On 12 May 2020, Fiji’s Ministry of Economy[1] published a working draft of Fiji's first National Ocean Policy (NOP) and opened it up for public consultation. The period of public consultation will end on 25 May 2020. [Editor's note: our firm made its submission on 24 May 2020 and amongst other submissions, we respectfully submitted, in accordance with our analysis below that extending the time to consult on the draft NOP beyond 25 May 2020 would be welcome.]
The NOP represents a step forward for Fiji’s ocean governance in that it endeavours to consolidate ocean initiatives through its aim to increase integration between Fiji government Ministries[2]. As the NOP explains Fiji is blessed with large areas of ocean and marine resources that it has both rights to use but responsibility to manage. These ocean areas accommodate numerous and sometimes competing uses and may be adversely impacted by a range of development activities that are regulated by different government Ministries or Departments. National oceans governance is therefore notoriously difficult unless there is a single vision or policy that commits all of government to follow and implement in an integrated way.
As a small group of Fijian and Fiji-based lawyers, with an interest in law of the sea, oceans governance, traditional rights, and Fiji’s unique law and governance system we provide our analysis of the draft NOP and provide some respectful suggestions for consideration as part of the important consultation process. We note at the outset that we fully support this initiative by the Fiji government and are pleased that this process is being locally driven.
The NOP provides an opportunity for Fiji’s government to consult with its citizens and then record and define Fiji’s government vision, principles and strategy for the management of Fiji’s ocean and natural resources. It also provides a framework that sets out how Fiji will meet its international, regional and national commitments to oceans and the marine environment.
The Vision of the National Ocean Policy is to provide for:
“a healthy Ocean that sustains the livelihoods and aspirations of current and future generations of Fiji.”
The Mission of the Ocean Policy is:
“to secure and sustainably manage all of Fiji’s Ocean and marine resources.”
The NOP may, amongst other things, create the foundation for Fiji’s blue economy by providing how its resources will directly benefit its citizens in terms of both direct and indirect economic benefits, support other industries including tourism and safeguard or provide for: cultural knowledge, food security, border security and how it will deal with and adapt to threats like climate change.
We are encouraged by the fact that the draft NOP is well considered, designed for Fiji’s unique law and governance context, recognises the importance of traditional rights and the importance of good decision making. However, we also consider that more time is required for consultation and the NOP could, in our view, be reorganised for clarity and purpose.
We also respectfully recognise that at the present time, the NOP is not a complete Policy document but a way that Fiji’s national oceans policy will be created by the machinery that the NOP envisages. As lawyers, we recognise the importance of a legislative framework to support the implementation of the NOP and point out that this is likely to emerge from the Strategies set out under the Goals of the NOP. It is our hope that the transparency and consultation the NOP aspires to will extend to the development of new laws and policies.
The aim of this analysis is to assist stakeholders with their responses to the draft NOP by setting out why a National Oceans Policy is important, what it is intended to do, how this draft NOP is intended to work and where further input and consultation is needed. In providing this analysis we support the Fiji government’s initiative to create the NOP, as well as its vision and mission.
The areas that we consider are important for consultation include but are not limited to:
- What it sets out to do?
- How will it work?
- The National Ocean Policy Steering Committee
- Climate Change
- Deep Sea Mining
- Principles
- Overview of Goals and Strategies
What is it and what does it do?
The draft NOP has been developed by the government of Fiji:
“under the guidance of the Ministry of Economy with support from the World Bank”.
As a national policy, its primary purpose is to set out Fiji’s vision and mission for the management of Fiji’s ocean and natural resources and explain how its various Ministries and government departments will work with all stakeholders to implement the NOP.
The draft NOP states its role is to help support ongoing ocean management initiatives, support and implement future initiatives and see synergies among the Fijian government, other actors and institutions in the common future of the ocean. It also notes that this is a framework[3] for integrated action and partnerships on Fiji’s national, regional and global commitments on the ocean with a progression to the integrated management of Fiji’s entire EEZ by 2030.
