 Good morning, aloha. My name is Mark Shklav. I am the host of Law Across the Sea and today our program is called fateful voyages Native Hawaiians and Climate Change and my guest today is Kapua Sprote. Kapua is a Professor at William S. Richardson School of Law at the University of Hawaii and aloha, welcome. Good to see you aloha and mahalo for the opportunity to be here today. Thank you very much for coming in. I chose the title of this program based on our communications and I'd like you to tell me a little bit about yourself a little bit about your background and then we're going to get more into the Substance, but I think your background helps us get there. Fabulous. Please tell me a little bit about what you're doing, what your interests are, what you do at the law school. So I am an associate professor at Kahulea Center for Excellence in Native Hawaiian Law and the environmental law program and Kahulea is an academic center that promotes education, scholarship, community outreach and collaboration on issues of law, culture and justice, not just for Native Hawaiians, but for other Pacific and Indigenous people as well. And so I'm very fortunate to be able to work with both our Native Hawaiian and environmental law programs. I also direct our environmental law clinic at the law school, and that's a practical skills course. It's actually a class that's offered primarily for second and third-year law students to help prepare them for practice and ensure that they get out into the community ready to practice law. Okay, so that's a lot. It's a lot. I'm a very busy lady. Yeah, and thank you for being here and I noticed that you talk about environmental law and what what is that about? What what how did you get involved and how did you get get get an interest in that? Well in all honesty, I decided that I wanted to go into Native Hawaiian and environmental law in about the fourth grade. So I was born and raised in Kauai and I'm kind of old so back in the day when it was still a small plantation community and I grew up out on the North Shore in Kalihivai, which is sort of after Kilauan and before Hanalei and when I was growing up It was really a time of great transition for our community. It was when the sugar plantation that really had been the center of all life economy really everything for our small town Stop growing cane and starting planted out started planting houses. And so many folks in the community I think really struggled with what was going to be next for our community economy everything else and my family My parents but my extended family were very engaged in ensuring that a native Hawaiian perspective was brought to bear on the proposed changes for our community and so at a very young age I Kind of joke that I grew up holding sign kind of going to a lot of different community meetings But I think from a very young age I saw the importance of engaging in the political process and the importance of law often times My family and the larger community had concerns about what was happening But didn't have someone who was willing to represent them and or if we could find someone It wasn't someone who was from our community and in stood and understood kind of what was going on So truly in about the fourth grade. I decided I wanted to go into this area of law So that I could have a hand in protecting the areas I lived in in love Wow, and so your family and being from Kauai had had an influence on that and put you where you are today Absolutely, you know my I come from I mean I joke about being a simple girl from the country But really in a lot of ways. I think that defines who I am I come from a family of native Hawaiian fishermen and farmers and You know my we have a very strong sense of identity and When I was growing up it was kind of before the Hawaiian Renaissance It was before being kind of Kamali or being native Hawaiian was cool We were sort of the the cool I know branch of the family, but I'm really I'm so greatly privileged to have had that upbringing I mean my grandfather used to joke about the ocean being our icebox But indeed it was because we really gathered or grew a lot of the things that ended up on our dinner table And I think in many ways that gave me an appreciation for our natural and cultural resources That goes beyond I think what What many other folks Article a law review article that you wrote for the Stanford environmental law journal And I will tell you that you are not a simple That article is pretty deep The article addressed native Hawaiians and the struggle against climate change Devastation those are words that you used I'm not making that up And what what was that article about and and what prompted you to write that so what how did what is it about? so for me, you know, I've been involved in A native Hawaiian environmental law for almost 20 years now before I was fortunate enough to join the team at At the law school actually worked as a litigator at Earth justice for about 10 years And so I've really been involved in these issues Not from different perspectives from an academic perspective from a native from the perspective of a native Hawaiian practitioner From the perspective as an attorney who's working on these issues and really having spent time working in many different communities throughout Hawaii, but especially in our rural neighbor island communities where People still rely on our resources as an integral part of daily life and subsistence And so having that upbringing and having that experience I think made me generally interested in the topic, but about it's about five years or so I started reading up on articles by Rebecca Sotsi who is a very preeminent Native American law scholar and in looking at articles in particular on the impacts of climate change and indigenous people It began to make me even more concerned about how you know, not just generally what this would mean for our community What what what this would mean for us as a global community as a world? But what this would be for my family, you know What I'd be able to continue the practices that I learned from my for my parents and grandparents the sea is the refrigerator Exactly. And so it really hit home. I think in a very in a very real way and in Hawaii As many of us know a climate change will have disproportionate impacts on different areas Especially places in the Pacific like Hawaii. Well, I don't know if everybody does know that okay So, why don't you tell us tell us what