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Ocean Law Bulletins

Shaping a Global Treaty to end Plastic Pollution

Jun 9, 2022 / by Patricia Parkinson posted in Oceans Law, Fiji marine pollution law, Pacific Ocean Rights, Large Ocean States, United Nations, OceansPolicy, Marine Plastics

Introduction[i]

Plastic pollution is an insidious and wicked environmental problem that must be tackled at an international and national level with the involvement of governments, the commercial sector and consumers. A solution will require a progressive shift from the current linear (extract – produce – consume – discard) to a circular economy model.

Small Island Developing States (SIDS) are also large ocean States - particularly vulnerable to, and adversely impacted by, plastic pollution. With the AOSIS Ocean Day Plastic Pollution Declaration and the Pacific Regional Declaration on the Prevention of Marine Litter and Plastic Pollution and its Impacts SIDS have raised their collective voice calling for urgent action and support for a global, coherent and comprehensive legal regime to be put in place to address this rapidly growing global and transboundary environmental crisis, and they have been heard.

The UN Environment Assembly (UNEA), voted unanimously in favour of Resolution 5/14 at the second meeting of the UNEA’s fifth session (UNEA 5.2) held in Nairobi on 28th February to 2nd March 2022, giving the green light to start to negotiate an internationally binding Treaty to end plastic pollution.

This article outlines the planned negotiating process and the key provisions and factors that need to be considered as the Treaty is negotiated for all States to tackle plastic pollution at an international and national level and what needs to be done to create this Treaty is set out in the Resolution.

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Landmark High Court Sentence as Fiji company is fined $1m for breaches of Fiji Environmental Law for unauthorised development

May 10, 2022 / by James Sloan posted in Fiji mangroves, Environmental Management Act 2005, environmental law, Environmental governance, Environmental decision making, Environmental Impact Assessments, Fiji law, Fiji Environmental law, traditional rights, Precautionary Principle, Coral Reefs

On 28 April, 2022, Fiji's High Court (Hon. Mr Justice Gounder) passed sentence on a Fiji Company: Freesoul Real Estate Development (Fiji) PTE Limited fining it FJ$1m for two counts of carrying out unauthorised development contrary to Fiji's Environment Management Act, 2005 (EMA). The sentence is in Criminal Case No. HAC 282 of 2021 in State V Freesoul Real Estate Development (Fiji) PTE Limited ("Sentence").

The legal requirement for Environmental Impact Assessments (EIAs) for certain development activity has been in place in Fiji from 2008, and this Sentence is a timely reminder of the serious criminal penalties that will apply to developers who are found by Fiji's courts not to have followed the requirements of EMA.

This case may be the subject of an appeal - however, the Sentence sends a message in support of environmental law and standards for Fiji, and in this update we provide a summary of the Sentence and note the requirements for EIAs in Fiji and the Pacific.

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Fiji's Climate Change Act, 2021 - Fiji's whole of government approach to reduce emissions and remove carbon

Sep 29, 2021 / by James Sloan posted in International Law, climate change, Fiji Oceans, Environmental decision making, Fiji law, Fiji commercial law, Fiji lawyers, Blue Economy, Oceans Governance, Fiji Climate Change law, United Nations, Fiji Blue Economy, Coral Reefs, Climate Change Act

The Climate Change Act 2021 (hereinafter referred to as “the Act”) is the Fiji government’s groundbreaking and proposed legislative approach to the threat of climate change caused by human activity.

Over 93 pages, divided into 17 Sections with 112 sections, the Act provides Fiji’s intended response to the enormous challenges that face all 195 nations and their peoples.

In this bulletin we provide a detailed (and we hope) explanatory analysis of the Act. Please note that the Act has been passed by Fiji's Parliament (on 23 September 2021), and it will be brought into force in due course by the relevant Minister by notice published in the Gazette.

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Coral Reef Insurance - an option to promote resilience for Fiji and the Pacific?

