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Ocean Law Bulletins

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

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.

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

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. 

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

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.

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

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.

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

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.

Fiji’s first National Ocean Policy Analysis and Submission

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.

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

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.

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

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

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?

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.

Fiji's proposed Climate Change law is extraordinary, wide-ranging and open for consultation

Fiji’s new proposed climate change law affects every Fiji citizen regardless of whether s/he is a Minister, member of Parliament, Permanent Secretary, a CEO of a company, a builder, an IT expert, a marine scientist or proponent of marine conservation, a retailer, a farmer, or a member of a community or neighbouring Pacific Island country at risk of displacement as a result of climate change.

In the last few years, Fiji has become a global and regional leader in raising awareness of climate change, its effects and what all nation States should do to reduce their emissions to keep us within 1.5C of average global warming and avoid dangerous climate change. Fiji's leadership in this arena has in the last month produced a draft Climate Change Bill (the Bill) which is available for public consultation. It has been reported (Fiji Sun, 8 August 2019) that the government of Fiji intends the Bill to become law, by being passed as an Act of Parliament before December 2019. If the Bill is passed it will become the Climate Change Act (the Act). Although not presently law, to avoid confusion we simply refer to the proposed legislation as "the Bill" or "the legislation" in this bulletin as it has not, as yet, become an Act of Parliament.

In this extended and detailed legal bulletin we review the Bill to assist with the further consultations that should take place and, we hope, assist the bold statement and action that Fiji is demonstrating in the face of the climate emergency. All the persons that have been involved in this review support Fiji’s initiative to introduce comprehensive climate change legislation, and provide comments in the spirit of raising awareness of, and assisting with consultation about, the legislation to best suit it to Fiji’s context.

To have your say on the Bill, and to obtain an electronic copy, please click: here

A new set of minimum terms and conditions for crewing employment conditions in the Pacific

Fish stocks around the world are in decline with a large proportion of this decline attributable to the widespread practice of illegal, unreported and unregulated (IUU) fishing. Declining fish stocks result in increased fishing efforts to make up the shortfall of catches and this often leaves fishing vessels operating beyond economic and ecological sustainability. Subsidized fishing fleets often backed by national governments are one way to skirt this economic inconvenience.

Tragically, another alternative is cost-cutting on the human side of commercial fishing. This results in poor working conditions for fishing crew, forced labour, slavery and even human trafficking. This forms a hidden subsidy of sorts for IUU fishing that impacts those directly responsible for catching fish and tainting the seafood that is supplied globally. The Pacific Island Forum Fisheries Agency (FFA) which was established with the mandate to assist Pacific Island Countries manage their fishery resources is taking measures to address this oft-neglected aspect of fisheries.

FFA members lay claim to some of the richest tuna stocks globally. Under the United Nations Convention on the Law of the Sea (UNCLOS) states have sovereign rights to manage their 200 nautical mile Exclusive Economic Zone (EEZ). This means that the right to issue licences and on what terms and conditions lies with these states and within their EEZ. In this legal bulletin we consider how the FFA is implementing a decision of its members to use licence conditions to better regulate working conditions on fishing vessels that operate in its waters.

Deep Seabed mining in the Pacific, a recent lecture prompts the question - Who bears the legal risk under the legal framework for seabed mining outside areas of national jurisdiction (the Area)?

On Friday 2 August 2019, the School of Marine Studies at the University of the South Pacific (USP) hosted an informative and well attended public lecture entitled “The issue of Deep Seabed Mining and Pacific Island States”. The lecture was jointly delivered by Mr Akuila Tawake from the CROP agency SPC who covered technical aspects of deep seabed mining and Mr Michael W Lodge, the Secretary General of the International Seabed Authority (ISA).

The lecture was an impressive achievement given that it was arranged a day or so before when Mr Lodge dropped in to say hello to his old friend, Dr Joeli Veitayaki. The high attendance at this public lecture and the robust nature of debate and questions are indicative of the interest and concern that exists in the region relating to the potential risks and rewards for mining ventures that if they do take place will be in areas of seabed beyond the national jurisdictions of continental shelves. This area of seabed beyond national jurisdictions is defined by the 1982 United Nations Convention of the Law of the Sea (LOSC) as “the Area”.

We were privileged to be joined by Mr Lodge who provided an informative and eloquent talk in his role as Secretary General of ISA. ISA is the international organisation created by LOSC to regulate deep seabed mining in the Area. In this legal bulletin we update on his lecture and consider the specific question of legal risk associated with DSM. Please see our earlier legal bulletin for a full explanation of the legal framework for seabed mining, including deep seabed mining in the Area: here

Fiji fisheries law update: Ban on importation and exportation of shark fins and live coral

The importance of healthy sharks, and coastal marine ecosystems, to Fiji’s economy has been recognised by the Ministry of Fisheries and the Fiji government via new customs laws that have expanded the list of banned imports and exports to include shark fins and live coral.

The importation into Fiji of any goods specified in Schedule 1 of the Customs (Prohibited Imports and Exports) Regulations 1986 is illegal. On Friday, 7 June 2019, by Legal Notice No. 31, the Honourable Minister exercised powers pursuant to section 64 of the Customs Act and expanded the list of Prohibited Imports and Exports in Schedule 1 to include shark fins and live coral.

In this legal bulletin we provide a brief update on what this means for the import and export of shark fin.

Fiji Planning law: Fiji’s government has announced new Town Planning Schemes may be adopted for Suva, Lautoka and Nadi - an opportunity for consultation and good decision making

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.

Fiji Inshore Fisheries Management: commitment to conserve grouper and sea cucumber leads to amendments to Fiji’s Offshore Fisheries Management Regulation

On Wednesday, 12 June 2019, by Legal Notice No. 32 ("Legal Notice"), the Minister of Fisheries in exercise of his powers amended the Offshore Fisheries Management Regulations 2014 and introduced seasonal bans of species of sea cucumbers, groupers and coral trout with effect from 1 June 2019.

The exercise of the Honourable Minister of Fisheries' powers reflects the growing public concern for the health and sustainability of Fiji's inshore fisheries, the ongoing success of Fiji's 4FJ public awareness campaign and the commitment and vision of Fiji's Ministry of Fisheries working with various NGOs and academics to take action to conserve and manage Fiji's vital fisheries resources for future generations in line with Fiji's commitments to the United Nations Ocean Conference.

In this bulletin, we set out the amendments to the law that are now in force, and briefly discuss the factors that have led to the implementation of this conservation initiative.