what it what is the impact or what do you believe it to be because there may be You know controversy about that too, but but I'd like to hear what what you say is the impact of climate change or environmental Changes on on the native community and on Hawaii, right? And so when we talk about climate change I think it's important to you know, get us all on the same page What I'm thinking of really are changes Some very simplistic changes in our weather changes in what we understand our general climate to be So not looking at a legal definition, but really How things are on a regular basis practice a very practical a simple girl from the country approach to these issues And so in looking at that kind of what is climate change what scientists have already documented in Hawaii are things like Changing and for us in Hawaii what we're seeing is well most people associate climate change with increases in ambient air temperature So the climate actually physically warming and that is definitely one impact But what we're seeing in Hawaii and beyond are a host of changes and what many Scientists have already documented in Hawaii So folks like Chip Fletcher who is really one of the preeminent scientists at the University of Hawaii Who's looking at the impacts of climate change things that he and other folks have already documented are things like decreasing Base flows and so the amount of what we're seeing is less water in our streams And as we're and also less water in our underground aquifers, which is important for us in Hawaii because Our principal source of drinking water comes from on the water That's under our islands over 99% of the water that people in Hawaii drink today comes from groundwater sources And so Chip folks at USGS have already documented declining water levels Many of which has been a much of which has been attributed to climate change. There are other issues what we're seeing are changes in weather patterns So both Decreasing rains over over many years. We've seen less rain In certain parts of the island and then at the same time more rain in other parts of the island I invest here It's been a very wet winter on many people are saying The wettest in many years and so for me that's all related to climate change changes in what we see So both changes in the frequency of rains and storms changes in the amount of water that we're seeing both in our streams And in our underground aquifer changes in our ocean chemistry. So increasing ocean acidification and warming So what we're also seeing is You know higher temperatures in various areas of the ocean what we're also seeing is Sealable rise and that's something that's going to have a major impact on us here in Hawaii The numbers have varied over the years and you know, I'm an attorney and a professor not a scientist So I haven't actually done the studies But having read the studies that have been done that have been done by different people it's alarming what we're seeing Over, you know, not that many years are huge Increases that will make many of the places that we know and are very popular like Waikiki for example and inhabitable Right and that well, I want to kind of come back to you know, you're opening a really a wide number of topics You know, there's a lot of economic problems with a Rise of sea level in Waikiki exactly, okay, but I want to also talk about the the native Hawaiian issue I want you to Focus a little bit about that your your article discussed a clash That's the word you used between natural resources and in indigenous people's rights on the one hand and Western imposed values and practices on the other hand and you wrote Quote that clash even today is nearly always about more than competing land or water uses It is steeped in it in a history of conquest Confiscation cultural suppression betrayal and halting reparative initiatives What are you talking about? What are you talking about there? It seems like two things climate change and colonialism, but well And I guess for for me those are to those can be at least and at least in the context of Hawaii Two sides of the same coin in many instances And so to back it up a little bit I think it's important to understand the impacts of climate change on native Hawaiians and other indigenous people I think it's vital to understand our connection to our resources our natural and cultural resources So for us as Kalakamaoli or native Hawaiians We have an origin story the kumulipu that ties us to the beginning of time in Hawaii really and like other indigenous people We believe that we have a familiar relationship to these islands So we believe that papa and wakia came together and actually gave birth to the islands and then after all of the islands were born that wakia had a child with hoku Kalani and Unfortunately, that child was still born, but where they buried him outside of their home a color plant group from this grave And then wakia and ho hoku Kalani had a second child and that second child was the first Kalakamaoli The first human child born here in these islands and so for us this story helps to explain our familiar relationship To the islands as an ancestor To Kahlua in particular as an elder sibling and actually it helps it for me It really defines our relationship to these islands as a kuleana and many people define kuleana as right But truly it means responsibility and privilege and so for us as native Hawaiians We have the responsibility and privilege to Malama to take care of these resources for present and future generations So really as a public trust and so because of that because we have this familial relationship to place for us the impacts of climate change Will not just affect resources, but affect our identity as a people one of the impacts of climate change is declining face-to-face or decreasing stream levels as I've as I've mentioned and If that happens and also rising sea levels if that happens many of if that continues to happen I should say at the rate that it has many of the areas that have been favored for traditional native Hawaiian agriculture and aquaculture Will no longer be available for those particular practices and so for me if we cannot continue To carry on the practices that define who we are as a people our culture will cease to exist It's not like we can just you know go to the Bishop Museum to learn about what we used to do We want to be able to actually continue these practices pass them on to our children I mean my kids eat poi for