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Fiji's Environmental Law and Policy Deemant Himmat Lodhia

The Fijian waqa n’drua.

(Essay contributed towards the degree of LLM at the University of Auckland, New Zealand, July 2010).


Comments: This paper demonstrates a very good grasp of the issues underlying environmental regulation in Fiji. Your contextual introduction is very interesting, both in terms of fuel explanation of Kai-Viti as well as the history of migration into the Pacific region, and in particular to Fiji. Your exploration of the major global environmental issues indicates a very good understanding. Your references are drawn from a commendably broad range of sources. The material on governance and Fiji’s recent political history is also relevant to an understanding of the progress of development of environmental law in Fiji. Your argument that the government must recognise that civil society has the right to good governance by both state and non-state actors is an important insight. Your observation that heritage tourism can contribute to the nation’s sustainable development is also interesting, and it would be useful to have pursued this a little further in terms of the impact of more tourism on Fiji’s environment. Your section 5, commenting on environmental issues, is important when looked at from the point of view of Fiji’s implementation of some of the major international environmental conventions. The observation that it is important not to make legal measures too complex and to recognise that all stakeholders must be consulted applies in many Asian and Pacific countries. Your introduction to the national legal framework, referring to the various environmental disasters around the world probably could have been left out, in order to focus with somewhat more detail on the national legal framework. The integrated approach for which you argue is significant, as is your recognition of the problems of corruption relating to government services. Your comments on integrating law and custom are also interesting, and are applicable to many Pacific island countries. The concept of Vanua is well explained; the challenge is of course to incorporate the concept adequately in more than environmental law in an integrated fashion so as to make a real difference on the ground. Overall, well done. It would be useful, after some rewriting and editing, to publish this in an appropriate outlet. Ben Boer Emeritus Professor in Environmental Law Australian Centre for Climate and Environmental Law Sydney Law School

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Contents: Executive Summary 1

Introduction

2

Noda Vūna – Our Origin 2.1

Humans on Earth

2.2

Kai-Viti on Earth

3

Earth’s Issues

4

Kai-Viti’s Issues

5

6

4.1

Matanitu - Governance

4.2

Sustainable Development

Addressing Environmental Issues 5.1

Global Solutions

5.2

Global Framework

5.3

Regional Framework

5.4

National Framework

Developing an Integrated Approach 6.1

Integrating Law and Custom

6.2

A Connected Concept

7

Kai-Viti’s Future

8

References

9

Appendices

10

Acronyms

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Executive Summary This paper aims to contribute to the development of Fiji’s environmental management policy and legal framework through an analysis of the history of development of Fijian environmental law, examination of its current state (including an overview of legislative and regulatory frameworks), and a discussion of their relative effectiveness. The paper argues for a revision of the current legal frameworks by adopting a coherent and integrated approach to environmental governance.

An opportunity exists for a major revamp of out-dated

institutions into a lean and effective governance structure that will benefit present and future generations of Fijians.

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1.0

Introduction

The continuing decay of Fijian traditions, culture and customs has removed the important barriers that have safeguarded the environment for generations.

Current environmental

problems are compounded by a young and urbanising population that places heavy demands on scarce economic and natural resources. A path for sustainable development is still not clear as remnants of a colonial past overshadows modern approaches. The Kai-Viti 1 are disconnected from the law at present as they search for their identity. By learning their culture and heritage, and by thinking about who the Kai-Viti are, and where they are going, by adopting effective customary methods together with best practices from international examples, Fiji may just be able to develop a comprehensive environmental management scheme. Fiji can be an example in the pacific region by reversing environmental degradation and re-orienting future policies to prioritise the environment to which the KaiViti belong.

1

Kai-Viti means ‘a person from Fiji’.

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2.0

Noda Vūna – Our Origin

2.1

Humans on Earth

In time and space, the universe has a calculated age of approximately 13.75 billion years 2 . Planet Earth formed 4.54 billion years ago 3 . The following images show where we are.

Our Universe

Our Solar System

Planet Earth

Earth's biosphere has significantly altered the atmosphere and other abiotic conditions on the planet, enabling the proliferation of aerobic organisms as well as the formation of the ozone layer which, together with Earth's magnetic field, blocks harmful solar radiation and permitting life 4 within a billion years of the Earth’s creation.

2

Suyu SH, Marshall PJ, Auger MW, Hilbert S, Blandford RD, Koopmans LVE, Fassnacht CD and Treu T, “Dissecting the Gravitational Lens B1608+656. II. Precision Measurements of the Hubble Constant, Spatial Curvature, and the Dark Energy Equation of State” (2010) The Astrophysical Journal,711 (1): 201 DOI: 10.1088/0004-637X/711/1/201. 3 Dalrymple GB The Age of the Earth (1991) California: Stanford University Press. ISBN 0-8047-1569-6. Dalrymple GB "The age of the Earth in the twentieth century: a problem (mostly) solved" (2001) Geological Society, London, Special Publications 190: 205–221. 4 Harrison, Roy M.; Hester, Ronald E. (2002). Causes and Environmental Implications of Increased UV-B Radiation. Royal Society of Chemistry. ISBN 0854042652.

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The geological clock 5 is a projection of Earth's 4.5 billion year history on a clock: 6

Humans on Earth are a relatively recent phenomenon. Humans have evolved after an intense journey called Evolution. The Evolution of Life on Earth is depicted on the following timeline: 7

5

http://en.wikipedia.org/wiki/File:Geologic_clock.jpg ("MA" = a million years (Megayear) ago; "GA" = a billion years (Gigayear) ago). 7 NH Barton, DEG Briggs, JA Eisen, DB Goldstein and NH Patel, Evolution (2007) CSHL Press, America. ISBN 978-087969684-9. 6

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2.2

Kai-Viti on Earth

Modern humans evolved out of Africa about 200,000 years ago and Earth’s current population is about 6.9 billion. 8 The Genographic Project, a global, five-year research initiative, traces the migratory history of the human species: 9 Map of early human migration patterns: 10

The human journey is traced from Africa to Asia. The Polynesian people travelled from mainland Asia through to South East Asia, hopping from island to island until they reached Melanesia including the Solomon Islands. Around 1500 BC, voyagers from the Lapita culture, with superior ocean navigation skills and outrigger canoes, ventured to Fiji, Tonga and Samoa. 11 This was the last region on Earth to be settled by humans. The discussion resonates of an old Fijian concept that establishes the bond of tauvu which literally means

8

Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat, World Population Prospects: The 2008 Revision, http://esa.un.org/unpp ; accessed at http://esa.un.org/unpp/p2k0data.asp 9 https://genographic.nationalgeographic.com/genographic/atlas.html Map version downloaded from http://www.utexas.edu/features/2007/ancestry/graphics/ancestry5_medium.jpg 10 National Geographic Maps, Atlas of the Human Journey available from https://genographic.nationalgeographic.com/genographic/atlas.html 11 https://genographic.nationalgeographic.com/genographic/lan/en/globe.html#/ms042/

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‘sprung from the same root or of common origin’. 12 Everyone in Fiji and the world is tauvu to a certain point in human history. The first Europeans to visit the Fiji Islands were Dutch and British sailors including: Abel Tasman in 1643; Captain Cook in 1774; and Captain William Bligh in 1789 following the mutiny on the Bounty. Very few sailors lingered in Fijian waters because it was known to be inhabited by cannibals. 13

Missionaries and early European settlers trickled into Fiji

throughout the 1800s. Fiji Islands was ceded to Great Britain on 10th October 1874 under the Deed of Cession thus evolving as a Colony. 14 Fiji became independent on 10th October 1970 and was declared a Republic in 1987. Fiji is a leading Pacific Island nation with a multicultural and multiracial society. It has a fascinating history, and is a nation of both dangers and opportunities. Fiji’s current population is about 850,000 and projected to cross one million by 2030. 15 3.0

Earth’s Issues

3.1

Climate Change

Earth has many problems.

Presently the most important one is Climate Change (CC).

Humans are causing changes in the biosphere that supports life on Earth. The causes, rate and scale of change in the biosphere are fundamentally different from those at any other time in Earth’s history. 16 The results of these transformations are almost universally negative in their impacts on the biosphere. 17 The most fundamental infrastructure of human society is the environment. 18 The environment is the basis of the life support system for humans and all other living things. 19 The problem Fijians and the rest of the world are facing is that; 12

Thomson B, (1908), The Fijians – A Study of the Decay of Custom, London, William Heinemann. Ibid. 14 10th October 1874 [Fiji Islands] [Deed of Cession]. 15 Census data (1881-2007) and population projections are available in the appendices. http://www.statsfiji.gov.fj/index.htm 16 PM Vitousek, HA Mooney, J Lubchenco and JM Melillo ‘Human domination of Earth’s Ecosystems’ (1997) Science 277 (25 July): 494-499. 17 WM Adams, ‘The Future of Sustainability: Re-thinking Environment and Development in the Twenty-first Century’, Report of the IUCN Thinkers Meeting, 29-31 January 2006 at 5. 18 United Nations Environmental Programme Training Manual (UNEP Training Manual) at 25. Available from http://www.iaia.org/training/unep-training-manual.aspx 19 UNEP Training manual at 52. 13

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without strong and multifaceted action ‌ the biosphere may become unable to sustain human life and future generations will suffer deprivation and hardship unless current patterns of production, consumption and waste management dramatically change. 20

3.2

The Intergovernmental Panel on Climate Change

The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 21 with the mandate 22 to; a. assess scientific information related to climate change, b. to evaluate the environmental and socio-economic consequences of climate change, and; c. to formulate realistic responses. The IPCC jointly received the Nobel Peace Prize in 2007 for the Fourth Assessment Report 23 , a most remarkable achievement involving more than 500 lead authors, 2000 expert reviewers and delegates from over 100 nations. [I]t confirms that climate change is occurring now, mostly as a result of human activities; it illustrates the impacts of global warming already under way and to be expected in future, and describes the potential for adaptation of society to reduce its vulnerability; finally it presents an analysis of costs, policies and technologies intended to limit the extent of future changes in the climate system. 24