Jul 7, 2021 / by James Sloan posted in Marine Conservation, Insurance law Fiji, Fiji risk allocation, Integrated Oceans Management Pacific, Pacific Ocean Rights, Pacific Blue Economy, UN Oceans, Oceans Governance, Pacific Ocean, OceansPolicy, OPOC, Office of the Pacific Ocean Commissioner, Pacific Islands Forum Secretariat, parametric insurance, Sustainable Oceans Finance, Coral Reefs, Coral Reef Insurance

In February 2021, the Office of the Pacific Ocean Commission (OPOC), established under the then Pacific Ocean Commissioner, Dame Meg Taylor launched an excellent “suite of Ocean reports” with a focus on ocean finance. This focus on ocean finance is well timed to assist PICs to address the major challenge of finding a way to make the protection of its ocean ecosystems both politically and economically viable.

One of the reports titled “Pacific Ocean Finance Program - Insurance” is authored by Dr. Simon Young and Jacqueline Wharton of the “global advisory, broking, and solutions company” - Willis Towers Watson. The report provides a detailed and informative discussion and explanation of the potential for a type of insurance known as “parametric insurance” to play a role in relation to adapting to the effects of climate change and to promote marine conservation.

The idea of utilising insurance products to increase resilience of coastal ecosystems is innovative but it also naturally leads to questions relating to how this type of insurance product will work and what its role could be. In this bulletin we consider how this type of insurance product could work within the legal and governance context in Fiji and the broader Pacific Island context. We also note that there are currently a number of initiatives underway in Fiji in relation to ocean insurance and sustainable financing initiatives, and these are being promoted by a number of development agencies including the Asian Development Bank (ADB) and the World Bank who are working with Fiji’s Ministry of Economy. In this bulletin we provide a brief update in relation to ADB’s project on “Partnerships for Coral Reef Finance and Insurance in Asia and the Pacific”. ADB has secured concept approval from the Global Environment Facility (GEF) for this project; which will cover Indonesia, Philippines and Solomon Islands. As this is a topic relevant to Fiji, ADB has supported[1] an initial baseline assessment to explore feasibility of including Fiji in this, or similar type of initiative. Some of the insights presented below are the result of this work.

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Offshore Marine Protected Areas for Fiji - Essential next steps in terms of sustainable financing

Feb 18, 2021 / by James Sloan posted in Oceans Law, Marine Protected Areas, Commercial fishing, Integrated Oceans Management Policy, Fiji Oceans, Fiji law, Blue Economy, Large Ocean States, Pacific Ocean, Fiji National Ocean Policy, Fiji Blue Economy, OceansPolicy, Sustainable Ocean Finance, EEZ, OPOC, Office of the Pacific Ocean Commissioner, Pacific Islands Forum Secretariat

This is a big year for oceans governance in Fiji and the Pacific. The Fiji government has just published Fiji's first National Ocean Policy (NOP) online and has announced that the NOP will be “enshrined in law” as part of its proposed Climate Change legislation. Fiji will then move towards designating 30% of its 1.2 million km2 of ocean within its Exclusive Economic Zone (EEZ) as marine protected areas (MPAs) with 100% sustainable management of its EEZ by 2030. These ocean initiatives are line with the United Nations Sustainable Development Goal 14 (SDG 14 - Life Below Water), and Fiji’s long standing commitments on the world stage.

Fiji’s goal to designate 30% of its EEZ as offshore MPAs presents significant challenges for the Fiji government because - to put it bluntly - this is an expensive initiative. In 2021, more than ever before economies everywhere, and particularly in the Pacific, are suffering. In this context designating MPAs that will alter and limit existing rights and activities, including but not limited to existing fishing practices that contribute to Fiji’s economy, requires both significant political will and long term funding. This funding is essential to undertake a proper process of designating MPAs but more importantly to assist the longer term government burden of regulation of those designated MPAs. This regulatory burden includes the ongoing monitoring, control, surveillance and enforcement of Fiji’s EEZ and MPAs across a vast area of Pacific ocean.