breakfast. My son had poi for breakfast this morning. So for us This is a major issue whether or not we'll have enough water to be able to continue to grow the art traditional foods and and your explanation of the history in the background of the cultural Founding of Hawaii helps and the responsibility right helps explain the motivation To me right and others as to why native Hawaiians feel this way and want some of these changes in order to Proceed to protect What they see as their heritage in their culture is that is that absolutely? I mean we're on the front lines of the struggle here What happens with with the impacts that we're seeing whether as a result of climate change or something else are very real for our Communities for future generations for the ability of our culture to thrive and so for us This is about more than you know specific stream flow levels or you know changing ocean chemistry or even looking at Even looking at the impacts on native animals and our Malka reaches You know as as Ella as we have you know drying of our forests as we have more invasive species I mean we believe we have a familial relationship to all of our natural cultural resources and Hawaii So it's our kuleana. It's our duty to do something about it You know fortunately, we also have incredibly strong constitutional provisions that makes it more than just our kuleana to take care of these things It's definitely the responsibility of our decision-makers here locally in Hawaii to also take action to remedy that really helps and The background that you provide I know there's much more to talk about but in that background helps People to understand and I think that has to be communicated Right and the other thing I'd like to talk to you about and then we're gonna take a little break right now But the other thing I want to talk about is what do we do about it? What do we do about these problems and what's what guidance and you mentioned that there's constitutional protections? I want to talk after the break a little bit about What does exist and what we can do about it? And at this point we'll take a break and then we'll be right back I'm kawi Lucas host of Hawaii is my mainland every Friday here on think tech Hawaii I also have a blog of the same name at kawi lucas.com where you can see all of my past shows Join me this Friday and every Friday at 3 p.m. Aloha I'm Ethan Allen host of likable science here on think tech Hawaii every Friday afternoon at 2 p.m You'll have a chance to come and listen and learn from scientists around the world Scientists who talk about their work in meaningful easy to understand ways They'll come to appreciate science as a wonderful way of thinking way of knowing about the world You'll learn interesting facts interesting ideas. You'll be stimulated to think more Please come join us every Friday afternoon at 2 p.m. Here on think tech Hawaii for a likable science with me Your host Ethan Allen. All right, we are back and we are talking with Kapua Sprote about fateful voyages fateful voyages and I in my mind see a fateful voyage of a a Formasted sailing ship coming towards the island And people on the beach looking out and seeing it and what do they know what to expect? at that time in 1778 Nobody knew nobody knew about climate change Nobody knew about the effect on the people of Hawaii Now Kapua What are we gonna do about it? What are we gonna do about these things? I mean I read an article that says I'll read the article the article says that Some 37,000 Hawaii homes could be underwater by the year 2100 What can we do about it? I mean it does affect native Hawaiians you explain that that the native Hawaiians feel a Responsibility towards the land native Hawaiians have this background cultural History that makes them protectors of the land, but there's a lot more people here all types of people on the islands How are we gonna protect them? What are we gonna do? to about the sea rise about the climate change that Gets rid of the water if you look in kakaako, right? There's all these condos coming up How people gonna drink what are we gonna do what what exists and what can we do? Well, fortunately in Hawaii, we have very strong provisions within our state constitution Under the public trust article 11 section 1 article 11 section 1 is 7 We also have specific protections for traditional and customary native Hawaiian rights and practices in under our under article 12 Section 7 of our state constitution and I think beyond these constitutional mandates We have all of those provisions have very strong restorative justice underpinnings to our laws And so in Hawaii, we're very fortunate because we have mechanisms in place that decision-makers Can utilize in order to address these issues a framework we have a framework and what do what do those decision-makers? Well, who are they and what do they need to do? What what do they need to do to actually? Accomplish the goal so in Hawaii under article 12 section 7 of our state constitution decision-makers For example people on the board of land and natural resources people on the water commission Who are fit on the land use commission who are grappling with issues or permits or anything that could impact? natural and cultural resources are already required to specifically consider the impact on these resources and in particular on traditional customary native Hawaiian practices that are reliant upon them now This is nothing new the laws have been on the book since 1978 and since 2000 the Hawaii Supreme Court actually Articulated a three-part test in a decision called Kapakai o ka Aina that tells decision-makers Okay, when you're looking at these issues, this is what you need to consider. What's the impact on the resource? What's the impact upon the practice reliant upon it and what mitigation if any is necessary if this is going to go forward But even though we've had these laws in the books decision-makers have really struggled with how to truly implement them in A way that's going to give life an effect to the restorative justice underpinnings of the law So one of the things that the Stanford article Offers is an analytical framework that that offers a four-part test in the form of international human rights norms that are really a key aspect of both restorative justice and self-determination and Helps decision-makers in the sense that it says okay. These these four cultural norms are both Salient dimensions of restorative justice, but together