The draft NOP introduces us to 6 interlinked goals (Goals) that are repeated several times. The most significant repetition of the Goals is in Part 3 of the draft NOP where strategies for achieving the goals are also identified. It is the goals and strategy that provide the greatest level of detail and interest in relation to the NOP because these focus on how the NOP will achieve its overall aim:
“To secure and sustainably manage all of Fiji’s Ocean and marine resources”.
The reason that a NOP is required is because (as the draft NOP explains) by operation of international law and its sovereignty Fiji is granted rights and responsibilities over enormous areas of ocean that surround it and these rights and responsibilities include the management and use of marine resources and the regulation of various ocean uses or development activities on land and in the ocean that could have adverse impacts on the ocean and resources. Fiji’s rights and responsibilities[4] include the ability to conserve, manage, explore and exploit its natural resources.
In recent years, the global recognition of the importance of sustainable use of natural and ocean resources, and the safeguarding of traditional and cultural rights, has led to the realisation that national governments like Fiji’s government must do more to coordinate their approach to regulation of ocean uses, and ensure that the various Ministries and government departments make decisions (particularly in relation to land uses and developments) that take into account the health of Fiji’s ocean and natural resources. This approach is known as integrated oceans management, and it is why the Executive Summary of draft NOP explains that the NOP provides an opportunity for “reduced fragmentation and increased integration of approaches to secure a healthy and vibrant Ocean.” The draft NOP’s Executive Summary follows this by stating that it:
“strives to support, promote, and improve effectiveness of ongoing practices being implemented by the Fiji government and all other actors and institutions that are committed to ensuring a healthy future for the Ocean.”
The primary purpose of the NOP (as the draft NOP explains) is to guide Fiji’s government towards integrated oceans management, and more coordination (another word for integration) across both governments and the including of all stakeholders in better decision-making processes for all matters that could affect Fiji’s ocean or natural resources. As lawyers committed to promoting good governance within a common law system, we are supportive of, and pleased to see, the excellent principles relating to decision making that are included in the draft NOP.
These principles accord, in our view, with Fiji’s common law system and a commitment to good decision-making, and good governance as well as being suited to Fiji’s unique cultural context that recognizes the importance of traditional rights.
How the NOP will work
The NOP will be governed by the National Ocean Policy Steering Committee (NOPSC), while the Principles articulated in the NOP will guide the NOP’s integrated ocean management approach. The goals and strategies lay out a blueprint for strategies moving forward that basically maps out a set of next steps towards implementation of the NOP. For example, importantly it notes the development of a governance framework for the ocean policy and this includes the NOPSC and any subsequent subsidiary committee. This is important because it lays the foundation for the bulk of the work moving forward in terms of those that are responsible for it. The goals and strategies also provide a Monitoring and Evaluation framework will be created and implemented. See the Overview of Goals and Strategies for other details.
The National Ocean Policy Steering Committee (NOPSC)
The NOP will be implemented/governed/regulated through the “National Ocean Policy Steering Committee (NOPSC), which will have inter-ministerial representation. Subsidiary working groups, with defined tasks and associated protocols, will be formed if necessary.”
From a governance perspective, this is sensible because it provides the opportunity for Fiji’s government to take the lead and implement the NOP, its aims and objectives, and its strategies but also to include all Ministries to assist with the integrated approach required. Further smaller working groups for specific tasks could be formed with representatives from academia, NGOs and provide technical support.
The envisaged creation of a cross Ministerial group (the NOPSC) to implement the NOP shows something that is vitally important about how the NOP will work, as time goes on.
The envisaged approach will set up a system for creating and guiding the Fiji government’s approach to the ocean in line with the NOP’s overriding objective (To secure and sustainably manage all of Fiji’s Ocean and marine resources) and in accordance with the Vision, Mission, Principles and goals.