The main observation is that average air and ocean temperature has increased, and ice melting is increasing the global average sea level. 25 Evidence shows that many natural systems are affected by regional climate changes, especially temperature increases. 26

Fiji has been

experiencing some of these changes, for example coral bleaching, 27 higher frequency of

20

Ibid. Established by the World Meteorological Organisation and the UNEP. 22 IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, Pachauri, RK and Reisnger A (eds.)]. IPCC, Geneva, Switzerland, 104 pp. 23 Available at www.ipcc.ch/ 24 Ibid at iii. 25 Climate Change 2007: Synthesis Report, Summary for Policy Makers at 2. 26 Ibid at 2. 27 ‘Mass Coral Bleaching in the Fiji Islands (2000), Cumming RL et al available at http://www.coralreefwatch.noaa.gov/satellite/publications/crbpub_9thicrscumming.pdf 21

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weather related disasters, sea level rise 28 etcetera. 3.3

The Greenhouse Effect

Changes in atmospheric concentrations of greenhouse gases (GHGs) and aerosols, land cover and solar radiation alter the energy balance of the climate system. 29 Global GHG emissions due to human activities, primarily fossil fuel use and land use change, contribute to climate change. The Greenhouse Effect is depicted below: 30

Increases in GHGs in the atmosphere have resulted in a global average surface temperature increase, over the last century, at around 0.6 degrees Celsius. 31 Scientists estimate that the greenhouse effect will cause temperatures to rise by between 1.4 to 5.8 degrees Celsius over the next 100 years. 32 Such a significant increase will lead to serious environmental impacts

28

This has caused a disturbance in Raviravi village in Macuata as ancestral warrior gravesites have been destroyed and human bones litter the shoreline where children play. This is a modern tabu where dead warriors are warning us of worse things to come through climate change. 29 Climate Change 2007: Synthesis Report, Summary for Policy Makers at 5. 30 Okanagan University College, Canada, Department of Geography, University of Oxford, School of Geography, United States Environmental Protection Agency (EPA), Washington; Climate Change 1995, The Science of Climate Change, Contribution of Working Group I to the Second Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), UNEP and WMO (World Meteorological Organization, Cambridge University Press, 1996. 31 IPCC 4th Assessment report 32 IPCC 4th assessment report

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with increased rainfall in many areas, loss of ice cover in the Polar Regions and an average sea level rise by up to eighty-eight centimetres by the end of the twenty-first century posing the highest risk to small island states and other low-lying areas. 33 4.0

Kai-Viti’s Issues

The Kai-Viti’s problems are synonymous with their Pacific Island neighbours. All are exposed to a range of natural hazards and are particularly vulnerable because of their geographic isolation, small economies and dense population around coastal zones. Climate change brings further vulnerabilities: an increase in frequency and intensity of disasters; and by exacerbating long standing underlying threats to stability, climate change and disasters, may act as a trigger for further conflict in the region. 34 In addition, the Pacific region faces other challenging issues: a limited range of resources; dependence on imports; high population growth on many islands and increasing urbanisation; limited supplies of freshwater; high transaction costs; costly administration and infrastructure; and limited institutional capacities and domestic markets. 35 The degradation of ecosystems, land and marine resources impinge on the quality of life opportunities for many island communities. 36 The major environmental issues facing Pacific Island countries and territories have been identified, analysed and articulated. 37 The Chape Review 38 concluded that analytical, strategic and policy work made little difference to environmental conditions despite raising awareness and much good work at sector and project level. The Pacific Islands region is characterised by:   

A high degree of ecosystem and species diversity from ridge to reef, with several ‘hotspots’ identified in the region; An extraordinary level of species endemicity, with many endemic species at risk from human and natural pressures; A rapid loss of biodiversity from terrestrial, freshwater and marine environments in all Pacific Island countries and

33

IPCC 4th assessment report At p.10 UNDP Pacific Centre Annual Report 2009 http://www.undppc.org.fj/_resources/article/files/Pacific%20Centre%202009%20Annual%20Report.pdf 35 Chape S, Review of Environmental Issues in the Pacific Region and the Role of the Pacific Regional Environment Programme, 27-28 February 2006, Workshop in Japan. (Chape Review). 36 Ibid Chape Review at 1. 37 Chape review at 10. 38 Ibid. 34

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  

territories; A high degree of economic and cultural dependence on an increasingly degraded and over-exploited natural environment; Population growth, resource exploitation and development activities often focused on the coastal environment; and Vulnerability to natural and human-induced disasters that can be mitigated by good management of ecosystems.

Fiji is highly vulnerable to tropical cyclones, storm surges, coastal floods, river floods, drought, earthquakes, landslides, and tsunami but not volcanic eruptions. 39 The New Zealand Institute of Water and Atmospheric Research (NIWA) indicates that Fiji has become warmer, sunnier and drier. 40 Numerous studies have concluded that what is missing is an overarching, integrated response to environmental issues. 41 , 42 , 43 , 44

The need for a more

structured and strategic longer term approach was highlighted by the Pacific Regional Environment Program (SPREP), the WWF South Pacific Program (WWF-SPP) and the Foundation for International Environmental Law and Development (FIELD). 45 The Asian Development Bank (ADB) observes a lack of comprehensive legal frameworks covering the major aspects of environmental protection and natural resource management at the local level. 46 The ADB also highlights conflicts between environmental legislation and local custom and tradition, to the unsuitability of overly complex legal frameworks based on models from outside the Pacific, or to the lack of counterpart staff skills combined with a constant turnover of personnel in government agencies, and the need for broad public dialogue and involvement. 47 There are other specific issues relating to Fiji, for example, the Suva city dump at Lami which 39

Ibid at 13. McIntyre, M. (2005). Pacific Environment Outlook. United Nations Environment Programme and the Secretariat of the Pacific Regional Environment Programme. 41 The SPREP website at http://www.sprep.org/publication/pein_fiji.asp UNESCAP. (1999). I. Integrating environmental considerations into economic decision-making processes at the national level in Fiji. II. Institutional arrangements and mechanisms for integrating environmental considerations into decision making processes at the local level: Suva. United Nations Economic and Social Commission for Asia and the Pacific. 42 Techara, EJ and Troniak S. (2009) Marine Protected Areas Policy and Legislation Gap Analysis: Fiji Islands, IUCN Regional Office for Oceania, Suva, Fiji. 43 Clarke P, Gillespie CT. (2008). Legal Mechanisms for the Establishment and Management if Terrestrial Protected Areas in Fiji. IUCN Training Workshop hosted by Birdlife International and the Darwin Initiative. 44 Clarke, Pepe, Ilona Millar, Kasper Sollberger (2008). South Pacific Regional Environmental Law Capacity Building Project. IUCN, Gland, Switzerland. Xvi + 183. 45 Clarke P. Strengthening Civil Society Legal Strategies for Biodiversity Conservation in the South Pacific, speech and slides presented at IUCN Conference, Sydney, July 2005. 46 Asian development Bank, Pacific Region Environmental Strategy 2005-2009 (2004) at 81: www.adb.org/Documents/Studies/PRES/default.asp (17 June 2010). 47 Ibid at 61-68. 40

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operated for decades on the shore of the Suva lagoon. It was only closed down in 2005, and now the area is expected to be polluted for decades. Similarly, the Nausori town dump was on the river bank until 2005, and the Lautoka and Savusavu dumps are still located on mangrove areas on the shoreline. Most small towns and villages have no proper disposal systems, so rubbish is dumped where, when and as convenient. The damage to Fiji’s reputation as a tourist destination resulting from bad environmental publicity is far more economically significant than keeping clean and green. An appalling example is of the Garden Island of Taveuni drowning in its own rubbish because there is no waste management for human habitats. 48 The general market perception of Fiji as unpolluted and a relatively unspoiled environment needs to be viewed as a valuable economic resource that needs safeguarding. 49 Rules created by society mediate the exchange of economic goods or value. However, the environment is not created by society but rather underpins both society and the economy. 50 The resources available effectively limit human activity because the capacity of the biosphere is clearly limited in space and time. 51 4.1

Matanitu - Governance

The Battle of Kaba with the Tui Viti 52 took place in April 1855, under the direction of King George of Tonga. His forces killed about one hundred and eighty men and took over two hundred prisoners. 53 It was after this battle that the application of a system, more in accordance with the regular judicial procedure of ‘civilised’ nations, was considered. The trial of a Mbau chief who had murdered his wife was “the first crude attempt to administer western style justice in Fiji”. 54 The form was not strictly correct but it was an important step 48

June 4 2010, Fiji Times ‘Paradise turns trash island’. UNESCAP (1999) report. 50 WM Adams, ‘The Future of Sustainability: Re-thinking Environment and Development in the Twenty-first Century’, Report of the IUCN Thinkers Meeting, 29-31 January 2006 at 4. 51 Ibid. The fourth Global Environment Outlook: environment for development (GEO-4) assessment is a comprehensive and authoritative UN report on environment, development and human well-being, providing incisive analysis and information for decision making, available at www.unep.org/geo/geo4/media/ 52 Tui Viti means the King of Fiji, referring to Tui Viti Ratu Seru Epenisa Cakobau (1815-1883). 53 The Tongan charge ignored Fijian battle-conventions and resulted in overwhelming victory. Cakobau's warriors were not so prominent in the fighting and Cakobau soon stopped the carnage and spared the lives of some of his greatest enemies. 54 Thomson B, (1908), The Fijians – A Study of the Decay of Custom, London, William Heinemann at 294. 49

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towards a regular system for the administration of justice.55 Tui Viti ‘ruled’ over the Kingdom of Fiji from the 1850’s to 1874. Tui Viti gifted his favourite war club to the Queen and in so doing abandoned 'club law', adopted the principles of civilised societies, and permanently moving away from a barbaric age.56 The Deed of Cession began the Colonial era for Fiji and British legal institutions were implemented in Fiji alongside traditional leadership structures. The groundwork for self-government was laid by Ratu Sir Lala Sukuna with the development of modern Fijian institutions including the Native Affairs Board, Native Land Trust Board, Register of Native Land Owners and the Native Lands Commission. Fiji's present matanitu has its roots in the first coup d’état in May 1987 followed by a second coup in September 1987. The domestic audience was convinced, through a concerted campaign to justify the actions, by appealing to a fundamentalist view of Christianity and to traditional Fijian values. 57 The 1970 constitution was repealed, and Fiji was declared a Republic. A new Constitution was drafted and imposed in 1990. It provided for a review, which was tabled in Parliament in 1996, after extensive hearings and submissions under a commission chaired by Sir Paul Reeves. 58 Rabuka described it as 'an expression of confidence and hope in our collective future' and as a multi-racial 'model for other countries and people to follow'. 59 The 1997 Constitution of Fiji was meant to; “meet the present and future needs of the people of Fiji to promote racial harmony, national unity and the economic and social advancement of all communities.” 60 A new government was elected into power in 1999 and in 2000 a civilian coup resulted in a hostage drama stretched out over several months. A meeting was held between the President and the Commander of the Fiji Military Forces and an Interim Military Government was established with Laisenia Qarase appointed as Prime Minister on July 4th 2000.

