Integrating Environmental Considerations into the Economic Decision-Making Process
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VI. MONITORING AND ENFORCEMENT

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A. Current enforcement of environment policies, laws and regulations

Enforcement in Fiji is undertaken as a basic element of environmental programmes. However, enforcement is not given significant policy interest or priority. Since independence, the enforcement of existing laws and regulations dealing with the environment has proven to be very weak. There are many reasons for the weak enforcement of environmental laws, and they differ from sector to sector.  However, there are a number of common reasons for the lack of enforcement, including:

  • Old laws. Much of environmental legislation in Fiji dates from the colonial days.  Industrialization and development at that time had limited environmental consequences.  For example, the Public Health Act came into force more than 60 years ago when Fiji was entirely an agrarian society. Under that Act, atmospheric pollution is classified as a mere nuisance, rather than a major public problem;
  • Environmental laws are many and varied.  At least 25 Acts which play an important role in environmental management, and these are administered by at least 14 different ministries, statutory bodies or other agencies. Most of the laws are ineffective or suffer from lack of enforcement of regulations through inadequate staffing, lack of technical resources and funding, or through administrative failures;
  • Fragmented legislation. The environmental laws of Fiji are made up of a number of different pieces of legislation, which creates loopholes in the law. One example that illustrates the problem was need for the Attorney-General’s Chambers to consider the provisions of seven pieces of legislation (the Irrigation Act, Drainage Act, Water Supply Act, Mining Act, Public Health Act and the Penal Code) in order to find a way of taking action against an industrial operation which had accidentally polluted a river as a result of a failure in its effluent disposal system. An investigation into whether or not an offense had been committed against any pollution laws showed that none of the legislation applied to the particular situation.  Hence no legal action could be taken against the alleged polluter (Manuel, 1991);
  • Fragmented responsibility. While there are a large number of authorities responsible for the enforcement of various pieces of legislation, no single body is vested with the responsibility for investigating infringements and ensuring compliance;
  • Lack of training and resources. Enforcement officers in Fiji lack the necessary specialist training and resources. According to McBride (1992): “when prosecutions are brought, the courts, on occasions, appear to lack the necessary expertise to deal appropriately with criminal offences against the environment. As a result, in the area of pollution offences there are usually one or two prosecutions per year”;
  • Prosecutions against government agencies do not take place.  There do not appear to have been any attempts in the past to 'force' local authorities to perform their legal duties in relation to the enforcement of pollution laws (McBride, 1992). Complaints to the Office of the Ombudsman about the non-performance of local authorities in the area of enforcement do not appear possible in Fiji. The Ombudsman has limited powers and limited resources at its disposal (e.g., currently, no lawyer is attached to the Ombudsman’s Office);
  • Insignificant penalties. This problem applies in particular to the areas of pollution and land degradation. For example, the 1990 Ports Authority of Fiji Regulations provide for a maximum fine of only F$ 400 for pollution offences. A chemical spill in Suva harbour could cost the government millions of dollars to clean up. The future must lie in legislation which holds the polluter (or forester, farmer, miner etc.) responsible for clearing up any mess he/she causes.  In contrast, penalties for quarantine violations can be very severe.  As part of a programme to protect Fiji from the importation of exotic fruit flies, very severe penalties were recently being imposed for smuggling of fruits and vegetables;
  • A lack of commitment for enforcement.  This problem can be found at just about every level. For example, the Fiji School of Medicine has pointed out that atmospheric pollution is a continuing health problem and that there is a need for a concerted effort in Fiji to control existing and future emissions. However, present effective control programmes are hindered because of the lack of commitment and resources (transport, analytical facilities and manpower);
  • Entrenched negative public attitude to enforcement. Attitudes which have built up over the years of neglect in enforcement are now becoming more and more difficult to modify.  The problem has become very evident with recent efforts to enforce the anti-litter degree.  It is an indication of the lack of environmental awareness which exists among some members of the public;
  • Ineffectiveness of civil law with respect to pollution. Civil law in Fiji does not function effectively because most people do not have the time, the commitment or the money to take a polluter to court (Manuel, 1991). Also, polluters harm society at large rather than one individual, which makes it difficult to take such cases to court. Pollution can occur in parts of the environment that do not belong to anyone, so no single individual has the responsibility to protect them;
  • Nascent environmental institutions. For example, the Ministry of Health only recently established the National Air Pollution Control Unit with the task of planning and implementing air pollution control programmes for the prevention and control of atmospheric pollution. The Unit is in its teething stage and requires further support to enable it to carry out its functions. Its development is restricted because of a lack of facilities for an industrial chemist and a laboratory with full analytical capabilities (Fiji School of Medicine, 1992);
  • Culturally inappropriate legislation. Some legislation based on western models may be inappropriate for Fiji. Legislation commonly ignores traditional methods of resource management and control, and the reliance on the imposition of monetary penalties and imprisonment has little relevance to the cultural base of Fiji. As Thistlethwaite and Davis (1996) put it when referring to Melanesia generally, “it is a brave person indeed who, in the very close-knit clan and tribal association, would attempt to charge one of his relatives with an offence. There is an increasing emphasis on the incorporation of custom law and penalties into western-style legislation; however, that meld of traditional and western styles is made difficult in some areas where the power and authority of traditional chiefs and leaders has been severely eroded.”
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