Ocean Law Bulletins

The Commercial Use of Marine Areas (CUMA) Bill 2025 is a pioneering piece of legislation that has the purpose of transferring proprietary ownership of commercial nearshore marine areas to relevant iTaukei landowning groups following a process set out in the legislation. CUMA therefore intends to change the State-centric ownership model of nearshore marine areas. While this initiative is lauded for its intent to promote indigenous economic rights the transfer of tenure in marine or nearshore areas will have far reaching consequences. For example, CUMA will require the mandatory renegotiation of existing leases that has the risk of creating economic uncertainty within Fiji’s tourism-dependent economy.

Further legal questions will arise regarding the constitutional right to property and fair compensation for any loss of property rights that could arise as CUMA is implemented. In addition, the Bill repeals the Regulation of Surfing Areas Act 2010, which ensured free access to Fiji’s world-class surf breaks. The commercial arrangements that will now be put in place for surfing areas will require careful consultation to balance the resource owners' right to compensation with the interests of the surf tourism industry and the public.

To manage these complexities and mitigate the risk of unintended consequences the implementation of CUMA requires a careful, transparent and collaborative approach. This includes identifying any adversely affected legal rights and conducting a rigorous, independent economic impact assessment and engaging in extended, focused consultation with all affected stakeholders—from tourism operators and developers to the surfing community— to ensure a smooth, lawful, and economically viable transition in the interests of indigenous rights, Fiji’s economy and the existing rights of all stakeholders.

This is a big year for oceans governance in Fiji and the Pacific. The Fiji government has just published Fiji's first National Ocean Policy (NOP) online and has announced that the NOP will be “enshrined in law” as part of its proposed Climate Change legislation. Fiji will then move towards designating 30% of its 1.2 million km2 of ocean within its Exclusive Economic Zone (EEZ) as marine protected areas (MPAs) with 100% sustainable management of its EEZ by 2030. These ocean initiatives are line with the United Nations Sustainable Development Goal 14 (SDG 14 - Life Below Water), and Fiji’s long standing commitments on the world stage.

Fiji’s goal to designate 30% of its EEZ as offshore MPAs presents significant challenges for the Fiji government because - to put it bluntly - this is an expensive initiative. In 2021, more than ever before economies everywhere, and particularly in the Pacific, are suffering. In this context designating MPAs that will alter and limit existing rights and activities, including but not limited to existing fishing practices that contribute to Fiji’s economy, requires both significant political will and long term funding. This funding is essential to undertake a proper process of designating MPAs but more importantly to assist the longer term government burden of regulation of those designated MPAs. This regulatory burden includes the ongoing monitoring, control, surveillance and enforcement of Fiji’s EEZ and MPAs across a vast area of Pacific ocean.

In February 2021, the Office of the Pacific Ocean Commission (OPOC), established under the Pacific Ocean Commissioner, Dame Meg Taylor launched an excellent “suite of Ocean reports” with a focus on ocean finance. This focus on ocean finance is well timed to assist PICs to address the major challenge of finding a way to make the protection of its ocean ecosystems both politically and economically viable.

In this bulletin we consider OPOC’s paper “Funding Marine Protection At Scale” and make some respectful recommendations in relation to how to increase the funding within Fiji to assist Fiji's government, acting on behalf of the State, to fund the designation and regulation of MPAs.

On 12 May 2020, Fiji’s Ministry of Economy[1] 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[2]. 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.