He

subsequently won the elections in September 2001. A lot of controversies surround this period as perpetrators of the 2000 coup were in the new government and an extremist nationalist agenda was being forwarded with the potential to create widespread conflict. 55

Ibid at 295. The mace is used as a ceremonial artefact in Fiji's Parliament. 57 Tupeni Baba, 'Education and the Coup in Fiji : the Aftermath', in Satendra Prasad (ed.), Coup and Crisis: Fiji – A Year Later (North Carlton, 1988), 16. 58 The Fiji Constitutional Review Commission was established in 1995, chaired by Sir Paul Reeves. The Reeves Commission held extensive hearings, received submissions and reported with 'The Fiji Islands: Towards a United Future', tabled in the Fijian Parliament in September 1996. 59 House of Representatives, Hansard, 23 June 1997, 4442, 4444. 60 Mission statement FCRC Report. [Fiji Constitutional Review commission] Reeves report at 2. 56

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There were growing tensions between the Military and the government, ending with the issuance of a series of requests to the Qarase government including a declaration that the 2000 coup was illegal, removal of all those implicated, and the withdrawal of three extremist bills. 61 Efforts to resolve the dispute failed and the Fiji Military Forces took control of Suva on the 5th of December 2006. Commander Bainimarama assumed executive authority and declared a state of emergency. 62 The Fijian Court of Appeal declared the actions unlawful under the 1997 Fiji Constitution and a caretaker Prime Minister was to be appointed by the President to dissolve the Parliament. 63 The President abrogated the Constitution the next day and announced the appointment of an interim government for the next five years to implement necessary reforms through the Charter for Peace, Change and Progress. Bainimarama was re-appointed as Fiji’s caretaker Prime Minister in April 2009. The next elections will be sometime in 2014. 4.2

Sustainable Development

Many development projects since the 1950s have suffered tragic consequences for the people they were supposed to assist. 64 The list of well-meaning projects is a long one; unified approach, integrated development, and human development, the current being sustainable development with various international agencies competing for attention and funding. 65 Efforts are wholehearted and sincere but the central contradictions remain. Finding the pace of development that is sustainable with the knowledge of our environment's capacity and the engagement of environmental capacity enhancing practices is important for a sustainable future.

Unplanned urbanisation, unplanned squatter settlements and poorly

controlled development strains the capacity of many urban centres especially water supplies, energy, communications and transport networks. 66 The President convened a National People’s Charter Advisory Council (NPCAC) to 61

Qarase v Bainimarama HC Suva [36] Ibid at 49. 63 Qarase v Bainimarama, Court of Appeal, Fiji, 9th April 2009. 64 Hooper A (2005 ed.), Culture and Sustainable Development in the Pacific, Asia Pacific Press at the Australian National University at 9. 65 Ibid at 9. 66 Chape Review at 16. 62

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investigate on the best route for Fiji to follow from now on. A People’s Charter for Change, Peace and Progress is being implemented through government ministries and departments by the Strategic Framework for Change Coordinating Office. The eleven Pillars of the People’s Charter are designed to address the lack of unity in Fiji. 67 One of the visions is to ‘safeguard, preserve and value our environment as we benefit from it.’ 68 But the environment fails to be a key pillar for rebuilding Fiji, except insofar as mentioned under pillar five ‘achieving higher economic growth while ensuring sustainability’. 69 The way forward under pillar five is to strengthen institutional capacity and capability for environmental management, and priority to protect the environment, sustainable management and utilisation of natural resources. 70 The focus of the Charter remains on economic progress and the development of a united and truly democratic nation that addresses numerous issues that the Fijian citizens face daily. A fundamental rethinking is taking place but a way forward needs to be sketched where political instability is not allowed to upset the foundations laid. For long term success, national laws should address the three pillars of sustainability, namely: environment, society and economy. 71 The environmental pillar would include biodiversity conservation and an overall ecosystem health, and the immediate goal to adapt to and mitigate climate change. A social pillar would ensure legal frameworks integrate poverty reduction strategies and ensure local communities and social issues are given consideration, and an economic pillar is needed to balance income creation with development. Fiji needs to work towards the goal of being an independent and integrated country as an equal amongst developed nations that can operate independently of foreign assistance. Private sector development and opportunities for foreign investment translate into profits going overseas thereby contributing to social and economic inequalities. 72 Some of these practices have resulted in a morally corrupt management of resources pushing more people 67

Report and Recommendation to the President on the Peoples Charter for Change, Peace and Progress and the State of the nation and Economy report prepared by the 45 member National Council for Building a Better Fiji later condensed into the Fiji Peoples Charter for Change, Peace and Progress. December 2008, http://www.fijianaffairs.gov.fj/docs/finalcharter.pdf (18 June 2010). 68 The Fiji Peoples Charter at 4. 69 Ibid at 9. 70 Ibid at 26. 71 United Nations. (2005). “2005 World Summit Outcome”. 60th Sess. UN Doc. A/60/L.1/2005. Art. 48. 72 Hooper A at 10.

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below the poverty line and creating further imbalance that flows into contractual relationships thus, entrenching the benefits to a few rather than many. Primary commitment is to economic development because people suffer from unemployment, poverty, lack of educational opportunities and poor health care. 73 A detailed analysis for “integrating environmental considerations into the economic decisionmaking process” was done by the United Nations Economic and Social Commission for Asia and the Pacific in a four volume publication. 74 The report highlights the efficacy of the institutional mechanisms and the interaction between them is dependent to a large degree on: (a) the powers and functions delegated to each agency with welldefined tasks; (b) the scope of the tasks specified; (c) the resources, both financial and human, available for executing the tasks; and (d) the degree of commitment and political will exhibited by the leadership. In the present context, given the segmented and compartmentalized structures of the governments in the region, designing institutional mechanisms which emphasize a crosssectoral approach to the integration of environmental concerns with economic policy-making processes is, perhaps, one of the most difficult challenges facing policy makers. What the government needs to recognise is that a Civil Society has a right to good governance by state and non-state actors, including business enterprises and NGOs, and they should be subject to internal democratic governance, effective accountability, corporate social responsibility and socially responsible investments to achieve an equitable distribution of wealth among and within communities. 75 Reforms to encourage investment are a prerequisite for stronger and sustained growth. 76 However, decision makers must remember that economic development entails a responsibility to future generations. Numerous solutions to resolve 73

Farrier D. (2003) ‘Emerging Patterns in Environmental Legislation in Pacific Island Countries’, 20 Journal of South Pacific Law 1. 74 http://www.unescap.org/drpad/publication/integra/mainpage.htm 75 UNEP Training manual at 36. 76 Ferguson E, Pacific Subregional Office, ADB, Suva, Asian Development Outlook 2010 – Fiji Islands at p.237239.

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economic issues are constantly being developed, for example, economic security through a number of small family-based micro-enterprises in Fiji pops up regularly. 77 Fiji’s economy contracted in 2009 due to natural disasters, the global recession effects on tourism and exports, and political uncertainties. Traditional major exports for clothing and sugar have declined but broader economic bases to compensate for the declines have not occurred due to a depressed investment environment caused by political uncertainty, deficiencies in regulatory and legal environments, and a lack of skilled labour. Around 40% of the population is below the income level needed to provide for essential consumption. The reduction of poverty is subject to human ingenuity. 78 There is a lot of development and hard work to be done. If the Kai Viti can get together and build their vanua to achieve an attainable goal, then Fiji will rate higher in its human development index and truly build a better nation for future generations. Heritage tourism can be catalysts for sustainable development but Fiji only has four sites are on the tentative list and no sites on the World Heritage List.79 “[The need is to highlight] the evolutionary and ecological bonds among the region’s heritage resources, and their cumulative value for tourism, conservation, and research”. 80 Fiji has an Indian heritage and India is one of the world’s fastest tourism exporters. There is significant development potential in this bond. 5.0

Addressing Environmental Issues

5.1

Global Solutions

There is a lot of activity in search of global solutions and this paper will attempt to address important ones for Fiji. Everyone has a common responsibility to address climate change and the burden clearly must be carried by those who have caused the imbalance, namely the developed nations. The United Nations Framework Convention on Climate Change 81 (1992 UNFCCC) aims to stabilise greenhouse gas concentrations to allow natural adaptation to 77

Hooper A at 68. Desai AV, (1976) “Vitian Economic Policy; A Quest for Options”, The Ray Parkinson Memorial Lectures, USP, Fiji, at 1-2.at 10. 79 http://www.worldheritagesite.org/countries/fiji.html accessed 25 June 2010. 80 Hoover A at 203. 81 http://unfccc.int/ 78

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climate change while enabling economic development to proceed in a sustainable manner. 82 The 1997 Kyoto Protocol establishes flexible mechanisms such as the Clean Development Mechanism (CDM) to encourage emission-reduction projects that assist in achieving sustainable development in developing countries. 83 In addition to protecting the environment, flexible mechanisms such as the joint implementation for trading of credits with developed States under the Kyoto Protocol presents new economic incentives while providing a set of compliance rules to assist in achieving emissions reductions. 84 Greenhouse Gases include carbon dioxide and methane. Human activities are adding about 5.5 billion tons of carbon dioxide into the atmosphere per year. 85 Fossil fuel burning and deforestation move carbon more rapidly into the atmosphere than is being removed naturally. The reduction of GHG emissions must be the guiding criteria behind any CDM project. 86 The paramount goal is that of mitigating climate change, the immediate need is to “[stabilise] greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” 87

