IV. MEASURES FOR INTEGRATING ENVIRONMENTAL CONSIDERATIONS
B. Measures used to achieve stated environmental policies and an evaluation of effectiveness
1. Command and control
Fiji has relied mainly on enacting and attempting to enforce laws and regulations in its effort to achieve the stated environmental policies. For a small country Fiji has a bewildering number of Acts (at least 54) which deal in one way or another with environmental/resource management. The majority of those laws are products of the colonial era. In a regulatory environment of considerable enforcement and control those laws were quite effective in meeting the needs of the time, particularly in areas such as land degradation. However, it is now widely recognized that those laws are outdated and ineffective in terms of meeting the requirements of the Fiji environment. Moreover, in the absence of the controls of the colonial era there is an uncoordinated and often half-hearted approach to the application of laws (McBride, 1992; Pulea, 1992; Watling and Chape, 1993). Morrison and others (1970), in looking specifically at legislation directed specifically at the problems of land degradation concluded that “while some land conservation measures have been effectively instituted, the influence of the conservationist laws on many of the daily activities of farmers has been slight, especially since independence”.
(a) Laws on land use and land degradation
The management of land is currently regulated by statutes such as the Native Lands Trust Act, 1905 and 1940, the Agricultural Landlord and Tenant Act, 1976, the Town Planning Act, 1946, the Subdivision of Land Act, 1937, and the State Lands Act, 1946. Other important statutes include the Land Conservation and Improvement Act, 1953, the Forest Act, 1953, the Quarries Act, 1939, the Mining Act, 1965, and the Petroleum Act, 1978.
(i) Native Lands Trust Act, 1905 and 1940
NLTB was established in 1940 to manage the leasing of native land. Acting on behalf of the landowners, it oversees leases, the collection and distribution of rent, and the monitoring of land use. The somewhat paternalistic arrangements give landowners no say in the leasing arrangements and the use for any particular piece of land. The Act gives NLTB sweeping powers, under good husbandry provisions, to ensure sustainable land use by tenants. NLTB leases require the lessee “to farm and manage the land in such a way as to preserve its fertility”. However, this requirement has rarely, if ever, been enforced. An extreme case is the ginger industry, where lessees have been allowed by NLTB to drain the land of all its natural productivity and soil resources, before abandoning it and moving on to another new lease. The failure of NLTB to protect native land from such degradation can, in part, be explained by the high priority given by landowners to maximizing lease rental receipts.
The establishment of NLTB did, for the first time, allow the leasing of native land. However, the leases were all short term. Farmers were given little encouragement to practice responsible land management and no incentive to grow long-term crops. By that time the Indian-dominated sugar industry had become the mainstay of the Fiji economy and longer-term leases were required if that situation was to be sustained. The response was the Landlord and Tenants Ordinance (amended to the Agricultural Landlord and Tenant Act [ALTA] in 1976). ALTA permitted 30-year leases, which allowed tenants to commit themselves to intensive agriculture, without compromising indigenous land proprietorship. Initially, the duration of the leases were sufficient to provide some incentive for responsible land management. However, with the passage of time, those incentives declined with mounting uncertainty regarding the renewal of ALTA leases and in the absence of any enforcement of the good husbandry provision on the leases.
(iii) Land Conservation and Improvement Act, 1953
This Act made provision for various conservation orders related to soil conservation practices in agriculture, preventing overgrazing, protection of vegetative cover and the prohibition of the use of land-damaging practices. The Act also established the creation of LCB to promote the wider extension of land-use conservation practices. LCB is again operative since being resurrected after many years dormancy.
The responsibility of NLTB towards preserving fertility of the land is overlapped by the duties of LCB. Since, it is against the financial interests of NLTB to constrain lessees, it leaves the responsibility of preserving fertility to LCB. Although LCB has the legal power to perform that role, it has not done so mainly because of a lack of resources, problems with coordination between ministries and bureaucratic inertia, but most importantly a lack of political will. If LCB wishes to pursue its mandate vigorously it will have to make difficult decisions which will clash with other national and ministerial objectives. As highlighted by Morrison and others (1970), priorities have been more on encouraging economic development through the expansion of commercial agriculture onto previously unused land and on bringing the local population into commercial agriculture, specially sugar production, rather than on conservation. LCB has focused its efforts, quite successfully, on the improvement of drainage.
It is generally agreed that both NLTB and LCB have ample legislative power to control many of the land degradation problems observed in the forestry and agricultural sectors. However, those laws have rarely been used, reflecting the lack of political will in the sensitive area of land use and a lack of coordination among the ministries responsible. That lack of application has not only been caused by inadequate resources but also by the fragmented and uncoordinated nature of Fiji’s current environmental laws, plus factors such as overlapping of responsibilities, which ultimately ends up in a situation where everyone expects others to do the dirty work; in the end, nothing is done. There has been little pressure from the landowners themselves for the enforcement of good husbandry provisions and their main priority has been the maximization of lease rental receipts.
