CUSTOM, TRADITION AND SCIENCE IN THE SOUTH PACIFIC:
FIJI’S NEW ENVIRONMENTAL MANAGEMENT ACT AND
VANUA[1]
VICTORIA
SUTTON[2]
INTRODUCTION
Sustainable development in the South
Pacific is critical to the world’s environmental sustainability. The
Pacific Ocean covers 40% of the earth’s surface, and within that region,
the concentration of biodiversity in proportion to each countries’ total
land area exceeds that of anywhere else on
earth.[3]
The tropical forests
are the most studied ecosystem, yet there are no global estimates for the status
of coral reefs.[4] Coral reefs,
arguably the most biologically diverse ecosystems in the world include 32 of the
33 animal phyla, compared with 9 of 32 found in tropical rain
forests.[5] Some of the richest areas
of biodiversity in the world exist in the South
Pacific,[6] and its decline is a
serious threat to the biological diversity of the region as well as the world.
Fiji, faced with the greatest rate of growth of
tourism[7] of any of the South Pacific
island nations is especially vulnerable, the threat of environmental degradation
and damage to the surrounding coral reef ecosystems.
Given the tremendous
importance of the South Pacific and in particular, the Fiji Islands to the
world’s biodiversity resources, the enactment of the Fiji Environment
Management Act stands as the single most important recent effort to protect the
natural resources of Fiji. Because of its monumental importance, a careful
analysis of the Fiji Environment Management Act and a consideration of its
methods of implementation, particularly in its relation to the centuries old
indigenous traditions and customs of environmental management, is
warranted.[8]
FIJI HISTORY AND CULTURE
The Fijian Islands are among
the Melanesian group in the South Pacific, the other island groups being
Micronesian (i.e., Guam, Palau, Marshall Islands, etc.) and Polynesian (i.e.,
Hawaii, Tahiti, New Zealand, etc.). Because the Fijian Islands are located in
the zone between the Polynesian islands and the Melanesian islands, it reflects
elements of both cultures, for example, the Fijians have the political structure
of the Polynesians in traditional
villages,[9] but follow the Melanesian
custom of “bigmen” or chiefs who may have overlapping powers or
little power.[10]
Fiji was a
British colony in 1874, and the land was granted to white settlers but land was
also granted to the Fijians with a right to aboriginal title. Fijians hold the
land in common with other Fijians, and it is managed by approximately 6,600
village groups (matanggli) through the Native Land Trust Board,
established in 1940. Because of kinship groups 83% of the Fiji Islands land is
held by the Native Land Trust Board in 14,400 land holding units. Until 1940,
individual kinship groups negotiated their own leases at very different rates
and prices, often to their detriment. Ratu Sir Lala Sukuna, leader of Fiji,
proposed the Native Land Trust Board to be administered by the British, holding
lands in trust for the Fijians for their benefit. Land is considered to be an
extension of oneself, including one’s life, sustenance and culture for the
Fijians, known as vanua in the Fijian
language.[11] Given that
land’s importance to the Fijians, the approval of this change by the Great
Council of Chiefs was regarded by the Governor at that time as the Agreatest
acts of trust in colonial history.[12]
The trust operates to lease lands for terms of 30-year terms to
non-Fijians and 10% of the revenues from the leases are paid to the hereditary
chiefs of the clans; 25% is retained for administration of the Board.
Fijian villages are given particular species of plants and animals by
the Chiefs for which they have responsibility for their protection and
sustainability. The village is known as responsible for that species among the
other people and villages. A highly mobile species will be managed by a village
that possesses the land or water where the species nests or breeds, for example.
The Roko is the provincial chief, under which are other chiefs called
buli for each of the districts of the province. The villages within the
province are led by chiefs, the Turaga-ni-Koro., who are ultimately
assigned the species
responsibility.[13] When a Chief
dies, for example, one custom is to prohibit the use of that area of water for a
year or more. Any acts of fishing, swimming, washing cloths, bathing, or
collecting bi-valves is considered, in a word originating in the Polynesia
culture, taboo.
A TRADITIONAL AND CUSTOMARY SYSTEM OF LAND TENURE
IN THE SOUTH PACIFIC
The effort to implement sustainable development
in the South Pacific region has notable features of land ownership, government
and indigenous custom and tradition which must be considered in the region.
More than 90 % of the land is held in customary tenure in 22 countries who are
members of the South Pacific
Commission.[14] Traditional land
tenure refers to those in existence at the time of contact with industrialized
societies, whereas customary land tenure refers to the practices of today, which
are forms of traditional land tenure which have adapted to change since the time
of contact.[15] For that reason,
codification of custom lacks the feature of flexibility to change and adapt to
new situations, and should remain broadly defined as a process, rather than
substantive law, to keep viable features in the approach to sustainable
development.
Tradition and customary law concerning the environment
cannot be forced into a stereotype of always being consistent with
sustainability. Traditional and customary land tenure and sustainable
development may not always be compatible. One of the worst destructions of the
environment in the South Pacific was Rapa Nui (Easter Island) where Polynesian
settlers used the agricultural techniques they brought from a tropical
rainforest environment. Massive deforestation was not sustainable, and the
island was left treeless and unsustainable, and the population disappeared from
the island.[16] Similarly, settlers
from the tropical lowlands to Papua New Guinea burned forests to make way for
agriculture, but the high altitude and accompanying dryness resulted in useless
agricultural land, which are the low-quality grasslands of Papua New Guinea,
today.[17] Customary land tenure
which suffered the Tragedy of the
Commons[18] was the Maori system of
New Zealand which had to adapt from a tropical agricultural tradition to a
hunting lifestyle. Because no one had responsibility for the sustainability of
bird species nor did they hold land in common smaller tracts of land based upon
smaller political subunits, many bird species were
extinguished.[19] The current
destruction of tropical rainforests with timber harvesting by Asian
entrepreneurs in Micronesia is an example of the failure of customary tenure to
attain sustainable development.[20]
Because individuals derive economic benefit immediately and directly, while the
ecosystem suffers a loss with no benefits to the broader community, the forests
will continue to degrade.
While traditional and cultural approaches to
environmental management in the South Pacific, pre-date western environmental
management methods by centuries,[21]
scientific monitoring techniques should add, rather than substitute for,
traditional and customary approaches. 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. This has proven to yield successful results, for
example in the village of Ucunivanua in Venata,
Fiji.[22] After implementing
scientific monitoring of fish and bivalves in the coastal area of the village,
and adjusting harvesting when counts were low, the women who are the gatherers
of the bivalves are able to collect twice as many oysters in the same amount of
time, as they were before the monitoring began. This demonstrable benefit has
ensured that the environmental monitoring program
continues.[23]
Tradition and
customary management of the land, however, after centuries of development has
shaped practices which will shape the practice of sustainable development in the
South Pacific. Since 90% of land is held in some form of customary tenure,
indigenous people of the South Pacific will shape the future of sustainability.