This is an over-riding guiding

principle for policy development; by contributing to the stabilisation process we are benefiting humanity. The World Bank and the Asian Development Bank (ADB) play an important role in the region through their lending practices and policies impacting on development activities. 88

The

World Bank is one of the world’s largest sources of funding and knowledge to support governments of low income countries through project or policy-based loans and grants as well as technical assistance. 89 A high priority is placed on environmental projects focusing on climate change, forests, water resources, pollution management, biodiversity and other environmental issues. 90 The Global Environment Facility (GEF) funds have not been utilized to their maximum 82

1992 UNFCCC article 2. Article 12 of the 1997 Kyoto Protocol. 84 KP Art. 12. 85 Nasa, Earth Observetory, The Carbon Cycle: The Human Role, available at http://earthobservatory.nasa.gov/Features/CarbonCycle/ 86 Ibid at 101. 87 UN Framework Convention on Climate Change. (UNFCCC) (9 May 1992) Art. 2, 1771 UNTS 107. 88 Boer B, Ramsay R and Rothwell D. (1998) ‘Regional Environment Issues and Responses’ in International Environmental Law in the Asia Pacific, Kluwer Law International, London, p.56. 89 http://siteresources.worldbank.org/INTPACIFICISLANDS/Resources/2-Role-of-Bank-in-PI.pdf 90 Capacity building report at p.81. 83

21


potential because of a lack of coordination between states, and the limited ability of developing states to access full or medium sized projects. 91 The focus is on home-grown and long term solutions and capacity building as the most important objective.92 This also implies building stronger law and justice institutions with conflict prevention to avoid future political instability. 93 [S]elf-initiated, self-owned, and self-supported projects at the individual level, local community or national community levels will have greater chances of cumulative and sustainable successes in the long term. 94

Major funding assistance is provided by developed metropolitan countries with a historic interest in the region, such as Australia, New Zealand, France, Japan, USA and more recently china, besides aid from international agencies. For the assistance to succeed, it is essential that national agencies be proactive in implementing effective environmental and sustainable development policies. 95 Countries are encouraged to develop a plan of action to achieve global environmental management objectives especially in the context of the CBD, UNFCCC and UNCCD Conventions. 96

Human lives and livelihoods depend on the sustainable

management of natural resources. 97 The United Nations Environment Program (UNEP) has been mandated with “caring for the environment by inspiring, informing and enabling nations and peoples to improve their quality of life without compromising that of future generations’. 98 South Pacific countries are limited to the complaints mechanisms available within the United Nations human rights system including the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights, thus providing an opportunity for international attention for appropriate response. 99 There are significant amount of resources and assistance available that have been prioritised to address vulnerable Pacific Island 91

See Asian Development Bank, Pacific Region Environmental Strategy 2005-2009 (2004) at 72-79, and particularly Table 34 at 79, for an overview of the GEF’s role in the Pacific Island Countries. 92 See ibid at 79. 93 See AusAID, Pacific Regional Aid Strategy 2004-2009 (2004) at 39. 94 Binger A. Capacity Development Initiative: Country Capacity Development Needs and Priorities – report for Small Island Developing States (2000) at 163. 95 Chape Review at 26. 96 See the GEF-UNDP National Capacity Self Assessment process; Fiji’s status and reports at http://ncsa.undp.org/report_detail.cfm?ProjectId=360&statusId=1 97 IUCN, The IUCN Program 2005-2008: Many voices, one earth (2004). 98 See http://unep.org/documents/About-unep-booklet.pdf (18 June 2010). 99 Capacity building in South Pacific at 65. For a practical guide see Malone L and Pasternak S (2004) Defending the Environment, pp.9-100.

22


nations. Fiji needs to be in a position to utilise these economic incentives to boost its development.

Unfortunately for Fiji, misunderstandings with traditional allies create

unnecessary stumbling blocks on the path of progress.

However, with the growing

environmental movement in the Pacific, innovative approaches may overcome such barriers. 5.2

The Global Framework

A significant part of international environmental law is incorporated in Multilateral Environmental Agreements (MEAs). 100 Two broad areas of international environmental law are important for Fiji’s environment: the first relates to biological diversity and natural resource management, and the second relates to pollution control, waste management and carbon emissions. 101 Agreements that provide guiding principles, set standards and provide international cooperation mechanisms are listed below. Key Global Agreements relating to Biological Diversity (BD) and Natural Resource Management include:  1946 International Convention on the Regulation of Whaling (IWC);  1971 Convention on Wetlands of International Importance (Ramsar Convention);  1972 Convention Concerning the Protection of the World Cultural and Natural Heritage (WHC);  1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);  1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS);  1982 United Nations Convention on the Law of the Seas (UNCLOS);  1992 Convention on Biological Diversity (CBD); and  2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR).

100 101

UNEP Training Manual at 1. Capacity building in the South Pacific at 11.

23


Table 1 : Fiji’s Membership of Multilateral Biodiversity Agreements

Fiji

IWC

Ramsar

WHC

CITES

CMS

UNCLOS

CBD

ITPGR

-

+

+

+

-

+

+

-

Fiji’s limited ratification of global biodiversity agreements is a significant threshold issue limiting the implementation of international biodiversity law in the country. 102 Key Global Agreements relating to Marine Pollution include:  1972 London Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other matter;  1973/ 1978 International Convention for the Prevention of Pollution from Ships (MARPOL);  1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC);  2004 International Convention for the Control and Management of Ships Ballast Water and Sediments; Other Key Global agreement s that address waste issues and emissions into the atmosphere include:  1985 Vienna Convention for the Protection of the Ozone Layer;  1987 Montreal Protocol on Substances that Deplete the Ozone Layer;  1989 Basel Convention on the Control of Hazardous Wastes and their Disposal;  1992 United Nations Framework Convention on Climate Change (UNFCCC);  1997 Kyoto Protocol to the UNFCCC.

102

Ibid at 12.

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Table 2 : Fiji’s Membership of Multilateral Pollution and Waste Agreements

Fiji

London

MARPOL

OPRC

Ballast

Basel

Vienna

Montreal

UNFCCC

Kyoto

-

-

-

-

-

+

+

+

+

There is a perception in developing countries that as they do not have large maritime fleets to regulate, the Conventions have little application, however, the MARPOL and London conventions are important to regulate the conduct of vessels transiting through Pacific waters. 103 Limited resources prevent effective implementation of international environmental agreements. 104

Increasing complexity of international environmental law and related

demands on national governments has prompted complaints of ‘treaty fatigue’, an unwillingness or inability to enter new agreements or implement existing ones. 105 Small and under resourced government bureaucracies find it difficult to deal with vast numbers of international

environmental

conventions

and

their

implementation

and

reporting

requirements. 106 Unequal power also exists in international relations between developing and industrialised nations, thus it is essential that developing countries be provided with the necessary resources for representation of environmental concerns in international judicial fora. 107 Navigating complex rules required by the UNFCCC creates the most difficulty for CDM projects. 108 Further complexities relating to domestic laws such as foreign investment laws, land and resource rights etcetera, distorts the implementation further.

Clarity and

103

Capacity building report at 18. Velasquez J, Piest U and Mougeot J. (2002) Interlinkages: Synergies and Coordination among Multilateral Environmental Agreements – Pacific Islands Case Study, United Nations University, Tokyo, p.9. 105 Capacity building report at 28. 106 Boer B, Ramsay R, and Rothwell D. (1998) ‘Regional Environmental Issues and Responses’ in International Environmental Law in the Asia-Pacific, Kluwer Law International, London, p.58. 107 Richardson B. ‘A Study of the Response of Transnational Environmental Law and Policy to the Environmental Problems of East Asia and the South Pacific’ (1990) EPLJ 209 at 225. 108 Robledo, C. et al. (2008). Climate Change and Governance in the Forest Sector: An overview of the issues on forests and climate change with specific consideration of sector governance, tenure, and access for local stakeholders, p. 21. Washington DC, USA: Rights and Resources Initiative. 104

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predictability in frameworks, combined with a reduced administrative and transaction cost would attract investment and increase confidence. 109

There is also a need to handle

complicated project documentation requirements under UNFCCC. In summary, Government and non-government experiences indicate: 1.

overly comprehensive and complex legal measures are less likely to be accepted and implemented than simpler and better focused mechanisms; and

2.

it is Important for all stakeholders to be engaged in the consultative process leading to new policy measures especially the incorporation of traditional practices into legislation. 110

Some legal hurdles include, for example, the achievement of Additionality as required under Article 12 of the Kyoto Protocol for all CDM projects. 111 A problem for Fiji is that it is a country with high forest cover but historically low deforestation rates (HFLD) due to preexisting sustainable forestry legislation, therefore Fiji may be excluded from REDD benefits by strict application of the Additionality rule. 112 The concept of additonality is linked with the critical issue of baseline development, which gives a reference point for a given area, which in turn denotes the extent of GHG emissions that would have been emitted without REDD activities, thus allowing a contract to set terms of compensation for tons of carbon sequestered. 113 Decision on reference levels must meet the criteria of; effectiveness, efficiency, transparency, simplicity and consistency, while ensuring environmental integrity and fairness. Any approach … should be flexible to ensure broad but voluntary participation by developing countries. 114

If national baselines are used, legislation must ensure that all stakeholders and other actors are

109

Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 104. 110 Asian development Bank, Pacific Region Environmental Strategy 2005-2009 (2004) at 81: www.adb.org/Documents/Studies/PRES/default.asp (17 June 2010). 111 Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 81. 112 Ibid at 81. 113 Ibid at 84. 114 UNFCCC SBSTA “Report on the expert meeting on methodological issues relating to references emissions levels and reference levels”, FCCC/SBSTA/2009/2 14 May 2009, at p.6.