Fiji Fisheries Regulation and the enforcement of minimum sizes for mud crabs

The mud crab (Scylla serrata) is a delicacy in Fiji and can fetch high prices. However, over-crabbing in recent times has led to the decline in mud crabs. This has resulted in juvenile or undersized crabs being sold in markets and roadside stalls on a regular basis.

Recent reports in Fiji's media have highlighted the commendable work done by Ministry of Fisheries officials in monitoring the sale of undersized crabs and the confiscation of any such crabs smaller than the minimum size set by Fiji laws.[1]

In this bulletin, we outline the applicable law in Fiji that stipulates the legal sizes of crabs that may be harvested or sold, and the powers of the Ministry of Fisheries officers in the enforcement of such laws.

Oceans Governance: The Class of 2019 from the University of the South Pacific, School of Marine Studies

Oceans Governance is a 3rd year undergraduate course offered by the School of Marine Studies, USP that complements the 2nd year undergraduate course in “Law of the Sea”. Both courses offered by the School of Marine Studies are designed by the highly regarded fisheries legal expert, Mr Pio Manoa.

Oceans Governance promotes an understanding of how the international legal frameworks fit with national legal and governance frameworks to provide a rules based approach to oceans use. This means that as part of the course there is a detailed look at how the varied uses of the ocean are regulated and how more modern concepts like sustainable development and an eco-systems approach to natural resource management should be taken into account by decision-makers.

Major themes that have arisen throughout the semester include: the importance of consultation and due process for good decision making, legal concepts of sovereignty and sovereign rights, and the importance of the ocean and traditional rights for Pacific Island cultures. Our firm has been fortunate enough to coordinate and teach this Semester's class of 2019 and provide this update relating to the course and their progress that involved contributions from many individuals demonstrating the multi-disciplinary approach required for oceans governance.

Fiji Fisheries: Economic and other opportunities from regulation of fisheries in archipelagic and territorial waters

In accordance with Fiji law, commercial fishing within Fiji's large archipelagic and territorial waters is reserved only for Fiji registered fishing vessels. Foreign fishing vessels may be licensed to fish within Fiji Exclusive Economic Zone (EEZ) and Fiji registered fishing vessels may also be licensed to fish in Fiji's EEZ.

Fiji has total authority to regulate and manage its fisheries across its vast archipelagic and territorial waters (which we refer to as inshore areas) and this authority derives from Fiji's territorial sovereignty. Getting its fisheries management regime right in these inshore areas is in Fiji's national interest.

In this legal bulletin we describe Fiji's inshore areas and its authority to regulate fisheries, discuss the modern legislative framework Fiji has in place to manage and regulate its inshore fisheries, and set out why Fiji's opportunity to implement sustainable management is dependent on good decision-making processes led by Fiji's Ministry of Fisheries. We also update on some initiatives that are being undertaken by the Ministry of Fisheries to manage inshore fisheries.

Marine Protected Areas in Fiji waters: The law and governance context requires careful consideration and transparent decision-making

Scientists have, for decades, warned us that oceans are warming, expanding, and becoming more acidic and polluted. In addition, humans are overfishing and failing to control the amount of waste material, particularly plastic, that ends up in oceans. In the face of these and other threats, Marine Protected Areas (MPAs) may be seen as a potential solution. The call for MPAs has a long history in international legal conventions, which have also expressly called for MPAs to be made consistent with the law of the sea framework after following a transparent and consultative process. This principled and process-led approach to MPAs reflects the important point that MPAs will curtail activities and potentially user rights in the ocean.

Fiji has, via government and Ministry of Fisheries leadership created several MPAs. In addition there have also been numerous community led initiatives assisted by Fiji's Locally Managed Marine Area Network (FLMMA) to establish fisheries management tools that have included no fishing zones (also known as tabu areas) within traditional fishing grounds.

Fiji’s efforts are consistent with the law of the sea framework which, at present, provides MPAs can only be created within areas of ocean where nation States have the authority to do so.

In this legal bulletin we particularly consider Fiji’s legal and governance framework, and how this may assist with the sort of transparent, open and consultative process that was envisaged in modern international legal conventions. We also briefly consider why MPAs will not be a solution, unless Fiji also adopts an integrated management approach to its oceans, which will include, but not be limited to the establishment of MPAs following due process.

Strengthening Fiji's laws to protect sharks and other important species

Sharks that are alive and healthy in Fiji's oceans are worth a great deal of money to Fiji's economy. In 2012, the Pew Foundation calculated that shark diving alone generated US$42.2 million for Fiji's economy

Unfortunately, the unnecessary killing of sharks, whether intentional or as a result of an accidental bycatch, removes this opportunity and has adverse effects on marine ecosystems and Fiji’s tourism industry. It is vital, therefore, to provide protection for shark nurseries, and ensure Fiji has effective fisheries laws and initiatives for shark protection that are implemented.

Early this year, dead baby sharks hit the headlines when around 10 juvenile hammerhead sharks were found dumped in a culvert near Suva. These endangered animals may have been caught illegally in nets set across a nearby river mouth where scientists at the Marine School, USP have undertaken a detailed and celebrated study and found a significant and important breeding ground.

Fortunately, the newly created Inshore Fisheries Management Division (IFMD) within the Ministry of Fisheries is currently looking to strengthen a variety of fisheries laws and regulations and their implementation including, but not limited to, the laws that protect sharks. In this bulletin, we consider the existing relevant laws on netting around rivers and discuss additional measures to ensure that sharks are better protected. We also briefly consider other initiatives that are currently being led by the IFMD to make Fiji's inshore fisheries more sustainable for the benefit of all Fijians. For more information regarding other shark conservation measures in Fiji, please see our previous bulletin: “A Legal Policy Discussion of Shark Conservation in Fiji”.

Human rights abuses and poor working conditions in the offshore fishing industry call for fundamental changes in international, regional and national governance

The international awareness of inequitable and often inhumane working conditions in the offshore fishing industry has increased in recent years.

Unfortunately, it has reached a point where offshore fishing is an industry that has become synonymous with poor working conditions and human rights abuses when compared with other ocean industries like shipping. This is because the activity of fishing itself takes place outside of the legal jurisdiction of any nation State, on the “high seas” and within EEZs where no State has sovereignty to make and enforce laws. In effect it is an industry where bad players can get away with being unregulated and through the regime of flag State registration effectively claim "immunity" from legal oversight in relation to working conditions. This is not to say all offshore fishing vessel operators are bad players but those fishing vessel operators who do want to comply with good employment standards do not compete on a "level playing field".

