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.
Oceans Governance is a 3rd year undergraduate course offered by the School of Marine Studies, within the University of the South Pacific (USP).
Oceans Governance attracts a number of motivated students from a variety of Pacific Island Countries who frequently bring years of professional work experience to compliment their future careers as marine managers and decision makers. Oceans Governance complements the 2nd year undergraduate course in “Law of the Sea”. Both courses are designed by the highly regarded law of the sea and fisheries legal expert, Mr Pio Manoa who is currently working with the Forum Fisheries Agency.
While our firm has been privileged to coordinate and teach Oceans Governance and Law of the Sea for the last 3 years - to reflect the multi-disciplinary nature and broad topic that is Oceans Governance - a variety of guest lecturers have complimented the course. As well as adding interest and providing inspirational talks for the students this demonstrates the depth of knowledge and expertise in the Pacific. In this brief overview of the course we draw specific attention to the expertise of the visiting lecturers and the efforts made by the talented students of USP and how we think this bodes well for the Pacific region in the future.
On 12 May 2020, Fiji’s Ministry of Economy published a working draft of Fiji's first National Ocean Policy (NOP) and opened it up for public consultation. The period of public consultation will end on 25 May 2020. [Editor's note: our firm made its submission on 24 May 2020 and amongst other submissions, we respectfully submitted, in accordance with our analysis below that extending the time to consult on the draft NOP beyond 25 May 2020 would be welcome.]
The NOP represents a step forward for Fiji’s ocean governance in that it endeavours to consolidate ocean initiatives through its aim to increase integration between Fiji government Ministries. As the NOP explains Fiji is blessed with large areas of ocean and marine resources that it has both rights to use but responsibility to manage. These ocean areas accommodate numerous and sometimes competing uses and may be adversely impacted by a range of development activities that are regulated by different government Ministries or Departments. National oceans governance is therefore notoriously difficult unless there is a single vision or policy that commits all of government to follow and implement in an integrated way.
As a small group of Fijian and Fiji-based lawyers, with an interest in law of the sea, oceans governance, traditional rights, and Fiji’s unique law and governance system we provide our analysis of the draft NOP and provide some respectful suggestions for consideration as part of the important consultation process. We note at the outset that we fully support this initiative by the Fiji government and are pleased that this process is being locally driven.
In accordance with the United Nations Law of the Sea Convention (UNCLOS) Pacific Island Countries (PICs) have the use and management rights to the resources within and under huge areas of Pacific ocean. These rights include the exclusive sovereign rights to use and manage all of the resources in these ocean spaces and on and under the seabed. However, there remains disagreement between some PICs over where the maritime boundaries should be drawn as well as a lack of a unified position in relation to how the resources should be exploited.
As the world goes through unprecedented change due to the Covid-19 pandemic, renewed cooperation among PICs is more important than ever to secure better governance, more effective fisheries management and more benefits from the resources flowing back to Pacific Islanders.
Dr Transform Aqorau has recently published an insightful article that explains some of the resilience more Pacific based tuna operations are experiencing in the face of Covid-19. This is available here.
In this legal bulletin we set out an explanation of the law and governance context that we hope explains why and how more regional cooperation to implement a shared plan with more transparency at regional and national levels will benefit Pacific Islanders.
Seabed mining is a new industry that seeks to exploit the value of metals on or in the seabed. The drivers for this industry include the rising demand and costs for the metals in question. Many of the potential mining sites are found under the Pacific Ocean in areas beyond the national jurisdiction of any State. This area of deep seabed beyond national jurisdiction is defined by the United Nations Convention on the Law of the Sea ("LOSC") as “the Area”.
This new industry is intended to be regulated pursuant to LOSC by the International Seabed Authority (a body created by LOSC). The International Seabed Authority will issue licences to Applicants that are sponsored by nation States (sponsoring States). The licences will be issued subject to conditions that are intended to protect the marine environment, however, sponsoring States are themselves subject to duties under international law and amongst other things are required by LOSC to have their own legislation in place to regulate the mining companies that they sponsor. If this legislation is not in place or is inadequate then sponsoring States will not meet their international law duties, will incur legal risk, and this new industry will not be properly regulated.
In this bulletin, we set out what is known from a legal and governance perspective about seabed mining in the Area, describe how the international regulatory framework is supposed to work and review the results of a recent legal analysis that demonstrates the legal framework is not yet in place to meet various requirements under the international legal framework. We respectfully suggest that this legal analysis supports the view that seabed mining is not, as yet, ready to proceed as an effectively regulated industry in accordance with international law.
Fish stocks around the world are in decline with a large proportion of this decline attributable to the widespread practice of illegal, unreported and unregulated (IUU) fishing. Declining fish stocks result in increased fishing efforts to make up the shortfall of catches and this often leaves fishing vessels operating beyond economic and ecological sustainability. Subsidized fishing fleets often backed by national governments are one way to skirt this economic inconvenience.
Tragically, another alternative is cost-cutting on the human side of commercial fishing. This results in poor working conditions for fishing crew, forced labour, slavery and even human trafficking. This forms a hidden subsidy of sorts for IUU fishing that impacts those directly responsible for catching fish and tainting the seafood that is supplied globally. The Pacific Island Forum Fisheries Agency (FFA) which was established with the mandate to assist Pacific Island Countries manage their fishery resources is taking measures to address this oft-neglected aspect of fisheries.
FFA members lay claim to some of the richest tuna stocks globally. Under the United Nations Convention on the Law of the Sea (UNCLOS) states have sovereign rights to manage their 200 nautical mile Exclusive Economic Zone (EEZ). This means that the right to issue licences and on what terms and conditions lies with these states and within their EEZ. In this legal bulletin we consider how the FFA is implementing a decision of its members to use licence conditions to better regulate working conditions on fishing vessels that operate in its waters.
On Friday 2 August 2019, the School of Marine Studies at the University of the South Pacific (USP) hosted an informative and well attended public lecture entitled “The issue of Deep Seabed Mining and Pacific Island States”. The lecture was jointly delivered by Mr Akuila Tawake from the CROP agency SPC who covered technical aspects of deep seabed mining and Mr Michael W Lodge, the Secretary General of the International Seabed Authority (ISA).
The lecture was an impressive achievement given that it was arranged a day or so before when Mr Lodge dropped in to say hello to his old friend, Dr Joeli Veitayaki. The high attendance at this public lecture and the robust nature of debate and questions are indicative of the interest and concern that exists in the region relating to the potential risks and rewards for mining ventures that if they do take place will be in areas of seabed beyond the national jurisdictions of continental shelves. This area of seabed beyond national jurisdictions is defined by the 1982 United Nations Convention of the Law of the Sea (LOSC) as “the Area”.
We were privileged to be joined by Mr Lodge who provided an informative and eloquent talk in his role as Secretary General of ISA. ISA is the international organisation created by LOSC to regulate deep seabed mining in the Area. In this legal bulletin we update on his lecture and consider the specific question of legal risk associated with DSM. Please see our earlier legal bulletin for a full explanation of the legal framework for seabed mining, including deep seabed mining in the Area: here
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:
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.