(iv) Town Planning Act, 1946
This Act is the principal statute governing physical planning. The Act provides for the development of land, buildings and other operations andfor any material change in the use of land and buildings.
(v) Subdivision of Land Act, 1937
This Act provides for the subdivision of land for various purposes, such as agriculture and residential as well as various other uses such as the formation of streets and drainage systems, which involves change to the physical character of the land.
The Act was passed to replace the Noxious Weeds, Pest and Diseases of Plants Act, 1964. Through a system of import permits it controls inspection and quarantine treatments, and imports of plants and anything else that might harbour plant pests and diseases.
The Animal Importation Act and all its regulations were updated in 1985. The legislation strictly controls imports of all animals and animal products.
(b) Marine resources and fisheries
This Act provides the regulations for exploitation of the fisheries industry. It regulates the use of fishing devices, methods of fishing and areas where fishing may be conducted. For example, killing fish by the use of poison and dynamite is prohibited. Any fisherman convicted of using explosives faces a fine of F$ 1,000 and a mandatory six-month jail term on the first offence. Of all the conservation laws, the fisheries regulations are the most conspicuously enforced. Clampdowns on the sale of undersized produce and the prosecution of users of dynamite, for example, are regularly reported. Nonetheless, the Fisheries Department claims its efforts could, and should, be greatly increased with additional resources. It has also been suggested that an Enforcement Unit in the Fisheries Department could provide some of the controls and protection set out in the Act.
The Marine Spaces Act makes provision for the demarcation of marine spaces in Fiji and declares the right to regulate the exploitation of its marine resources. The Act also makes further provision for the regulation of fishing. Part 3 of the Marine Spaces Act deals with the management and conservation of foreign fishing vessels licensed to fish in the EEZ of Fiji. The conditions imposed on the issue of licences are extensive. For example, it defines the area authorized to fish, the period during which fishing can take place, the description, quantities and methods of fishing.
(c) Laws on pollution
Pollution has many origins and the “laws dealing with them in Fiji are perhaps the least effective of all the environmental laws” (National State of the Environment Report, 1991). The prosecution of anyone causing pollution is practically impossible and has never been carried through.As a result, blatant offences continue. Examples include a car battery plant at Walu Bay, Suva, which continues to discharge battery acid into a creek that feeds directly into Suva harbour; the cement factory on the outskirts of Suva which discharges large quantities of dust particles, particularly sulphur dioxide; and garage and bus owners who continue to dump oil directly into drains. Those activities persist uncontrolled, despite many years of muted public concern.
Smoky vehicle exhausts are among the most common and offensive forms of pollution. Offenders could be prosecuted under the Public Health Act and the air pollution provisions of the Traffic Regulations. However, there is insufficient political directive and resolve on those types of issues to transcend the ethnic communal basis of the political system of Fiji. All petrol sold in Fiji contains lead additives and there is no programme in place for a gradual conversion to lead-free petrol, despite the fact that unleaded petrol is widely available elsewhere in the world. Under the new Act, the import of petrol with more than 0.25 grams of lead per litre after 31 December 1999 will be illegal. Moreover, all retail petrol sellers will have to offer unleaded petrol for sale.
In essence, the only form of pollution control currently being exercised is not legislation which results in the prosecution of offenders, but the Government and Local Authority licensing and development consent for new industries and plants. Effectively, this means that existing polluters continue their activities unhindered, although there are a few that have exercised some form of self-imposed control.
(i) Air pollution laws
The air pollution laws include the public nuisance provisions of the Public Health Act, 1936, and the air pollution provisions of the Traffic Regulations, 1974. Issues of air quality can also be included as a condition attached to planning permission under the Town Planning Act, 1946. However, the enforcement of those laws remains inadequate. Traffic pollution is a major public health concern. Similarly, the Fiji Industries cement plant regularly emits heavy levels of pollution in the form of dust and particles. In addition to concern over discharge levels, additional concern is growing over gaseous discharges, especially sulphur dioxide.
(ii) Laws on litter
An Anti-litter Decree came into force in March 1992. The Decree contains the provisions for all fines and penalties. Fines recovered under the Decree are to be paid into the municipal fund of the local authority conducting the prosecution; that provides an incentive for each authority to adopt a conscientious approach to the enforcement of the Decree. Litter prevention officers are given considerable powers for action when they find a person depositing litter. A person who, for example, willfully obstructs or hinders an officer commits a serious offence and may be fined up to F$ 500, and/or sentenced to imprisonment for up to three months. Experience from the decree has provided insights into what may be legally feasible at the present time in Fiji, at least in the short term. In enacting the Decree, the government showed how serious it was over penalizing individuals and corporate enterprises committing litter offences. McBride (1992) describes the situation which existed when the decree was first implemented:“During the first few weeks following the Decree coming into force there was a very noticeable decrease in the amount of litter in public places. The prospect of the potentially high fines, together with the possibility of imprisonment, had a deterrent effect. However, in familiar fashion there was no follow through and things returned to ‘normal’ within a short period. People continued to dispose of large amounts of litter in public places.”