The awareness raised by civil society organisations (CSOs) and stakeholders has led to various recent developments, including the development of a specific International Labour Organisation Convention (“ILO”) (Work in Fishing Convention, 2007 (No. 188)) (“C-188”). C-188 entered into force in November 2017.

Six months ago, in Cape Town, South Africa, the provisions of C-188 were brought to bear by South African authorities against a foreign owned fishing vessel (a link to ILO’s report on this story can be found here).

The problem of unregulated labour standards in offshore fishing exists because some flag States who do have the legal jurisdiction to enforce labour standards on vessels on the high seas that are registered to that flag State lack the ability or willingness to regulate offshore fishing vessels that "fly their flag". Effective and universal flag State regulation is an issue of oceans governance and this is same issue that underpins Illegal, Unreported and Unregulated (“IUU”) fishing on the high seas and within coastal States’ EEZs. Solving this ocean governance issue in the fishing industry would likely lead to direct benefits for Pacific Island States both because employment opportunities would improve for Pacific Islanders and because those fishing vessels that are well regulated are more likely to comply with conservation and management measures put in place to protect the Pacific’s essential fish stocks.

In this extended legal bulletin we summarise the international law problem of unregulated labour standards in the offshore fishing industry and consider recent efforts that provide steps in the right direction to bring an end to a shameful problem that should no longer be tolerated in the 21st century. After all, as things stand, on the high seas (areas beyond national jurisdiction) the transportation of slaves by sea is an international crime and is regulated by the law of the sea framework. Contrast this with forced/slave labour and human rights abuses on people “employed” on fishing vessels in the same areas of ocean, and who fall outside any effective regulatory law of the sea framework and as a consequence find themselves outside the reach and protection of the law. To change this may require an overdue shift in general international consensus to amend the current law of the sea and governance framework. 

Marine Pollution from fishing vessels in the Pacific Ocean - what is the Western and Central Pacific Fisheries Commission doing about it?

The Western and Central Pacific Fisheries Commission (WCPFC) emerged as result of the 1982 United Nations Law of the Sea Convention (LOSC) that, amongst other things, requires regional cooperation to promote the conservation and management of shared fisheries resources.

WCPFC determines, advises on and implements many of the regional management mechanisms required by international law with the aim of securing cooperation between States to better protect, conserve and manage the Pacific’s vitally important fisheries. This role focuses on the conservation and management of the valuable, shared and highly migratory tuna (and similar fish) resources of the western and central Pacific Ocean (WCPO) that are under threat from many sources, not least, marine pollution.

Tackling marine pollution is challenging because of its many sources, most of which cannot be regulated by the WCPFC, and while pollution from shipping is regulated, pollution from or created by fishing vessels has been largely overlooked. In this legal bulletin we consider how the WCPFC is addressing the pressing and important issue of marine pollution created by fishing vessels plying their trade in the Western Pacific. For more information on the issue of marine pollution from fishing vessels please see this report from SPREP: here or Fisheries Consultant, Francisco Blaha's blog on the topic: here

Seabed Mining in the Pacific Ocean: To mine or not to mine?  Exploring the legal rights and implications for Pacific Island Countries

Although not yet an operational industry, seabed mining is a trending topic in the Pacific. This is because the exploration of the seabed beneath the Pacific ocean is revealing or has revealed potential mine sites for valuable minerals that are in global demand particularly for new technologies.

Proponents of seabed mining suggest, amongst other things, that mining of seabed minerals will ease demand for, and have less negative social impact than, terrestrial mining, will assist in the development of new greener technologies, and will provide economic benefits to those who participate in the mining ventures. Those who oppose seabed mining question, amongst other things, the potential environmental effects of or from the activity of seabed mining, the resultant damage to other uses or users of the ocean, whether developing nations will benefit from the mining ventures, and whether it will, in fact, ease pressure on terrestrial mining.

This legal bulletin considers the international legal framework of seabed mining and how it is regulated or intended to be regulated. This legal framework is important for Pacific Island Countries (PICs) because the 1982 United Nations Law of the Sea Convention (LOSC) has granted to PICs sovereignty or exclusive sovereign rights to extract (explore and exploit) resources from the seabed within vast ocean areas. The legal framework may assist PICs as they decide how to balance potential adverse environmental impacts of seabed mining against the value of their exclusive rights to, and benefits from, other living resources within the oceans.

Marine Pollution in the Pacific Ocean - The International Legal Framework - how it works and its challenges for Pacific Island Countries

Pollution of the oceans and marine environment is an important issue for Pacific Island Countries (PICs) because it damages natural resources, reduces the economic value of PICs' legal rights to those resources, and negatively impacts fishing communities as well as income generating activities like tourism.

A significant challenge is that marine pollution comes from many sources and most of those sources are land based, including but not limited to, careless discard of plastics. For more information on plastic pollution in the Pacific ocean please see here

This legal bulletin examines the overall international legal framework for the protection and preservation of the marine environment set out in the the 1982 United Nations Law of the Sea Convention (LOSC) and suggests other actions that PICs, regional organisations, and CSOs may take in accordance with LOSC to address marine pollution in the Pacific ocean.

Pacific Ocean Legal Rights: The implications for a Pacific Blue Economy, the importance of Integrated Oceans Management and the vital role of Civil Society Organisations

Pacific Island Countries (PICs) have legal rights to and within enormous ocean areas. These legal rights are, to a large extent, provided by operation of international law and are codified in the 1982 Law of the Sea Convention (LOSC).

The LOSC is often referred to as a “Constitution for the Oceans” because, amongst other things, it sets out and regulates the recognised legal rights that the international community agree that all nations have on or in the ocean to undertake or benefit from various activities that include but are not limited to navigation, fishing and other extractive industry. The LOSC also allocates the legal rights to PICs over and within ocean “zones” that includes the large Exclusive Economic Zones (EEZs). However, fisheries and marine scientists suggest that the sustainable use and management of the PICs’ valuable marine resources can only be achieved by Integrated Oceans Management based on eco-systems and not ocean zones.

In this legal bulletin we set out why the Pacific Island Countries have sufficient legal rights to build and implement effective oceans integrated management systems to support the development of their national and regional blue economies in a way that best suits them and based on an ecosystems approach. However, to meet good governance outcomes (successful, equitable, sustainable) those management systems must be suited to the context of PICs which means that the collective process to create those systems must be inclusive, practical and carefully undertaken.

