The aquarium fish and pet trade in West Hawaiʻi targets species such as puhi (eels – pictured left) and lauʻipala (yellow tang – pictured top) despite the fact that both species feed on specific limu and coral and cannot survive for long in aquariums. The bottom right photo shows hundreds of dead lauʻipala gathered by aquarium traders. A large percentage of those collected do not survive. – Photo: forthefishes.org
By Shane Akoni Palacat-Nelsen, OHA Public Policy Advocate, Kailua-Kona
“E pū paʻakai kākou” is a gesture of gratitude before eating a meal that roughly translates to “let us partake together.”
Instead of shaking salt onto your food, a periodic pinch of paʻakai (salt) placed on your tongue during your meal is customary. Not just any paʻakai – paʻakai flavored by the ocean, cultivated in salt pans, and carefully harvested.
The practice of preparing ʻōpelu, akule, and halalū for drying requires paʻakai. Salting preserves the fish for storage and long journeys. Growing and gathering paʻakai is imperative in Kānaka traditions, including religious practices.
Paʻakai traditions also inspired a critical legal decision that set the foundation for meaningful consultation with Native Hawaiians and regulatory actions by the State of Hawaiʻi.
On Sept. 11, 2000, the Hawaiʻi State Supreme Court decided on Ka Paʻakai O Ka ʻĀina vs. Land Use Commission, State of Hawaiʻi related to the Kaʻūpūlehu development in North Kona. The court overruled the Land Use Commission’s (LUC) decision to grant the developer’s petition to reclassify approximately 1,000 acres of land from conservation to urban as it failed to “preserve and protect any gathering and access rights of native Hawaiians.”
The court established a three-pronged framework for assessing Native Hawaiian constitutionally protected rights and further held that the state has an obligation to protect those rights and may not transfer its duties to a third party.
The court concluded that: “1) The state and its agencies are obligated to protect the reasonable exercise of customarily and traditionally exercised rights of native Hawaiians to the extent feasible; 2) Agencies are obligated to make an assessment, independent of the developer or applicant, of the impacts on customary and traditional practices of Native Hawaiians; and 3) The independent assessment must include three factors known as the ‘Ka Paʻakai’ framework.”
The “Ka Paʻakai Analysis” Framework Emerges
In its decision, the Supreme Court noted that for the rights of Native Hawaiians to be meaningfully preserved and protected, they must be enforceable. And to be enforceable, an appropriate analytical framework is needed; a framework that accommodates the competing interests of protecting Hawaiian gathering and access rights with economic development.
The court’s three-pronged test is triggered when government agencies consider proposed uses of land and water resources that may impact the exercise of Hawaiian traditional and customary rights (e.g., determining the approval of permits). The test includes the following:
- The identity and scope of “valued cultural, historical, or natural resources” including the extent to which traditional customary Native Hawaiian rights are exercised in the petition area;
- The extent to which those resources, including traditional and customary Native Hawaiian rights, will be affected or impaired by the proposed action;
- The feasible action, if any, to be taken by the LUC to reasonably protect Native Hawaiian rights if they are found to exist.
Applying the Ka Paʻakai Framework
In waters off the Kona Coast of Hawaiʻi Island, two evolving issues are challenging Kānaka gathering rights and the court’s directive to protect those rights.
The Department of Land and Natural Resources’ Division of Boating and Ocean Recreation (DLNR/DOBOR) recently proposed rules that promote commercial manta ray “tours” at Keauhou and Makako Bay.
The proposed rules restrict community access to the designated areas by providing only one mooring, yet commercial entities are provided multiple moorings. The proposal also confuses how Native Hawaiians may gather within the designated area: “[prohibited activity] within designated manta ray viewing zones include…use [of] a pole, net, spear, or any variation thereof to engage in fishing. This shall not prohibit gathering marine life by hand without using such equipment.”
The Office of Hawaiian Affairs (OHA), along with Hawaiian fishermen, spiritual practitioners, lineal descendants, and community leaders in Kona, came forward to remind the DLNR/DOBOR of their obligation to apply the Ka Paʻakai Analysis framework and that consultation with the Native Hawaiian community should supersede a public hearing. We continue to wait for the government to consult the Hawaiian community appropriately and meaningfully.
Another example is the highly extractive aquarium fish and pet trade industry in West Hawaiʻi which impacts sustenance gathering and creates economic hardship for generational families.
Hawaiʻi is one of the largest aquarium collection locations worldwide. Between 1976 and 2018, more than 8.6 million reef fish were taken from waters off West Hawaiʻi. Fully 98% of the species sought for saltwater aquariums cannot be bred in captivity to satisfy the demands of collectors.
Thus, many species of reef fish favored by subsistence fishers are being greedily extracted to supply saltwater aquarium owners on the American continent with exotic tropical fish.
In response, a community coalition was formed to challenge the aquarium pet trade’s commercial activities. Researchers, community scientists, and kilokilo practitioners (traditional observers and data collectors) agree that the industry harms our ecosystem.
A proposal from DLNRʻs Division of Aquatic Resources (DAR) alludes to placing bag limits on sustenance gatherers, while allowing commercial extraction of reef fish at alarming rates – even though large-scale removal of these species contributes to the depletion of ʻākoʻakoʻa (coral).
As one resident commented, “We would not permit people to take wild birds [from] the forest; likewise, we disagree with people taking fish [that we use] for food.”
Hāhālua (manta ray) viewing tours and the extractive aquarium pet trade exemplify the need to protect and enforce Native Hawaiian constitutional rights.
“Ola ka ʻāina, ola ke kānaka.” If resources thrive, then mankind thrives. The state has a kuleana to ensure the use of our land and water resources align with Native Hawaiian traditional and customary rights and practices.
I am the ocean, and the ocean is me. Hawaiians have a symbiotic relationship with all living beings in the ocean. Kanaloa, a principal deity, provides that space for reciprocal interactions, and today, the Ka Paʻakai Analysis Framework is a legal tool to uphold these cultural, traditional, and spiritual beliefs and connections.
To learn more about Ka Paʻakai go to: http://oaoa.hawaii.gov/jud/21124.htm
