On 22 August 2026, Fiji’s Parliament passed Act No. 26 of 2026, the Commercial Use of Marine Areas Act 2026 (“CUMA Act”). Amongst other things, the Act provides for “the transfer of proprietary ownership of marine areas used for commercial purposes to the customary owners”.

The CUMA Act does not make or effect any immediate changes to ownership of marine areas but it does set out a process to enable the discretionary transfer of ownership of marine areas from the Fiji State to “customary owners” if an application is made by those customary owners and if certain defined criteria are met. Those criteria include but are not limited to the marine area being used, or being proposed to be used, for commercial tourism or blue carbon projects and provided those marine areas are marine areas within Fiji’s territorial sovereignty. The CUMA Act restricts the right to apply for the transfer of ownership to customary groups of indigenous Fijians (iTaukei) who have pre-existing registered rights in those marine areas and who will then hold the title on a communal basis and without the right to transfer ownership onwards (inalienability). The management and control of the transferred marine area will be vested in the iTaukei Lands Trust Board (TLTB) in a similar way to how iTaukei land (approximately 90% of all land in Fiji) is held in trust and administered for the beneficial owners of the trust.

The CUMA Act includes various safeguards including respect for existing State guarantees relating to marine use as set out in the United Nations Convention on the Law of the Sea (UNCLOS) (such as the right of innocent passage) and preserves the open surfing and water sport access to all marine areas set out in sections 6 to 9 of the Surfing Act 2010. However, the CUMA Act represents a seismic shift in terms of constitutional and property ownership rights in relation to certain marine areas and it also raises a number of questions and unknown impacts for existing interest holders, such as leaseholders, businesses, investors, and Fiji citizens.

In this legal bulletin and to assist for information purposes only, we address:

1. How the Act will work, where and what it applies to, and key terms in the Act
2. What has changed from the draft law – the CUMA Bill 2025
3. Questions that arise.

1. How the CUMA Act Will Work, Where and What It Applies To, and Key Terms

The CUMA Act is Not Yet in Force

At the time of writing (10 September 2026), the CUMA Act is not yet the law. This can be a confusing point - the CUMA Act has been passed and enacted by Parliament so why isn’t it the law yet?.

In accordance with normal statutory processes - the CUMA Act will not be the law until it is “brought into force” which will be the date that the Minister for Tourism (who is the Minister principally responsible for the CUMA Act) publishes a notice in the Gazette announcing the commencement date (section 1(2)). The CUMA Act will then be the law from this date.

While it cannot be known for sure, we consider it is likely that there will be a delay before the CUMA Act is brought into force because, amongst other things, there is a requirement for comprehensive and largely prescriptive Regulations (see section 33(2)) as well as institutional preparations to be made that will reflect the important administrative challenge that implementing the CUMA Act represents.

As noted, when the CUMA Act is brought into force, the ownership of marine areas will not automatically change but there will be an opportunity for certain customary groups of iTaukei to make applications to obtain the title to certain marine areas if they so decide. Any application will then follow the process set out in the CUMA Act that is briefly explained below.

Sovereign Marine Areas and Where the CUMA Act Will Apply

The CUMA Act only applies to marine areas that are within the territorial sovereignty of Fiji. This accords with the United Nations Convention on the Law of the Sea (UNCLOS) and Fiji’s Marine Spaces Act 1977, which provides that ocean spaces are divided into zones of territorial sovereignty (the foreshore, internal waters, archipelagic waters, and the territorial sea), and extending to the airspace above and the seabed and subsoil beneath. In these areas land and marine territory is the same meaning that Fiji has sovereign law making powers in exactly the same way in sovereign marine areas and sovereign land territory. It is exclusively within these sovereign marine areas that the CUMA Act operates.

Beyond Fiji’s territorial sea (which extends 12 nautical miles seaward from the archipelagic baselines), the CUMA Act has no application meaning that it has no legal effect in Fiji’s Exclusive Economic Zone (EEZ). This also complies with UNCLOS and Section 9 of the Marine Spaces Act 1977 [note: section 9 of the Marine Spaces Act is set out in full at the end of this update]. The short point is Fiji possesses exclusive sovereign rights over the resources in its EEZ but it does not have territorial sovereignty and therefore cannot transfer ownership of any part of the EEZ.

The CUMA Act (section 2) defines "Marine Area" as limited to the foreshore, internal waters, archipelagic waters, and the territorial sea of Fiji, including reclaimed land, subsoil, and lower airspace. 