Fiji Marine Pollution Law Series - legal consequences of littering and failing to dispose of consumer waste responsibly

The largest ocean on earth is also home to the largest collection of floating rubbish/garbage which scientists have coined "The Great Pacific Garbage Patch".

The statistics about the Great Pacific Garbage Patch provide terrifying reading and are summarised by the National Geographic in a recent online article that can be found here. The article explains that the floating garbage weighs 79,000 tonnes and is predominantly plastics originating from both land based (80%) and ocean based activities (20%), includes discarded fishing gear, waste from the 2011 Japanese Tsunami and perhaps most worryingly contains an estimated 1.8 trillion pieces of plastic of which microplastics comprise 94%.

One of the solutions to this horrendous human made problem is for each country to regulate and control littering and the failure to responsibly dispose of household and consumer waste. In this 3rd legal bulletin in this Fiji Marine Pollution Law Series, we consider Fiji's legal framework to regulate and control littering.

While outside the scope of this legal bulletin we acknowledge that:

  • other regulatory and innovative solutions must be found globally to reduce or eliminate the use of plastics and find other more environmentally friendly consumer packaging
  • Pacific Islands are not the main cause of this global issue
  • Responsible consumer choices and manufacturing choices are required
  • Fiji has started using innovative mechanisms to discourage the use of plastics like introducing a charge for single use plastic bags.

Fiji Marine Pollution Law Series - industrial pollution

The major threats to our oceans are well understood, and include pollution from land based sources.

For a full list of the major threats to our oceans the World Wildlife Fund (WWF) sets them out here and also explains that:

Untreated sewage, garbage, fertilizers, pesticides, industrial chemicals, plastics ... most of the pollutants on land eventually make their way into the ocean, either deliberately dumped there or entering from water run-off and the atmosphere. Not surprisingly, this pollution is harming the entire marine food chain - all the way up to humans.

In this second legal bulletin in the Fiji Marine Pollution Law Series, we consider Fiji’s legal and regulatory framework in relation to marine pollution from land based industrial or commercial activities. For those interested in this area, it should be noted that Mr Filimone Tuivanualevu who is admitted as a barrister and solicitor of the High Court of Fiji, has also published a legal bulletin entitled "How does the law protect rivers in Fiji from pollution?" which can be found here.

In further planned legal bulletins in this series we will consider Fiji's laws in relation to marine pollution from household waste and the potential civil liability that polluters who cause harm may incur based on common law negligence.

Fiji Marine Pollution Law Series - Pollution from Ships

Pollution in our oceans is a major cause for concern as it damages the marine environment that we depend on.

Sources of marine pollution are diverse and include pollution from:

  • Ships
  • Land-based activities such as industrial, agricultural and household wastes
  • Overuse of plastics and their careless disposal
  • Dumping of wastes at sea, and
  • Off-shore activities such as deep sea mining - the effects of which seem to be unknown at this point in time.

In the Pacific region, the shipping industry is a vital means of transportation and trade. However, pollution from the shipping industry in Fiji has recently become a trending topic as pictures surfaced on social media showing a ship engaged in deliberately pumping of oil into the Suva harbour. This story was covered in Fiji's press including in this Fiji Times article

About the Fiji Marine Pollution Law Series

In this bulletin we consider Fiji’s national laws and the relevant criminal offences in relation to different types of marine pollution from ships. We note but do not consider in this bulletin the additional International laws that prohibit dumping of waste and other hazardous materials at sea and also regulate oil spillages from ships and other vessels. 

In further legal bulletins as part of the Fiji Marine Pollution Law Series we will consider the law in relation to marine pollution arising from:

  • Industrial sources; and
  • Household waste
We will also consider in a further legal bulletin the high duty of care that polluters may owe to those who suffer damage as a result of marine pollution and hence the potential civil liability of polluters in the common law of negligence and nuisance. This is a separate and cross cutting legal question because in common law jurisdictions like Fiji the polluter owes a high duty of care to avoid causing likely harm to others regardless of whether the polluter is a ship, industrial facility, commercial entity or individual.

Fiji fisheries law: Could improved regulation of minimum size limits lead to more sustainable fisheries and bigger fish in nearshore and coastal waters?

The sustainable management of Fiji’s coastal fisheries is vital for national well-being and food security. One intuitive solution to improve nearshore and coastal fisheries is to enable fish to reach sufficient maturity so they have had the chance to breed before they are caught - in other words the adoption and enforcement of suitable minimum size limits.

The Fisheries Act, 1941 and Fisheries Regulations, at present, regulate nearshore fisheries using various mechanisms that include how fish may be caught, licensing and minimum fish sizes. However, recent work by fisheries scientists in Fiji suggest that the Regulations are out of date and not fit for purpose in the Fiji context. Fisheries scientists suggest that at present too many coastal and nearshore fish are being caught before they reach maturity and this is one reason that is contributing to a decline in Fiji's coastal and nearshore fish stocks.

In this bulletin, we consider the current law on fish sizes and the work being undertaken by fisheries scientists and the Ministry of Fisheries to address the question of what minimum sizes of fish should be caught in its coastal and nearshore waters.

Fiji has amended the Charitable Trusts Act to include "conservation" and rural electrification projects as a charitable purpose

Under Fiji law, the Charitable Trusts Act, 1945 (Charitable Trusts Act) provides the legal process to incorporate (establish) a charitable trust. The incorporation of a charitable trust creates a legal "person" that may amongst 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. On Wednesday, 7 March 2018 by Legal Notice No. 14, the relevant Minister in exercise of his powers under the Charitable Trusts Act expanded the categories of "charitable purpose" to include:

· the conservation of the environment; and

· the provision of electricity to rural communities and households in Fiji that do not have such access.

The management of Fiji’s nearshore fisheries will benefit from a good decision making process leading to Fisheries Regulations

Healthy stocks of fish and other aquatic animals in Fiji’s nearshore waters are vital for the nation’s well-being and food security needs. Healthy stocks are also a priority for the Ministry of Fisheries and Honourable Minister for Fisheries, Semi Koroilavesau who speaking in Parliament recently explained that the Ministry would refocus its efforts on nearshore and coastal fisheries with the aim of balancing development with national and local needs.

The good regulation of fishing activity in nearshore waters is part of the answer to improve fish stocks.

In this legal bulletin we consider the current nearshore fisheries regulatory regime and discuss how the use of Fisheries Regulations could improve fisheries management. The use of regulatory powers is an exercise of public law and as such Fiji’s common law system requires a careful and consultative decision-making process.