That statement appears to indicate that it is not sufficient to enact a new law, even one with severe penalties. If the law is to be effective there must be an ongoing commitment to its enforcement and the education of the population on the reasons for the law.
The implementation of the Anti-litter Decree remains a “hot and cold” concern. Recently, amendments were made to the Decree and it became an Act which was enforced in early 1997. The Minister of Housing, Urban Development and the Environment announced that “there was ample reason to dissolve a municipal council if it did not do enough to enforce the Anti-litter Decree” (Fiji Daily Post, 20 March 1997). The Minister called a workshop to discuss the implementation of the Decree to which “all representatives of litter enforcing authorities have been instructed to attend”.
(d) Water management laws
Water management laws include the Water Supply Act, 1955, and the Marine Spaces Act, 1977. The marine pollution provisions of the Ports Regulations, 1990, are also of considerable importance. According to the National State of the Environment Report (1992), the marine environment is better served by laws and regulations than any other sector. The most recent regulations to be passed, the Ports Authority of Fiji Regulations, may help clean up some of the blatant acts of pollution in the ports. But again the issue will rest on enforcement.
(e) Laws on endangered species
Birds and Game Protection Act, 1923
According to the National State of the Environment Report (1992), this Act remains a remarkable piece of legislation under which, for example, all native birds are completely protected (except for certain pigeons in season). Unfortunately the reptiles, including turtles were ignored. Turtles have recently been afforded some protection under the Fisheries Act., but the internationally renowned crested iguana has no legal protection.
(f) Laws on conservation of historical artifacts
Under these Acts the National Trust has very wide powers and responsibilities. However, the performance of the National Trust has been disappointing. According to the National State of the Environment Report (1992), only one national monument, Wasavulu near Labasa, has ever been declared. Recently, the Department of Town and Country Planning initiated the protection of historic buildings through its planning regulations.
(g) Legal requirements for EIAs
A notable absence in Fiji’s environmental legislation is the lack of clear legal requirements for EIAs. The EIA currently provides only a guideline, and has no formal legal status. Only the Director of the Department of Town and Country Planning has discretionary power, through the provisions of the Town and Country Planning Act, to call for an EIA for private sector development proposals, and those are referred to the Department of the Environment. Private and public sector projects are submitted to the Department of the Environment only on a goodwill basis. The Department interviews development proponents to decide on the scope of the EIA, and reviews the EIA when it is completed. At present, about two projects per month are assessed under that provision. Public projects have been undertaken on occasions within the relevant line ministries, but the staff are generally not qualified to do the work. A formal procedure is needed for EIAs in relation to public sector projects.
There is an urgent need to formalize the legal requirements and administrative processes for EIAs in Fiji (particularly for government development projects, since the government is the nation’s major developer). That need is recognized by many, including Pulea (1992) who concluded that:“The Environmental Impact Assessment procedures require legal formality to encourage special weight in decision-making to be attached to environmental damage. The Environmental Impact Assessment procedures should not be made part of the Town Planning Act but a standalone Act on Environmental Impact Assessment is strongly suggested.”
The Sustainable Development Bill establishes an EIA process to be followed by all government ministries, departments and agencies, as well as the private sector, for all proposed developments which are likely to cause an adversely impact on human health, society or the environment. The Bill defines the nature of activities that are subject to an EIA. It also defines the EIA process, including procedures for screening, deciding on the scope of the EIA and the preparation of reports. The EIA process will be an essential tool in integrating the environment in the decision-making process. It will provide an environmental and socio-economic cost and benefit analysis of a project instead of the current economic analysis. Unless the project has only minor impacts on the environment in comparison to the socio-economic benefits it will derive, it will not be allowed to go ahead.
(h)Overall assessment of the effectiveness of environmental legislation in Fiji
Fiji’s environmental legislation is not very effective. Current laws are old, fragmented and uncoordinated. Most of them are of a command and control type and require significantly large budgets to enforce. Command and control regimes require continuous updating of laws to suit the changes in needs, and the establishment of a pollution/resource control inspectorate which employs highly trained and qualified staff. The environmental inspectors are required to set environmental and pollution discharge standards, issue and enforce permits, and carry out regular inspections to ensure enforcement of the established standards. In Fiji, budgets for such tasks have been minimal. Budget priorities have been placed elsewhere. In the main, this is reflected by the old, fragmented and uncoordinated nature of the environmental laws which are still in existence and the lack of enforcement.
Although strict and comprehensive laws have many advantages in reaching environmental policy objectives, they have their limitations. The fact that the laws have failed to cover recent environmental problems in Fiji highlights the urgent need for a new approach. To be effective, legislation needs to be complemented by other measures such as economic incentives and environmental awareness programmes. Experience in other counties indicates that such a combination gives better results.