On 28 April, 2022, Fiji's High Court (Hon. Mr Justice Gounder) passed sentence on a Fiji Company: Freesoul Real Estate Development (Fiji) PTE Limited fining it FJ$1m for two counts of carrying out unauthorised development contrary to Fiji's Environment Management Act, 2005 (EMA). The sentence is in Criminal Case No. HAC 282 of 2021 in State V Freesoul Real Estate Development (Fiji) PTE Limited ("Sentence").
The legal requirement for Environmental Impact Assessments (EIAs) for certain development activity has been in place in Fiji from 2008, and this Sentence is a timely reminder of the serious criminal penalties that will apply to developers who are found by Fiji's courts not to have followed the requirements of EMA.
This case may be the subject of an appeal - however, the Sentence sends a message in support of environmental law and standards for Fiji, and in this update we provide a summary of the Sentence and note the requirements for EIAs in Fiji and the Pacific.
Environmental Impact Assessments (EIAs) are an important tool to enable a decision maker to assess whether to approve developments after taking into account likely environmental impacts. EIAs have been supported and promoted by various international treaties, and implemented in many jurisdictions around the world. As well as assessing likely environmental impacts EIAs involve a process that promotes consultation and therefore good decision making.
In the Pacific, SPREP (the Secretariat of the Pacific Regional Environment Programme) has been leading the work to introduce context specific EIA legal requirements and legislation within the region. For an excellent summary of SPREP's work and background in relation to EIAs and legislation in the Pacific please see this: update
In Fiji's legal context, EMA (which came into force on 1 January 2008) sets out various legal requirements for EIAs that must be followed and creates criminal liability with serious consequences for those who do not follow the law. In particular section 43 of EMA that was quoted in the Sentence provides:
Offence of undertaking unauthorised developments(1) A person who carries out any development activity or undertaking which is subject to the EIA process without an approved EIA report, commits an offence and is liable upon conviction to a fine not exceeding $750,000 or to a term of imprisonment not exceeding 10 years or both.
(2) If a person is found to be undertaking a development activity under subsection (1), the Director may apply to the court for an order to stop work.
(3) A person who contravenes:
(a) any requirement under Part 4; or
(b) a condition for the approval of a development proposal or an approved EIA report,
commits an offence and is liable upon conviction to a fine not exceeding $250,000 or to a term of imprisonment not exceeding 3 years or both.
The Sentence records the following salient facts:
- The development project took place at Malolo Island between 2017 and 2018
- The Defendant company had approval for the land based development but did not have EIA approval for development in the foreshore area and maritime areas
- Despite having no EIA approval the Defendant dug a channel, removed mangroves (over an area of about 1.9 hectares) and damaged coral reef resulting in two counts of unauthorised development
- The Department of Environment issued a Prohibition Notice in 1 June 2018
- Evidence before the High Court estimated that the costs of mitigating the damage caused by the Defendant company is approximately FJ$1.4m
As a result of the above facts the Sentence included the following orders against the Defendant company:
1. The offender is fined an aggregate sum of FJ$1m for the two counts of carrying out unauthorised development
2. The offender is to post a refundable environmental bond of FJ$1.4m with the Department of Environment and rehabilitate the affected areas to the satisfaction of the Department of Environment at its own expenses. Once the affected areas have been rehabilitated to the satisfaction of the Department of Environment the bond may be refunded to the offender.
Despite the damage to Fiji's environment and concerns that this case raises for marine and coastal ecosystems, and the importance of mangroves for resilience, food security and marine life, this case upheld Fiji's environmental law requirements. Full credit goes to the Department of Environment, the Director of Environment (Ms Singh) and the Marine Ecology Consultant (Ms Sykes) who provided evidence before the Court as well as the Director of Public Prosecutions who prosecuted the case.
It is an unfortunate fact that regardless of the laws in place it is a challenging, time consuming, and resource intensive task to enforce those laws and hold offenders to account. In this case Fiji's regulatory authorities have done a good job in meeting their responsibilities. As SPREP point out (report referenced above) the challenges for Pacific Island Countries are well known:
"However, despite the widespread adoption of EIA, a number of countries are still learning how to use the tool to maximum effect; especially within the context of staffing, financial and technical resource constraints; and in terms of the need to comprehensively assess and address the social impacts of development and the potential impacts the environment may have on development."
For an earlier legal bulletin on the consultative process of EIAs and why it's important to become involved please see this: Bulletin
For requirements relating to pollution and Fiji's rivers and requirements under EMA please see this: Bulletin
For legal requirements relating to the protection of mangroves and EIAs under EMA please see this: Bulletin
For more background information in relation to the development behind this dispute and legal case see:
- ABC's Law Report "Fiji environmental crime verdict 'sets precedent'"
by Damien Carrick: here
If you would like a pdf copy of the Sentence, please email me at email@example.com