Fiji fisheries law: When is fishing activity illegal in Fiji's nearshore waters?

Fishing in nearshore waters in Fiji is a common activity, however, it is not always easy to tell when that activity is lawful or unlawful.

Fiji is a common law jurisdiction and accordingly wild fish and other marine organisms in their uncaptured state belong to nobody and the principle ferae naturae applies. However, legislation can and does:

  • limit the type of species of fish or other aquatic animals that can be legally caught
  • prescribes limits to the fishing methods that can be used to capture fish
  • regulates other factors including the minimum size of the fish that may be legally caught and when a fishing licence is required.

In this bulletin we consider the fisheries legislation that is applied to nearshore waters and how it applies to different types of nearshore fishing activity with the aim of better explaining what could constitute illegal fishing activity in nearshore fishing waters. Please note this legal bulletin is prepared on the basis of the Fisheries Act, 1941 and the Fisheries Regulations as they are at the present time, and we are aware that the Ministry of Fisheries is reviewing this legislation with a view to updating it to better manage Fiji's important fisheries resources. 

Fiji's Minister for Fisheries has created two new Marine Reserves with Regulations made under powers conferred by section 9 of the Fisheries Act, 1941

On, Friday, 19th January 2018 by Legal Notices No. 3 and No. 4 the Honourable Minister for Fisheries exercised his powers pursuant to section 9 of the Fisheries Act, Cap 158 (Fisheries Act) to create two new marine reserves in inshore areas within Fiji’s fisheries waters.

The creation of the marine reserves has been by way of Regulations that are cited as:

Fisheries (Kiuva Marine Reserve) Regulations 2018
Fisheries (Naiqoro Passage Spawning Aggregation Marine Reserve) Regulations 2018.

In this legal bulletin we set out the powers that section 9 of the Fisheries Act provides to the Minister for Fisheries to create and declare marine reserves via Regulations. We also expand on the effect of these new Regulations that have been brought into force by being published (gazetted) in Fiji’s Government Gazette.

How to incorporate a non-profit entity as a charitable trust or company limited by guarantee under Fiji law

As at 2018, there are about seventeen (17) regional and international organisations with offices in Fiji. Some of these not only oversee Fiji programs but also programs in the region and in other Pacific Island Countries.

Apart from these regional and international organisations, there are a multitude of other non-profit entities in Fiji working in areas including protecting the natural environment, children's rights and women's rights. Some of these organisations are not registered in Fiji and operate by way of a memorandum of understanding with the Government of Fiji while others are registered as charitable trusts, as branch offices or as companies limited by guarantee.

There are benefits for non-profit entities by establishing a legal entity under Fiji law and the aim of this bulletin is to consider the two most suitable ways to establish (incorporate) a non-profit entity under Fiji law. These are as a:

  • Charitable trust; or
  • Company limited by guarantee.

Fiji’s natural resources: governance and decision-making, the importance of participating

Fiji is a common law jurisdiction and a constitutional democracy that guarantees its citizens the right to a clean and healthy environment.

Fiji's Constitution and environmental laws also guarantee the rights of those concerned by any development that may have a significant impact on the environment to participate in the decision-making process. 

In this bulletin we consider how those who are concerned may exercise their rights to participate in decisions that will ultimately assist Fiji, its government and people better safeguard the environment, ocean and natural resources that are so vital for its economy and well being. 

The Forum Fisheries Agency has considered how to improve working conditions in commercial fishing

Between 9-12 October 2017, the Forum Fisheries Agency hosted a Crewing Workshop in Honiara, Solomon Islands to discuss how to increase the benefits to Pacific Island economies from their fisheries resources. The Crewing Workshop addressed 2 questions:

  1. How to promote Pacific Islander crewing and increase Pacific Islander crew numbers on fishing vessels.
  2. How to develop and ensure minimum employment standards for any Pacific Islander fishing crew employed in the commercial fishing industry.

These questions were considered over 4 days by Government officials, training school representatives and private sector representatives from Fiji, Federated States of Micronesia, Kiribati, Marshall Islands, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. This bulletin sets out the complex legal and governance challenges and the outcomes from the FFA workshop.

Oceans and Climate Change: how can Pacific Islands rise to the challenge?

The Pacific Island States have a moral authority to call on developed and developing States to curb their CO2 emissions which are the main cause of Climate Change. This is a message that Fiji will, on behalf of the people of the Pacific, lead with when it co-hosts COP23 in Bonn, Germany in November 2017.

In facing the unprecedented challenge of climate change Pacific Island States are also clear about what they want. This includes:

  • The global temperature rise stays below 1.5 degrees celsius
  • Healthy oceans with functioning ecosystems to enable the oceans to continue to capture CO2
  • Meeting the adaptation challenges in coastal areas and on low lying atolls
  • Climate financing for oceans/fisheries projects that promote sustainable use of resources and the return of a fair income from the sustainable harvesting of these resources to Pacific Island economies
  • Innovative solutions to reduce the pollution and CO2 from the maritime shipping industry.

In this bulletin we address 3 specific ocean issues that represent part of how Pacific Islands can rise to the challenges of Climate Change and also illustrate why law and governance is integral to meeting the challenges. The 3 ocean issues are:

  • Legal rights to ocean spaces
  • Mangroves
  • Marine Protected Areas

The legal framework for effective Marine Protected Areas in Fiji - the Fiji Environmental Law Association's latest publication

The Fiji government has made a bold commitment to designate marine protected areas (MPAs) across 30% of its ocean spaces.

Given the well documented threats to all oceans and their resources it is a natural response to create protected areas that restrict the use of certain areas of ocean. The aims for greater protection may be varied and include to protect areas or species of special scientific interest, to preserve bio-diversity, for fisheries management reasons including for food security or to promote resilience to natural disasters and counter the effects of climate change. However, MPAs are designed to restrict the way a designated area of ocean is used, and because of this the designation of a MPA may alter, restrict, reduce, or remove pre-existing rights and commercial interests to use the marine area subject to the designation. As such the creation of MPAs may raise ethical questions and will definitely raise legal questions particularly in the area of administrative law. Last February we published this bulletin that looked at the designation of MPAs from an administrative law perspective.

In September 2017, the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has added to the MPA discussion through a study that considers the existing legal framework in Fiji for the creation of MPAs. This study is entitled “Towards an Effective Legal Framework for Marine Protected Areas In Fiji - a Policy and Law Discussion Paper” (ISBN 975-982-01-0965-0), and available now from the USP bookshop.