There appear to be several factors which make customary land tenure problematic
for sustainable development: (1) tenure systems are related to population, and
the population in the South Pacific is five times higher than at the time of
contact with industrialised
society;[24] (2) individual villages
may be more interested in the rewards of a better quality of life than in
sustainable development; and (3) some forms of customary tenure which may be
appropriate for a hunting or fishing tradition, may not be appropriate for an
agrarian one.[25] Given these
significant land use factors, it confirms the need to adapt together traditional
and customary methods of environmental management with scientific monitoring and
assessment methods as apart of an environmental management
plan.
POLITICAL COALITION BUILDING TO PROTECT THE ENVIRONMENT IN THE
SOUTH PACIFIC
Because of the growing recognition of the need to
preserve and sustain the biological resources and ecosystems in this region of
the world, several international bodies began to organise a regional approach to
environmental sustainability. Out of that effort, the South Pacific Regional
Environment Programme (SPREP) was formed, which includes the 22 developing
island nations as well as New Zealand and Australia. Outside of the South
Pacific, the United States and France, who have interests in the South Pacific,
are also members.[26] The mission
of SPREP is “to promote co-operation in the South Pacific region and to
provide assistance in order to protect and improve its environment and to ensure
sustainable development for present and future
generations.”[27] SPREP
was established in 1982 through representatives of regional environmental
organisations, including UNEP and the South Pacific Commission. In 1995, SPREP
became an independent organisation with the Agreement Establishing SPREP. SPREP
is developing a Pacific Plan which involves strategies for sustainable
development, as well as the development of a model law for the protection of
traditional knowledge. However no model law for assessing environmental impact
has been developed for the South Pacific island nations because some island
nations have pursued their own NEPA-like laws and others in various stages of
development have not yet addressed this type of
legislation.
Traditional and Cultural Knowledge is Recognised in
International Law
Traditional and cultural environmental knowledge
has gained international acceptance as part of a process of developing
environmental plans for sustainable development, evidenced by Article 8(j) of
the Convention on Biological Diversity, which requires that:
Each contracting Party shall, as far as possible and as appropriate: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices
Article 15 of the Convention on Biological Diversity also
addresses management and control of natural resources by the sovereign nation
where they are located.[28] Access
and benefit sharing is the guiding framework for bio-prospecting by
pharmaceutical companies and other institutions in their search to isolate
chemical compounds from genetic resources to develop and commercialise new
pharmaceuticals. The difficulty in implementing this section of the CBD has
been the lack of an international framework for recognition of traditional
knowledge and genetic resources as intellectual property which would be required
to provide protection for indigenous communities and developing nations. One
step toward identifying ownership is to create an inventory of biodiversity and
identify which villages have responsibility for their stewardship. The Fiji
Environment Management Act provides for the establishment of such an inventory,
called the Natural Resource
Inventory[29] which will move toward
developing an equitable system of access benefit sharing.
Article 14(A)
provides that each Party to the Convention on Biological Diversity will adopt a
NEPA-like process to assess environmental impacts and to minimise adverse
impacts.
The need to assess how to incorporate tradition and custom into
formal environment management laws and plans merited a specific Conference of
the Parties working group on specifically how to implement Article 8(j) within
the Directorate of the Convention on Biological Diversity. Although the COP
continues its work, Fiji’s new Environmental Management
Act[30] implements a process of
integrating indigenous knowledge of environmental management incorporating a
context of indigenous worldviews of place and land.
Article 14(a) of the
Convention on Biological Diversity provides that each Party to the CBD will
adopt a NEPA-like process to assess environmental impacts and to minimise
adverse impacts. The passage of the Fiji Environment Management Act in March
2005, meets this requirement, by adopting definitions from the U.S. National
Environmental Policy Act (NEPA) which define “significance” of an
environmental impact, thoughtfully incorporating custom and tradition, and
providing for a mechanism to manage genetic resources and a flexible process
which allows for change in custom and tradition.
The new Fiji Environment
Management Act is more comprehensive than the U.S. NEPA in that it also
incorporates environmental proscriptions and penalties for pollution whereas the
U.S. addresses this through two other statutes: The Resources Conservation and
Recovery Act (RCRA) and the Comprehensive Environment Recovery and Compensation
Act (CERCLA or Superfund). The Fiji Environment Management Act represents a
comprehensive approach to environmental management, which is superior to a piece
meal approach. The tools of a regulation should match what is being regulated,
and in an ecosystem where every change affects other parts of the ecosystem, a
comprehensive statute is a superior match, over the piecemeal approach, for
regulation.
Within this political and indigenous control of land and
natural resources, the new Environmental Act was passed in 2005, after more than
eight years of development.[31] The
Act includes three important features for sustainable development: (1) a process
for assessing the environmental impact of development projects; (2) the creation
of an inventory of natural resources, and; (3) the prevention of the
introduction of genetically modified organisms into the Fiji Islands. In this
context, the Native Lands Trust Board also charged with sustainable development
of native lands, and pressure to provide access and benefit-sharing of natural
resources also provides opportunities to coordinate efforts to make development,
sustainable.
THE PURPOSE OF THE FIJI ENVIRONMENT MANAGEMENT ACT 2005
The definitions section sets out the scope of the
terms in the Act and identifies interests of the indigenous Fijians, as well as
the lease-holders of indigenous land.
[32]
Defining
sustainable development
The purpose of the Act is as much about
sustainable use, as it is about identifying “matters of national
importance for the Fiji Islands.”
[33] The first purpose, “to
apply the principles of sustainable use and development of natural
resources” is further elucidated by the definition in the Fiji Environment
Management Act for sustainable development:
Sustainable development means development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs, and implies using resources to improve the quality of human life within their carrying capacity;[34]
Compare
this to the definition of “sustainable use” in the Convention on
Biological Diversity:
“sustainable use” the use of components of biological diversity in ways and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.[35]
The
definition in the Fiji Environmental Management Act favours utilisation of
natural resources to meet the needs of the people, and further, to
improve the quality of human life. The Fiji Environment Management Act
does not include a requirement to preserve all components of biological
diversity, in its concept of sustainable development, rather it focuses on
improving the quality of human life. The definition states a policy of making
the improvement of the quality of human life a priority through the use of
natural resources, at a rate which ensures the existence of the ability of
future generations to use the resources. The Fiji Environment Management Act
does not commit to maintaining the potential to meet the needs and aspirations
of present and future generations, as in the Convention on Biological Diversity;
but rather places responsibility on future generations by simply committing not
to compromise the “ability” to meet their needs. This distinction
between “maintaining its potential” which refers to biodiversity in
the CBD and without compromising its ability which refers to future generations
in the Fiji Environment Management Act marks a clear emphasis on people rather
than on the environment. This is a policy which strikes a balance between the
needs of the people of a developing island nation and that of the need to
sustain the nation’s natural resources, but without compromising future
generations abilities to meet their needs.