26


compensated for the deforestation efforts achieved. 115 A permanent emissions reduction strategy is important for any CDM project but intervention (human or natural) causing the release of stored carbon undermines sequestration efforts. 116 Benefits from the sale of credits must extend to those entities that have foregone other income generation.117 There is a risk of conflict of interest between the current goals of the various government departments that will need to cooperate to give effect to the CDM projects being discussed in this essay. Many government departments will have to be restructured for enhanced coherency. There is a fundamental need to ensure that any reduction in emissions is translated into a national baseline registry. 118 The accounting must reflect what is emitted into the atmosphere in a manner that does not result in inequities. 119 Legal certainty as to the permanence of carbon stored (i.e., the investment) must be assured. 120 Such options may act as powerful incentives to address long-standing issues. 121 The key problem to enforcement is the absence of an effective and comprehensive legal framework, or its incoherence. 122

The development of comprehensive environmental

legislation is weakened because of domestic controversies regarding land and economic development priorities. 123 At a practical level, the department of environment has been bounced between ministries. Various governments implement their own agenda and address issues as they occur. It will be too late to react to climate change later if we carry on business and development as usual. Typically, environmental units are under-staff and under-resourced and have less influence in government processes and decision-making than economic development sectors. Better integration across different sectors needs to be a basis for sustainable development planning and implementation. 124 Any development is likely to cause impacts.

Therefore comprehensive and integrated island development planning is

115

Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 91. 116 Streck, C. and Scholz, SM. (2006). “The role of forests in global climate change: whence we come and where we go”. International Affairs 82(5): 861-879. 117 Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 93. 118 Ibid at 95. 119 Ibid at 100. 120 Ibid. 121 Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 109. 122 Velasquez J, Piest U and Mougeot J. (2002) Interlinkages: Synergies and Coordination among Multilateral Environmental Agreements – Pacific Islands Case Study, United Nations University, Tokyo, p.27. 123 Farrier D. (2003) ‘Emerging Patterns in Environmental Legislation in Pacific Island Countries’, 20 Journal of South Pacific Law 1. 124 Chape Review at p.21.

27


essential. 125 5.3

The Regional Framework

Representation of South Pacific Island countries by government officials and civil society members to institutional events and conferences of various international environmental agreements is supported by numerous project partners. 126 Every country needs to have the capacity to actively participate in the international policy debate, to implement what is agreed through coordinated policies, to have laws and institutions that respect the rule of law, and to ensure effective compliance with environmental laws. 127 SPREP is the most important regional environmental centre. Key regional agreements 128 relating to the South Pacific Environment are included in the appendices. Regional conventions are more widely ratified than their global counterparts despite regional conventions representing agreements contemplated under specific provisions of an international convention.129 Also worth noting is that some conventions may be redundant and outdated, for example, the Apia Convention and the Noumea Convention, thus requiring reviews and updates. 130 Regional efforts must continue but the focus on this paper is on a national framework for Fiji that can be adapted to other regional circumstances. “[There is a very real need to enhance the capacity of government and non-government organisations to promote the development and enforcement of environmental law and policy in the South Pacific region.” 131 Capacity related obstacles are identified as a key barrier to implementation of the CBD. 132 The establishment of independent environmental law centres is the most sustainable tool to enhance environmental law capacity in the civil society. 133 It has also been suggested that “[t]he best possible way … to support countries with regard to their legal processes is through the production and distribution of clear technical 125

Ibid. Capacity building in the South Pacific at 73. 127 Ibid at 98. 128 Up-to-date status of the Multilateral Environmental Agreements for the pacific Islands can be found at http://www.sprep.org/publication/MEA/MEA-Database.pdf . The status as at 20th April 2010 is provided in the Appendices. 129 Capacity building in the South Pacific report at 27. 130 Ibid. 131 Ibid at 47. 132 CBD Conference of the Parties (2002) Strategic Plan for the Convention on Biological Diversity, Part C: Strategic Goals and Objectives. 133 Capacity building in the South Pacific at 74. 126

28


documentation”. 134 Legal, Policy, Technical and Scientific Advice 135 can be provided by international agencies such as IUCN Fiji regional office through a number of ways, i.e. within existing resources, via core project funding, or via specific project funding. A common oceanic identity has the capacity to be a foundation on which to build a humane vision of the future where global homogeneity and local differentiation develop together but without a disabling westernisation. 136 Democratic discussions can form part of a permanent forum of elements of civil society that fits with, for example, the practice of touring parties, that combines with modern technology and transport solutions for nationwide forums on major issues. 137 Large gatherings are already taking place regularly and these can be used as an adaptable mechanism for conveying important messages and getting responses in a live and active atmosphere. 138 5.4

The National Framework

The role of law for Fiji’s environment is to ensure that Fiji never becomes an environmental disaster zone though human activity. This implies not just worrying about the domestic environment but ensuring harm doesn’t come from the regional and global environments. There are numerous examples where the serious consequences of human activities on the environment and human health illustrate the realities. The most recent is the BP Deepwater Horizon disaster in the Gulf of Mexico, a hole in the ground that no one was been able to stop for over two months. The 1984 Bhopal gas leak resulted in over 1,600 deaths and injuries to over 200,000 people. Justice was ‘done’ after 26 years of legal battle in June 2010, with two years imprisonment for the guilty. The 1986 Chernobyl nuclear accident affected human health across Europe and Asia. Then there was the 2000 cyanide spill from the Baia Mare mine in Romania, resulting in toxic pollution of the Danube and affecting all downstream countries destroying hundreds of tons of fish. 139 incapable of calculation in economic terms.

Pure environmental damage may be

140

134

Velasquez J, Piest U and Mougeot J. (2002) Interlinkages: Synergies and Coordination among Multilateral Environmental Agreements – Pacific Islands Case Study, United Nations University, Tokyo, p.2. 135 Capacity Building in South Pacific at 70-71. 136 Hooper A at 12. 137 Ibid at 19. 138 For example, local festivals bring together large crowds for merriment and by converting these for environmental purposes; we can deliver the sustainability message to a lot more people in a lot less time. 139 UNEP training Manual at 51. 140 UNEP Training manual at 59.

29


A review of the Fiji Government’s awareness of environmental issues through time can be traced through the five-year development plans, which have no mention of environmental considerations at the beginning until development plan 7 for 1976-1980 with a whole chapter on ‘development and the environment’ and a broad overall strategy was presented for the integration of environment considerations into national development. 141 The focus of Development plan 8 (1981-1985) was on decentralisation with strategies for rural growth and the building up of an economic base, where available, from any sector.142 Integrated approaches created uncertainties and complexities thus risking failure and uneven progress. However, this was seen as an improvement on past attempts because of a lack of vigorous policy framework which had the effect of isolated and ad hoc investment decision making processes. 143 The need is for effective co-ordination between divisional and national structures.

Plan 8 also prioritised “meeting basic human needs and the eradication of

poverty” in its overall policies and objectives. 144 Environmental programs were limited to sectoral and minor goals, such as setting up picnic tables for tourists in pine forests. It was interesting to note that ideas such as ethanol production have been discussed since plan 8. Urbanisation was expected to bring environmental pressures and the development of appropriate environmental standards (mostly relating to industrial pollution) was seen as the effective measure to be addressed by an Environmental Management Committee, mostly for the Suva area. 145 Environmental conservation was recognised as an essential but neglected part of the development planning process. Development plan 9 (1986-1990) considered Fiji’s strongest feature to be its “varied natural resource base with possibilities for further exploitation in agriculture, forestry, fishery and mineral resources.” 146 The national development objectives for this period were to achieve economic growth, generate jobs, promote equitable distribution of benefits, improve social

141

UNESCAP. (1999). I. Integrating environmental considerations into economic decision-making processes at the national level in Fiji. II. Institutional arrangements and mechanisms for integrating environmental considerations into decision making processes at the local level: Suva. United Nations Economic and Social Commission for Asia and the Pacific. 142 The development plan was mostly based on a UN Regional Planning Project (1977). Fiji’s Eight Development Plan 1981-1985 (1980), Central Planning Office, Suva. 143 Ibid at 23. 144 Ibid at 47. 145 Ibid at 129. 146 Fiji’s Ninth Development Plan 1986-1990, (1985), Central Planning Office, Suva at 7.

30


conditions, enhance financial stability and foster national unity and national identity. 147 Primary sector expansion and continued development of resource based sectors were seen as assets to cash up on, for example, fisheries was encouraged for “full exploitation [because it was] an abundant natural resource”. 148 Natural disasters were recognised as threats to development particularly in the agriculture sector. 149 Development of forestry was encouraged together with an adequate system of forest nature reserves and recreation areas. 150

The implementation of this plan was

interrupted by Fiji’s first coup d’état on May 14 1987 resulting in the five year plans being abandoned in order to concentrate on addressing acute economic difficulties following the coup.

