Ocean Law Bulletins

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.

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 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.

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.

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.

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.

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.

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.

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.

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.