Ocean Law Bulletins

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.

A cornerstone of the regulation of Fiji’s inshore fisheries is that it is a criminal offence to engage in commercial or sports fishing in Fiji’s fisheries waters without a fishing licence.

At present, fishing licences for all areas of Fiji’s fisheries waters are granted and regulated by the Ministry of Fisheries under the Offshore Fisheries Management Decree 2012 and Offshore Fisheries Management Decree Regulations, 2014. However, for traditional fishing grounds (qoliqoli areas) the Ministry of Fisheries grants commercial fishing licences under the Fisheries Act 1942, and Regulations (as amended). The key difference is that before the Ministry of Fisheries will issue a licence to fish within a qoliqoli area a permit is required from the relevant Divisional Commissioner who before granting such a permit is required by law to consult with the holders of the traditional fishing rights for that qoliqoli area. Commercial fishing licences for Fiji fisheries waters outside qoliqoli areas do not require this additional pre-condition.

In this bulletin, we consider the powers of the Ministry of Fisheries to revoke an inshore fishing licence when the holder of the licence has not complied with Fiji’s fisheries legislation. This requires consideration of both the powers under Fisheries Act, 1942 and the Offshore Fisheries Management Decree, and principles of administrative law that underpin decisions to grant and revoke fishing licences.

On 25 August 2017, the Ministry of Fisheries hosted an inter-agency National Inshore Fisheries Enforcement Forum and in his opening address Deputy Permanent Secretary Sanaila V. Naqali called for more inter-agency collaboration to assist with inshore fisheries enforcement. The message from the Ministry of Fisheries is that in contrast to Fiji’s oIffshore fisheries, the current status of inshore fisheries is a cause of grave concern. This concern is heightened because inshore fisheries are more important than offshore fisheries in terms of Fiji’s national interest as they provide a vital protein source and food security for so many Fijians as well as a greater contribution to Fiji's economic well being and fish consumption than offshore fisheries.

It seems likely that offshore fisheries have become increasingly well managed and regulated thanks to commitment and hard work by the Ministry of Fisheries, the expertise of its fisheries officers inside the Offshore Fisheries Division, and the valued support from regional fisheries management organisations (amongst others). But is also the case that inshore fisheries are by their nature more challenging to regulate and manage sustainably than offshore fisheries. Inshore fisheries are much easier to access, include within inshore waters traditional fishing rights areas, and involve many more fishers from subsistence fishers up to significant commercial enterprise and everyone in between.

While enforcement is a complex topic: in this bulletin we examine how extending inshore fisheries officers powers pursuant to the Offshore Fisheries Management Decree, 2012 may assist the Ministry of Fisheries better meet the significant challenges that they face in regulating inshore fisheries. The timing may be good to extend inshore fisheries officers powers as the Ministry of Fisheries has made the recent decision to create a new Inshore Fisheries Division within the Ministry of Fisheries dedicated to the good regulation and sustainable management of Fiji's most important natural resources.

In Fiji law the requirement for building permits for new buildings within cities and towns and any other areas “gazetted" by the relevant Minister derives from regulations made pursuant to section 39 of the Public Health Act 1935. A building permit is issued by the local authority and is required prior to the lawful construction of any building. Depending on a building proposed, its location and other factors like environmental impacts, the local authority may not be able to issue the building permit until approvals are issued from other government ministries or departments.

On 14 July 2017, the Fiji Parliament enacted the Regulation of Building Permits Act 2017 (“RBPA”) which aims to streamline the process for obtaining a building permit.

In this bulletin we consider the implications of the RBPA both for developers but also in terms of the potential impacts on good decision making for Fiji’s natural resources and those who may be adversely affected by development decisions.