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Ocean Law Bulletins

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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Fiji’s first National Ocean Policy Analysis and Submission

May 21, 2020 / by James Sloan, Kevin Chand and Emily Samuela posted in Oceans Law, Environmental governance, Environmental decision making, Fiji lawyers, Pacific Blue Economy, Oceans Governance, Fiji National Ocean Policy, Fiji Blue Economy

On 12 May 2020, Fiji’s Ministry of Economy[1] published a working draft of Fiji's first National Ocean Policy (NOP) and opened it up for public consultation. The period of public consultation will end on 25 May 2020. [Editor's note: our firm made its submission on 24 May 2020 and amongst other submissions, we respectfully submitted, in accordance with our analysis below that extending the time to consult on the draft NOP beyond 25 May 2020 would be welcome.

The NOP represents a step forward for Fiji’s ocean governance in that it endeavours to consolidate ocean initiatives through its aim to increase integration between Fiji government Ministries[2]. As the NOP explains Fiji is blessed with large areas of ocean and marine resources that it has both rights to use but responsibility to manage. These ocean areas accommodate numerous and sometimes competing uses and may be adversely impacted by a range of development activities that are regulated by different government Ministries or Departments. National oceans governance is therefore notoriously difficult unless there is a single vision or policy that commits all of government to follow and implement in an integrated way. 

As a small group of Fijian and Fiji-based lawyers, with an interest in law of the sea, oceans governance, traditional rights, and Fiji’s unique law and governance system we provide our analysis of the draft NOP and provide some respectful suggestions for consideration as part of the important consultation process. We note at the outset that we fully support this initiative by the Fiji government and are pleased that this process is being locally driven.

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The Importance of regional cooperation between Pacific Island Countries for fisheries management and to increase the benefits for Pacific Islanders

Apr 27, 2020 / by James Sloan posted in Oceans Law, Human Rights, Pacific, human rights at sea, Flags of convenience, Labour standards at sea, human rights abuses at sea, Parties to the Nauru Agreement, UNCLOS, International Law, Maritime boundaries, Sovereignty, Traditional fishing rights, Integrated Oceans Management Policy, fisheries management, Environmental governance, Environmental decision making, fisheries law, Fiji commercial lawyers, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, traditional rights, Pacific Blue Economy, Blue Economy, Pacific Island Rights, Tuna fisheries, WCPFC, Tuna Management Pacific, Covid-19, Pacific Island Fisheries

In accordance with the United Nations Law of the Sea Convention (UNCLOS) Pacific Island Countries (PICs) have the use and management rights to the resources within and under huge areas of Pacific ocean. These rights include the exclusive sovereign rights to use and manage all of the resources in these ocean spaces and on and under the seabed. However, there remains disagreement between some PICs over where the maritime boundaries should be drawn as well as a lack of a unified position in relation to how the resources should be exploited.

As the world goes through unprecedented change due to the Covid-19 pandemic, renewed cooperation among PICs is more important than ever to secure better governance, more effective fisheries management and more benefits from the resources flowing back to Pacific Islanders.

Dr Transform Aqorau has recently published an insightful article that explains some of the resilience more Pacific based tuna operations are experiencing in the face of Covid-19. This is available here.

In this legal bulletin we set out an explanation of the law and governance context that we hope explains why and how more regional cooperation to implement a shared plan with more transparency at regional and national levels will benefit Pacific Islanders.

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Covid-19 and tuna fisheries in the Pacific - Dr Transform Aqorau has published an update with implications and insights for Pacific Development

Apr 27, 2020 / by Dr Transform Aqorau via Siwatibau and Sloan posted in Pacific Island Rights, Tuna fisheries, Tuna Management Pacific, Covid-19, Pacific Island Fisheries

Early effects of Covid-19 on the Pacific fisheries

It is still too early to tell how the world will deal with the longer term effects of Covid-19, will it shrug it off and return to normal? Does Covid-19 provide new opportunities to do things differently? Is there an opportunity for things to be better? In the Pacific and for Pacific Islanders both the value of tuna resources (renewable if managed properly) and the fact that more benefits should be flowing directly to Pacific Islanders have been acknowledged for sometime.

However, how to realise more benefits for Pacific Islanders from a resource that they have the exclusive rights to manage and benefit from, while dealing with threats from multiple sources, is a complex challenge with no simple answer.

Thankfully, Dr Transform Aqorau, has published an excellent and thought provoking piece titled: COVID-19 and its likely impact on the tuna industry in the Pacific Islands 

Amongst other things, Dr Transform points to increased cooperation among Pacific Island governments and more involvement of Pacific Islanders. His piece supports an interesting idea that Covid-19 gives rise to- do we want to go back to the old normal or is there an opportunity for something better? 

Dr Transform's full article can be viewed either below or where it was first published, the Devpolicy blog: here

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Seabed mining - how is it intended to be regulated and what are the risks for States that seek a licence from the International Seabed Authority?

Nov 26, 2019 / by James Sloan posted in Oceans Law, Pacific, UNCLOS, Environmental governance, Environmental decision making, Law of the Sea Convention, Integrated Oceans Management Pacific, Blue Economy, UN Oceans, Seabed Mining, Oceans Governance, Deep Seabed Mining, Precautionary Principle, School of Marine Studies, University of the South Pacific

Seabed mining is a new industry that seeks to exploit the value of metals on or in the seabed. The drivers for this industry include the rising demand and costs for the metals in question. Many of the potential mining sites are found under the Pacific Ocean in areas beyond the national jurisdiction of any State. This area of deep seabed beyond national jurisdiction is defined by the United Nations Convention on the Law of the Sea ("LOSC") as “the Area”.

This new industry is intended to be regulated pursuant to LOSC by the International Seabed Authority (a body created by LOSC). The International Seabed Authority will issue licences to Applicants that are sponsored by nation States (sponsoring States). The licences will be issued subject to conditions that are intended to protect the marine environment, however, sponsoring States are themselves subject to duties under international law and amongst other things are required by LOSC to have their own legislation in place to regulate the mining companies that they sponsor. If this legislation is not in place or is inadequate then sponsoring States will not meet their international law duties, will incur legal risk, and this new industry will not be properly regulated.

In this bulletin, we set out what is known from a legal and governance perspective about seabed mining in the Area, describe how the international regulatory framework is supposed to work and review the results of a recent legal analysis that demonstrates the legal framework is not yet in place to meet various requirements under the international legal framework. We respectfully suggest that this legal analysis supports the view that seabed mining is not, as yet, ready to proceed as an effectively regulated industry in accordance with international law.

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