The Fiji Environmental Law Association has published a paper that discusses Fiji's path towards Integrated Oceans Management

Fiji, like other Pacific Island States, is blessed with large areas of ocean space that contain important and wondrous natural resources. To manage its ocean (60 times larger than Fiji's landmass) is more important than ever given the numerous challenges that our oceans face.

In support of good management, due process and planned decision making the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has just published a policy and law scoping paper entitled "Towards an Integrated Ocean Management Policy for Fiji" (ISBN 978-982-01-0964-3) and on sale at the USP bookshop.

It is hoped that this scoping paper will assist Fiji draft its National Oceans Policy Framework and also support an exciting pathway for Fiji to create its own Integrated Oceans Management Policy (IOM Policy) that is adapted to Fiji's legal and governance context.

When can a fishing licence be revoked or refused for non-compliance with fisheries laws in Fiji’s fisheries waters?

A cornerstone of the regulation of Fiji’s inshore fisheries is that it is a criminal offence to engage in commercial or sports fishing in Fiji’s fisheries waters without a fishing licence.

At present, fishing licences for all areas of Fiji’s fisheries waters are granted and regulated by the Ministry of Fisheries under the Offshore Fisheries Management Decree 2012 and Offshore Fisheries Management Decree Regulations, 2014. However, for traditional fishing grounds (qoliqoli areas) the Ministry of Fisheries grants commercial fishing licences under the Fisheries Act 1942, and Regulations (as amended). The key difference is that before the Ministry of Fisheries will issue a licence to fish within a qoliqoli area a permit is required from the relevant Divisional Commissioner who before granting such a permit is required by law to consult with the holders of the traditional fishing rights for that qoliqoli area. Commercial fishing licences for Fiji fisheries waters outside qoliqoli areas do not require this additional pre-condition.

In this bulletin, we consider the powers of the Ministry of Fisheries to revoke an inshore fishing licence when the holder of the licence has not complied with Fiji’s fisheries legislation. This requires consideration of both the powers under Fisheries Act, 1942 and the Offshore Fisheries Management Decree, and principles of administrative law that underpin decisions to grant and revoke fishing licences.

Designating all fisheries officers in Fiji “authorized officers” may assist with inshore fisheries enforcement.

On 25 August 2017, the Ministry of Fisheries hosted an inter-agency National Inshore Fisheries Enforcement Forum and in his opening address Deputy Permanent Secretary Sanaila V. Naqali called for more inter-agency collaboration to assist with inshore fisheries enforcement. The message from the Ministry of Fisheries is that in contrast to Fiji’s oIffshore fisheries, the current status of inshore fisheries is a cause of grave concern. This concern is heightened because inshore fisheries are more important than offshore fisheries in terms of Fiji’s national interest as they provide a vital protein source and food security for so many Fijians as well as a greater contribution to Fiji's economic well being and fish consumption than offshore fisheries.

It seems likely that offshore fisheries have become increasingly well managed and regulated thanks to commitment and hard work by the Ministry of Fisheries, the expertise of its fisheries officers inside the Offshore Fisheries Division, and the valued support from regional fisheries management organisations (amongst others). But is also the case that inshore fisheries are by their nature more challenging to regulate and manage sustainably than offshore fisheries. Inshore fisheries are much easier to access, include within inshore waters traditional fishing rights areas, and involve many more fishers from subsistence fishers up to significant commercial enterprise and everyone in between.

While enforcement is a complex topic: in this bulletin we examine how extending inshore fisheries officers powers pursuant to the Offshore Fisheries Management Decree, 2012 may assist the Ministry of Fisheries better meet the significant challenges that they face in regulating inshore fisheries. The timing may be good to extend inshore fisheries officers powers as the Ministry of Fisheries has made the recent decision to create a new Inshore Fisheries Division within the Ministry of Fisheries dedicated to the good regulation and sustainable management of Fiji's most important natural resources.

A law change to building permit applications in Fiji will increase efficiency but what are the impacts for good decision making and the environment?

In Fiji law the requirement for building permits for new buildings within cities and towns and any other areas “gazetted" by the relevant Minister derives from regulations made pursuant to section 39 of the Public Health Act 1935. A building permit is issued by the local authority and is required prior to the lawful construction of any building. Depending on a building proposed, its location and other factors like environmental impacts, the local authority may not be able to issue the building permit until approvals are issued from other government ministries or departments.

On 14 July 2017, the Fiji Parliament enacted the Regulation of Building Permits Act 2017 (“RBPA”) which aims to streamline the process for obtaining a building permit.

In this bulletin we consider the implications of the RBPA both for developers but also in terms of the potential impacts on good decision making for Fiji’s natural resources and those who may be adversely affected by development decisions.

How does the law protect rivers in Fiji from pollution?

Access to clean water for drinking and bathing, and clean oceans and rivers are essential for Pacific Islanders. Pollution of our water and oceans can take away the basis of people’s livelihood, survival, and lifestyle. The negative cost of industrialisation, modernisation and unsustainable development has resulted in pollutants being deposited into our rivers and coastal areas.

In this legal bulletin we discuss the serious question of river pollution and how, in Fiji, pollution is regulated by legislation, the penalties and solutions available. We draw on the well known example from the Qawa river located in Labasa to illustrate the importance of this issue for all Fiji citizens, the traditional fishing rights holders, and the natural resources that we depend on.

Finally we consider New Zealand's recent and exciting legal development of granting the Whanganui river its own legal rights. 

Working towards a new High Seas treaty (BBNJ PrepCom 3)

In a previously published legal bulletin we discussed Biodiversity on the high seas, and the increasingly recognized need for an international legally binding instrument (ILBI) to regulate biodiversity in Areas Beyond National Jurisdiction (ABNJ). Recently, progress towards the ILBI came in the way of the third session of the preparatory committee on Marine Biodiversity in Areas Beyond National Jurisdiction (PrepCom 3).

PrepCom 3 was held at the United Nations headquarters in New York from March 27 to April 7. I had the good fortune to observe proceedings as an observer through an invite from a New York City based non-profit that supports small islands developing states permanent missions to the UN in oceans and climate change negotiations.

In this bulletin, we set out how PrepCom 3 fleshed out discussions on what the main elements of the treaty would be. This included inter alia, Marine Genetic Resources, Area-Based Management Tools, Environmental Impact Assessments, Capacity Building and Technology Transfer. These substantive areas of discussion form what will be the core elements of the treaty body and address some of the primary issues faced with respect to high seas regulation and management (or lack thereof). The lack of any cohesive form of regulation on the high seas means that these parts of the ocean are often subject to unchecked resource exploitation. Coming to a consensus on how this treaty is framed and articulated is one of the first steps towards an ILBI.

