Commercial Law Updates

 On 28 October 2022, the Supreme Court of Fiji confirmed that Total (Fiji) Limited (TOTAL) is liable under Fiji law as a polluter. (CIVIL PETITION NO. CBV 0007 of 2020) (Supreme Court Judgment)

Fiji’s Supreme Court Judges were unanimous in their opinion that TOTAL had been negligent and caused a “pollution incident”. The Supreme Court Judgment upheld the Fiji Court of Appeal’s unanimous Judgment (CIVIL APPEAL NO. ABU 90 OF 2018) that found TOTAL had caused a pollution incident as defined by section 50 of the Environment Management Act, 2005. 

Together, Fiji’s Court of Appeal and Supreme Court Judgments against TOTAL provide significant environmental law jurisprudence for Fiji and demonstrate that the “polluter pays principle” is established in Fiji common law. Amongst other things, the Supreme Court Judgment rejected TOTAL’s interpretation of section 50 of the Environment Management Act, and directed that damages be assessed against TOTAL under 5 separate heads of damages. 

TOTAL did not accept the higher Court Judgments and as a dissatisfied litigant, chose to file an application to challenge the Supreme Court Judgment pursuant to section 98(7) of the Constitution of Fiji. TOTAL’s challenge to the Supreme Court Judgment may be unprecedented in the context of civil litigation in Fiji. 

TOTAL’s challenge was heard by Fiji’s Supreme Court on 13 April 2023, and on 5 April 2024 the Supreme Court by unanimous decision rejected TOTAL’s challenge.

This article provides a summary of the exceptional circumstances under which the final judgment of Fiji’s highest court, the Supreme Court, may be challenged. Any challenge to the Supreme Court must be considered with extreme caution as the dissatisfied litigant challenges the public interest that litigation should reach a final conclusion.

A unanimous decision of Fiji’s Court of Appeal Ramendra Prasad v Total (Fiji) Limited, Civil Appeal No. ABU 90 of 2018, 28 February 2020 (Lecamwasam, JA, Almedia Guneratne, JA, Jameel, JA) has found Total (Fiji) Limited (“TOTAL”) negligent and liable for a fuel leak that was discovered in September 2008 close to Nausori on the island of Viti Levu, in Fiji.

In finding TOTAL negligent, liable and responsible for an underground fuel leak, Fiji’s Court of Appeal has affirmed Fiji’s Environment Management Act, 2005, and the principle “polluter pays” as well as affirming the actions and findings of Fiji’s Department of Environment.

In this legal update we focus on the key legal principles affirmed by the Court of Appeal as they are significant in terms of Fiji’s environmental jurisprudence and good governance.

In common with other common law jurisdictions, Fiji exercises State control over land including but not limited to how it may be developed. The regulation of development falls within the domain of planning and environmental law.

The government has announced that in the public interest it is in the process of updating its Town Planning Schemes for Suva, Lautoka and Nadi. This is an important nation building initiative because a Town Planning Scheme will shape future development in all these cities. But, it is also a significant undertaking that provides an opportunity for, and in our view, requires - wide consultation. If this consultative process is successful it will result in better planned development that along with the effective regulation of environmental standards, is essential to create sustainable and resilient cities and towns for Fiji’s future and its citizens' well-being.

In this update, we take a look at Fiji’s planning law framework and set out various reasons why it is vital for Fiji’s citizens to become involved in the consultation process that is being led by the Ministry for Industry, Trade, Tourism, Local Government, Housing and Community Development to create and adopt new Town Planning Schemes.

The reasons that public involvement is vital include but are not limited to:

• the significance of Town Planning Schemes to the way planning law and decisions operate in Fiji law
• the fact that the decisions made pursuant to Town Planning Schemes will have far reaching effects on all citizens, and may affect existing property rights
• Town Planning Schemes should be suited to Fiji’s context and linked to a shared and bold vision for Fiji’s future.

Each citizen who becomes involved in this consultative process has an opportunity to provide her/his views on how Fiji’s towns and cities should develop to improve but also what aspects of Fiji’s culture and values should be part of that future too.