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.
The Qawa river
The Qawa river flows through the province of Macuata, in the Northern Division of Vanua Levu, and through in the town of Labasa, where shortly afterwards it meets the sea. The Qawa river has been a well-known and perennial victim of pollution for many years that is caused by the deposit of waste and by-product into the river by the operation of the Labasa sugar mill. The Labasa sugar mill is operated by the Fiji Sugar Corporation (FSC). FSC is a statutory authority which was established under the Fiji Sugar Corporation Limited Act [Cap 209]. The Act has been repealed by virtue of the Fiji Sugar Corporation Limited Repeal Act 2005. However under the 2005 Act, FSC is still protected and continues to exist as a limited liability company.
Many who rely on the Qawa river for food security and transportation have raised this regular issue of the pollution of the river and the serious impacts and consequences that it has for their lives and the natural resources in the river, yet nothing seems to have changed and every year the Labasa sugar mill dumps polluting industrial waste into the river without care or consequences.
On 9 June 2016, the Fiji Times reported on this issue of pollution of the Qawa river when community members made a submission as part of the Fiji government’s consultation on the Land and Resource(s) Bill. According to Qawa village community member Isoa Baleirotuma despite many years of pollution incidents nothing has been done to address the issue of pollution of the river which they rely upon for various purposes. Mr Baleirotuma explained that his community’s main uses of the Qawa river include to enable the community to meet their traditional and cultural obligations of providing fresh water mussels to the Tui Labasa when there was a function in the vanua of Labasa. Mr Baleirotuma also explained how the pollution of the Qawa river has affected their food source and means for survival as they have observed a drastic depletion to the river’s resources in connection with the pollution of the river and this has in turn affected their traditional rights to access and harvest those resources. In addition, Mr Baleirotuma mentioned the unpleasant stench that emanates from the waste deposited onto the river which dries in the shallower parts of the river bank and excretes an unpleasant smell. Under our common law system this is likely to amount to an actionable nuisance.
Awei Banivalu, a masters student of the University of the South Pacific, undertook research, tests and observation along the Qawa river toward his thesis titled “The Microbial Profiling of the Qawa River Using Molecular Methods” which was published in Suva, Fiji by the University of the South Pacific on September 2016. Amongst other things, Awei highlighted the high chemical content which greatly affected the water-based life of the river. Observations and studies were made through comparisons of the crushing sessions in which the sugar mill was being utilised and on periods in which the mill was not in operation. There was a direct link between the waste deposited into the river by the sugar mill and the poor condition of the river. In addition, he also stated how the Qawa river is also home to large stands of mangroves which have a major role in the river and estuarine ecosystem as a habitat for organism and an ideal spawning areas for marine life. Due to the deposited crushed sugar cane by product called bagasse, it ends up covering the breathing roots of the mangrove trees becoming a factor to its depreciating health and inevitable demise. Further, Awei raised concerns on the effects that the deposited waste had on the Great Sea Reef of Vanua Levu and surrounding coastal areas because of the high chemical content deposited into the river. He highlighted that these natural resources were at risk due to chemicals used on sugar cultivation and wastes from sugar production. (Bainivalu, 2016)
These devastating pollution events that are regularly suffered by the Qawa river are as a direct result of industrial sugar production and this raises a range of legal questions. Before we set out these questions we briefly set out the relevant anti-pollutions laws in the Environment Management Act (EMA) and the common law of tort that enables those who suffer damage to bring civil claims for compensation against those who have directly caused that damage due to their negligent actions.
The Environment Management Act
The Environment Management Act, 2005 (EMA) came into force in 2008 and regulates pollution to Fiji’s environment. Pollutants are defined in EMA as:
"dredged spoil, solid or liquid waste, industrial, municipal or agricultural waste, incinerator residue, sewage, sewage sludge, garbage, chemical waste, hazardous waste, biological material, radioactive materials, wrecked or discarded equipment, oil or any oil residue and exhaust gases or other similar matter.”
EMA defines “Pollution Incidents” as:
“the introduction, either directly or indirectly, of a waste or pollutant into the environment, which results in harm to living resources and marine life, hazards to human health, hindrance to marine activities including fishing and other legitimate uses of the sea, impairment of quality for use of water, air or soil, reduction of amenities or the creation of a nuisance.”
