‘Disaster capitalism at its finest’: New Threats to Native Hawaiian Water Rights Emerge in Wake of Fires

On August 8, as the devastating fires broke out, Hawai’i Governor Josh Green’s administration (D) issued the first of six emergency proclamations suspending portions of the state water code, temporarily halting a requirement for private commercial users to maintain a certain amount of water in the stream for use by nearby Native Hawaiian. On September 8, the governor issued a seventh proclamation, fully restoring the state’s water code, but the damage was done as developers made a grab for more than their designated share of Maui’s water supply and succeeded in ousting a Native Hawaiian Water Commissioner. 

“This is really just plantation disaster capitalism at its finest,” Kapua’ala Sproat, professor of law at Ka Huli Ao Native Hawaiian Law Center, told Native News Online. “This is just a rendition of what has been happening in Lāhainā for centuries. This is simply a private company trying to take advantage of a really devastating situation for their own personal advantage.” 

‘Water is incredibly sacred’

The fight for water protection for Native Hawaiians leads all the way back to the island’s plantation days and has escalated in the aftermath of the deadliest U.S. wildfire in the last century. 

Lāhainā, which saw the worst of the devastation of fires, was once a vibrant and productive wetland central to Native Hawaiian culture and commerce. The area was known as the “Venice of the Pacific,” which made Lāhainā a great capital of Hawaii before it was changed to Honolulu in 1845.

“Water is incredibly sacred, and is central in so many ways. Water is also central to the development of society, politics, and even law. It is no coincidence to me that both wealth and law were directly related to access to our freshwater resources,” said Sproat.  

Freshwater began to be diverted in the late 1800s, as plantations grabbed land and water resources across the island, then conspired to overthrow the Hawaiian nation. Sugarcane and pineapple plantations drained rivers and streams dry for private profit, and the traditional Hawaiian culture suffered. 

Sproat said that when new labor laws took place, plantations were no longer profitable and eventually moved offshore. The vast land was then made available.

“Many of the players are still the same,” Sproat said. “Although it is no longer the same plantation interests, it’s their successors in interest that are managing land. Because of a lack of active management on those properties brought in invasive grasses and species that created a tinderbox that became Lahiana that set the stage for the fires.”

Fast forward to the 1990s, and real estate companies — like West Maui Land Co. and Kaanapali Land Management — specializing in luxury subdivisions and resorts have replaced the special interests of plantations. 

Today, millions of gallons of water are diverted from what was previously used to irrigate sugar and pineapple and sent to developing luxury homes and resorts in Lāhainā.

In Hawai’i, water is a public trust source, a legacy of its days as a sovereign kingdom for present and future generations and cannot be owned by any individual. 

Last year, Native Hawaiians came together to support the State Water Commission in establishing instream flow standards (IFSs) and designating their ground and surface water resources as a Water Management Area (WMA), or areas that have additional regulations,to protect their water rights.

“Overwhelmingly, the community turned out in strong support of this effort,” Sproat said. “Predictably, there was some opposition from hotel interests and business interests who are concerned about ‘limiting growth,’ but the Water Commission voted unanimously to put this protective layer over Maui in June of 2022.”

The community and the water commission were successful in achieving WMA designation for Lāhainā, and additional permit protections were put into place. Many Native Hawaiians, who have the highest water rights under state law but whose rights have been ignored, were able to come forward and begin a permitting process for water usage. 

The deadline for the existing use permits on the water was on Monday, August 7, and the very next day on Tuesday, August 8, the wildfires ravished Lāhainā, following the Governor’s emergency proclamation. 

On Tuesday, August 8, West Maui Land Co. requested that the Commission on Water Resources Deputy Director Kaleo Manuel divert more water than it be allowed under the law to use in fighting the fires near one of its developments. The request was approved five hours later, which, the company said in a statement, was too late to effectively fight the fires. 

West Maui Land Co. then insinuated that Manuel was to blame for the spread of the wildfires. 

The attack led to the administration announcing they were “re-deploying” Manual, relieving him from all duties and banishing him to an unknown different post. 

For Sproat, the only way to move forward after this is to uphold the WMA designation in Maui and to reinstate Manuel.

“Manuel is your model civil servant,” Sproat said. “He upholds and respects the law, he is someone who has built relationships with people in all different walks of life, and he is responsive with Native Hawaiians.”

Green has repeatedly highlighted the ongoing water conflict in Maui. Some of his comments have outraged community members who say it’s a misrepresentation.  

“One thing that people need to understand, especially from far away, is there has been a great deal of water conflict for many years,” Green said in the press conference. “It’s important that we are honest about this. People have been fighting against the release of water to fight fires. I’ll leave that to you to explore.”

“For all of us who have been living under an empire with the legacy of colonialism, many people have had enough,” Sproat said. “Here we are seeing situations where the community has worked tirelessly to achieve this protection, and then to see it done away with so easily and shortly has been infuriating for so many.