Policies for the short and medium terms were presented at National Economic

Summits, the first was held in 1989, recognising a multisectoral approach in implementing environmental planning and management strategies. Unfortunately, despite the call for an integrated approach, policies continue to focus on the needs of particular sectors. 151 The common feature of plans 8 and 9 was that the environment was relegated to individual sector plans. In 1989, a National State of the Environment report was completed chronicling a decline in environmental resources and the consequences. 152 A National Environment Strategy for Fiji (1993) was prepared followed by a draft Sustainable Development Bill 153 in 1996, which has subsequently developed into the current Environmental Management Act 2005 (EMA). The NLTB Act has its own Environmental Charter stating that the NLTB will promote sustainable development. Further, that the NLTB will establish an environmental policy, together with guidelines and monitoring 154 . This has been achieved in the EMA which provides the essential framework to develop towards a more complete long term policy. For a small country, Fiji has too many laws dealing in some way with environment or 147

Ibid at 8. Ibid at 69. 149 Ibid at 42. 150 Ibid at 77. 151 UNESCAP. (1999). I. Integrating environmental considerations into economic decision-making processes at the national level in Fiji. II. Institutional arrangements and mechanisms for integrating environmental considerations into decision making processes at the local level: Suva. United Nations Economic and Social Commission for Asia and the Pacific. 152 Ibid. 153 Prepared by the Department of Environment (1996). 154 Ratu Moses Volavola, the Native Land Trust Board of Fiji, Customary Land Tenure and Sustainable Development: Complimentarity or Conflict? [South Pacific Commission and the University of the South Pacific, Suva (1995)] 50. 148

31


resource management. The majority of them relate to the urban environment and are products of the colonial era. It should be recognised that these laws are outdated and ineffective in meeting the current environmental requirements of Fiji. The result is an uncoordinated and half-hearted approach to law enforcement. The failure is with the law and legal institutions that were developed for administrative purposes while community level grass root institutions have not kept pace with demographic shifts. Fiji has numerous sectoral laws addressing specific aspects of the environment and human activity such as laws on water, land, energy, forest, wildlife and marine environment. These are characterised by fragmented and uncoordinated sectoral legal regimes that were initially developed to facilitate resources allocation and to deal with the environmentally adverse effects of resource exploitation. 155 New laws were introduced to address new risks created through human activities. For example, the Public Health Act 1936 contains public nuisance provisions and anti-pollution laws, air pollution is also included under Traffic Regulations 1974 and the Town Planning Act 1946 has provisions to include air quality as a condition to granting planning permission. Laws that relate to the urban environment include: The Town Planning Act - governs physical planning and provides for the development of land, buildings and other operations, and for any material change in the use of land and buildings; The Subdivision of Land Act provides for the subdivision of land for various purposes, such as agriculture, residential and other uses (e.g., the construction of streets and drainage systems) which involve change to the physical character of the land; The Native Lands Trust Act administered by the Native Lands Trust Board includes a number of residential subdivisions on native land in the Greater Suva area; the Water Supply Act, 1955; the Marine Spaces Act, 1938; and the Ports Regulations, 1990. In the case of the Ports Regulations, the most recent addition, the Ports Authority of Fiji Regulations, may help clean up some of the blatant acts of oil and effluent discharge by ships in Fiji ports. But again, the issue will revolve around enforcement. 156 The management of land is currently regulated by statutes such as: the Native Lands Trust Act, 1905 and 1940; the Land Lord and Tenants Act, 1976; the Town Planning Act, 1946; the Subdivision of Land Act, 1937; and the State Lands Act, 1946. Other important statutes 155 156

UNEP Training manual at 16. http://www.unescap.org/drpad/publication/integra/volume2/fiji/2fj03f01.htm (17 June 2010).

32


include the Land Conservation and Improvement Act, 1953; the Quarries Act, 1939; the Mining Act, 1965; and the Petroleum Act, 1978. Other environmental laws in Fiji include the: Endangered and Protected Species Act 2002 which implements CITES, Ozone Depleting Substances Act 1998 which is in accordance with the Vienna Convention and the Montreal Protocol; Birds and Game Protection Act 1923; Fisheries Act 1941; Forest Decree 1992; Litter Decree 1991; Natural Disaster Management Act 1998 and the Rivers and Streams Act 1982. In 1992, the United Nations Conference on Environment and Development 157 (UNCED) observed that such ad hoc and piecemeal legal development is common but “it is essential to develop and implement integrated, enforceable and effective laws and regulations that are based upon sound social, ecological, economic and scientific principles.� 158 Synergies within ecosystems and the linkages in environmental stresses cannot be adequately addressed by even a combination of sector specific laws.

To guarantee sustainable

development, a single law that provides the legal and institutional framework for environmental management would represent an integrated, ecosystem-oriented legal regime that permits a holistic view of the ecosystem, its synergies and interactions within and linked to environmental stresses and administrative institutions. 159 The UNCED Agenda 21 and WSSD Plan of Implementation recognise the short-comings in existing legislation and institutions affecting the integration of environment and development policies and practices, particularly in developing countries. 160 An example of the difficulties that fragmented legislation creates is the introduction of CDM projects into Fiji.

The

objective of CDM projects is to provide environmental and social benefits as well as reduce GHG emissions. 161

The detailed requirement under UNFCCC invariably leaves actual

development and implementation of such projects beyond the scope of most people in Fiji. Numerous further requirements to satisfy domestic laws, such as, the Electricity Act 1966, the Public Enterprise Act 1996, the Commerce Act 1998, Native Land Trust (Cap.134) and Crowns Land Act (132), the Environmental Management Act 2005, Public Private Partnership 157

held in Rio de Janeiro, Brazil. UNEP Training manual at 17. 159 UNEP Training manual at 16. 160 UNEP Training Manual at 21. 161 Department of Environment, Fiji, CDM Policy Guideline (December 2009), Draft for Stakeholder Consultation at 12. 158

33


Act 2006 are just a few listed by the Department of Environment in its current draft consultation. Forestry, transport, waste and other industry specific legislation and regulations will also need to be satisfied. Only those with sufficient resources will be able to initiate the processes resulting in the approval and completion of a CDM project in Fiji. Foreign investment from traditional partners is likely to remain low until a stable and democratic government is established. Developing constitutional foundations that provide for equitable benefit-sharing from the exploitation of environmental resources while at the same time protect the benefits for future generations has no fixed formula. 6.0

Developing an Integrated Approach

“As far as internal rule is concerned … the criterion to adopt is administrative efficiency, which suggests that authority should be exercised by the smallest possible unit consistent with justice, and the absence of administrative conflict. The smallest unit will be different for different activities”. 162 “[The] best system of administration is an untidy mosaic of small and big governments organised in tiers”, and further decentralisation of administration, as required, for given activities. The role of law reflects and shapes a society’s norms by changing attitudes towards particular aspects of life, and control behaviour. 163 The 1972 Stockholm Conference and the 1992 United Nations Conference on Environment and Development in Rio de Janeiro produced declarations of legal principles adopted by the UN General Assembly. Modern International Environmental Law recognises eleven such emerging principles and concepts; 164 1. Sustainable development, integration and interdependence 165 2. Intergenerational and intra-generational equity 3. Responsibility for transboundary harm 4. Transparency, public participation and access to information and remedies 5. Cooperation, and common but differentiated responsibilities 162

Desai AV at 3-4. UNEP Training Manual at 15. 164 UNEP Training Manual at 23. 165 The Brundtland Commission on Environment and Development (1987) report ‘Our common Future’ defines ‘sustainable development’ as development that meets the needs of the present without compromising the ability of future generations to meet their own needs’,. 163

34


6. Precaution 7. Prevention 8. Polluter Pays Principle 9. Access and benefit sharing regarding natural resources 10.Common heritage and common concern of humankind 11.Good governance These principles will play a central role in developing an integrated approach. Principle 7 of the 1992 Rio Declaration, duty to co-operate and common but differentiated responsibilities, recognises that developed countries have more responsibility because they put disproportionate pressure on the global environment and now command relatively high levels of technological and financial resources.166 The International community has accepted a ‘stewardship role’ over the Pacific and the development of inter-governmental institutions, non-govternment institutions, national, provincial institutions with appropriate management structures, financial and technical resources. The missing thread is a singular, environmental legal system that caters to the vanua and avoids treaty and legal fatigue. Principle 15 of the Rio Declaration requires States to exercise precaution and prevent environmental degradation where there is a threat regardless of full scientific certainty. Prevention remains the ‘Golden Rule’. The Good Governance Principle is a relatively recent concept and reflects the growing awareness of the corrosive effect of corruption on public morale, economic efficiency, political stability and sustainable development in general. This is a key area being ‘fixed’ or at least examined by the Interim Government in Fiji. The extent of corruption and non-accountability has overwhelmed the current administration and audits of key institutions are continuing.

The culture of mismanagement and corruption is

widespread; some recent corruption examples include;  1994 abuse of public funds by the government owned Public Trustees Office,  1995 financial mismanagement at the Housing Authority  1994-present the National Bank of Fiji, sold for $5m after receiving over

166

$220m

from

FNPF

superannuation

fund

to

avoid

UNEP Training manual at 29.

35


bankruptcy. 167 This was equivalent to 8% of Fiji’s GDP at the time.  Fiji Development Bank, Fiji Broadcasting Commission, Fiji Public Service Credit Union, Public Trustee’s Office, Methodist Church, investigations by the police in 1997 for corruption in the Customs Department, Companies Office and, the Registrar General’s office. 168  The 2000-2001 Agriculture Scam where interim government ministers gave away agriculture equipment during constituency visits and later became ministers in the SDL party. 169  The 2002-2005 Government Shipping Services, 2000-2006 Public Utilities and Infrastructure; NLTB and most major government related entities including the Fiji Post and the 2010 FNPF $302m write-off for the Natadola project, and $18m for the Momi Bay project which involved Bridgecorp (one of the biggest financial scandals in New Zealand in recent times) etcetera. The FNPF losses stem from the Fiji National Provident Fund (Amendment) Act 2005 that allowed riskier investments with broad powers to invest in properties, 170 and vary an investment at any time. The example also highlights the inequality of bargaining power between corporations and small developing countries that make these nations vulnerable to the activities of such corporations. 171 Effective enforcement of environmental legislation is contingent on the availability of adequate staff and financial resources, the administrative and political will of the enforcement agencies, and the level of public awareness of environmental laws. 172 At an AOSIS Meeting of Experts on capacity building for sustainable development, one of the experts concluded that; [t]he present uncoordinated approach to capacity development in which a number of 167

Grynberg, R, Munro D and White M, Crisis: the collapse of the National Bank of Fiji (2001), Crawford House Publishing, Hindmarsh, S. Aust, 183p. 168 Ibid at xvii. 169 Kunatuba v State [2010] FJCA 17; AAU0067.2006 (5 May 2010) 170 Fiji National Provident Fund (Amendment) Act 2005 3(a)(b). 171 Richardson B. ‘A Study of the Response of Transnational Environmental Law and Policy to the Environmental Problems of East Asia and the South Pacific’ (1990) EPLJ 209 at 222. 172 UNESCAP (2000) State of the Environment in Asia and the Pacific 2000, p.255.