The CUMA Act Only Applies to Marine Areas Used, or Proposed to be Used, as Commercial Marine Areas

The CUMA Act further limits the transfer of Marine Areas to areas that are used, or proposed to be used, for "Commercial Purposes". While more details will be provided by Regulations commercial uses are confined to:

1. A prescribed commercial tourism activity; or
2. An emissions reduction / blue carbon project, programme or activity undertaken in accordance with Part 10 of the Climate Change Act 2021.

At this point, we do not yet know the list of “prescribed commercial tourism activities” because they (and other key details) must be prescribed by Ministerial Regulations made under Section 33(2)(a) of the CUMA Act. What is clear, however, is that customary groups cannot apply to transfer just any marine area - because the Act is limited to Marine Areas that host or will host an eligible commercial activity or a blue carbon project compliant with the Climate Change Act, 2021.

Furthermore, "fishing" (as defined in section 2 of the Marine Spaces Act 1977 as “the catching, taking or harvesting of fish, including any, operations at sea in support of, or in preparation for, any such activity”) is expressly excluded from the definition of a commercial purpose. Commercial fishing, artisanal fishing, and subsistence fishing remain under their own fisheries laws.

The Act also clarifies that even if an area is situated within an existing Marine Protected Area (MPA), it may still qualify as a Commercial Marine Area and title to the Marine Area may be subject to a transfer.

Who Can Apply for the Transfer of a Marine Area?

Only the Customary Owners of the Marine Area may initiate an application for the transfer of title from the State into the iTaukei group name.

The Act defines customary owners as the Vanua, Yavusa, Tikina, or other division or subdivision of iTaukei holding customary rights over the Marine Area as acknowledged and recorded in the official Register of Customary Fishing Rights (“Register”) maintained by the iTaukei Lands and Fisheries Commission (TFC) under the Fisheries Act 1941.

Therefore a group of iTaukei not in the Register for the Marine Area may not request transfer of ownership of it. The Register was determined following the then Native Lands and Fisheries boundary mapping commissions that began in the 1950s and concluded in the 1990s, which established the recognised iqoliqoli boundaries across Fiji and recorded which customary group possessed the customary rights to the area in accordance with a process compliant with the Fisheries Act, 1941.

How the Transfer of Ownership Will Take Place in accordance with the CUMA Act

The CUMA Act empowers and in some cases establishes the relevant institutions to enable the transfer of ownership of Marine Areas to the relevant iTaukei group described as a “vesting order”.

This process starts with the relevant group making the application for the transfer of ownership (vesting order) from the State to customary owners and this application must comply with a multi-stage administrative process. Following this process will result in legitimising and recording a transfer of a Marine Area where ownership rights were previously shared between the State and that iTaukei group (following the bundle of rights theory of property ownership) to a situation where total proprietary ownership will vest in that iTaukei group.

While, this transfer of ownership does not require or involve any payment by the iTaukei group it does enable the new owners (iTaukei group) to commence renegotiations for existing lease terms that are currently in place for that Marine Area and were previously negotiated between the lease holder and the Stage (Department of Lands).

These are the stages set out in the CUMA Act for a transfer of ownership application:

