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Environmental Crime Legal Framework in Fiji

The Constitution of Fiji includes specific provisions recognising the indigenous people and their ownership of customary land and relating to protection of the environment. Specifically, the preamble states that:

“We, the people of Fiji, [r]recognise the indigenous people or the iTaukei, their ownership of iTaukei lands, their unique culture, customs, traditions and language; recognising the indigenous people or the Rotuman from the island of Rotuma, their ownership of Rotuman lands, their unique culture,customs, traditions and language”

The preamble also provides that the people of Fiji “[d]eclare our commitment to justice, national sovereignty and security, social and economic wellbeing, and safeguarding the environment”. In addition, Article 1(h) states that one of the values of the Republic of Fiji is “a prudent, efficient and sustainable relationship with nature”.

Finally, the Constitution includes a bill of rights, which includes rights of ownership and protection of iTaukei, Rotuman and Banaban lands (Article 28), a right to the protection of ownership and interests in land (Article 29) and environmental rights (Article 40). Article 40(1) provides that “[e]every person has the right to a clean and healthy environment, which includes the right to have the natural world protected for the benefit of present and future generations through legislative and other measures”.

Featured Legislation

1923: The Birds and Game Protection Act was signed to provide for the protection of birds and game. The Act creates a number of offences. For example, it is an offence to take, harm or kill protected birds under section 3, and to kill game without a licence under section 6.

1965: Banaban Lands Act (Chapter 124, Laws of Fiji) was approved to make better provision for the ownership, registration and dealing with land on Rabi Island and land owned by the Banaban community.

1966: The Mining Act was introduced to make better provisions relating to prospecting for and mining precious metals and other minerals. The Mining Act sets out where mining may be carried out and by whom, thereby regulating land use. Regulations 59 and 82 in the Mining Regulationscontain provisions relating to the unlawful use or pollution of water.

1978: the Petroleum (Exploration and Exploitation) Act was created to make provisions relating to the exploration for and exploitation of petroleum resources.

1992: The Forest Decree was established to appoint a Conservator of Forests to enforce the decree under section 3, and a Forestry Board to advise the Minster on forestry policy under section 4. Under sections 8-9, forest resources cannot be used unless authorised by the Fisheries Decree or by a licence.This Decree establishes an apparatus for the administration of forests in Fiji, and sets forth rules regarding the utilization of forest resources. Part II of the Decree establishes the post of Conservator of Forests, and a Forestry Board to be chaired by the Conservator. Part III gives the Minister, upon recommendation of the Forestry Board, the right to create forest or nature reserves from the following classes of land: (a) unalienated State land; (b) land leased to the State; and (c) unalienated native land, with the prior consent of the owners of the land and of the Native Land Trust Board. Similarly, the Minister may de-reserve such reserves, and may cause alienated land to be acquired under the Crown Acquisition of Lands Act for the purposes of making such reserves. Forest Reserves are to be managed “as permanent forest in order to provide on a permanent basis the optimum combination of benefits of protection and production of which they are capable". Nature Reserves are to be managed for “the permanent preservation of their environment, including flora, fauna, soil and water". Part IV sets forth restrictions on the utilization of forest resources, both inside and outside of reserves. In reserves, the list of prohibited activities is relatively extensive; on alienated land the only activity prohibited without authorization is the felling or extraction of timber. A licensing officer may grant a licence authorizing many of the otherwise prohibited activities, although in the case of native lands or State lands outside of reserves the prior consent of the Native Land Trust Board and the Director of Lands, respectively, is required. The Conservator has broad powers to suspend a licence if a violation has or is likely to occur, and a licensee is responsible for any damage caused by a lack of compliance. Part V states that nothing in the Decree shall be deemed to prohibit or restrict the exercise on native land (outside of reserves) of native customary rights to hunt fish or collective wild fruits and vegetables, or the cutting of forest produce in accordance with native custom for construction of temporary huts, fishing stakes, and certain other constructions. The Minister may, however, prohibit the felling or removal of timber of a specified class, dimension or description by order in the Gazette, even if otherwise allowed by native custom. Furthermore, this Part shall not be deemed to authorize the setting of grass or undergrowth fires. Part VI deals with the disposal of abandoned or seized property. Part VII sets forth provisions regarding the prohibition of and protection against fires. Part VIII establishes offences and penalties of not more than $10 000 or 12 months in prison, as well as forfeiture of property used in commission of the offence. Part IX gives power of arrest, seizure and inspection with respect to matters covered by the Decree to forest department officers and police officers.