The Waste Management and Pollution Control Unit is established under section 14 of EMA. The Department of Environment has 5 established units that it administers, and one of which is the Waste Management and Pollution Control Unit. The main function of the unit is to administer Part 5 of EMA which deals with Waste Management and Control (WMC) which includes looking after all waste and pollution control matters such as:
- Complaints (forward to relevant Authorities)
- Meetings and Workshops
- Projects and Complaints
- Development and Implementations of Strategies
- Education and Community Awareness, Capacity Building
- International Conventions
- Management of the Naboro Landfill and Rehabilitation of Lami Dump
- Enforcement of Waste Laws and Regulation
- Waste Policy Development/Implementation/Review
- Proposal for Remediation/Waste Management Projects
Amongst other things, sections 35 to 40 of EMA regulate: the requirement to obtain permits to discharge waste and pollutants; the power to issue permits; facilities to inspect and issue notices; and the power to issue an order to stop work and the issuance of an Environment emergency declaration.
The primary mechanism to regulate pollution is through the issuance of permits to facilities that will discharge pollutants. EMA defines "commercial or industrial facility" as-
“(a) a person (including Government) who engages in-
- providing services; or
- manufacturing, production, processing, transportation, storage and packaging, mining, quarrying, sand extraction, coral mining, tourism, commerce, the preparation or processing of any agricultural produce or food or any other activity undertaken for financial gain, including any such services or activity conducted at or in residential premises”. An application for a permit to discharge waste must be submitted to and authorised by the Waste Management and Pollution Control Unit. Permits maybe valid for three years and subject to annual inspections by the respective permit issuing authority.”
Section 35 of EMA provides that a facility “must not-
- discharge any waste or pollutant into the environment;
- handle, store, process, or control any hazardous substance;
- produce or generate any waste, pollutant or hazardous substance; or
- engage in any activity that may have an adverse impact on human health or the environment, unless the facility is issued with a permit under this Part.”
The law of negligence under civil law
Fiji is a common law jurisdiction which has imported the English law of tort. Tort is the French word for a “wrong” and in this context it means a civil wrong. The law of tort is also commonly known as the law of negligence, and it broadly means that any person who causes damage to another may be subject to a civil claim of compensation for those damages if the person who caused the damage could have reasonably foreseen that his or her actions would result in that damage. The laws relating to negligence cover a wide range of circumstances, are alive and well in Fiji and keep lawyers and judges in the civil courts busy. Claims of negligence in tort are separate and complementary to criminal offences. For example, if a person drives negligently and causes an accident that person may be prosecuted under criminal law by the State for dangerous driving, but may also face civil action for compensation for the damages that directly result from the dangerous driving by those who suffered personal injury.
Under the law of tort it has been long established that a person (and FSC is a person under Fiji law) who causes damage to others property due to the negligent release of damaging substances or pollutants may be subject to a civil claim for compensation. The class of claimants is potentially wide, and would include, in our view, traditional fishing rights holders.
The EMA provides express statutory support to claimants who have suffered damage as a result of any “pollution incident”.
Pollution Incidents under the EMA is defined as “the introduction, either directly or indirectly, of a waste or pollutant into the environment , which results in harm to living resources and marine life, hazards to human health, hindrance to marine activities including fishing and other legitimate uses of the sea, impairment of quality for use of water, air or soil, reduction of amenities or the creation of a nuisance”.
Section 50 of EMA states:
“that person who has suffered loss which includes contracting health-related problems as a result of any pollution incident may institute a civil claim for damages in a court, which may include a claim for-
- economic loss resulting from the pollution incident or from activities undertaken to prevent, mitigate, manage, clean up or remedy any pollution incident;
- loss of earnings arising from damage to any natural resource;
- loss to or of any natural environment or resource;
- costs incurred in any inspection, audit or investigation undertaken to determine the nature of any pollution incident or to investigate remediation options”.
Legal questions arising in relation to the Qawa river pollution incidents
If, as is being reported, it is the FSC that is discharging waste into the Qawa river and causing “pollution incidents” and through that pollution it is causing, amongst other things, damage to human health, economic losses, loss of earnings and loss to any natural environment or resource, then a number of legal questions arise.
The first question is whether the FSC has any overriding legal right to discharge waste into the Qawa River.