they also comprise an analytic framework So if decision-makers can utilize these norms when they're faced with issues that impact native Hawaiian natural and cultural resources They could give life to the law in a way that would both Affectuate the restorative justice underpinnings and that could proactively combat climate change impacts And what are those four norms? So these four norms are cultural integrity lands and resources Social welfare and development and self-determination and these four norms aren't actually something that I came up with They were developed by S. James Anaya who's a very noted Native American law professor who is also formerly the United Nations special rapporteur for indigenous people and he in looking at The condition of native Hawaiians Articulated these four norms as salient dimensions of this ever sort of justice But what I have suggested is that we should use these norms together as an analytic framework to aid Decision-makers in both effectuating the restorative justice underpinnings of the laws But also specifically to combat climate change in Hawaii where can you know if I'm a decision right? I'm I'm there and I'm I come to this meeting to the land board and I have to make it Some sort of a decision on something that's being asked me Where do I find these norms or how do I? What how do I educate myself to to learn about the norms? So one of the easy things you can do to educate yourself about the norm So you can check out the my article that just came out In the Stanford environmental law journal it helps to articulate because these are Pretty complicated, but it explains both how the analytic framework can be deployed and how the norms kind of work together but really in a very basic sense as a decision-maker These norms are really rather simple and and even though there are four-part tests They're really inextricably intertwined so that means for example say that you are on the water commission and Someone comes before you and wants a permit for water if you're looking at okay How much water what are the competing demands and does water need to stay in the streams for things like environmental purposes or? Stream restoration or to support the cultivation of hollow downstream or can it be taken off stream for private commercial use? You could wait okay. What's the impact on the cultural integrity? What's the impact on lands and other resources? What's the impact on the social welfare and development of the native Hawaiian community that will be impacted by this and then how? Does this affect self-determination or self-governance so really? It's pretty simple. I mean this is not rocket science This is common sense conservation that really I but I that I think can be deployed very effectively to To address these issues on the local level and the reason that this is important is because around the world We've seen people really grappling with climate change and it's been very difficult to address Litigation has not been very successful. If you look at what happened in Paris, we've been unable to agree About what needs to be done all around the world And so increasingly international human rights scholars have been encouraging people to take action on the local level And so this is one very simple but concrete way that decision-makers in Hawaii can make use of Laws that are already on the books but simply in infuse these international human rights norms into their decision-making in a way They can have very real impacts not just for native Hawaiians, but for all of us in Hawaii Well, right. I mean you you know We have we already have a framework right as opposed to most of the rest of the world right and we you talk about The impact on native Hawaiians, but the way I see it. It's the impact on everybody that lives here That's exactly right You know, we had a very wise Man who came to the law school to speak last week and he said a benefit for native Hawaiians is a benefit for all And that is exactly the case here preserving natural and cultural resources Ensuring that we have enough water flowing in our streams ensuring that we have a sufficient drinking water supply in order to support our Communities into the future. That's not just going to benefit native Hawaiians that's going to benefit all of us who call Hawaii home and so What I'm hoping is that we're offering this tool the native Hawaiians have been very Proactive and utilizing and kind of holding decision-makers feet to the fire But really that's not going to benefit just native Hawaiian communities It will benefit all of us who call Hawaii home right and and I see that there there could be a conflict between economic needs or economic requests and Living in Hawaii with an environment that is Allows us all to live together Absolutely, there's always a potential for conflict but I think in these times of Increasing temperature and rising sea levels as people who live on islands We need to reach down and grab ourselves some courage to make the tough decisions in order to ensure that we can stay here into the future and you know and You know we have the framework. We have we have some guidance now I also was interested at the end of your article, right, okay, you included a Hawaiian chant right a couple hundred years old two hundred and What was that about could you explain what the chat what the meaning of the chant was? At the end of the article I concluded it with a reference to the Wanana or prophecy that was chanted by Kahuna On the walls of Pakui. Hey, I want the island of Molokai about 200 years ago. My husband was student of Kuma John Kai Mika was and he shared that Wanana with us And it really talks about how the island of Molokai will be overcome by the driving rain and burning death And it's really quite dramatic, but it talks about it prophesies the annihilation of contemporary society as we know it But it also talks about how from this destruction the people of the earth the people rooted in the Lepopole Polo The dark soil will rise up like a great wave to take control and I think that time has come It's it's really time for us who are kind of on on the front lines of climate change to make the tough decisions that we need To in order to ensure not just that our indigenous culture can persevere But that we as people who live on islands in the middle of the very salty Pacific Ocean can ensure that we endure here into perpetuity Thank you very much. I enjoyed our talk today and aloha. Mahalo