Climate Change
The NOP development follows the National Climate Change Policy 2018-2030. The draft NOP highlights Fiji’s actions to mitigate national emissions through its Nationally Determined Contribution and National Climate Change Policy and links rapid global reduction emissions of GHGs as vital for the long term sustainability of the ocean. It also notes that the scope of the NOP extends to climate change and associated impacts such as ocean acidification. The inclusion of climate change is important given Fiji’s past roles as President of the Blue COP but also as a matter of practice given how climate change is integral to ocean management.
Deep Sea Mining
In remarks made at the High Level Panel for a Sustainable Ocean Economy 2019, Fiji’s Prime Minister Voreqe Bainimarama highlighted that sustainable oceans remained one of Fiji’s top priorities and called for a moratorium on deep sea mining in the Pacific from 2020 to 2030.[5]
In this vein, the draft NOP identifies prospects for deep sea mining as an emerging challenge for Fiji. In Goal 5 of the draft NOP, it is suggested that the Deep Sea Mining moratorium from 2020 to 2030 will improve knowledge on the severity and scale of possible impacts from this industry within Fiji’s waters.
Principles
The inclusion of a set of principles that guide the NOP’s approach to integrated ocean management is laudable. There are nine principles articulated in the NOP and these include:
- Stewardship and meaningful participation
- Sound science and evidence-based decision-making
- Ecosystem and integrated resource management approaches
- Transparent, accountable and integrated government decision-making
- Adaptive and precautionary management
- Fair and equitable participation and sharing of benefits for current and future generations
- Gender equality and equity is fundamental to any development
- Transboundary harm
- Accountability, transparency and public trust
There are opportunities, in our respectful view, to consolidate some of these principles. For example, principles 1, 4 and 9 have some overlap and might be better served consolidating them into one or two principles. The order of these principles could be changed to read more cohesively and this can be done by ordering the principles thematically, i.e., clustering the science-related principles, those that relate to transparency and equity, etc.
These principles illustrate some of the best practices in the natural resource management field touching on the importance of science feeding into policy and decision making, community engagement and consultation and the issue of fairness and equity.
One point that we like to be made clear is that these principles should not merely exist within the draft NOP but should be imbued into the NOP development process. Transparency in how this policy was developed and with who provides an ideal opportunity to establish precedent in creating the very norms that the principles aspire to. An example of what this can look like can be seen in Fiji’s National Climate Change Policy 2018-2030 under the Policy Development Process and Consultation section.
Overview of the Goals and Strategies of the draft NOP
Goal 1 relates to promoting cooperation amongst all government agencies in pursuit of an integrated governance approach. It specifically includes the strategy to establish the NOPSC and working groups and the adoption of a plan to monitor progress. Included within this goal is the recognition that there will be a legal gap analysis to determine the institutional arrangements required to achieve goal 1, as well as how to strengthen the mechanisms to enable coordination within government including different levels of government and between government and other stakeholders.
The strategy does not include the express need for new legislation to provide the requisite statutory/delegated authority for NOPSC to implement the NOP, although a legal gap analysis is mentioned. The strategy suggests a work in progress and suggests that as time goes on a way will be found to enable goal 1 to be achieved.
This may be the right approach given the unknowns at this stage, but in terms of legal input we consider that new legislation will be required to set out the approach that the government will commit to for decision making to happen in line with the Principles in the draft NOP. This will, in our view, require legislation that amongst other things may establish the NOPSC or similar body, and provide it with requisite powers and bind it to the Principles of the NOP.
Expressing more clarity around Goal 1 should assist with the implementation of the draft NOP and all other Goals.
Goal 2 relates to Sustainability and records the goal of 100% sustainable management of all Fiji’s ocean areas including its internal waters, archipelagic waters, territorial seas and the exclusive economic zone (EEZ). The strategy to achieve this goal includes raising awareness of the benefits of the ocean for all Fijians, establishing processes and policies, and using area based management tools to identify where the Marine Protected Areas should be designated to cover 30% of the ocean by 2030.