The Fiji Constitution and
Customary and Traditional Approaches to Law
The Fiji Constitution and
its amendments in 1997 provide for the requirement to include customary laws
into legal dispute resolution systems as follows:
Customary laws and customary rights
186(1) The Parliament must make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes. (2) In doing so, the Parliament must have regard to the customs, traditions, usages, values and aspirations of the Fijian and Rotuman people.[36]
This
constitutional provision is supported by another provision in the Constitution
specifically addressing natural resources. This section provides for the
appointment of five committees for oversight of governmental functions, one of
which is a committee on natural resources which reviews all legislation that
addresses issues of sustainability and development. However, based upon the
interpretation that customary law is subject to the Constitution and statutory
law, the incorporation of customary law will only be law when it is
incorporated into formal statutory
law.[37] The crafting of the Fiji
Environment Management Act evidences the incorporation of traditions and custom
into the formal law of the Fiji Islands.
Silence on the Native Land
Trust Board Act
The Native Land Trust Board Act is not mentioned in
Schedule 1 of the Fiji Environment Management Act, among the environment and
resource management acts which are related to this
one.[38] However, the definition of
‘landowner’ in the Fiji Environment Management Act refers to
mataqali [elsewhere matanggli] or other division or subdivision of
Fijians having a customary right to occupy or use any native
lands,[39] in this way,
incorporating (although without reference) the Native Land Trust Board Act.
Requiring further integration with the Native Land Trust Board Act is the
Charter of the Native Land Trust Board which has its own Environmental Charter
stating that the NLTB will promote sustainable development:
The proper management of all agricultural lands, forests, water catchments, minerals and developed areas so as to ensure their appropriate, orderly development and the continued availability and productivity of valuable natural resources.
The conservation, protection, preservation and enhancement of important aspects of the Fijian environmental inheritance for their natural, cultural, educational, scientific, recreation and tourism uses and values.
The Charter also requires the establishment of
environmental policy and guidelines, legislation and
monitoring,[40] which is achieved in
the Fiji Environmental Management Act of 2005. In spite of this lack of
reference to the Native Lands Trust Board Act, the Fiji Environment Management
Act should be in conformity with the NLTB Charter, and the approval of an
environmental impact assessment should require the co-approval by the Native
Lands Trust Board as well as approval from the National Environmental Council,
on any of the 83% of Fiji’s lands which are held by the Native Lands Trust
Board. This suggests an active, ongoing, relationship with the NLTB and the
National Environment Council, although the Act is silent on any
relationship.
THE STRUCTURE OF THE ACT
A general summary of the
scope of the comprehensiveness of Fiji Environment Management Act provides the
framework for the incorporation of traditional and customary practices and the
use of scientific methods of environmental management.
The Act sets out
the establishment of the National Environmental
Council[41] and established units
within the Administration of the “environmental impact assessment
unit”,[42] the “resource
management unit,”[43] the
“waste management and pollution control
unit,”[44] the
“environmental management
units,”[45] and
“environmental management
committees.”[46] To implement
the laws and regulations, an “Environmental Register” for
publication of rules is
established,[47] and
“appointment of inspectors” and their powers are set
forth.[48]
The establishment
of Natural Resource inventories is among the duties of the Environmental
Council, as well as environmental audits of those inventories, as required in
the Fiji Environment Management
Act.[49]
In Part 3, four
major reports are required. Environmental reports and plans include the
National Report,[50] the National
Environmental Strategy[51] and the
National Resource Inventory and the National Resource Management
Plan.[52] The right of the public
to see these reports is also provided in this
section.[53] This placement of the
access provision in the Part requiring reports, applies only to the final
report, and does not grant access to any proceedings or documents used in the
development of those plans.
Environmental impact assessments are provided
for in Part 4,[54] the
process,[55] the contents of the
report,[56] the
review[57] and
approval[58] of the report, the
requirement for an environmental management and monitoring
plan[59] by the proponent of any
development, a reference to a list of proposals that are subject to the EIA
process,[60] and a provision for
public hearings on the final environmental impact assessment
report.[61] The detailed list of
projects which are subject to an environmental assessment are set out in
Schedules, whereby the EIA Administrator must approve those on Schedule
1,[62] the local approving authority
may approve those proposals listed on Schedule
2,[63] and those projects on
Schedule 3, may not require an
EIA.[64]
Part 5 provides for
a “Waste Management and Pollution Control”
program,[65] utilising a permit
system for discharges of waste or
pollutants,[66] provides for the
power to issue permits[67] and the
term,[68] provides for failure to
obtain a permit,[69] the power to
inspect and issue notices,[70] the
power to issue orders to stop
work,[71] the power to declare an
environmental emergency,[72] and
process of appeal of any decision requiring remedial
action.[73]
Part 6 provides
for offences and penalties, which includes a statute of
limitations,[74] failure to have an
EIA approval before commencement of a development
project,[75] and provides for a fine
of no more than $250,000 or no more than 3 years in
prison,[76] a list of other offences
which may result in a fine of no more than $10,000 or term of imprisonment not
exceeding 2 years,[77] provides for
a fine not exceeding $2,000 or a term of not more than 6 months in prison for
either obtaining accreditation
falsely,[78] or falsely holding
oneself out as accredited.[79] It
also provides for pollution offences with a second offence carrying a fine not
to exceed $750,000 or a term of imprisonment of not more than 10
years.[80] Any intentional act or
one with “reckless disregard to human health, safety or the
environment,”[81] which
results in harm to human health or safety, or sever damage to the environment is
subject to a fine of not more than $1,000,000, life imprisonment or
both.[82] For corporations, the fine
is five times that provided for any
offence.[83]
Other provisions
in the act include a provision for general
penalties,[84] other
orders,[85] protection of employees
who report violations of the
Act,[86] a defence to an offence of
discharging a pollutant where the facility established that it took
“reasonable measures” to prevent a discharge of a
pollutant,[87] provision of civil
claims and damages for economic
loss,[88] loss of earnings,
[89] loss of any natural
resource,[90] costs incurred to
determine the nature of the
incident,[91] liability of
corporations and directors,[92] the
establishment of priority of claims for damages over that of any bankruptcy
proceeding,[93] and evidence
required for violations of the
Act.[94]
Part 7 addresses
miscellaneous provisions, including the ability for a citizen to institute
proceedings to compel any Ministry to perform any duty required in the
Act,[95] the establishment of an
Environmental Trust Fund,[96] the
establishment of an Environmental Tribunal to hear any appeal under this Act or
any other written law,[97] and
exemption from liability for any person acting in “good
faith,”[98] provides for power
to give directions, power to delegate, rewards for providing information or
evidence of a violation of the Act, and the authority to promulgate regulations
and guidelines.
ASSESSING THE ENVIRONMENTAL IMPACT IN THE CONTEXT OF
INDIGENOUS CUSTOM
The assessment of environmental impacts is defined
in the Fiji Environment Management Act to include a consideration of the broad
“relationship of indigenous Fijians with their ancestral lands, waters,
sites, sacred areas and other
treasures.”[99] The Act also
requires that any function under this Act must Ahave regard to...the traditional
owners and guardians of
resources.[100]
The Natural
Resource Inventory and the National Resource Management Plan is required to be
developed and reviewed and approved by the National Environment
Council.[101] The approach to
this inventory is based on customary and traditional stewardship of natural
resources. The data base that is currently being developed in Fiji, records the
customary plant ownership with the following description:
Province/district/island/village/tribe/plant. For example, ownership of a
forest plant, the Slato, which causes itching when it is rubbed against
the skin, is described with this nomenclature of ownership as Vuna/Vanu
Levu/Nakorovou/Vun/Slato, signifying the Slato plant is owned by the
Vun tribe, in the Nakorovou Village, on the island of Vanu Levu, in the
Province of Vuna.[102] While
there is no specific legislation on access and benefit sharing in Fiji, the
operation of any material transfer agreements is built upon this natural
resource inventory system.
