The Commercial Use of Marine Areas (CUMA) Bill 2025 sets out an undeniably bold vision to enable the reversion of proprietary ownership of marine areas within Fiji’s sovereignty to iTaukei customary owners.

But such a fundamental change also raises critical areas of concern, namely the risk to investor confidence due to tenure uncertainty, the constitutional implications of mandatory lease renegotiation, and the various consequences of repealing the Regulation of Surfing Areas Act 2010.

While our previous article focused on the importance of a collaborative implementation process, this article provides more detail on the deliberate steps and safeguards the drafters have integrated into the Bill to address or manage this process. As its explanatory note provides—CUMA is intended to be a legally credible response to past inequities, and intends to establish a rigorous, multi-institutional process that anticipates and expressly aims to mitigate major economic and legal risks during the transition. A more detailed examination of the process that the CUMA Bill contemplates should provide an informed understanding of CUMA and explain how the drafters contemplated this transition of ownership can be achieved within Fiji’s legal and governance context.

CUMA’s Scope

The CUMA Bill is framed as a response to correct the historical imbalance in marine area ownership, where the State held the majority of rights despite the legally recognised iqoliqoli user rights held by customary owners. The Bill aims to achieve this corrective mandate with a defined scope that includes:

• focuses on marine areas with high economic value and in particular those with commercial tourism activity and emissions reduction projects (e.g., blue carbon credits). The Marine Area defined includes the foreshore, internal waters, archipelagic waters, and territorial sea and also extends to the seabed and subsoil beneath.
• Aims to correct what it considers are past wrongs - for example the Bill repeals the Regulation of Surfing Areas Act 2010, which itself had extinguished the commercial exercise of customary rights. The Surfing Act came into force at a time when Fiji’s 1997 Constitution had been abrogated and before its current Constitution was enacted and the changes the Surfing Act had no avenue for compensation. Therefore, CUMA provides the process to restore the potential for compensation and commercial engagement in these areas.
• Excludes fishing from the scope of "commercial purposes," recognising the separate fisheries legal and regulatory framework. Similarly, the process of transfer will include an assessment of environmental impact, the Bill explicitly confirms that this does not bypass the requirement for a full Environmental Impact Assessment (EIA) under the Environment Management Act 2005 if one is required for the commercial project itself.

The step by step Vesting and Renegotiation Process provided by the CUMA Bill

The CUMA Bill provides that the transfer of full proprietary ownership of the identified commercial marine area (CMA) is conditional on a process that is designed to screen applications, verify existing rights, and ensure fair negotiation for all affected parties. The steps of this process that the CUMA Bill contemplates are as follows:

1. The customary owners (Yavusa or Mataqali or other relevant customary group) initiate the process by submitting a formal transfer application to the iTaukei Fisheries Commission (TFC).
2. The TFC undertakes a rigorous screening of the application, this means the TFC must:
   1. verify the application's merit
   2. confirm the area meets the definition of a Commercial Marine Area (CMA)
   3. Accurately delineate the boundaries of the CMA
   4. Ensure they confirm the correct customary owner groups entitled to the reversion, often referencing the Fisheries Act 1941 register held by the TFC itself.
3. TFC formally notifies all existing interest holders - this includes commercial operators including but not limited to tourism businesses with existing leases or licences and begins a mandatory, collaborative consultation process with these commercial interests.
4. TFC assesses the potential economic and environmental impact of the planned transfer of proprietary ownership of the area - the focus of this impact assessment is on existing operations and interest holders.
5. TFC leads the mandatory renegotiation of the existing lease terms and the Compensation Scheme between the customary owners and existing interest holders/commercial interests. Compensation is designed to reflect not only direct economic value but also cultural and intergenerational value, while simultaneously being constrained not to be "unreasonable or burdensome" for the interest holder.
6. TFC submits a formal recommendation to the Vesting Authority (made up of 3 key Ministries being the Ministries of: Fisheries, ITaukei Affairs and Tourism) that provides the agreed-upon terms or, where necessary, noting the lack of agreement.
7. The Vesting Authority (the 3 Ministries) must review the recommendation of TFC and must issue the final Vesting Order and it is this Vesting Order that legally transfers the legal title to the CMA. 

