Water (“Wai”)Protecting Our Public Trust Resources

In modern day Hawai‘i, there is a critical need to address water in the areas of native

water rights, conservation, watershed protection, surface runoff, non-point source pollution and especially in understanding of

the hydrological cycle itself.

The hydrological cycle is such that all water is connected and should be treated as one

source, to be protected and understood as the basis for all life.

We live on an island surrounded by water and are dependent on its quality and quantity.

As efforts to balance Hawai‘i’s water uses continues, and the vision of a future embracing

tradition and respect for the land and the people becomes clear, it is important to

understand the unique Sources of Law that protect our natural and cultural resources

In the past, water “wai” was of such importance that its usage formed the foundation for Hawaiian law. Kānāwai, the Hawaiian word for law originally referred to regulations concerning water.

Inextricably connected to everything else, water could not be separated from air, land, and most importantly from taro. The Hawaiian word waiwai means wealth and prosperity.

Article XI, section 1 of Hawai‘i’s Constitution proclaims that “all public natural resources are held in

trust by the State for the benefit of the people,” and Article XII, section 7 of Hawai‘i’s Constitution

specifically references water and includes the directive to “protect, control, and regulate the use of Hawai‘i’s

water resources for the benefit of its people.”

The management and protection of Hawai‘i’s unique cultural and natural resources requires an approach that

is rooted in the traditional cultural practices of Hawai‘i’s first people.

THE AHUPUA‘A SYSTEM

The ahupua‘a system is an ancient traditional

Hawaiian system that integrates the

management of all natural resources from the

mountains to the sea.

We can look to the ahupua‘a model in

modern-day land use and how it relates to the

protection of our public trust resources.

The natural organization of communities along stream systems is the foundation of the Ahupua‘a.

This community governance system of Kānāwaiwas attributed specifically to shared water usage.

PUBLIC TRUST DOCTRINE

The Public Trust Doctrine is an ancient and universal code dating back to the 4th century that protects man’s primary relationship to the earth.

It is based on the fundamental and self-evident belief that the earth’s natural resources are

commonly owned and are available to all for beneficial use and enjoyment.

THE PUBLIC TRUST DOCTRINEIN HAWAI‘I

The unique potential of the Public Trust Doctrine in Hawai‘i is that it is a

restrictive covenant that runs with the land irrespective of the chain of title.

The Public Trust Doctrine provides that public trust lands, water and living

resources of the State are held by the State in trust for the benefit of native

Hawaiians and the general public.

Public Trust Doctrine in Hawai‘i

The Doctrine defines the obligations of public officials as trustees, and

the public as beneficiaries, to

perpetuate the use and enjoyment of trust

resources for the benefit of present and future

generations.

.In Hawai‘i, the Public Trust Doctrine has evolved into a

special trust that encompasses the natural and cultural history of

these unique islands. The special features of the Public

Trust Doctrine and Hawai‘i’s Constitutional mandates afford

decision-makers powerful tools.

By law, traditional and customary practices of native Hawaiians as well

as the protection of public trust resources must be considered in all

land use decision-making and policies.

This imperative is clear, is based on Common Law, and is upheld by

statutes and court mandates.

LEGISLATIVE INITIATVESRecommending General Plan Amendments

To Protect Our Public Trust Resources

By law, traditional and customary practices of native Hawaiians as well as the protection of public trust resources

must be considered in all land use decision-making policies in the County of Hawai‘i.

The following natural and cultural resources shall be considered sensitive as part of any permit application to the County Planning Department: Critical habitat areas, native

ecosystems, anchialine ponds, high-level groundwater recharge areas, historic trails, archaeological and historic sites.

These resources are critical for the survival of cultural practices. Planning, policies, and action steps included in the

General Plan should reflect this philosophy.

LEGISLATIVE INITIATVESRecommending General Plan Amendments

To Protect Our Public Trust ResourcesUtilize the geographical features of the ahupua‘a land divisions and the historical use of the ahupua‘a land divisions to identify important values and priorities and for developing and applying

appropriate regulatory decisions and other government programs in this County.

Recent studies have revealed that utilizing the ahupua‘a system as the basis for land use as a model is relevant to the County of

Hawai‘i’s desire to achieve sustainability goals.

Incorporate the values and philosophy of the ahupua‘a land division resource management system into land use policies and develop and apply regulatory decisions and other government

programs, as appropriate.

Mahalo A Nui Loa

Presented by Karen Eoff and Maile David