• Stage 1: Application (Section 6(1))
  The registered customary owners (Vanua, Yavusa, or Tikina) initiate the process by submitting a formal transfer application to the iTaukei Fisheries Commission (TFC) within the Ministry of iTaukei Affairs.
• Stage 2: Screening, Determining Boundaries, Impact Assessments and Notification (Sections 6 and 7)
  The TFC must assess the merits of the application and verify the precise spatial boundary against the Register of Customary Fishing Rights or via cadastral survey.
  The TFC must also assess the economic and environmental impacts of the proposed vesting order, paying particular regard to existing interest holders (who are most likely the existing lease holder/commercial entity/tourism business). Notably, section 6(4) makes clear that this environmental assessment does NOT mandate the undertaking of an Environmental Impact Assessment (EIA) under the Environment Management Act 2005 (EMA). An EIA is only required if the commercial project itself independently requires one under Part 4 of the EMA.
  Under Section 7(2)(a), the TFC is legally mandated to serve written notice on any existing interest holders within 7 days of receiving the transfer application, as well as publishing notice in a national newspaper. An "Interest Holder" is defined as any person or corporate entity other than the customary owners who holds a pre-existing legal lease, licence, or statutory interest over the area (e.g. resort operators, aquaculture company). Under Section 8(1) and 8(4), all existing registered leases and licences remain in full legal force and effect during this process.
• Stage 3: Renegotiation and the Compensation Scheme (Sections 8, 9, and 12)
  The CUMA Act provides that the transfer of title may also involve a formal renegotiation of commercial arrangements rather than simply “swapping landlords”. The TFC is tasked with the responsibility of handling the consultations/negotiations between the new customary owners and the interest holder to negotiate fair lease terms and an equitable Compensation Scheme (Section 9) in favour of the new owners.
  The Compensation Scheme may be structured as a one-off lump sum or recurring premium payments. It takes into account compensation for property rights, commercial benefits, intergenerational equity, and crucially, the social, environmental, and cultural aspects associated with "special indigenous value" (Section 9(2)(b)). To assist commercial operators from unsustainable costs, Section 9(3) establishes two parameters, first payments must not be unreasonable or burdensome on the interest holder, and secondly they must, as far as reasonably practicable, be borne by the consumers or end-users of the commercial activity (for example, through tourism levies or activity surcharges) - in other words any increased costs may be passed on to the end-user..
  There is also an exemption that existing interest holders can apply for provided by section 12 of the CUMA Act which provides that if renegotiating an existing lease carries a "real risk of causing significant harm to the economic potential of the commercial marine area," or if current terms are already equitable, the Vesting Authority has the power under Section 12 to grant a statutory exemption from renegotiation, protecting existing commercial arrangements.
• Stage 4: TFC Recommendation to the Vesting Authority (Section 10)
  Once the TFC completes its assessment, it makes a formal recommendation to the Vesting Authority which is the body that formalises the change in ownership of the Marine Area. The Vesting Authority is a high-level ministerial body established under Section 2 of the CUMA Act, with 3 Cabinet Ministers being the Minister responsible for fisheries, the Minister responsible for iTaukei affairs, and the Minister responsible for tourism.
  The TFC’s recommendation to the Vesting Authority must include: (a) the agreed renegotiated terms or notification of lack of agreement; (b) the agreed compensation scheme or notification of lack of agreement; and (c) a formal request for the Vesting Authority to make a Vesting Order.
• Stage 5: Dispute Resolution and Appeals (Sections 14, 15, 16)
  If the customary owners and the commercial operator/existing interest holder reach an impasse and cannot agree on terms or compensation, the Vesting Authority may refer the matter to consensual arbitration. If the parties cannot agree to arbitration, the Vesting Authority determines the terms and compensation itself.
  Any party aggrieved by the Vesting Authority's determination may appeal within 30 days to the Marine Area Appeals Tribunal (which will have to be created as it does not presently exist). The Tribunal is appointed by the Chief Justice in consultation with the Attorney General and chaired by a person qualified to be a Judge. Under Section 16(3), the Marine Area Tribunal’s decision is final and conclusive and cannot be challenged in a court of law.
• Stage 6: Statutory Vesting Order (Section 11)
  Once terms are settled (or adjudicated), the Vesting Authority makes a formal Vesting Order and publishes it in the Government Gazette. Upon publication, absolute proprietary ownership of the Commercial Marine Area transfers from the State to the customary owners without, according to the terms of the CUMA Act, requiring any purchase payment to the State in return.
  A notable point is that If the application relates to a Marine Area where there is a proposed rather than operational project, Section 11(5) of the CUMA Act provides that the Vesting Order does not take effect until the project has obtained all lawful statutory approvals and licences and has actually commenced operations.
• Stage 7: Fiduciary Control and Leasing by TLTB (Part 4, Sections 17–28)
  Following vesting, absolute management and leasing control of the Marine Area is placed in the hands of the iTaukei Land Trust Board (TLTB), which holds and administers the Marine Area on trust for the benefit of the customary owners. The newly vested marine area is inalienable meaning it cannot be sold, transferred, or charged, except back to the State (Section 18). Commercial leases are issued by the TLTB, registered in a new "Register of iTaukei Marine Leases" under the Land Transfer Act 1971, and the TLTB deducts an administrative fee (capped at a maximum of 20% of the lease payment) before distributing the balance to the customary owners (Section 27).