2005: The Environment Management Act was passed, overseeing the protection of the natural resources and for the control and management of developments, waste management and pollution control and for the establishment of a national environment council and for related matters.” The purposes of the Act are provided at section 3(2), which include the following:

  • To apply the principles of sustainable use and development of natural resources.
  • To identify matters of national importance for the Fiji Islands as set out in subsection (3).
  • To apply the principles of sustainable use and development of natural resources.
  • To identify matters of national importance for the Fiji Islands as set out in subsection (3).

The Act “extends to the exclusive economic zone within the meaning of the Marine Spaces Act” (s 3(1)). Schedule 1 of the Act prescribes the following Environment and Resource Management Acts:

  • Factories Act (Chapter 99)
  • Fisheries Act (Chapter 158)
  • Forest Decree 1992
  • Ionizing Radiations Act (Chapter 102)
  • Litter Decree
  • Marine Spaces Act (Chapter 158A)
  • Mining Act (Chapter 18)
  • Ozone Depleting Substances Act 1998
  • Petroleum Act (Chapter 190)
  • Public Health Act (Chapter 111)
  • Rivers and Streams Act (Chapter 136)
  • Quarries Act (Chapter 147
  • Sewerage Act (Chapter 128)
  • Town Planning Act (Chapter 139)
  • Water Supply Act (Chapter 144)

2012: The Offshore Fisheries Management Decree was brought into force. The objective of this Decree is “to conserve, manage and develop Fiji fisheries to ensure long term sustainable use for the benefit of the people of Fiji”. The Act contains a number of mechanisms for the conservation, management and development of fisheries including the concept of designated fisheries, fisheries management plans and fisheries treaties as well as regulation by licences.

2017: Environmental Levy (Budget Amendment) Act. This Act amends the Environmental Levy Act 2015 in the Long Title and in various provisions, concerning, among other things, introduction of the Environment and Climate Adaptation Levy, which replaces the previous Environment Levy, the rate of levy and payment of the levy. This Act also establishes the Environment and Climate Adaptation Fund and defines its purposes. The purposes of the Fund are to— (a) promote conservation of the forests, flora, fauna, wildlife, ecosystems and biodiversity of Fiji; (b) provide funding to assist programmes, projects and activities associated with climate change, including climate change mitigation and adaptation activities; and (c) engage in any environment or climate change related activity approved by the Minister.

Featured Case Studies: Transnational Environmental Crime, Human Security, and Biosecurity

  • Joshua Wycliffe, the Ministry of Waterways and Environment permanent secretary, is clamping down on environmental crime in Fiji. During a talk at a 2019: Enforcement training workshop for border control officers for ozone depleting substances, Wycliffe revealed how Fiji’s natural and international security; economic development; and biodiversity have been impacted by transnational environmental crime. The Ministry of Waterways and Environment has been documenting the pollution of air, water and land in Fiji, and the extinction of wildlife and depletion of natural resources in order to provide support through the Department of Environment to customs and border protection officers. The aim is to detect and seize all ozone depleting substances (ODS) or the ODS reliant goods entering the country. Workshops will be held across the country to train officers on the skills necessary to monitor and control the import and export of depletion substances. The aim of the training, moreover, is to make sure officers are well equipped to undertake their jobs thoroughly and employ sweeping powers to deter criminals. For example, officers will be expected to interpret respective environmental laws and apply it in their daily enforcement, whether it be officers stationed at the office or inspectors on the ground. Permanent Secretary Wycliffe is calling for a new paradigm shift in environmental law enforcement, establishing partnerships between the Ministry of Waterways and Environment, the Department of Environment and the Office of the Director of Public Prosecutions.

References and Further Reading

Contacts

Department of Environment:  aminiasi.qareqare@environment.gov.fj