Ocean Law Bulletins

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.

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. 

In a previously published legal bulletin we discussed Biodiversity on the high seas, and the increasingly recognized need for an international legally binding instrument (ILBI) to regulate biodiversity in Areas Beyond National Jurisdiction (ABNJ). Recently, progress towards the ILBI came in the way of the third session of the preparatory committee on Marine Biodiversity in Areas Beyond National Jurisdiction (PrepCom 3).

PrepCom 3 was held at the United Nations headquarters in New York from March 27 to April 7. I had the good fortune to observe proceedings as an observer through an invite from a New York City based non-profit that supports small islands developing states permanent missions to the UN in oceans and climate change negotiations.

In this bulletin, we set out how PrepCom 3 fleshed out discussions on what the main elements of the treaty would be. This included inter alia, Marine Genetic Resources, Area-Based Management Tools, Environmental Impact Assessments, Capacity Building and Technology Transfer. These substantive areas of discussion form what will be the core elements of the treaty body and address some of the primary issues faced with respect to high seas regulation and management (or lack thereof). The lack of any cohesive form of regulation on the high seas means that these parts of the ocean are often subject to unchecked resource exploitation. Coming to a consensus on how this treaty is framed and articulated is one of the first steps towards an ILBI.

Our valuable marine ecosystems are under threat for a variety of reasons that are well documented and include over-exploitation, pollution and climate change. It is also becoming increasingly understood that the survival of our own species is dependent on healthy ecosystems.

Marine conservation initiatives champion the conservation of marine ecosystems that support human well being. However, this is often against a backdrop of complex political, economic, social and governance regimes. Often the advocated solution for managing marine ecosystems will appear to be in direct conflict with existing user rights and commercial interests. The existing rights are not just commercial interests, but in Fiji and the Pacific also involve traditional rights holders, subsistence and artisanal fishers.

In a recent thought provoking and well timed academic article entitled An appeal for a code of conduct for marine conservation N.J. Bennett et al Marine Policy 81 (2017) 411-418,  an impressive group comprising 25 academics and marine conservationists, make an appeal “for the development of a comprehensive and broadly accepted code of conduct to facilitate marine conservation processes and actions that are fair, just and accountable, while supporting the achievement of ecological effectiveness.”

In this bulletin we briefly consider how such a code may assist in Fiji’s legal and governance context, and how it could be implemented.

On 28 March 2017 the Endangered and Protected Species (Amendment) Act, (No. 10 of 2017) (Amendment Act) was made to amend the Endangered and Protected Species Act 2002 (EPS Act). The EPS Act regulates the domestic and international trade of endangered species by requiring a permit to be applied for before any endangered species can be traded within Fiji or internationally. The EPS Act is the Fiji legislation that implements the multi-lateral treaty CITES or the Convention on International Trade on Endangered Species of Wild Fauna and Flora.

While CITES protects more than 22,000 species that are listed in either Appendix I, II or III of CITES, the EPS Act notably includes two Schedules to the EPS Act which list species that Fiji’s law-makers consider need further protection that are not listed in CITES and are thought to be indigenous to Fiji. The EPS Amendment Act is significant because it has increased the number of non-CITES species that are listed in Schedule 1 and 2 to the EPS Act, meaning that these species are therefore now protected and regulated by the EPS Act (as amended) despite not being included in CITES.

In this bulletin we set out how CITES and the EPS Act regulate endangered and protected species under Fiji law, touch on the amendments and at the end of this bulletin we provide a summary of the EPS Act (as amended) for information purposes.

Commercial fishing provides an inherently challenging and sometimes hazardous work environment. Workers carry out their duties on a moving, wet, slippery platform surrounded by heavy machinery and the ocean. They are frequently far from home, required to undertake physical work over long hours, low on resources and without adequate legal and medical protections that many of us would take for granted.

While the concerns and issues that beset working conditions aboard commercial fishing vessels are well known there are significant complexities to the adoption of legally enforced minimum standards because of the cross-border nature of fishing and various issues related to sovereignty of maritime spaces and flagged vessels. However, if a way can be found to get through these complexities there would be significant advantages for the governance of the fishing industry to have accepted minimum employment standards.

In this bulletin we consider the impacts that the International Labour Organisation’s Work in Fishing Convention ILO Convention C.188 (“ILO Convention 188”) may have on the commercial fishing industry as it enters into effect in November 2017.

Climate change and its impacts are one of the greatest environmental problems of today and its effects include, inter alia, changing climate patterns, warming ocean temperatures, melting glaciers and ice caps, and sea level rise. These impacts while felt globally are disproportionately distributed. Low lying island States are particularly vulnerable with Pacific Islands like the Marshall Islands, Tuvalu and Kiribati facing uncertain futures because of the very real threat of sea level rise submerging their land territory (inundation). As well as the threatened loss of their homes, extinction of their cultures and the unwelcome prospect of becoming climate change refugees, they also face the consequence of losing their rights of sovereignty in International law.

In this piece we examine the unresolved question of whether States threatened with inundation may also lose their claim to their maritime zones and associated legal rights. We consider whether the international climate change regime has provisions that address this threat and briefly look at the limited opportunities for recourse under the present system and suggest an amendment to UNCLOS may be necessary to guarantee the rights of States threatened with the terrifying prospect of inundation.

In November 2016, the Moroccan city of Marrakech hosted the 22nd Conference of the Parties (COP 22) under the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC provides the foundation for international cooperation to combat climate change and its impacts on nations and the environment. Both the Kyoto Protocol and the Paris Agreement sit within this framework. The Conference of the Parties serve as formal meetings for parties to the UNFCCC where member nations can take stock of their progress, monitor the implementation of their obligations and continue discussions on how best to tackle climate change. Marrakech also served as the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1). Marrakech followed COP 21 in Paris, which culminated in the much-lauded Paris Agreement. Marrakech was seen as the opportunity to tie up loose ends and finalize details for implementation of the Paris Agreement.

In this bulletin we examine why climate change is an important legal issue for oceans, and provide an overview of the significant achievement of COP 21 in Paries, what happened in Marrakech and look forward to the opportunities and challenges at COP 23 in Bonn where Fiji will take a leading role and at what is being dubbed as "the Pacific COP".