The Fiji Environment Management Act provides
for the establishment of such an inventory, called the Natural Resource
Inventory[103] which will move
toward developing an equitable system of access benefit sharing. The U.S. has
established a system of collecting biological data and information, but
primarily for monitoring purposes. In 1994, the U.S. Congress created a new
office in the Department of Interior, the National Biological Survey (since
renamed the National Biological Service) whose mission is to collect biological
information and data across the nation in collaboration with the
states.[104]
The Fiji
Environment Management Act includes in its definitions, what is meant by
“protecting the environment.” It simply means that measures must be
established.[105] Measures might
indicate that the environment is degrading, but the definition of
“protecting the environment” is limited to measurements. This is
not unlike the process of the U.S. NEPA which requires only that an
environmental impact statement consider the environmental
impacts,[106] but does not require
that projects must be stopped because of their impacts on the environment.
The Environmental Act in defining “significant environmental or
resource management impact,” draws upon an almost identical structure used
in the regulations promulgated to define “significance” in the U.S.
NEPA.[107] This section in the
U.S. NEPA explains the term “significantly” to require consideration
of “both context and intensity.” Similarly, the Fiji Environment Act
requires that “significant . . . impact . . . means an impact on the
environment, either in the context of the setting of the proposed
development or in the context of the intensity of the proposed
development’s effect on the environment [emphasis added].” Context
in the U.S. NEPA has been interpreted to mean that the environmental impact must
be considered in several contexts, including the context of the overall
nationwide impact, affected interests, and the locality. Intensity in the U.S.
NEPA describes the severity of an action, but lists ways of qualifying
Aintensity.” This list parallels the list in the Fiji Environment Act,
where an Aimpact on the environment. . in the context of the setting [and]. . .
in the context of the intensity of the proposed development’s effect on
the environment. . includes, but is not limited to:
(a) the degree to
which public health and safety are affected; (The U.S. NEPA criteria reads,
“the degree to which the proposed action affects public health and
safety,” expressing essentially the same meaning.)
(b) the
degree to which the unique characteristics of the geographic area are affected;
(The U.S. NEPA criteria reads, “Unique characteristics of the
geographic area such as proximity to historic or cultural resources, park lands,
prime farmlands, wetlands, wild and scenic rivers, or ecologically critical
areas,” which cites examples, without excluding other geographic areas.
In comparison, the Fiji Environment Act leaves to either regulation or to
judicial interpretation what these unique characteristics of geographic areas
might be.)
(c) the degree to which effects on the environment are
likely to involve controversy; (The U.S. NEPA provides that “The
degree to which the effects on the quality of the human environment are likely
to be highly controversial.” The U.S. NEPA describes a higher threshold
for defining intensity than in the Fiji Environment Act, which triggers
intensity merely where there is a likelihood of controversy. The description of
the impact on the “human environment” in the U.S. NEPA is not
distinguishable from the “environment” in the Fiji Environment Act
because the “human environment” in judicial interpretation has
proven to include everything on earth, with no notable exceptions. The U.S. NEPA
regulation specifically describes the “human environment” as
“the natural and physical environment and the relationship of people with
that environment. This means that economic or social effects are not intended
by themselves to require preparation of an environmental impact
statement.”[108] This has
been interpreted to mean that the U.S. NEPA requirement to do an environmental
impact statement which includes economic or social effects, may be required if
there are other triggers requiring an environmental impact statement. The Fiji
Environment Act likely would not require an economic or social effects analysis
under any of the intensity criteria.
(d) the degree to which unique
and unknown risks are taken; (The U.S. NEPA lists criteria: “(5) The
degree to which the possible effects of the human environment are highly
uncertain or involve unique or unknown
risks.”[109] The Fiji
Environment Act omits the highly controversial description of “possible
effects of the human environment are highly uncertain.” The treatment of
the word “risks” in the U.S. NEPA is modified by the words
“unique or unknown” and describes the degree of the effects; while
the Fiji Environment Act uses “unique and unknown risks” in terms of
the degree to which these kinds of risks are taken. This is an interesting
modification, because it is the degree to which risks are taken rather than
their uniqueness or their uncertainty that establishes the criteria for
intensity in the Fiji Environment Act. Presumably, a conservative approach to
risk-taking, regardless of the uniqueness or uncertainty permits these kinds of
risks, and the action would not increase the intensity of the significance of
the effect on the environment.
(e) the degree to which a precedent for
future action is created; (The U.S. NEPA lists in criteria “(6) The
degree to which the action may establish a precedent for future actions with
significant effects or represents a decision in principle about a future
consideration.”) The Fiji Environment Act eliminates qualifiers of the
creation of precedent and broadens the scope of the kinds of precedents which
might be created, far beyond the scope of that of the U.S. NEPA regulations.
The Fiji Environment Act does not require that the precedent have any
“significant effects”, just that it be a precedent for future
action.
(f) the potential for cumulative environmental impacts;
(The U.S. NEPA lists in its criteria “(7) Whether the action is related to
other actions with individually insignificant but cumulatively significant
impacts. Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be avoided by
terming an action temporary or by breaking it down into small component
parts.”[110]) The U.S. NEPA
has three types of effects: indirect, direct and cumulative. The effects are
defined in the rules, and cumulative was also defined in rules, after litigation
of the meaning of the term. In judicial interpretation,
“cumulative” has been associated with “connectedness” of
actions where the actions are “inextricably
intertwined.”[111] The case
which defined connected actions held that an action is connected if it
“cannot or will not proceed unless other actions are taken previously or
simultaneously; and they are interdependent parts of a larger action and depend
on the larger action for their
justification.”[112] The
U.S. NEPA regulations now define “cumulative” in another regulatory
section (not in the “significance” section) as “the impact on
the environment which results from the incremental impact of the action when
added to other past, present and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person undertakes such
other actions.”[113] It is
almost certain, given the litigation concerning the meaning and subsequent
regulatory definition of “cumulative” in the U.S. NEPA cases, that
these criteria in the Fiji Environment Management Act will either require
regulatory definition or judicial interpretation on a case-by-case basis for
determining what is cumulative.
(g) the degree to which the natural
functioning of the ecosystem is likely to be inhibited; This is a
significant departure from the U.S. NEPA which has no equivalent of this measure
of intensity and while the Fiji Environment Act followed chronologically each of
the criteria for significance in the U.S. NEPA regulation, this criteria in the
Fiji Environment Act is inserted between the U.S. NEPA criteria (7) and
(8). The major departure broadens the scope of the Environment Act to address
threats to the “natural functioning of the ecosystem.” This does
not address whether change of a function of an ecosystem remains
“natural”, and will ultimately be raised when an ecosystem through
development may be significantly changed, and the argument can be made that it
is still a natural functioning ecosystem. For example, a waterfront development
may significantly change the ecosystem, but if fish continue to thrive and
reproduce around this waterfront, then it may be argued that the ecosystem is
functioning, naturally.