This goal and strategies does not set out the process that will be followed to achieve Fiji’s long term commitment to more MPAs, including the process that the government will commit to that is vital in Fiji’s common law and unique governance system that includes recognition for traditional rights. This links to our point in relation to Goal 1 and could be resolved via legislative reform that commits all stakeholders to a clear government led process in accordance with Fiji’s common law and international commitments.
Goal 3 relates to a people centered approach to Ocean management by promoting benefits in an equitable way and inclusive way that respects traditions and culture. The strategy to achieve this goal includes promoting increased participation in ocean related sustainable livelihoods. The methods that will be used to do this include awareness raising, capacity building and structural measures and other means to include more social inclusion for all groups including traditional groups. The strategy in relation to goal 3 is vague, and would benefit from further consideration of specific outcomes and the means to achieve them.
Goal 4 relates to Development and the setting of a solid foundation for sustainable development. It again mentions ocean based opportunities and livelihoods. The strategies to achieve this goal relate to various areas of Fiji’s national security including but not limited to maritime security, border, food, financial and climate related security. There is a strategy to “realise and seize emerging Ocean opportunities and innovations that are aligned to the National Development Strategy” as well as seeking resources to promote blue investment.
This strategy is short on details and for this reason in our view requires further consideration and more information/explanation.
Goal 5 - relates to Knowledge and integrating traditional knowledge, heritage and cultural practices with knowledge acquired from scientific research to provide a holistic platform that can meet the contemporary challenges of the ocean.
This goal includes more specific and outcome related strategies and is well considered. It concludes consensual documentation of traditional knowledge, strengthening scientific understanding, imposing a moratorium on deep seabed mining between 2020-2030 to enable more understanding, and underpinning decision making on ocean with greater understanding across sectors, as well as including traditional knowledge in this process.
There is a particular strategy of implementing a universal curriculum in the ocean across all schools.
Goal 6 relates to advocacy and particularly in the area of oceans and climate change. The strategies include raising awareness at all levels, empowering youth and advocating at a regional and national scale for more sustainability in relation to Pacific SIDs.
This goal and strategy reflects much of what Fiji has been doing, but it is still important. It is also the only part of the NOP that mentions Fiji as part of the region, and showing leadership for a more regional approach to ocean governance.
Legal Perspective
However, from a legal perspective, there are some concerns and these relate to the consultation period allowed for the draft NOP and the regulatory mandate for the NOPSC
Consultation Period
First, a small concern is that while the Principles in the draft NOP relating to decision-making talk about process and consultation, the draft NOP has been opened for consultation for only two weeks - or until 25 May 2020. In our view, there should be more time and wider consultations on the overriding aim, vision, mission, Goals and strategy, in particular.
Further consultation would, in our respectful view, enable more consideration of the draft NOP to improve what is a nationally important moment for Fiji, its ocean and rights and responsibilities relating to natural resources.
Regulatory mandate for the NOPSC
A further concern is that at present it is not clear from the draft NOP how the NOPSC and subsidiary groups will have the power to act. At the outset, it is important to note that this concern may disappear once the NOPSC is up and running. Also, given that this is the draft NOP we expect corresponding legislation that sets out the powers of the NOPSC to enable it to make decisions in accordance with Fiji’s common law system. This legislation could formalise the Principles articulated in the draft NOP and ensure that the decisions that are implemented by the government are made after a process that accords with Fiji’s common law system. Such a process would be consultative and take into account the views of all stakeholders, and particularly those whose interests may be adversely affected. In this regard we have noted positively that the NOP includes references to Fiji’s traditional rights and communities and includes the Principles that have already been discussed and noted.
