For Native Hawaiians, “ola i ka wai”: water is life. The word “kānāwai,” meaning traditional Hawaiian law, can be literally translated as “relating to water.” Prior to Western contact, the notion that anyone could “own” rights to water was inconceivable. When Native Hawaiian traditions and customs were codified in writing, kingdom laws explicitly recognized water as a resource for the public good. Foreigners, however, sought a Western system of ownership to advance their private economic interests. Owners of sugar companies constructed massive ditch systems to take water to their plantations, often with the acquiescence of the Hawaiian government.
After statehood in 1959, a movement arose to return Hawai‘i’s water use to public management and control. The Hawai‘i courts, which now had judges appointed locally instead of from the U.S. continent, proved critical to this effort, and rulings in several important cases confirmed the “public trust” over water resources. In 1978, Hawai‘i elevated the preservation of water resources for Hawai‘i’s people to a constitutional mandate. Hawai‘i’s constitution also established a Commission on Water Resource Management to set policies and procedures “for regulating all uses of Hawai‘i’s water resources.” This has proven to be a difficult task. The commission has not often fulfilled its duties successfully, especially in the face of protracted litigation involving community and commercial interests. This chapter provides a detailed description of the cultural and legal landscape and the resulting court decisions.
“From Wai to Kānāwai: Water Law in Hawai‘i” is Chapter 9 of Native Hawaiian Law: A Treatise, a volume that updates and expands on the seminal work of the 1991 Native Hawaiian Rights Handbook. The publication is a collaborative effort of the .Native Hawaiian Legal Corporation, Ka Huli Ao Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law – University of Hawai‘i at Mānoa, and Kamehameha Publishing.