(h) the degree to which a cultural,
traditional, natural, scientific or historic resource may be threatened;
(The U.S. NEPA in its criteria “(8) The degree to which the action may
adversely affect districts, sites, highways, structures, or objects listed in or
eligible for listing in the National Register of Historic Places or may cause
loss or destruction of significant scientific, cultural or historical
resources.”[114]) The U.S.
NEPA criteria requires that the action “adversely affect” these
resources, while the Fiji Environment Act criteria requires a lower threshold of
significance where consideration be made of the degree to which the resources
are merely “threatened.”
(i) the potential threat to the
existence of protected and endangered species or their critical habitat;
(The U.S. NEPA considers in its criteria “(9) The degree to which the
action may adversely affect an endangered or threatened species or its habitat
that has been determined to be critical under the Endangered Species Act of
1973”).[115] This criteria
in the Fiji Environment Act provides for the identification of protected and
endangered species and critical habitat, all specific terms of art in the U.S.
Endangered Species Act.[116] This
statutorily created list can also make it enforceable through CITES, the
Convention on International Trade in Endangered Species, which utilises specific
countries’ lists in preventing the illegal trade of those species through
prevention of import of those species to any of the signatory
countries.
(j) the degree to which fish and wildlife resources of
ecological, commercial, subsistence and recreational importance are
jeopardised; (The U.S. Endangered Species Act, uses
“jeopardy”[117] as a
term of art, to indicate any threat to the existence of an endangered or
threatened species.)
(k) the extent to which one aspect of use of a
resource may conflict or contrary with another aspect of use of that
resource; (The U.S. NEPA has no equivalent to this criteria.) It is worth
observing that the list omits the first criteria of the U.S. NEPA list of
qualifiers for intensity: that both beneficial and adverse effect must be
identified in an environmental impact
assessment.[118] Presumably, this
may have appeared to go too far in the scope of activities which may be swept
into the net of the requirement to do an environmental impact
assessment.
The use of the term “scoping” is defined in the
definitions section of the Fiji Environment Management
Act[119] and is like the term
“scope” as it is used in the U.S. NEPA, which requires a defined
limit to the environmental impact assessment. In the Fiji Environment
Management Act, the term “scoping” used as a verb, describes the
determination of the limit of the environmental impact assessment.
Part 6
addresses the timing element of the environmental impact assessment, which
provides for penalties for failure to have an environmental impact assessment
approved “before commencement of a development
project.”[120] The U.S. NEPA
provides that an environmental impact statement must be done “at the
earliest possible
time,”[121] which the U.S.
Ninth Circuit Court of Appeals has stated is the “central purpose of an
EIS.” That is, it is of central importance to “force the
consideration of environmental impacts in the decision-making
process.”[122] The remedy
for failing to have an environmental impact statement completed is a challenge
by parties with standing, to the NEPA violation which will result in, typically,
a temporary injunction being ordered by the
court.[123] Further the NEPA
environmental impact statement is not approved by any administrative action, but
rather it is the responsibility of the federal agency or party performing the
“major federal action” to complete an environmental impact statement
and make it public. Then members of the public have an opportunity to challenge
the environmental impact statement and ask for judicial review of the
sufficiency of the environmental impact statement or the process. The U.S.
Endangered Species Act also provides for an injunction as well as penalties
against a federal agency or a private party for proceeding in an action that
jeopardises a threatened or endangered species, but this action must be
challenged by individuals authorised by the citizen suit
provisions.[124]
The
provision for penalties, loss of earnings, economic damages for discharging a
pollutant[125] is very similar to
the U.S. Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) which provides for penalties for costs of removal and remediation of
environmental damage.[126]
However, the joint and several liability provisions of CERCLA, allow for only
limited defences for an Act of God, and Act of War or an act or omission of a
third party.[127] Other defences
based upon inheritance and innocent purchaser have been added to this initial
list of defences, but there is no other defence, as in the Fiji Environment
Management Act which provides for a defence Awhere the facility established that
it took “reasonable measures” to prevent a discharge of a
pollutant.[128] The Fiji
Environment Management Act takes a negligence theory as its basis for liability;
whereas the U.S. CERCLA statute takes a strict liability approach to liability
for companies engaging in businesses with potential pollutants. The problem with
the negligence-based defence is that if liability is avoided by the discharger
for a pollutant discharge, then the costs for the clean up and remediation is
externalised on the public. The discharger has no incentive to avoid future
discharges if he can continue to show that he has taken “reasonable
measures” to prevent the discharge. For example, if the business had a
holding pond with a highly alkaline discharge from a coconut soap manufacturing
facility, and a major rain storm caused an overflow of the holding pond into an
adjacent river, the fact that such a storm happened only every 100 years and
that otherwise the pond did not overflow would be a defence under the Fiji
Environment Management Act. It is not clear if this is a complete defence, but
it would be preferable to have it only as a mitigating defence. Under the U.S.
CERCLA liability standard, the business would likely be liable for clean up and
remediation costs, as well as potential criminal penalties. Legislation
proposing mitigating factors in this strict liability scheme of CERCLA was
proposed by Senator Al Gore, but failed to pass. However, in CERCLA cases with
mitigating circumstances, courts have relied upon what has come to be known as
the “Gore factors” in this failed legislation, to craft more
equitable remedies, however the legislation remains unchanged in its strict
liability features.
This analysis of the Fiji Environment Management Act
shows that consideration for the operation of custom and tradition has been made
a part of process of the statute. The operation of custom permitted in this
formal legislation, actually takes place outside the framework of the statute
through the operation of “exemptions.” The Fiji Environment
Management Act identifies activities which will be exempt from environmental
assessments, and among those are traditional land use
activities[129] and traditional or
customary structures.[130] This
would exempt most of the activities of a village, practicing traditional
culture, but the exemption is not lost if there is a mix of modern technology in
the activities. The operation of the Fiji Environment Management Act protects
traditional activities without subjecting them to EIA scrutiny at all, by
exempting the broadest of activities that are considered “traditional land
use activities” or “traditional or customary structures.” In
the vacuum of the formal statutory framework, the Chiefs are left to choose to
govern or not to govern in the approval or disapproval of these exempted
activities.
The Environment Management Act does protect against any
proposals that “could challenge or contravene established customary
controls over the use of natural resources,” through the requirement that
only the EIA Administrator can approve such a
proposal.[131] This curiously
allows the approval of such a proposal, even if it could contravene customary
control. Traditional construction activities that are located a sufficient
distance (30 meters) from any “river, stream or high water mark” are
allowed to escape the environmental impact assessment
process.[132] Proposals that
“could harm or destroy important cultural resources” may also be
approved, but at the second tier level of an approving
authority.[133] An
“approving
authority”[134] includes a
“statutory authority, local authority or person authorised under a written
law to approve the proposal.” It is the tier two level which should make
clear that also included as an approving authority as a “local
authority” might be a Village Chieftain, giving final approval of an
environmental impact assessment which threatens cultural resources to the
Village Chieftain.