We first considered whether any Environment Impact Assessment (EIA) has been undertaken in relation to the operations of the Labasa sugar mill. In response to our queries to the Department of Environment Suva office, it appears it is highly unlikely that any EIA assessment was undertaken because the facility had been operating well before the time the EIA requirement came into effect under EMA, being 1 January 2008. It should be remembered that the EIA process relates to approving developments and so the fact that there was no EIA is not an issue. However, it would certainly be the case that any similar development to a sugar mill would now require an EIA from an “approving authority” in accordance with the EMA.
However, from 1 January 2008, the FSC must have a permit to discharge waste or pollutants granted by the Waste Management and Pollution Control Unit administrator under the Department of Environment. In response to our enquiries, it was confirmed to us by the Department of Environment Labasa office that such a permit had been granted to the FSC Sugar Mill situated along the Qawa river. Although, when we asked to see or be provided with the permit and its conditions we were not able to obtain a copy, and we were not able to determine when the permit was granted, or for how long the permit had been granted.
If a permit has been granted and its conditions have been complied with then the FSC may, despite, regularly discharging pollutants into the Qawa river be permitted by law to do this. If this is the case, it seems to us that those who are affected by the pollution, including traditional fishing rights holders, should draw it to the attention of the Department of Environment and ask that the permits cease and that the FSC be directed to find another, environmentally friendly way, to dispose of its waste rather than dumping them in the Qawa river with all the adverse environmental and health consequences.
However, if in its action the Labasa sugar mill has committed breaches of the issued permit, or such a permit does not exist then it seems to us that pursuant to section 45 of EMA it is likely that a pollution offence could be committed. Section 45 provides:
“A person who, without lawful authority or reasonable excuse, causes or contributes to the discharge of a waste or pollutant from any vessel, aircraft or facility commits an offence and is liable on conviction-
- for a first offence, to a fine not exceeding $250,000 and to a term of imprisonment not exceeding 3 years or both;
- for a second or subsequent offence, to a fine not exceeding $750,000 and to a term of imprisonment not exceeding 10 years or both.”
In addition, section 45 (2) also states that:
“A person who, knowingly or intentionally or with reckless disregard to human health, safety or the environment, causes a pollution incident that results in harm to human health or safety, or severe damage to the environment commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or to life imprisonment or both”.
Therefore operating without a permit to discharge waste or operating with a valid permit but in breach of the conditions of that permit would result in a serious offence being committed by the FSC pursuant to EMA. In the event that the matter reached court then the environmental costs caused in the Qawa River as well as its inhabitants that rely on the river for their everyday needs in terms of food supply and sources of income may also be taken into account. Further, those who suffered damage would be able to bring a civil claim in the tort of negligence and/or nuisance against the FSC for the damages that they had suffered.
Concluding remarks and further thoughts
Both the EMA and Fiji’s common law provide legal recourse against pollution incidents and the foreseeable damage that flows from pollution incidents. This is for good reason as pollution incidents cause harm to the environment, to wildlife and to human health. In the case of the Qawa river, traditional fishing rights holders may also be adversely affected and livelioods suffer. The law is not a complete answer to environmental pollution, but it should act as a deterrent to it occurring. However, It would be better if polluters acted as responsible citizens and found environmentally friendly ways to dispose of their waste rather than face penalties in law for not being responsible.
In 2016, the New Zealand government took the innovative step of granting through law rights to the Whanganui river itself that amount to granting the river its own legal personality. As such, the Whanganui River, which is NZ’s 3rd longest river is now a legal person with legal rights and duties that are equivalent to those of a human being or other legal entities like companies. This means that through its appointed representatives (one from the Whanganui iwi the traditional owners of the river, and one from the State), the Whanganui river can commence legal action on behalf of the river if its rights are threatened. In addition, the NZ government provided NZ$80m in financial redress for past damage caused to the Whanganui river and provided NZ$30 towards improving the health of the river as well as NZ$1m to establish the legal framework for the river.
This commitment by the NZ government represents an exciting legal development and one that suggests Fiji should act now to ensure that its rivers, including the Qawa river, are treated with more respect.
For more detail on the legal rights of the Whanganui river: click on this Youtube link.
This legal bulletin is provided for general information purposes only and it is not, and should not be relied on as, legal advice.