In February 2021, the Office of the Pacific Ocean Commission (OPOC), established under the Pacific Ocean Commissioner, Dame Meg Taylor launched an excellent “suite of Ocean reports” with a focus on ocean finance. This focus on ocean finance is well timed to assist PICs to address the major challenge of finding a way to make the protection of its ocean ecosystems both politically and economically viable.

In this bulletin we consider OPOC’s paper “Funding Marine Protection At Scale” and make some respectful recommendations in relation to how to increase the funding within Fiji to assist Fiji's government, acting on behalf of the State, to fund the designation and regulation of MPAs.

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Towards a global agreement on plastics and plastic pollution for the Pacific Islands

Nov 16, 2020 / by Patricia Parkinson posted in Pacific Ocean Rights, Marine Plastics, Plastic Pollution

From the largest cities to the remote villages around the planet, plastic with all its convenience, hygiene and affordability benefits has become ubiquitous in people’s daily life. Unfortunately, the spiraling production of plastic and plastic products, a prevalent throwaway culture, and poor management of waste has devastating effects on the natural environment, the wildlife and, as is increasingly documented, on human health. Micro and nanoplastics are now found in the most remote areas of the planet, from the deepest ocean trenches to the planet’s poles, and on the current trend there will be more plastics than fish in the ocean by 2050.

The cultural, environmental, social and economic role of the ocean in the Pacific exposes the islands more than most to the threats of marine plastic pollution. National and regional law and policy measures taken by the Pacific states and territories to curb the problem will not alone resolve what is now a global crisis requiring a global solution. A growing body of research conducted under the auspices of the United Nations Environmental Assembly points to the urgent need to review and improve the current fragmented and ineffective global plastic legal regime.

Beginning with a brief outline of the extent of the plastic crisis globally and of its threats to the Pacific islands, this article summarises the key policy and regulatory responses to plastic pollution in the Pacific region and globally, highlighting the limitations and gaps of the current approach[1]. The emergence of a global momentum in support of an international legally binding instrument (ILBI) to prevent plastic and microplastics pollution is described in the context of the UN Environmental Assembly (UNEA) process and the work of the Ad Hoc Open Ended Expert Group on Marine Litter and Microplastics (AHEG). The last section outlines the historical development of the Pacific islands’ regional position with regards to plastic pollution and the current process to define a common position towards a new global regime governing plastics that reflects the Pacific islands’ regional and national priorities and ensure the protection of people and ocean from plastic pollution and its impacts.

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Fiji's Charitable Trusts Act has been amended to enable more categories of Charitable Trust to be registered

Sep 2, 2020 / by Ana Tuiwawa and James Sloan

Under Fiji law, the Charitable Trusts Act, 1945 (Charitable Trusts Act) provides the legal process to establish or incorporate a Charitable Trust. The incorporation of a Charitable Trust creates a legal "person" that may among other things: employ people, hold a bank account, secure office premises, enter contracts and sue and be sued.

To comply with section 2 of the Charitable Trusts Act, the proposed Charitable Trust must comply with one of the limited number of "charitable purpose[s]" set out in the Charitable Trusts Act. If the Charitable Trust does not meet one of these purposes then its registration may be refused by the Registrar of Titles.

On 30 August 2020 the relevant Minister in exercising his powers under section 2 of the Act, issued Legal Notice No. 78 of 2020 Declaration of Charitable Purpose (“Notice”) that has the effect of increasing the categories of charitable purposes thus enabling more Charitable Trusts to be registered under Fiji law. 

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Fiji's Ministry of Fisheries has amended and shortened the seasonal ban on the capture of species of Kawakawa (grouper) and Donu (coral trout)

Aug 24, 2020 / by James Sloan and Emily Samuela posted in Inshore fisheries, fisheries management, Fiji Fisheries decision making, fisheries law, minimum fish sizes, Fiji fisheries laws, Kawakawa and Donu

Kawakawa (Grouper) and Donu (Coral Trout) are Fiji's most popular eating fish and are highly prized by all Fiji citizens. For a number of years, many of Fiji's citizens have been taking a voluntary pledge not to consume these important species during their peak breeding season (June to the end of September). 