Is it time for a code of conduct for marine conservationists?

Our valuable marine ecosystems are under threat for a variety of reasons that are well documented and include over-exploitation, pollution and climate change. It is also becoming increasingly understood that the survival of our own species is dependent on healthy ecosystems.

Marine conservation initiatives champion the conservation of marine ecosystems that support human well being. However, this is often against a backdrop of complex political, economic, social and governance regimes. Often the advocated solution for managing marine ecosystems will appear to be in direct conflict with existing user rights and commercial interests. The existing rights are not just commercial interests, but in Fiji and the Pacific also involve traditional rights holders, subsistence and artisanal fishers.

In a recent thought provoking and well timed academic article entitled An appeal for a code of conduct for marine conservation N.J. Bennett et al Marine Policy 81 (2017) 411-418,  an impressive group comprising 25 academics and marine conservationists, make an appeal “for the development of a comprehensive and broadly accepted code of conduct to facilitate marine conservation processes and actions that are fair, just and accountable, while supporting the achievement of ecological effectiveness.”

In this bulletin we briefly consider how such a code may assist in Fiji’s legal and governance context, and how it could be implemented.

Fiji's Endangered and Protected Species Act 2002 has been amended

On 28 March 2017 the Endangered and Protected Species (Amendment) Act, (No. 10 of 2017) (Amendment Act) was made to amend the Endangered and Protected Species Act 2002 (EPS Act). The EPS Act regulates the domestic and international trade of endangered species by requiring a permit to be applied for before any endangered species can be traded within Fiji or internationally. The EPS Act is the Fiji legislation that implements the multi-lateral treaty CITES or the Convention on International Trade on Endangered Species of Wild Fauna and Flora.

While CITES protects more than 22,000 species that are listed in either Appendix I, II or III of CITES, the EPS Act notably includes two Schedules to the EPS Act which list species that Fiji’s law-makers consider need further protection that are not listed in CITES and are thought to be indigenous to Fiji. The EPS Amendment Act is significant because it has increased the number of non-CITES species that are listed in Schedule 1 and 2 to the EPS Act, meaning that these species are therefore now protected and regulated by the EPS Act (as amended) despite not being included in CITES.

In this bulletin we set out how CITES and the EPS Act regulate endangered and protected species under Fiji law, touch on the amendments and at the end of this bulletin we provide a summary of the EPS Act (as amended) for information purposes.

The legal challenges of improving working conditions on commercial fishing vessels

Commercial fishing provides an inherently challenging and sometimes hazardous work environment. Workers carry out their duties on a moving, wet, slippery platform surrounded by heavy machinery and the ocean. They are frequently far from home, required to undertake physical work over long hours, low on resources and without adequate legal and medical protections that many of us would take for granted.

While the concerns and issues that beset working conditions aboard commercial fishing vessels are well known there are significant complexities to the adoption of legally enforced minimum standards because of the cross-border nature of fishing and various issues related to sovereignty of maritime spaces and flagged vessels. However, if a way can be found to get through these complexities there would be significant advantages for the governance of the fishing industry to have accepted minimum employment standards.

In this bulletin we consider the impacts that the International Labour Organisation’s Work in Fishing Convention ILO Convention C.188 (“ILO Convention 188”) may have on the commercial fishing industry as it enters into effect in November 2017.

Submerged States and the legal rights at risk

Climate change and its impacts are one of the greatest environmental problems of today and its effects include, inter alia, changing climate patterns, warming ocean temperatures, melting glaciers and ice caps, and sea level rise. These impacts while felt globally are disproportionately distributed. Low lying island States are particularly vulnerable with Pacific Islands like the Marshall Islands, Tuvalu and Kiribati facing uncertain futures because of the very real threat of sea level rise submerging their land territory (inundation). As well as the threatened loss of their homes, extinction of their cultures and the unwelcome prospect of becoming climate change refugees, they also face the consequence of losing their rights of sovereignty in International law.

In this piece we examine the unresolved question of whether States threatened with inundation may also lose their claim to their maritime zones and associated legal rights. We consider whether the international climate change regime has provisions that address this threat and briefly look at the limited opportunities for recourse under the present system and suggest an amendment to UNCLOS may be necessary to guarantee the rights of States threatened with the terrifying prospect of inundation.

Paris, Marrakech and beyond

In November 2016, the Moroccan city of Marrakech hosted the 22nd Conference of the Parties (COP 22) under the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC provides the foundation for international cooperation to combat climate change and its impacts on nations and the environment. Both the Kyoto Protocol and the Paris Agreement sit within this framework. The Conference of the Parties serve as formal meetings for parties to the UNFCCC where member nations can take stock of their progress, monitor the implementation of their obligations and continue discussions on how best to tackle climate change. Marrakech also served as the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1). Marrakech followed COP 21 in Paris, which culminated in the much-lauded Paris Agreement. Marrakech was seen as the opportunity to tie up loose ends and finalize details for implementation of the Paris Agreement.

In this bulletin we examine why climate change is an important legal issue for oceans, and provide an overview of the significant achievement of COP 21 in Paries, what happened in Marrakech and look forward to the opportunities and challenges at COP 23 in Bonn where Fiji will take a leading role and at what is being dubbed as "the Pacific COP".

Humphead Wrasse and other species in Appendix I and II CITES have been fully protected by law in Fiji from 2014

Despite the attention of Fiji’s lawmakers, up until 2014 the humphead wrasse has not received full legal protection from being killed or captured in Fiji waters.

In this bulletin we briefly explore the legal protection that has been provided to the humphead wrasse and set out how the introduction of the Offshore Fisheries Management Decree and Regulations is a “game changer” for all fish species listed in Appendix I and II of CITES.

Fundraising for environmental and human rights lawyer murdered in the Philippines

On 15 February, 2017 Mia Mascarinas-Green, an environmental and human rights lawyer in the Philippines was shot and killed in front of her 3 young children for standing up for her client's legal rights.

The evolution of fisheries law in Fiji - an overview of the law and governance systems as they apply to inshore fisheries

Inshore fisheries law and governance is a complex topic that requires consideration of Fiji’s unique culture and historical background. In this overview we consider the evolution of Fiji’s inshore fisheries law and governance context, as understanding it is an important tool in the management of Fiji’s inshore fisheries . We aim to describe this rich nuanced system that is based on a balance of customary rights and centralized regulation.

