Ocean Law Bulletins

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. 

On, Friday, 19th January 2018 by Legal Notices No. 3 and No. 4 the Honourable Minister for Fisheries exercised his powers pursuant to section 9 of the Fisheries Act, Cap 158 (Fisheries Act) to create two new marine reserves in inshore areas within Fiji’s fisheries waters.

The creation of the marine reserves has been by way of Regulations that are cited as:

Fisheries (Kiuva Marine Reserve) Regulations 2018

Fisheries (Naiqoro Passage Spawning Aggregation Marine Reserve) Regulations 2018.

In this legal bulletin we set out the powers that section 9 of the Fisheries Act provides to the Minister for Fisheries to create and declare marine reserves via Regulations. We also expand on the effect of these new Regulations that have been brought into force by being published (gazetted) in Fiji’s Government Gazette.

As at 2018, there are about seventeen (17) regional and international organisations with offices in Fiji. Some of these not only oversee Fiji programs but also programs in the region and in other Pacific Island Countries.

Apart from these regional and international organisations, there are a multitude of other non-profit entities in Fiji working in areas including protecting the natural environment, children's rights and women's rights. Some of these organisations are not registered in Fiji and operate by way of a memorandum of understanding with the Government of Fiji while others are registered as charitable trusts, as branch offices or as companies limited by guarantee.

There are benefits for non-profit entities by establishing a legal entity under Fiji law and the aim of this bulletin is to consider the two most suitable ways to establish (incorporate) a non-profit entity under Fiji law. These are as a:

• Charitable trust; or
• Company limited by guarantee.

Fiji is a common law jurisdiction and a constitutional democracy that guarantees its citizens the right to a clean and healthy environment.

Fiji's Constitution and environmental laws also guarantee the rights of those concerned by any development that may have a significant impact on the environment to participate in the decision-making process. 

In this bulletin we consider how those who are concerned may exercise their rights to participate in decisions that will ultimately assist Fiji, its government and people better safeguard the environment, ocean and natural resources that are so vital for its economy and well being. 

Between 9-12 October 2017, the Forum Fisheries Agency hosted a Crewing Workshop in Honiara, Solomon Islands to discuss how to increase the benefits to Pacific Island economies from their fisheries resources. The Crewing Workshop addressed 2 questions:

1. How to promote Pacific Islander crewing and increase Pacific Islander crew numbers on fishing vessels.
2. How to develop and ensure minimum employment standards for any Pacific Islander fishing crew employed in the commercial fishing industry.

These questions were considered over 4 days by Government officials, training school representatives and private sector representatives from Fiji, Federated States of Micronesia, Kiribati, Marshall Islands, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. This bulletin sets out the complex legal and governance challenges and the outcomes from the FFA workshop.

The Pacific Island States have a moral authority to call on developed and developing States to curb their CO2 emissions which are the main cause of Climate Change. This is a message that Fiji will, on behalf of the people of the Pacific, lead with when it co-hosts COP23 in Bonn, Germany in November 2017.

In facing the unprecedented challenge of climate change Pacific Island States are also clear about what they want. This includes:

• The global temperature rise stays below 1.5 degrees celsius
• Healthy oceans with functioning ecosystems to enable the oceans to continue to capture CO2
• Meeting the adaptation challenges in coastal areas and on low lying atolls
• Climate financing for oceans/fisheries projects that promote sustainable use of resources and the return of a fair income from the sustainable harvesting of these resources to Pacific Island economies
• Innovative solutions to reduce the pollution and CO2 from the maritime shipping industry.

In this bulletin we address 3 specific ocean issues that represent part of how Pacific Islands can rise to the challenges of Climate Change and also illustrate why law and governance is integral to meeting the challenges. The 3 ocean issues are:

• Legal rights to ocean spaces
• Mangroves
• Marine Protected Areas

The Fiji government has made a bold commitment to designate marine protected areas (MPAs) across 30% of its ocean spaces.

Given the well documented threats to all oceans and their resources it is a natural response to create protected areas that restrict the use of certain areas of ocean. The aims for greater protection may be varied and include to protect areas or species of special scientific interest, to preserve bio-diversity, for fisheries management reasons including for food security or to promote resilience to natural disasters and counter the effects of climate change. However, MPAs are designed to restrict the way a designated area of ocean is used, and because of this the designation of a MPA may alter, restrict, reduce, or remove pre-existing rights and commercial interests to use the marine area subject to the designation. As such the creation of MPAs may raise ethical questions and will definitely raise legal questions particularly in the area of administrative law. Last February we published this bulletin that looked at the designation of MPAs from an administrative law perspective.

In September 2017, the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has added to the MPA discussion through a study that considers the existing legal framework in Fiji for the creation of MPAs. This study is entitled “Towards an Effective Legal Framework for Marine Protected Areas In Fiji - a Policy and Law Discussion Paper” (ISBN 975-982-01-0965-0), and available now from the USP bookshop.

Fiji, like other Pacific Island States, is blessed with large areas of ocean space that contain important and wondrous natural resources. To manage its ocean (60 times larger than Fiji's landmass) is more important than ever given the numerous challenges that our oceans face.

In support of good management, due process and planned decision making the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has just published a policy and law scoping paper entitled "Towards an Integrated Ocean Management Policy for Fiji" (ISBN 978-982-01-0964-3) and on sale at the USP bookshop.

It is hoped that this scoping paper will assist Fiji draft its National Oceans Policy Framework and also support an exciting pathway for Fiji to create its own Integrated Oceans Management Policy (IOM Policy) that is adapted to Fiji's legal and governance context.