However, we also note that a similar structure to the NOPSC was proposed more than 12 years ago when the Environment Management Act, 2005 came into force. This envisaged the creation of the National Environment Council and various working groups like the Protected Areas Committee and marine working group. However, it took many years before the various statutory entities envisaged by the Environment Management Act were actually established. Further, following discussions with various stakeholders, we have been told that the Protected Areas group rarely meets and has not made much progress in implementing Fiji’s international commitment to 30% ocean protection despite this commitment being made in 2005.[6]
Therefore care will be required to ensure that the same thing does not happen to the NOPSC and subsidiary working groups as they will be the groups that are responsible for implementing the NOP and meeting Fiji’s commitment to integrated management of its ocean and marine resources. In making this point, we stress that we are not part of the Protected Areas Committee and it may have different views from ours in relation to its progress and achievements.[7] We further note that the draft NOP includes express mention of the creation of MPAs in Goal 3, and that there remain legitimate concerns from all stakeholders to ensure that the designation of MPAs is undertaken carefully to select the appropriate areas and we further accept that good decision making can take time.
Our guide for interested Stakeholders in terms of the Consultation and where input may be required
The first two parts of the draft NOP provide background, legal and governance context. This is in Part 1 (Introduction) and Part 2 (Fiji’s emerging challenges and opportunities for the Ocean).
This background and context includes, but is not limited to, a wide review of Fiji’s existing international, regional and national level commitments including ocean based policies and initiatives being undertaken by a range of actors. Parts 1 and 2 also record a wide range of statements and guidance that will be adopted by Fiji’s government at a national level in pursuit of national objectives. The NOP also includes appropriate context in relation to Fiji’s unique culture and traditional management measures, and discusses emerging threats to the ocean and the importance of ocean health.
While Parts 1 and 2 provide useful background information only.[8] Of more relevance to interested Stakeholders for consultation and comment purposes are:
- the Executive Summary which includes the Vision and Mission and the “six interlinked Goals”; and
- Part 3 titled “The Ocean Policy”.
Part 3 of the draft NOP repeats the Vision, and Mission set out in the Executive Summary, but adds the Principles that will guide Fiji’s approach to integrated Oceans Management. Part 3 also sets out the Purpose of the Policy (3.4) and the Scope of the Policy (3.5), before the Goals are repeated twice, but with the second repetition including Strategies that will be pursued to meet the Goals of the NOP.
Based on our analysis of the draft NOP, the main input required from interested stakeholders, is to review the overriding objective of the draft NOP, its vision, mission and comment.
Questions may include:
- Are these the overriding objective/vision/mission that you consider Fiji’s National Oceans Policy should include? If not, what do you consider should be in there?
- Are the Goals ones that you consider are important, if not, what goals do you think should be in there?
- Are the strategies beneath each of the Goals the ones that you consider should be in the draft NOP, what else should be there?
As lawyers, we do not consider it is our place or role to set out what the strategies in Fiji’s National Oceans Policy should be, as these should be created via a process of consultation and with the input of relevant experts in a variety of fields connected with marine resources and the ocean.
However, as lawyers interested in good governance and due process, we think it is reasonable to provide the respectful suggestion that more time should be provided to ensure that proper consultation has occurred, particularly in relation to the Goals and Strategies of the draft NOP.
Conclusion
This update on Fiji’s development of its first National Ocean’s Policy is provided for guidance purposes only and is based on the personal views of the authors only. It is meant to provide helpful information, guidance and assistance to all stakeholders in terms of their input to the draft NOP.
We are encouraged by many aspects of the draft NOP which represents a step forward for Fiji’s ocean governance. We consider that more time should be provided for consultation and this would be to improve Fiji’s government’s vision and also to ensure that it ties into the Pacific region’s push for a sustainable blue economy to benefit the people of the Pacific Islands. In our respectful view this positioning would assist funding opportunities for the Fiji government in the future.
We trust this legal analysis is of use, and we are supportive of Fiji’s government’s general approach, interest and leadership for oceans governance.