2. What Has Changed from the Draft Law – The CUMA Bill 2025

Our firm has previously put out bulletins on the draft CUMA Bill and there have been important changes from the Bill stage to the CUMA Act that address some of the concerns raised by industry, legal practitioners, and the public during the consultation process for the CUMA Bill, these include:

1. Express Carve-Out for Fisheries
   As noted above - the CUMA Act inserts an express statutory exclusion in Section 2: "commercial purposes" strictly excludes "fishing" as defined under the Marine Spaces Act 1977. Commercial fishing, baitfishing, and nearshore pelagic operations cannot be used as a trigger for a CUMA title transfer, preserving the independent regulatory mandate of the Ministry of Fisheries.
2. Offshore Boundary Definitive Exclusion (EEZ)
   As also noted - the Act codified the seaward boundary of potential Commercial Marine Areas to terminate at the 12 nautical mile territorial sea limit. Fiji’s 12–200 nautical mile Exclusive Economic Zone remains State managed marine space in accordance with UNCLOS and applicable national laws.
3. Surfing Access Preserved (Sections 6 to 9 of the Regulation of Surfing Areas Act 2010 are saved)
   While the early draft proposed the outright repeal of the Regulation of Surfing Areas Act 2010, Section 34 of the final Act repeals the 2010 Act but notably saves Sections 6 to 9 of the Surfing Act in legal force. Amongst other things, this provides for the continued unrestricted, fee-free recreational surfing and water sport access to Fiji's world-famous reef breaks is protected by law. Any attempt to obstruct surfers or water sports or levy arbitrary access charges remains an offence under the Surfing Act.
4. Constitutional and Public Rights safeguards
   Section 13(3) makes explicit that a Vesting Order cannot be used to contravene constitutional freedom of movement (Section 21 of the Constitution), the public right of enjoyment/access under the Rivers and Streams Act 1880, or the international right of innocent passage guaranteed by UNCLOS.
5. Creation of the Marine Area Appeals Tribunal
   As noted above - the Act established an independent, judicial dispute mechanism under Sections 15–16. Chaired by a person qualified to be a Judge, the Appeals Tribunal provides binding commercial finality for contested decisions without recourse to the Courts.
6. The Section 12 "Economic Harm" Exemption
   The Act introduced an explicit statutory safety valve enabling the Vesting Authority to exempt existing leases and licences from renegotiation if current terms are already equitable or if renegotiation carries a real risk of causing significant harm to the economic viability of the marine area. Whether an exemption is granted depends on the Vesting Authority (team of 3 Ministers).
7. Anti-Speculation Safeguard (Section 11(5))
   Vesting Orders over proposed commercial developments are legally suspended until all approvals are secured and commercial operations actually commence.

3. Further Questions That Arise

The CUMA Act and its successful implementation faces a number of legal, operational, and financial questions that may need to be answered, and this includes, but is not limited to:

• TFC Institutional Capacity and potential backlogs
  The TFC is tasked with assessing complex commercial applications, verifying boundaries of Marine Areas and determining which customary group of iTaukei possess the registered use rights in that area in the Register, conducting economic evaluations, and mediating multi-party renegotiations. The question this leads to is whether the TFC, has at the present time, the technical, valuation, legal staffing and support to discharge these duties without creating administrative delays, and what happens to pending resort expansions or foreshore developments while an application is under assessment if this makes investors uncertain?
  
