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Putting the Public Back in the Public Trust Doctrine: A Reinterpretation to Advance Native Hawaiian Water Rights

By December 1, 2023January 13th, 2024No Comments

Abstract: The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s application has not always benefited Native Hawaiian interests.

This Comment analyzes the current status of the public trust doctrine in Hawai‘i and its unique relation to Native Hawaiian rights. Because the State has historically prioritized large sugar plantations on the islands over its Native population, modern applications of the doctrine to protect the islands’ natural resources are a relatively new concept in Hawaiian law. By evaluating statutes and cases from the Kingdom of Hawai‘i (1795–1893); the Territory of Hawai‘i (1900–1959); and the current State of Hawai‘i (1959–present), this Comment builds a more complete picture of Hawaiian jurisprudence around natural resource allocation and explores ways to reinterpret the public trust doctrine. One of the purposes of the doctrine has been to protect Native Hawaiian water rights and to uphold the exercise of Native Hawaiian traditions and customs, yet the State has yet to live up to that purpose. The State Legislature should enact laws that require consultation with Native cultural organizations when a state agency issues any permit in land, water, or other natural resource or when any court reviews the allocation and use of any natural resource.

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