36


organisations run a number of similar projects, with sometimes similar approaches, is unsustainable and limited resources go towards overhead costs. There must be donor coordination at the national level, both for NGOs as well as government. Governments need to be more rigorous in assessing offers of aid and project methods. 173

6.1

Integrating Law and Custom

The United Nations Environment Program released a comprehensive overview of the current body of environmental law 174 to enable legal stakeholders to effectively participate in global, regional and national efforts to preserve our Earth for future generations. 175 “The most effective approach to environmental management is a combination of traditional and customary practices and knowledge with scientific methods of assessment and monitoring of environmental sustainability.” 176 Culture is a dynamic reality and, with the availability for an active Fijian culture naturally leaning towards sustainable development, the reality of truly sustainable development with economic, social and environmental benefits for all kai-viti is an achievable goal. 177 Cultural factors shape the way in which societies conceive their own future and choose the means to achieve those futures based on assessed resources and different values and therefore, develop different paths of development. 178 Fiji needs an independent, fast, effective and flexible mechanism for matanitu that connects the community level to the global level addressing nationwide and regional wide issues in the global environment. Rather than creating pockets of tourism where promotional activities simplify complex cultural heritage and package it for the quick and easy consumption of the tourist 179 , Fiji’s sustainable tourism development should be an informed and expert decision so that the preservation of the cultural heritage can lead to increased awareness of, and pride in, history and civilisation. 180 “UNESCO’s concern … is to promote the development of cultural tourism … as a tool for the preservation and enhancement of a society’s culture, its

173

See Report of the Alliance of Small Island States (AOSIS) Meeting fo Experts on capapcity development for sustainable development through training, education and public awareness, USP Suva (Fiji), 3-9 December 2003, at 13. 174 UNEP Training Manual. 175 Ibid at Foreword. 176 Page 2 ‘Custom, Tradition and Science in the South pacific: Fiji’s New Environmental Management Act and Vanua’ Journal of South pacific law Vol 9 2005 – issue 2 at p.2. Accessed at http://www.paclii.org/journals/fJSPL/vol09no2/5.shtml 177 Hooper A at 25. 178 Ibid at 29. 179 Ibid at 176-177. 180 Ibid at 177.

37


physical and intangible heritage, and its environment.” 181 A strategic advantage for Fiji in the Pacific is its vibrant multiethnic background that may be utilised for addressing the tourism needs of the growing Asian economies and allowing these to contribute towards Pacific development.

Endogenous planning, indigenous management, and profit-sharing by the

affected local community are some of the key issues. 182 Repeated calls in literature for the establishment of an integrated and effectively managed environmental system, whether terrestrial 183 or marine 184 . Contemporary experience in Fiji has shown usefulness of some traditional practices where the customary marine tenure and the involvement of customary ground owners in the management of fisheries resources. 185 Long term difficulties and dangers of fusing Christianity into governing structures were highlighted during the policy development of the 1997 Constitution. 186 Community legal and environmental education plays a key role in capacity building.187 “Ecologically sustainable development can only be achieved if members of the community are aware of their rights and the consequences of their daily activities.” 188 A country’s social fabric and cultural heritage must be taken into consideration and important players in the community must be consulted. 189 Lack of harmony, contradictions in the legal frameworks, overtly focuses on short term economic gains, and unstable political environment are preventing progress in Fiji. The Kai Viti have alternative methods for highlighting their plight on a global scale, by utilising an old customary method such as the soro-ni-qele (i.e. Earth Tribute) whereby a conquered people pay their submission, by presenting a basket of earth in token that the land

181

Ibid at 177. Ibid at 178. 183 Clarke P and Gillespie CT, Legal Mechanisms for the Establishment and Management of Terrestrial Protected Areas in Fiji, IUCN. At 2. 184 Techara EJ and Troniak S, (2009) Marine Protected Areas Policy and Legislation Gap Analysis: Fiji Islands, IUCN Regional Office for Oceania, Suva, Fiji. 185 Ibid. 186 Lal BV and Vakatora TR, Fiji in Transition: Research Papers of the Fiji Constitution Review Commission Vol 1 (1997) USP, Suva, Fiji, at 78. 187 Boer B (ed)(1996) Environmental Law in the South Pacific: Consolidated Report of the Reviews of Environmental Law in the Cook islands, Federated States of Micronesia, Kingdom of Tonga, Republic of the Marshall Islands and Solomon Islands, IUCN, Gland and Cambridge, p.19. 188 Capacity building in the South Pacific at 73. 189 Ibid at 81. 182

38


was at the disposal of the conqueror. 190 This does not mean that the land is conveyed but rather conveys their own bodies with the land on which they live is inseparable, and only valuable in conjunction. 191 Nor does this imply any loss of mana because the imbalance of powers is well known and the message gets delivered while delivering numerous additional benefits such as publicity for tourism.

Mana is important since it represents the inner

principle of power in the South Pacific. For the more ‘chiefly’ nations, a presentation of tambua to reinforce the message can be used, as it is widely known in Fiji that a tambua is ka vakaturanga (a chiefly thing). 192 6.2

A Connected Concept

A final solution will be provided by the communities themselves but some areas that need to be thought about are discussed below.

“Environmental law and policy must, as far as

possible, be embedded in local custom and tradition, in order to increase the prospects of its successful implementation.” 193 The traditional societies in the South Pacific do not tend to have a strong culture of individual rights, but maintain their structure and coherence through a culture of duties, whereby members of a unit owe duties of loyalty and contribution. 194 The basis of identity tends to be the family unit, or the clan, i.e., the mataqali. 195 The Fijian term for land, Vanua 196 , “has physical, social and cultural dimensions which are interrelated” 197 and includes vegetation, animal life, and other objects on it, as well as the social and cultural system. We can use such concepts to complete a chain of linkages and integrate an ecosystem approach into environmental legislation. The solution being suggested is analogous to the traditional Maori resource guardianship ethic of kaitiakitanga interpreted as ‘the exercise of guardianship, in relation to resources, including the ethic of stewardship based on the nature of the resource itself. 198 190

Thomson B, (1908), The Fijians – A Study of the Decay of Custom, London, William Heinemann at 364. Ibid. 192 Deane W, Fijian Society (1921), Macmillan and Co Ltd, London at 79. 193 Capacity Building report in SP at p.36. 194 Brown K, ‘Customary Law in the Pacific: An Endangered Species?’ (1999) 3 Journal of South Pacific Law Article 2: www.vanuatu.usp.ac.fj/journal_splaw/articles/Brown1.htm (17 June 1010). 195 Sutherland W. Pacific Islands Stakeholder Participation in Development: Fiji (World Bank Pacific Islands Discussion Paper Series No 7, 1998) at 20-22. 196 Vanua has equivalents in most Pacific cultures, for example, in Maori the term is whenua. 197 Ravuvu A (1983). Vaka I Taukei: The Fijian Way of Life. Institute of Pacific Studies of the University of the South Pacific, Suva. 198 The Resource Management Act 1991, Fisheries Act 1996 (New Zealand legislations). 191

39


‘Land is not a commodity to be bought and sold. It is a spiritual item in which people, animals, plants and spirits live in harmony.’ 199 The [indigenous] Fijians never had territorial roots. They were united by consanguinity, not by the joint ownership of the soil, but the longer they stayed upon land, the stronger their connection with it, until it becomes the basis of brotherhood and the adoption of a stranger confers nearly the same privileges as those enjoyed by members of the tribe. 200

There are three divisions to Vanua in daily life; the veikau, qele ni teitei and I qoilqoli; and the proper utilisation of these is a major part of conservation practices. 201 A study of protection mechanisms for the marine environment recommends that fishery issues should not be separated from land based activities and other management issues that affect the marine environment, thus requiring an integrated network of marine and terrestrial zones. 202 The Vanua includes marine ecosystems, food security, water resources, land based ecosystem services; there is a need to re-link the Vanua to other social divisions which, invariably, are based on kinship and tribal roots, yet be flexible to accommodate mataqali from urban areas. This can be used it as a social coherence tool. More importantly, this also needs to be linked to the legal system so that dispute resolution is encouraged at the lowest levels for effective resolutions.

This type of approach will empower local communities to adapt to

environmental conditions. Traditional methods may face limitations in a context of rapid population growth, economic development and disruption of traditional knowledge systems and decision-making structures. 203 An example of innovative thinking is the promotion of urban agro forestry as a cost-effective means of solving problems associated with urbanisation in the Pacific. 204 Urban centres were developed on some of the most fertile land quite recently. The challenge to identify and secure rights in resources is a common feature of many developing countries. It is essential that rights bearers have a clear and predictable legal basis 199

Waisi P. ‘Melanesian Cosmos Versus Chaos: An Indigenous Perspective’, paper presented at the Papua New Guinea Land Symposium, Divine World University, Madang (June 2001). 200 Thomson B, (1908), The Fijians – A Study of the Decay of Custom, London, William Heinemann at 355. 201 Dr Asesela Ravuvu at Fiji’s Rainforest; Our heritage and future, proceedgins Vol 1, the 2nd National Conservation Congress, Suva, Fiji, 9-10 June 1988 at 71. 202 Techara et al at 37. 203 Capacity building report at p.38. 204 Thaman RR (1987), Urban Agroforestry: The Pacific Islands and Beyond. Unasvlva 39 (155): 2-13.