This could be remedied by amending one of the three
tiered categories for which authorities have approval of environmental impact
assessments, by promulgation of a regulation which includes a Village Chieftain
as a “local authority” within the statutory definition of
“approving authority,” or by order of a court, constituting “a
person authorised under a written law to approve the
proposal.”[135] The
opportunity to codify authority for villages to create bylaws, which are rules
of process made by villages within the context of custom and tradition, would
permit an institutionalisation of the village system of governance. The
codification of the authority to make bye-laws, provides for a framework in
which custom and tradition can change and evolve outside of the statutory
process.
While operation outside the formal framework of the statute is
workable when Village Chiefs administer justice to indigenous residents of the
Village or even other villages, the question of enforcement against commercial
fishers, tourists or others not a part of the village community leaves a gap in
the ability for Villages to protect their natural
resources.[136] In some villages
in Fiji, honorary fish wardens” patrol the fishing grounds and see it as a
Anatural part of their traditional service to the
community.”[137] However,
without the cooperation of law enforcement officers to make an arrest, the power
may be diminished. In some examples, the violation of a taboo not to enter a
lagoon after the death of the Chieftain responsible for its protection, has
resulted in death or injury to the violators. For example, oral history has it
that on more than one occasion, a tourist wandered into a taboo area and went
for a swim in the lagoon and consequently died from a shark attack, another
drowned. Posting warning signs has been discussed as a method of
deterrence.[138]
Are coral reefs and coastal areas protected in the Fiji Environment Management Act?
Coastal resources and coral reefs are not
identified as targets of the Fiji Environment Management Act, although many land
activities and activities within the governance of villages have an impact on
the shore, the coastal waters and consequently on the coral reefs. However, the
Fiji Environment Management Act does include in the definitions sections some
consideration of impacts on the coastal zones. In the definition of Atraditional
or customary structure,” it is clear that if a Aseawall or shore
protection,” is produced traditionally with traditional materials it will
remain outside of the reach of an environmental impact
assessment.
According to the Status of Coral Reefs Report of 2004, the
coral reefs of Fiji are recovering from the 2000 and 2002 bleaching events, but
are mostly healthy. The greatest damage is being done in the areas near the
largest cities, where over-exploitation, pollution runoff and sediment are
harming the reef. The prediction for 2014 is that the reefs near the large
cities in Fiji will continue to sustain increasing damage. This pressure in
combination with bleaching, almost certainly will result in damaged reefs near
the large cities.[139]
The
protection of genetic resources however, extends to the natural resource
inventory of village stewardship of particular species. For example, one
village have stewardship for oysters, fish which survive on the reef and other
oceanic resources which would impact the entire coastal ecosystem of which they
are a part. The natural resources inventory, in that sense, includes the coastal
and reef resources.
Because as many as 1,000 different species have been
found per square meter in some Pacific Ocean areas, the attraction for
bio-prospecting is increasing.[140]
The next challenge will be keeping bio prospectors outside the 200 mile
jurisdiction of countries, as they seek new species in the deep coral reef or
deep ocean areas.
CONCLUSION
The purpose of the Fiji Environment Act
focuses on people rather than the environment with an emphasis on sustainability
in the context of development. This important balance between preserving natural
resources that are of value not only to Fiji but to the world, and the needs of
a developing country seeking to increase the quality of life of its citizens is
carefully crafted in the Fiji Environment Management Act.
The
incorporation of the requirement of the Native Lands Trust Board to establish
environmental policy and guidelines, legislation and monitoring, is not
acknowledged in the Fiji Environment Management Act, nor is the inclusion of the
NLTB in environmental assessments on Native Lands. To be consistent with the
Native Lands Trust Board charter, environmental assessments should also be
approved in collaboration with the NLTB.
The heart of defining what is a
“significant” impact on the environment is found in the definitions
section of the Fiji Environment Management Act and is designed precisely around
the U.S. NEPA regulations which defines “significant” as it
describes environmental impacts. While the Fiji Environment Act follows
precisely the substance and order of the U.S. NEPA definition of
“significance” it also departs in major substantive content from its
U.S. counterpart. The addition of a criterion in the Fiji Environment Act, which
addresses the threat of actions to the “natural functioning of the
ecosystem”, expands the meaning to protection of the environment for its
existence value, and not in the context of its impact on humans or development.
The omission of the U.S. NEPA criteria in the Fiji Environment Management Act
for significance if an action has either a “beneficial or adverse
effect” avoids triggering an environmental assessment where the effects of
an action are potentially “beneficial” to the environment,
potentially reducing the number of necessary environmental impact
assessments.
The exemption mechanism is a broad category for traditional
activities, not incorporated into the formal framework of the statute, but left
presumably to the governance of the Chiefs. By leaving this completely
unstructured, custom and tradition may remain flexible in its development and in
its processes in addressing this broad area of exempted activities. At the same
time, the lack of institutional recognition of Village Chieftain authority over
environmental management may inhibit the enforcement capabilities of the
Villages.
Finally, the process of tiering authority in Schedule 1, Part
3, where exempted activities may not require an environmental impact assessment,
does not preclude the requirement that the villages may require approval of any
such proposal. The amendment of the Fiji Environment Management Act to provide
for the development of bylaws to address any activity found exempted by the
Environmental Council Administrator, would institutionalise the Village system
of governance in the environmental impact of projects.
Not only has Fiji
made a significant contribution to the jurisprudence of customary law in its own
jurisdiction, but it also serves as evidence of a movement toward the
incorporation of custom and tradition into dominant legal systems in the context
of environmental law in the South Pacific.
[1] Environmental Management Act of
2005 (17 March 2005). Vanua is a concept held by the Fijians (and other
indigenous peoples) that the land is an extension of oneself, including
one’s life, sustenance and
culture.
[2] Victoria Sutton, MPA,
PhD (Environmental Sciences), JD, Robert H. Bean Professor of Law, Texas Tech
University School of Law, former Assistant Director of the White House Office of
Science and Technology Policy.
[3] See Map on High Levels of
Biodiversity, Millennium Report, May
2005.
[4] Green, Fhys E., Balmford,
Andrew, Crane, Peter R., Mace, Georgina M, Reynolds, John D. & Turner, R.
Kerry (2005) A Framework for Improved Monitoring of Biodiversity: Responses to
the World Summit on Sustainable Development. Conservation Biology 19 (1),
56-65.
[5] Klaus Topfer,
Foreword, United Nations Environment Program and the World Wildlife Fund
Coral Reefs Advocacy Initiative, Conventions and Coral Reefs (May
2003).
[6] Convention on Biological
Diversity, Report on Biological Diversity (2004),
<http://www.biodiv.org/gbo/> (Accessed 4 November 2005).
[7] South Pacific Tourism
Commission, Press Release, October 2004. In 2004, Fiji had an 18% increase in
tourism in contrast to the South Pacific region’s 9% increase.