In 2018, Fiji's Minister of Fisheries imposed a legal ban on the capture of a number of listed species of Kawakawa and Donu from June to the end of September each year. This was followed in June 2019 by Fisheries Regulations implementing this seasonal ban.

Recently, in August 2020, the Minister of Fisheries has amended the seasonal ban by reducing it by two months, effectively ending the ban on 1 August 2020. In this legal bulletin we briefly review the seasonal ban, its amendment and the reasons that marine scientists called for the seasonal ban to assist in the sustainable management of these popular species.

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Oceans Governance: The Class of 2020 provide promise for the Pacific region

Jul 28, 2020 / by Siwatibau & Sloan posted in Oceans Law, Pacific, National Fisheries Policy, Marine Protected Areas, Parties to the Nauru Agreement, Environmental Management Act 2005, UNCLOS, International Law, Commercial fishing, Integrated Oceans Management Policy, Forum Fisheries Agency, Environmental governance, Environmental decision making, Environmental Impact Assessments, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, Pacific Ocean Rights, traditional rights, Pacific Blue Economy, Pacific Island Rights, Large Ocean States, Marine Pollution, UN Oceans, Seabed Mining, Oceans Governance, Pacific Ocean, Precautionary Principle, School of Marine Studies, Tuna Management Pacific, TuvaluExperts, TuvaluNationalOceanPolicy, OceansPolicy

Oceans Governance is a 3rd year undergraduate course offered by the School of Marine Studies, within the University of the South Pacific (USP).

Oceans Governance attracts a number of motivated students from a variety of Pacific Island Countries who frequently bring years of professional work experience to compliment their future careers as marine managers and decision makers. Oceans Governance complements the 2nd year undergraduate course in “Law of the Sea”. Both courses are designed by the highly regarded law of the sea and fisheries legal expert, Mr Pio Manoa who is currently working with the Forum Fisheries Agency.

While our firm has been privileged to coordinate and teach Oceans Governance and Law of the Sea for the last 3 years - to reflect the multi-disciplinary nature and broad topic that is Oceans Governance - a variety of guest lecturers have complimented the course. As well as adding interest and providing inspirational talks for the students this demonstrates the depth of knowledge and expertise in the Pacific. In this brief overview of the course we draw specific attention to the expertise of the visiting lecturers and the efforts made by the talented students of USP and how we think this bodes well for the Pacific region in the future.

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A National Oceans Policy for Tuvalu: 3 experts consider the process to get there

Jul 21, 2020 / by Scott Pelesala I Maani Petaia I Onosai Takataka posted in Oceans Law, Pacific Ocean Rights, Pacific Blue Economy, Pacific Island Rights, Oceans Governance, Pacific Ocean, United Nations, Pacific Island Fisheries, Tuvalu, TuvaluExperts, TuvaluNationalOceanPolicy, OceansPolicy

At present, Tuvalu does not have a national ocean policy that unites Tuvaluans and the Government towards implementing a shared vision and aims for its ocean and resources. The need for a national ocean policy arises due to the importance of the ocean and its resources to Tuvaluans in terms of culture, food, and economy[1], the wide variety of ocean uses, and the need to protect and sustainably manage Tuvalu’s natural resources in an integrated way[2].

In this report the authors review Tuvalu’s governance context, the laws and policies that presently exist and explain why a national ocean policy is needed. The authors set out the sort of process that they think is suited to Tuvalu culture and the Tuvalu context and why they are hopeful that from this process there should emerge a way to create coordination across government and all sectors of Tuvalu society for the benefit of all Tuvaluans and Tuvalu’s ocean and the health of its resources.

The authors believe it is not enough for Tuvalu to have a well written National Ocean Policy, if it is not implemented and owned by the Tuvaluan people. This means the process to create the ocean policy must be locally driven with procedures for inclusive and respectful consultation. This is to ensure that the moralities and legitimacy of an integrated ocean policy are created along with the national ocean policy.

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