40


for claiming the benefits and opportunities generated by their resources.205 When land was the major issue, Ratu Sir Lala Sukuna formed the NLTB to protect it for all Kai Viti. Despite long existing safeguards Land is the most contentious issue in Fijian law and politics. Existing institutions can be realigned to protect not just the land but all other environmental resources so that future generations of Fijians benefit from wiser decisions made today. This is no ordinary task and many people are undoubtedly working towards such a concerted effort however different in size and scale. Such planning needs careful treading in the minefield where passionate sentiments will be aroused, but with the goodwill and focus of leaders’ planning will pull together the necessary elements and bind the Kai Viti to the Vanua. Questions of ownership will continue to be raised along with equitable benefit-sharing, and numerous other issues. But the Kai Viti cannot continue to be disheartened and afraid to deal with legitimate questions. Fiji has certain advantages such as a relatively small population with a low population growth rate, high levels of literacy, and mostly well connected with some form of information network for dialogue. “It is crucial to include the community […] directly in environmental protection [dialogue].” 206 Instead of addressing the issue of ownership, we may need to develop a flexible mechanism of stewardship and choose the optimum steward of the resource concerned that can maximise economic and efficiency gains from which all Kai Viti can share an equitable benefit. Customary law can be utilised in conjunction with modern dispute resolution techniques to engage local dispute resolution mechanisms 207 for minor infringements thereby freeing the higher authorities to focus on more pressing issues. Also, because Fiji is a small country with small yet tightly knitted communities sensitivity issues that require caution in seeking to impose conservation outcomes via litigation. 208 At the same time there is a need to ensure that citizens have access to the courts or fixed resolution methods grounded in justice and equity for all. Open-standing provisions and access to other resources will enable effective enforcement of laws. 209

205

Ibid at 20. Capacity Building report at 38. 207 Capacity building in Sp at 58. 208 Capacity building in SP at 58. 209 Preston B. (1995) ‘The Role of Law in the Protection of Biological Diversity in the Asia-Pacific Region’, 12 EPLJ 264 at 275. 206

41


It is also essential to ensure that payments to resource holders and resource stewards are structured ex-post or at intervals to: ensure conditionality; include both units of carbon sequestered and opportunity costs of resources preserved; and are flexible to reflect changing opportunity costs and international carbon prices. 210 Stakeholders should have access to information explaining how to bundle projects to reduce transaction costs. 211 The risk of not receiving adequate shares of benefits, especially in light of the high potential for corruption 212 , has plagued Fiji’s history. However, the introduction of new resource values and financial incentives that can be applied in a new coherent and structured manner through a re-weaving of Fiji’s fabric can benefit the majority of those below the poverty line and address long term concerns, especially those surrounding infrastructure and development of a truly sustainable economy.

Open participation amongst all actors is essential in the

development stages. The rents charged by the NLTB have limited relationship to the market value of land, forcing some landowners to enter into vakavanua (i.e. informal) agreements. 213 Fiji’s current EMA can be amended to interconnect with the NLTB and the formation of a new Native Environment Trust Board (NETB) whereby management of all Land, Air, Water and Bio-Diversity is put under stewardship role for future generations. Individuals to run such an office need to be highly qualified individuals who have displayed character that will promote future generations. A separate and distinct issue will be the establishment of a title register to environmental resources. Unlike land which has been historically divided, the other resources should be held in trust for the benefit of all Fiji citizens. A process of fission and fusion needs to connect past to present and the present to a certain future. Constant revaluations and re-adaptations 214 may be needed to keep in line with given variables. Decision makers need to prioritise and act because the momentum is there with the present Fijian government as a willing participant, and answers are available.

Various

incentives for environmental services will benefit countries with more stable investment environments, land ownership and land use rights, and clear, well enforced regulatory frameworks thus reaping the greatest opportunities. 215 210

Ibid at 77. Ibid. 212 Ibid at 78. 213 Lal BV and Vakatora TR, Fiji in Transition: Research Papers of the Fiji Constitution Review Commission Vol 1 (1997) USP, Suva, Fiji, at 256-257. 214 Capacity Building report at 83. 215 Costenbader, John (Ed.) 2009. Legal Frameworks for REDD. Design and Implementation at the National 211

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Fortunately, in Fiji such a concept has been foreseen by our leaders and enforced through the Native Land administration process. A renewed, refreshed and strategically enhanced Native Environment Trust must be developed for the benefit of all citizens by incorporating modern knowledge. Technology, such as remote sensing and sophisticated computer modelling, is much more available and accessible today than it has been in the past, therefore, now more able to effectively conduct environmental planning and assessment. The constraints lie in the capability and capacity of national agencies to use this technology effectively, and also for planners and resource managers to convince decision makers to make the necessary investments. The next critical step would be to use the information to make wise resource use decisions based on the principles of sustainable development, and to make information available in a form that can inform and engage communities directly affected by development. 216 7.0

The Future of Kai Viti

Bounded rationality and limited resources can be addressed by simplified and coherent frameworks that relate to and deal with an average individual. The opportunity that exists at present in Fiji should not be missed by environmentalists globally. The solutions must ultimately be found by the people of Fiji: what the [academic] does is to point to neglected alternatives and unnoticed implications, thereby [help] to widen the horizons”. 217 Fiji has a government with the political will that can ensure that its laws truly reflect a sustainable path to future development while integrating essential environmental principles.

The EMA

provides the essential legal framework to chart the course but whether the department will get priority over economic considerations is to be seen. Efforts will be directed to understanding the problems faced by communities and families, with a clear distinction between superficial symptoms and the underlying causes of problems thus endeavouring to; 

understand what problems the public encounters

determine the root causes underlying these problems

develop a range of strategies to manage the identified problems and

Level. IUCN, Gland, Switzerland. xiv + 200 pp. at 5. 216 Chape Review at 21. 217 Desai AV, (1976) “Vitian Economic Policy; A Quest for Options”, The Ray Parkinson Memorial Lectures, USP, Fiji, at 1-2.

43


Understand what strategies are more or less effective under different conditions and why.

The human element must realise its natural state of being. A natural state of being is the Vanua. If Fiji brings its laws in line with its Vanua, the Kai Viti can evolve to a superior position in time and space. Redefining the Kai Viti’s relationship to his or her Vanua, and rediscovering of the tauvu between the vanua and qele, it is possible to strengthen the Native Land Trust Board by establishing a Native Environment Trust Board. This invariably will involve a revision of the legislation for land, without risk to existing titles being a sensible pre-condition. Grass roots democracy in Fiji is a manageable task using modern technology to get mataqali, vanua, yavusa, kai viti and the qele to communicate with one another. Once we have resolved our problems at home, the future generations may have to consider Fiji’s role in addressing wider environmental concerns, for example, high seas marine protected areas. 218 This essay has attempted to highlight that we are a small part of the environment. As responsible and intelligent stewards and those ultimately responsible for the survivability and existence of our future generations, we must seriously think about who we are, what we are doing and how we can be better positioned today to be just and equitable in history for future generations. Fiji is in a peculiar position to be an example for the rest of the world. This essay attempts to fuse together as many important variables as possible to find an overall strategic initiative that will get results for Fiji’s environment. Fiji’s goals are not incongruent with the rest of the world. Fijians have a dream of moving forward in time and space, to create a better country with better opportunities for its citizens and to leave behind a country that future generations can be proud of. A new day will only dawn on Fiji Islands when the Kai Viti can re-establish their bonds with Earth.

218

Gjerde K & Breide C (eds) “Towards a Strategy for High Seas Marine Protected Areas”, Proceedings of IUCN, WCPA and WWF Expert Workshop on High Seas Marine Protected Areas 15-17 January 2003, Malaga, Spain.

44


8.0

Appendices

Key Regional Agreements 

1956 Plant Protection Agreement for the South East Asia and Pacific Region

1976 Convention on the Conservation of Nature in the South Pacific (Apia Convention);

1979

South

Pacific

Forum

Fisheries

Convention

(SPFF

Convention); 

1985 South Pacific Nuclear Free Zone Treaty

1986 Convention on the Protection of Natural Resources and the Environment of the South Pacific (Noumea Convention);

1986 Protocol for the Prevention of Pollution of the South Pacific region by Dumping (Protocol 1 Dumping);

1986 Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region (Protocol 2 Emergencies);

1987 Agreement on implementation of US-South Pacific Treaty on Fisheries;

1989 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific;

1992 Niue Treaty on Cooperation in Fisheries Surveillance in South Pacific.

1993 Agreement Establishing the South Pacific Regional Environmental Program;

1995 Convention to Ban the Importation into Forum Islands Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific region (Waigani);

2009 Convention on the Conservation and Management of the High Seas Fishery Resources of the South Pacific Ocean

45


9.0

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Report of the Alliance of Small Island States (AOSIS) Meeting fo Experts on capacity development for sustainable development through training, education and public awareness, USP Suva (Fiji), 3-9 December 2003. ‘Custom, Tradition and Science in the South pacific: Fiji’s New Environmental Management Act and Vanua’ Journal of South pacific law Vol 9 2005 – issue 2. Accessed at http://www.paclii.org/journals/fJSPL/vol09no2/5.shtml Waisi P. ‘Melanesian Cosmos Versus Chaos: An Indigenous Perspective’, paper presented at the Papua New Guinea Land Symposium, Divine World University, Madang (June 2001).

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10.0

Acronyms

ADB

Asian Development Bank

CBD

Convention on Bio-Diversity

CDM

Clean Development Mechanism

CC

Climate Change

CITES

Convention on International Trade in Endangered Species of Wild Fauna and Flora

CMS

Convention on Migratory Species of Wild Animals

EMA

Environmental Management Act

FIELD

Foundation for International Environmental Law and Development

GEF

Global Environment Facility

GHG

Greenhouse Gases

HFLD

Historically Low Deforestation Rates

IPCC

Intergovernmental Panel on Climate Change

ITPGR

International Treaty on Plant Genetic Resources

IUCN

The International Union for Conservation

IWC

International Whaling Convention

MEA

Multilateral Environmental Agreement

NLTB

Native Land Trust Board

NPCAC

National Peoples Charter Advisory Council

REDD

Reduction of Emission by Deforestation and Degradation

SPREP

South Pacific Regional Environmental Programme

UNCCD

United Nations Convention to Combat Desertification

UNCED

United Nations Conference on Environment and Development

UNCLOS

United Nations Convention on the Law of the Seas

UNDP

United Nations Development Program

UNESCO

United Nations Educational, Scientific and Cultural Organisaiton

UNEP

United Nations Environment Program

UNFCCC

United Nations Framework Convention on Climate Change

WHC

World Heritage Convention

WSSD

World Summit on Sustainable Development

WWF-SPP

WWF South Pacific Program

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For comments and publication inquiries, please contact the author by email; deemantlodhia@gmail.com

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Fiji's Environmental Law & Policy  

This paper aims to contribute to the development of Fiji’s environmental management policy and legal framework through an analysis of the hi...

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