[8] R.E. Johannes, ‘Traditional Marine
Conservation Methods in Oceania and Their Demise’, (1978) 9 Annual
Review of Ecology and Systematics 349-64,
327.
[9] Bruno Saura, “Customary
Rules in French Polynesia,” Paul de Deckker, Jean-Yves Faberon, eds.,
Custom and the Law, Asian Pacific Press 82
(2002).
[10] Geoffrey M. White, “The
Discourse of Chiefs: Notes on a Melanesian Society,” Geoffrey M. White,
Lamont Lindstrom, Chiefs Today: Traditional Leadership in the Postcolonial
State, Stanford University Press 230 (1997).
[11] Ratu Moses Volavola, The
Native Land Trust Board of Fiji, Customary Land Tenure and Sustainable
Development: Complementarity or Conflict? [South Pacific Commission and the
University of the South Pacific, Suva (1995)
50.
[12] Ratu Moses Volavola, The Native
Land Trust Board of Fiji, Customary Land Tenure and Sustainable Development:
Complementarity or Conflict? [South Pacific Commission and the University of
the South Pacific, Suva (1995)]
50.
[13] William R. Geddes,
Deuba: A Study of a Fijian Village,” Institute of Pacific Studies,
University of the South Pacific, Reprint Series (2000)
6.
[14] Ati George Sokomanu,
Secretary-General, South Pacific Commission, [South Pacific Commission and
University of the South Pacific, Suva (1995)]
2.
[15] Ron Crocombe, ‘Does
Customary Tenure Enhance Sustainable Development?’ Customary Land
Tenure and Sustainable Development: Complementarity or Conflict? [South
Pacific Commission and the University of the South Pacific, Suva (1995)]
2.
[16] Crocombe (1995)
5.
[17] Crocombe (1995)
5-6.
[18] Charles Hardin, Tragedy
of the Commons, 168 Science 1243 (1968). This short essay describes as story
where the degradation of land held in common, where people had much to gain but
little to lose in their consumption of natural resources when they were held in
common.
[19] Crocombe (1995)
6.
[20] Crocombe (1995)
7.
[21] R. E. Johannes,
‘Traditional Marine Resource Management in Oceania and Its Demise’,
(1978) 9 Annual Review of Ecology and Systematics
349-64.
[22] Aalsbersberg, W.,
Korovulavula, I., Parks, J.E., D. Russell, ‘The Role of Fijian Community
in a Bioprospecting Project’,
at
<http://www.dec.org/search/dexs/index.cfm?fuseaction=dexs.citation&rec_no=103829>
(Accessed 4 November 2005).
[23] The story was related to me by Joeli Vakabua, University of the South Pacific, Suva, Fiji, June 7, 2005.
[24] Crocombe (1995)
9.
[25] Crocombe (1995)
8.
[26] See
<http://www.sidsnet.org/pacific/sprep/whatsprep_.htm> (Accessed 4 November
2005) .
[27] See
<http://www.sidsnet.org/pacific/sprep/whatsprep_.htm> (Accessed 4
November 2005).
[28] The
Convention on Biological Diversity, Article 15. AAccess to Genetic
Resources” reads as follows:
1. Recognising the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.
2. Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention.
3. For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and
Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.
4. Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.
5. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.
6. Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.
7. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.
[29] Part
3(24) Environment Management Act 2005 (March 17,
2005).
[30] Environment
Management Act of 2003 (March 17, 2005).
[31] Clark Peteru, Legal Advisor, SPREP, electronic communication, June 29, 2005: The Fiji Environment Management Act “has a long history. When it was first drafted about 8 or so years ago, it was immense and when through countless changes. The original drafter was George De Romily but the final version has numerous contributions to it from other sources (i.e., the environment department and Attorney-General’s Office of Fiji).”
[32] Act No. 1 of 2005, (17 Mar
2005), Sec. 2 ALandowner means the registered proprietor of any land, or of any
estate or interest in it or proprietor of any lease or sublease and includes the
mataqali or other division or subdivision of Fijians having a customary
right to occupy or use any native
lands.”
[33] Sec. 3(2) The
purposes of this Act areC (a) to apply the principles of sustainable use and
development of natural resources; and (b) to identify matters of national
importance for the Fiji Islands as set out in subsection
3.
[34] Environmental Management
Act of 2005, Sec. 3 (17 Mar
2005).
[35] Convention on
Biological Diversity,
Definitions.
[36] The
Constitution of the Republic of Fiji, Art. 186 (1997),
<http://www.paclii.org/fj/legis/num_act/ca1997268/> (Accessed 4 November
2005).
[37] Jennifer Corin Care,
‘The Status of Customary Law in Fiji Islands After the Constitutional
Amendment Act of 1997’, 4 Journal of South Pacific Law (2000)
<http://www.vanuatu.usp.ac.fj/journal_splaw/articles/Corrin1.htm>
(Accessed 4 November 2005) .
[38]
EMA, Schedule 1 (Sec. 2).
[39]
EMA, Sec. 2.
[40] Ratu Moses
Volavola (1995) 51.
[41]
Environmental Management Act of 2005, Part
2.
[42] EMA, Part
2(12).
[43] EMA, Part
2(13).
[44] EMA, Part
2(14).
[45] EMA, Part
2(15).
[46] EMA, Part
2(16).
[47] EMA, Part
2(17).
[48] EMA, Part
2(19-21).
[49] EMA, Part
2(22).
[50] EMA, Part
3(23).
[51] EMA, Part
3(24).
[52] EMA, Part
3(25).
[53] EMA, Part
3(26).
[54] EMA, Part
4.
[55] EMA, Part
4(28).
[56] EMA, Part
4(29).
[57] EMA, Part
4(30).
[58] EMA, Part
4(31).
[59] EMA, Part
4(32).
[60] EMA, Part
4(33).
[61] EMA, Part
4(34).
[62] EMA, Part
4(33)(1).
[63] EMA, Part
4(33)(2).
[64] EMA, Part
4(33)(3).
[65] EMA, Part
5.
[66] EMA, Part
5(35).
[67] EMA, Part
5(36).
[68] EMA, Part
5(36)(2).
[69] EMA, Part
5(37).
[70] EMA, Part
5(38).
[71] EMA, Part
5(39).
[72] EMA, Part
5(40).
[73] EMA, Part
5(41).
[74] EMA, Part
6(42).
[75] EMA, Part
6(43).
[76] EMA, Part
6(43)(3).
[77] EMA, Part
6(44)(1).
[78] EMA, Part
6(44)(2).
[79] EMA, Part
6(44)(3).
[80] EMA, Part
6(45)(1)(b).
[81] EMA, Part
6(45)(2).
[82] EMA, Part
6(45)(2).
[83] EMA, Part
6(45)(3).
[84] EMA, Part
6(46).
[85] EMA, Part
6(47).
[86] EMA, Part
6(48).
[87] EMA, Part
6(49).
[88] EMA, Part
6(50)(a).
[89] EMA, Part
6(50)(b).
[90] EMA, Part
6(50)(c).
