Hawaiian water rights and ancient law: Book Review

In the bad old days of burning rivers and farmers dispossessed of crop-irrigating water, the powerless and their lawyers had few ready legal remedies.

But over time, persistent efforts brought ancient legal precedent to bear, to solve modern problems. It happened in Hawai'i—where early Hawaiian legal concepts were brought into modern koa-paneled courtrooms—and across the nation.

A new book by a nationwide array of legal experts, edited by University of Hawaii law professor Denise Antolini and Golden Gate University law professor Clifford Rechtschaffen, reviews the progress of common law and the environment.

“Creative Common Law Strategies for Protecting the Environment,” edited by Clifford Rechtschaffen and Denise Antolini, 2007, 426 pages, $69.96, Environmental Law Institute, Washington, DC.

As Boalt Hall professor Joseph Sax wrote in the preface, “the traditional common law remedies were utterly inadequate to deal with contemporary environmental problems, and a whole new body of law—indeed a new conception of law—was needed.”

Among the weapons available to a lawyer are the written law—the Clean Water Act, for example—and common law, which might be described as legal custom. It is law that may not be a legal statute, but which has developed over the years by judges ruling on specific cases.

One example: using trespass laws to address pollution. The smoke from your stack, or the offal you dump into the river, are trespassing in my air or in the water that runs by my town.

Hawai'i lawyers Kapua'ala Sproat and Isaac Moriwake, both with Earthjustice, write a chapter in the book that reviews the issue of native Hawaiian access to water, with specific reference to the water battles of Waiahole Valley, whose water had been diverted for a century through a tunnel to the dry fields of central O'ahu.

The battle to refill the windward valley's streams recalled ancient Hawaiian concepts of water and the property rights of the period of the Hawaiian monarchy.

One of the key theories of the battle was the precautionary principle—the concept that steps should be taken to mitigate the effects of a use that might cause public harm, even in the absence of scientific proof of that harm.

Another theory was that the state has a responsibility to manage natural resources as a public trust.

The result of years of legal battle and communty unrest was an entirely new framework for thinking about water. It's a way, Sproat and Moriwake say, that harkens back to the understanding of property rights of the days before the overthrow of the Hawaiian kingdom.

© 2007 Jan W. TenBruggencate