Following this process there is a further built in contingency for any Vesting Order that relates to a proposed commercial project rather than where there is an existing commercial venture. This is because the transfer of title process for the CMA does not commence until the project is fully licensed, approved, and has begun operations. The purpose of this is presumably to prevent speculative claims and/or to provide some protection to the customary groups from projects that do not have good prospects of success.

CUMA’s Safeguards for Economic Continuity and Public Rights

The Bill has provisions designed to address the core legal and economic concerns raised by external stakeholders during this transfer of title process, demonstrating that the drafters of CUMA were aware of the potential for economic disruption and wanted to mitigate this risk. For example:

• Section 12 provides that the Vesting Authority may provide an existing interest holder (existing commercial entity) a critical Exemption from Renegotiation meaning that this interest holder does not have to renegotiate the terms of their deal/lease - provided that the Vesting Authority is satisfied that requiring a new contract carries a "real risk of causing significant harm to the economic potential" of the commercial marine area. This is the Bill's most potent mechanism for securing economically vital existing arrangements.
• TFC’s duty during renegotiation is to strike a balance between the "legitimate commercial interests of the interest holder with the interests of the customary owners." In addition, any increase in the newly negotiated compensation scheme is designed to be recovered, where practicable, from the consumers or users of the commercial activity, and not the commercial operation.
• There are safeguards for maintaining general public access to the marine areas following the transfer of title and this includes:
  • Providing that the Vesting Order cannot be used to contravene the constitutional right to freedom of movement or remove the public right of enjoyment (under the Rivers and Streams Act 1880)
  • Guaranteeing the right of innocent passage under the United Nations Convention on the Law of the Sea (UNCLOS), meaning that any new CMA owners cannot fully restrict access to the vast majority of these public marine areas.

Management of the new Title is under the control of iTaukei Lands Trust Board (TLTB)

While TFC manages the process leading to the Vesting Order, the CUMA Bill provides that once the new title to the CMA is vested, the TLTB assumes control (s 17). As with iTaukei Land ownership this means that the new owners cannot sell, transfer, or encumber the marine area without the TLTB’s express consent (s 18), ensuring the asset is preserved for long-term communal benefit.

Conclusion

The CUMA Bill provides a detailed legal process demonstrating that it is well thought out in undertaking its intent to provide a corrective framework for commercial marine tenure while mitigating concerns relating to economic stability. 

As noted in our previous article, the success of the Bill’s internal machinery is critically dependent on external implementation factors that remain valid areas of concern:

1. While TFC must assess economic impact, the absence of a mandate for a rigorous, independent, macro-level economic impact study on the entire marine sector leaves the Vesting Authority without a complete and detailed understanding on national risk and the wider effects to Fiji’s existing administrative framework including loss of revenue to the State and what impact that could have on questions like monitoring, control and enforcement of the laws.
2. The mandated "collaborative consultation" must be extended, thorough, and inclusive of all specific groups affected (e.g., the surfing community and port operators) to prevent, mitigate or manage conflict and ensure local buy-in.
3. While the Bill mandates that compensation must be "fair," the definitive legal interpretation and mechanism for achieving "just compensation" for property rights that may be materially altered will require authoritative clarification from the Attorney General’s Chambers.

However, if Parliament enacts the CUMA Bill - as we set out in our previous article - the path forward for the bold vision that the CUMA Bill represents will depend on ensuring that the implementation process adheres to the consultative approaches set out in the CUMA Bill and in accordance with Fiji’s common law.

Please Note: Given the significance of the CUMA Bill we will continue to follow it's development with interest, and for clarity it remains a Bill at this stage, and will not become law unless and until it is enacted by Parliament. During that Parliamentary standing committee process submissions from interested parties will be heard and changes may be made to the final Bill in accordance with usual Parliamentary process.

This article is provided for informational purposes only and constitutes a general summary of the proposed legislation (CUMA Bill 2025). It does not constitute legal advice and should not be relied upon as such. Specific legal advice should be sought in relation to any particular fact or circumstance.