This is a summary of a presentation provided to the Fiji Environmental Law Association and the Department of Fisheries, Coastal Fisheries Management Legal Development Forum held at the Tanoa Hotel, Suva 10-12 February 2016.

Biodiversity on the High Seas

Areas beyond national jurisdiction (ABNJ) includes the High Seas, which accounts for approximately 64% of the world’s ocean, and the deep seabed beyond national jurisdiction. In the High Seas no State has jurisdiction, meaning individual States have no management rights, and activities in this area with respect to marine biodiversity remain largely unregulated.

While there are some regional management plans that exist on the High Seas, these are often restricted to certain species or industries and ultimately result in an ad hoc and overall, poorly managed ocean. Overexploitation of fish stocks, increasing marine pollution, and habitat destruction, together with the impacts of climate change and ocean acidification mean that now more than ever there is an urgent need to protect larger expanses of the ocean particularly the High Seas.

In this bulletin we look at the efforts of the international community through the United Nations, as it attempts to regulate the High Seas through international law mechanisms. 

A Legal Policy Discussion of Shark Conservation in Fiji

Sharks are renowned apex predators in the ecosystems they occupy and therefore play an important regulatory role in maintaining the health and balance in an ocean ecosystem. Sharks primarily prey on the weak and sick in other marine species and this helps in both strengthening genepools and preventing the spread of disease in prey species. This grooming of other species is an important function in the intricate ocean food webs and one of the reasons why sharks are considered keystone species by some marine scientists, meaning that their removal could cause a collapse of these systems. This role is particularly important in vulnerable ecosystems like coral reefs.

In this bulletin we briefly consider the Fiji legislation that protects sharks in Fiji's waters and suggest that an integrated approach to protecting sharks in line with a National Plan of Action may be required.

Q&A with Dr Transform Aqorau

Dr. Transform Aqorau, former CEO of the Parties to the Nauru Agreement (PNA) answers a few questions about the PNA and immediate challenges going forward.

The PNA is a regional agreement between Federated States of Micronesia, Kiribati, the Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands and Tuvalu that focuses on the management of shared fisheries resources for the benefit of Pacific Islands.

The PNA represents self-organisation by a group of Pacific Islands to manage their valuable fisheries resources through co-operation and a shared understanding that sustainable management will lead to long-term economic benefits. In this bulletin we find out more from Dr Transform who kindly provides responses to some key questions.

Marine Protected Areas and decision making - an administrative law perspective

The Fiji government has made a bold commitment to designate marine protected areas (MPAs) across 30% of its ocean spaces. If this goal is realised, MPA status will be declared over approximately 390,000 square kilometres of Fiji’s ocean spaces. The protection of these marine resources serves several purposes and includes food security for communities, particularly in times of need, and in terms of economic value. In 2014 Fiji’s fisheries were estimated to be worth approximately F$250million.

In this bulletin we consider the legislation that enables the legal declaration of MPAs, how Fiji's common law principles support an inclusive decision-making process leading up to the declaration of MPAs and how following an inclusive and integrated process may lead to more effective MPAs that are suited to Fiji's law and governance context. 

Fiji's first National Fisheries Policy: an update

Fiji is on the brink of adopting its first National Fisheries Policy that will provide an overarching framework explaining how Fiji will manage its fisheries. The Honourable Minister for Fisheries, Semi Koroilavesau explains in the foreword to the draft policy that the purpose of the National Fisheries Policy is to "provide a clear and unequivocal policy that will provide direction for the development and management of Fiji's fisheries."

In this bulletin we provide a brief update on the National Fisheries Policy and how it intends to assist in the management of Fiji's fisheries across the 3 fisheries sectors being: Offshore, Inshore and Aquaculture.

The law on the use of Underwater Breathing Apparatus (UBA) in Fiji's inshore fishing industry

On 1 December 2016, the Honourable Minister for Fisheries, Mr Semi Koroilavesau announced that the use of underwater breathing apparatus (UBA) to harvest and export bêche-de-mer (BDM), the processed and traded form of sea-cucumber, would no longer be permitted under Fiji law.

The reports in Fiji’s press have characterised this as a ban on BDM harvesting using UBA, and this has led to some in the fishing industry questioning the jurisdiction and legality of such a directive.

In this bulletin we consider the legal basis for denying permission for the use of UBA for harvesting BDM, set out other laws relating to the harvesting of BDM, and briefly consider why it is important to uphold the law on the use of UBA to harvest BDM which has been in force from 1997.

How does the law protect mangroves in Fiji?

 Mangroves, like the ocean and the reefs, surround or should surround Fiji. They are a hardy species that inhabits the intertidal zone, on State “land”, and if they are left alone or lightly managed they regenerate. Despite the many benefits that accompany mangroves, they are vulnerable in the face of development pressures including pollution, and their fate rests in the hands of our decision makers.

Mangroves and development is a topical issue that concerns many in Fiji. For example at the recent Parliamentary Speaker’s Debate held in Suva on 1 February 2017, the Honourable Minister for Fisheries, Mr Semi Koroilavesau noted the importance of mangrove stands and stated that he is considering a recommendation that any coastal development in Fiji must include preservation of mangrove. The Honourable Minister was responding to a question from a concerned citizen who had noted to her despair that there had been a recent increase in clearing of Fiji’s mangrove stands for development purposes.

In this legal bulletin, we briefly consider how Fiji law protects mangroves, who in Fiji’s complex governance system decides whether they should be cleared in the face of development and consider ways to improve decision-making in relation to mangroves which should follow an approach that involves multiple government agencies and views from various stakeholders.

Human rights abuses and fisheries - an international law problem

The world’s oceans are the largest international commons on earth. All nation States have an equal right to navigate and traverse the oceans through their registered ships under the international legal principle of freedom of navigation. Maritime law requires every ship to be registered (flagged) to a nation State (flag State), and when duly registered that ship is regulated by its flag States and enjoys protection from interference or regulation from other States. While the protection from interference has its origins in the law of the sea's first principles it also means that flagged vessels can avoid regulation, and this is leading to human rights abuses at sea going unchecked. This legal bulletin aims to explain the international legal context that is facilitating a lack of regulation, examines why the issue needs to be addressed and briefly considers how New Zealand is responding and other potential solutions. 

A Review of Near Shore Fisheries Law & Governance in Fiji

December 2016

November 2016

August 2016

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