Endnotes:
1. The Ministry of Economy provides guidance to the government to achieve its aim of promoting a “sustainable, progressive and inclusive Fiji”. The Ministry of Economy is central to any decisions that set Fiji’s direction and approach in relation to oceans, oceans policy, climate change and Fiji’s international commitments that also fall within the responsibility of the Ministry of Foreign Affairs. Within the Ministry of Economy is the Climate Change and International Cooperation Division (CCIDD), which is “guided by the National Climate Change Policy (NCCP) and works in collaboration with government agencies, non-governmental organisations, regional and international agencies and development partners.” The Ministry of Economy is also the Ministry with responsibility for the creation of Fiji’s National Oceans Policy and is central to the government's planning for Fiji’s maritime/oceans areas.
2. The NOP (in draft) does not provide any clear steps at the present time on how the increased integration will work but as this review explains it is likely that the intention for increased implementation will occur via the working/steering group that the draft NOP envisages described as National Ocean Policy Steering Committee (NOPSC) which will include cross Ministerial presence.
3. In our view the use of the word “framework” is important because it suggests that the substance of Fiji’s NOP will come later once the work of the Steering group gets underway.
4. By virtue of the United Nations Convention on the Law of Sea (UNCLOS).
6. Fiji’s commitment made in 2005 provided: “By 2020, at least 30% of FIji’s inshore and offshore marine areas, will have come under a “comprehensive, ecologically, representative network of MPAs, which are effectively managed and financed”.
7. This review is not, and should not be taken as criticism of the Protected Areas Committee or any individuals who have been part of it, and we are not across its workings or the issues that it has faced. We are aware from discussions with some stakeholders who have worked with the Protected Areas Committee that there is a need for the Fiji government to set out a clear, consultative and transparent process that will take into account all interests including traditional rights and anyone who will be adversely affected by the designation of a MPA. This government led process, it is hoped, will lead to the designation of MPAs that are suited to Fiji’s law and governance context and meet Fiji’s international commitments. In our view these designations could be informal/customary MPAs, or MPAs designated pursuant to existing Fisheries legislation or new legislation to support a more integrated/holistic approach akin to a marine spatial planning approach.
8. A respectful suggestion for the drafter would be to place Parts 1 and 2 in appendices and create a document more focussed on the NOP. This may also enable a reduction in repetition of the Goals from 3 to 2.
About the authors:
James Sloan, is a partner in the Suva based law firm Siwatibau and Sloan and specialises in environmental and oceans law, law of the sea and is interested in good decision making. Part of James’ commitments involve him assisting with the coordination and teaching of USP’s Law of the Sea and Oceans Governance units within the School of Marine Studies.
Kevin Chand is an environmental lawyer from Fiji with a passion for oceans law and policy. He is interested in how we might leverage legal and policy tools to sustainably manage our ocean resources in the Pacific. He has previously worked as a lawyer at Siwatibau & Sloan, an oceans law and policy advisor with Alliance of Small Island States to the United Nations in New York and as consultant for various organizations including IUCN and GIZ. He is currently based at Stanford University in California where he teaches international environmental law, human-centered design for ocean innovation and co-instructs an ocean policy lab that explores policy interventions related to IUU fishing. He is also a legal fellow at the Stanford Center for Ocean Solutions where he works on issues related to Pacific Sustainable Ocean Economies, international IUU fishing policy and forced labor practices in the seafood industry.
Emily Samuela is a lawyer with Siwatibau and Sloan and a valued member of the firm's environmental and litigation team. Emily is interested in all aspects of litigation, oceans law and environmental law. Emily assists with the coordination and teaching of USP’s Law of the Sea and Oceans Governance units within the School of Marine Studies. Emily is developing a practice that has seen her provide legal advice, analysis and assistance to a range of clients and has been part of two consultancy teams working with multi-lateral donors in the Pacific region. Emily is from both Fiji and Tuvalu and is interested in pursuing a career in the Pacific working at a regional and national level.
This legal bulletin is provided for information purposes only and it is not, and should not be relied upon as, legal advice. All views expressed in this legal bulletin are the authors' views alone.