[91] EMA, Part
6(50)(d).
[92] EMA, Part
6(51).
[93] EMA, Part
6(52).
[94] EMA, Part
6(53).
[95] EMA, Part
7(54).
[96] EMA, Part
7(55).
[97] EMA, Part
7(56).
[98] EMA, Part
7(57).
[99] The context of this
criterion is in the Fiji Environment Act, Sec. 3(3) A person required to
perform any function under this Act relating to the use and utilisation of
natural and physical resources must recognise and have regard to the following
matters of national importance.
(a) the preservation of the coastal
environment, margins of wetlands, lakes and rivers;
(b) the protection of
outstanding natural landscapes and natural features;
8) the protection of
areas of significant indigenous vegetation and significant habitat of indigenous
fauna;
(d) the relationship of indigenous Fijians with their ancestral
lands, waters, sites, sacred areas and other treasures; or [emphasis
added].
(e) the protection of human life and
health.
[100] EMA, Sec. 3(4)
person performing a function under this Act relating to the use of natural
resources must have regard to the following C (a) the traditional owners or
guardians of resources; (b) the maintenance and enhancement of amenity
values; ( c) the intrinsic values of ecosystems; (d) the maintenance and
enhancement of the heritage values of buildings and sites; (e) the maintenance
and enhancement of the quality of the environment; (f) the finite characteristic
of natural and physical
resources.
[101] Part 3
(25)(1), Environment Management Act 2005 (March 17, 2005).
[102] Presentation, Joeli
Vakabua, University of the South Pacific, “The Fiji Fantastic Sheep
Breeding Material Transfer Agreements,” Dialogue on Pacific Experiences
and Perspectives on the Use and Ownership of Genes, June 6-8, 2005, Suva,
Fiji.
[103] Part 3(24)
Environment Management Act 2005 (March 17,
2005).
[104] The NBS was
established by a Secretarial Order issued September 1993 and became operational
on November 11, 1993, when Congress passed the FY 1994 Interior Appropriations
Act and it was signed into law by Pres.
Clinton.
[105]
“Protecting the environment” means the establishment of measures
to ensure the protection of human health, safety, property, legitimate uses of
the environment, species of flora and fauna, ecosystems, aesthetic properties
and cultural resources or preventing nuisance or risk of harm to any such value,
on a sustainable
basis;
[106] 42 U.S.C.
4332( C) (2005).
[107] 40
C.F.R. 1508.27 (2005).
[108] 40
C.F.R. 1508.14 (2005).
[109] 40
C.F.R. 1508.27(b)(6)
(2005).
[110] 40 C.F.R.
1508.27(b)(7) (2005).
[111]
Thomas v. Peterson, 753 F2d 754, (9th Cir.
1985).
[112] Thomas v.
Peterson, 753 F2d 754, (9th Cir.
1985).
[113] 40 C.R.F. 1508.7
(2005).
[114] 40 C.F.R.
1508.27(b)(8) (2005).
[115] 40
C.F.R. 1508.27(b)(9)
(2005).
[116] “Endangered
species,” is defined as Aany species which is in danger of extinction
throughout all or a significant portion of its range.” 3(6);
“Threatened species,” is defined as “any species which is
likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range. 3(20); and “critical
habitat” designations are to be based upon Athe best scientific date
available. . taking into consideration the economic impact, and any other
relevant impact, of specifying any particular areas as critical habitat.”
4(b).
[117] 16 U.S.C.A. 1538
requires that federal agencies ensure that their actions are “not likely
to jeopardise the continued existence of any endangered species or threatened
species . . .”
[118] 40
C.F.R. 1508.27(b)(1)
(2005).
[119] Scoping”
means scoping of a development proposal under Part 4 to determine the scope of
the EIA report in order to ensure that the report addresses all relevant issues
and concerns arising out of the
proposal;
[120] EMA, Part
6(43).
[121] 40 C.F.R. 1501.2
(2005).
[122]Thomas v.
Peterson, 753 F.2d 754 (9th Cir.
1985).
[123] See Sierra
Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir.
1983).
[124] ESA
11(g).
[125] EMA, Part
6(50)(1).
[126] CERCLA
107.
[127] 42 U.S.C.
9607(b).
[128] EMA, Part
6(49).
[129]
“Traditional land use activities” means the use of customary or
traditional methods, practices and materials to enhance the occupation or use of
land granted through the customary land tenure system, but does not include
those activities requiring the substantial use of machinery and explosives and
other modern methods or plastics, electricity, petrochemicals, metals, concrete,
and milled timber or other modern
materials;
[130]
“Traditional or customary structure” means any dwelling or other
building constructed with traditional materials or a combination of traditional
and modern materials or the use of traditional or customary methods or a
combination of traditional or customary methods and modern methods, but does not
include:
(a) any permanent dwelling, building, sea wall or shore
protection works produced by modern methods or from modern materials;
or
(b) a structure built on a significantly larger scale than those
built historically.
[131]
EMA, Schedule 1, Part 1 (u) includes on the list of activities that require an
EIA and approval from the EIA Administrator: A(u) a proposal that could
challenge or contravene established customary controls over the use of natural
resources.” . .
[132]
EMA, Schedule 1, Part 3 ( c) includes in the list of activities that Amay not
require the EIA process or an EIA report”: ( c) a proposal for the
construction of a traditional or customary structure (including the Fijian
villages within native reserves under the Fijian Affairs Act or villages on the
islands of Rotuma and Rabi made from traditional materials, or from natural
rock, sand, coral, rubble, or gravel, if the construction or the customary
structure is at least 30 metres from any river, stream or the high water
mark.”
[133] EMA,
Schedule 1, Part 2 (b) includes in the list of proposals that can be approved by
an Aapproving authority” A(b) a proposal that requires processing only
because it could harm or destroy important cultural resources including , but
not limited to, archaeological sites, cemeteries, historic sites and landmarks.
. .”
[134] EMA, Part 1(2)
Aapproving authority”, in respect of a development proposal, means a
Ministry, department, statutory authority, local authority or person authorised
under written law to approve the
proposal.”
[135] EMA,
Part 1 (2) Aapproving authority”
definition.
[136] Without prior
notice of these customs, a constitutional question of Due Process would be
raised in the United States, but there is no comparable right in the Fiji
Constitution prohibiting this
practice.
[137] Fong GM,
‘Case study of a rational marine management system: Sas Village, Macuata
province, Fiji, FAO Field Rep. RAS/92/T05.94.1. Rome: FAO, cited in R. E.
Johannes, AThe Renaissance of Community-Based Marine Resource Management in
Oceania,” (2002) 33 Annual Review of Ecology and Systematics
317-340, 327.
[138] Story was
related to me by Dr. Joeli Vakabua, University of the South Pacific, Suva, Fiji,
June 7, 2005.
[139] Status of
Coral Reefs 2004, 338-339,
<http://www.aims.gov.au/pages/research/coral-bleaching/scr2004/pdf/scr2004v2-all.pdf>
(Accessed 4 November 2005).
[140] United Nations University, Institute for Advanced Studies, Report, June 2005.