiians. In undesignated areas - the other side of a line drawn on a map - people simply apply for permits that are automatically granted. This approach of drawing lines that make little cultural, ecological or hydrological sense is not unique to Hawai'i. Famously in the western continental U.S., governments eonlinue to manage the mighty Colorado River's water based on the claims that states (with their straight-line boundaries) have to the

water. One result of that is that the Colorado River now rarely flows into the oeean, leaving Mexican parts of the river dry. There is room for improvement, here and elsewhere. In ' building a Nation, ean we innovate not only for ourselves, but the world? Will it be possible to assert the critical rights to water that Hawaiians hold, while honoring the fluid nature of this resource? What might that look like?

A plaee to begin is looking at the foundational principles of Hawaiian water law, enshrined in culture, custom and early Kingdom law. These principles include not allowing waste, allowing water to be used by those who are putting it to productive use, not taking so mueh water that your neighbors or the resource suffers, and managing it not as private property, but as a trust. Interestingly, our state's Water Code and modern court rulings are in signiflcant ways based on these principles. On paper, they may offer a guide to what water law could look like in a Hawaiian nation. The problem has been that in practice, even with great laws and rulings, Native Hawaiians have a great deal of "paper water" - water rights on paper. In reality they have dry lo'i and homesteads without water. Perhaps the solution is not to try and rewrite Hawai'i water law, but to enforce the laws we have. One way is to gain seats at the Water Commission, a certain ' number from the Hawaiian community and some from the state, so that Hawaiian concerns are never again ignored. Come to think of it, we do not have to wait for a Nation to see that happen! Such a shared jurisdiction might bring greater justice, and more closely reflect both the reality that Hawaiian claims to water need to be enforced, and the truth that water that is essential to the lives of all people of Hawai'i. 5/48 ■

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