Ocean Law Bulletins

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.

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.

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.

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.

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.

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.

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.

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.

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.