• Valuation of "Special Indigenous Value"
  Section 9(2)(b) allows compensation schemes to reflect the "social, environmental and cultural aspects associated with special indigenous value." The question that arises is how will professional valuers quantify this? In the absence of published statutory valuation regulations, there is a risk of disparities between community expectations and commercial viability, and this seems an important area for clarity in the Regulations.
• Passing on any cost increases
  Section 9(3)(b) of the CUMA Act directs that compensation should, as far as practicable, be borne by consumers or end-users rather than placing an unreasonable burden on operators. Resort and tour operators will need clear statutory guidelines on how this is collected, whether as a daily environmental visitor levy, surcharge, or room charge, and how this may be adjusted when tourism markets fluctuate.
• Contested Customary Boundaries
  While iqoliqoli boundaries are recorded in the Register, many descriptions rely on surveys from decades ago and oral testimony at a specific point in time. There is concern that with money or increased payments at stake for certain groups, and not others, historical boundary disputes could be provoked between Yavusa or Tikina who may have historical claims or grievances or just a different understanding of boundaries and customary use rights from the Register. This will be an issue for TFC to resolve but it again raises the question about whether TFC has adequate support to address these issues (should they arise) and how difficult or protracted these disputes could be.
• Broader Public Interest, National Wealth, and Equity
  Fiji is a diverse, multi-ethnic society, and even amongst iTaukei Fijians, customary marine rights are held exclusively by maritime and coastal clans (Yavusa or Tikina), leaving inland iTaukei and all other non-iTaukei citizens without customary rights over marine areas. Because State foreshore and seabed ownership has historically (from the deed of Cession) been held by the sovereign on behalf of all citizens of Fiji, the transfer of proprietary title and economic revenue over public marine assets to specific, localised customary groups (determined by ancestral birthright) may raise broader questions of equity. A question that may arise is what collective dividend or national benefit does the wider public retain as State assets are privatised into distinct group ownership? How the State balances indigenous restitution with equitable national development for all Fijians remains one of the central social and political questions underlying this historic reform that makes the CUMA Act an intriguing and radical approach at the present time, as well as leading to the question whether changes in ownership were required to increase economic participation of iTaukei groups. This is a broader topic outside the scope of this bulletin but it does raise important questions that may be the subject of further public debate.
• Interaction with Marine Protected Areas (MPAs)
  Section 2 of the CUMA Act confirms that Commercial Marine Areas can include MPAs. However, if a community secures proprietary title over a marine space within or including MPA, how will national conservation intersect with TLTB commercial lease administration?

Practical Steps for Existing Foreshore Leaseholders

For tourism and commercial operators that hold foreshore leases issued by the Department of Lands, there is no need for immediate action but it is sensible to be prepared.

The CUMA Act is yet to come into force, and even when it does existing legal leases remain fully valid according to their tenor under Section 8. However, lease holders may take sensible, proactive steps to prepare for any application for the change of ownership and “landlord” for example:

1. Ensure that current foreshore leases, licences, rental payments, and compliance records with the Department of Lands and Registrar of Titles are fully up to date.
2. Start collecting relevant data on your business's economic contribution including local employment numbers, community related programmes, supply chain spending, and capital investment. This documentation may assist with any application for a Section 12 Exemption on the grounds of preventing significant harm due to raising lease payments.
3. Monitor gazetted notices and ensure your registered service address is current so that any Section 7 notification from the TFC is received and addressed within statutory timelines.

So, to quote the late, great Douglas Adams, Don't panic!

In legal reality, the underlying transition under CUMA is fundamentally a change in the statutory administrator—transitioning over time from the Department of Lands representing the State, to the TLTB administering commercial leases on behalf of the new customary owners (who are the current customary rights holders in the same area). This is not to say that questions or disputes will not arise but they are likely to take place over a long time-frame.

Conclusion

The CUMA Act 2026 represents an unprecedented shift in how some sovereign marine areas may be owned and governed in Fiji. Ultimately, the CUMA Act concerns who receives the economic benefits that are generated from commercial use of Marine Areas and its intent is to increase commercial participation for registered iTaukei customary rights holders from commercial tourism and blue carbon projects. The question of whether this is the best model to increase economic empowerment remains an interesting one, but is moot.

While commercial risks and important questions arise from the CUMA Act, these can be mitigated through clear administrative rules, objective valuation standards, and transparent public communication. Much is reliant on good regulations to support implementation.

Finally, whether the implementation of the CUMA Act succeeds will depend on the administrative performance of the TFC, the Vesting Authority, and the TLTB. Their challenge will be to administer the Act's provisions with transparency, economic realism, and procedural fairness to meet the aim of the CUMA Act to increase the economic empowerment of iTaukei customary owners without compromising or destablising, Fiji's national ocean economy, and investor confidence.

This legal bulletin is provided for informational purposes only and constitutes a general review of the Commercial Use of Marine Areas Act 2026 (Act No. 26 of 2026). It does not constitute formal legal advice and should not be relied upon as such. Specific legal advice should be sought regarding any particular factual circumstances, existing foreshore leases, or commercial operations in Fiji.

Note: Section 9 of the Marine Spaces Act, 1977:

Legal character of marine spaces

9.-(1) The sovereignty of Fiji extends beyond its land territory and internal waters over its archipelagic waters and territorial seas and to the airspace thereover as well as to the seabed and subsoil thereunder.

(2) Within the exclusive economic zone Fiji has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living of the seabed and subsoil and the superjacent waters.

(3) The exercise by Fiji of its sovereignty and sovereign rights under the provisions of this section is subject to the rules of international law.