Fiji’s new proposed climate change law affects every Fiji citizen regardless of whether s/he is a Minister, member of Parliament, Permanent Secretary, a CEO of a company, a builder, an IT expert, a marine scientist or proponent of marine conservation, a retailer, a farmer, or a member of a community or neighbouring Pacific Island country at risk of displacement as a result of climate change.
In the last few years, Fiji has become a global and regional leader in raising awareness of climate change, its effects and what all nation States should do to reduce their emissions to keep us within 1.5C of average global warming and avoid dangerous climate change. Fiji's leadership in this arena has in the last month produced a draft Climate Change Bill (the Bill) which is available for public consultation. It has been reported (Fiji Sun, 8 August 2019) that the government of Fiji intends the Bill to become law, by being passed as an Act of Parliament before December 2019. If the Bill is passed it will become the Climate Change Act (the Act). Although not presently law, to avoid confusion we simply refer to the proposed legislation as "the Bill" or "the legislation" in this bulletin as it has not, as yet, become an Act of Parliament.
In this extended and detailed legal bulletin we review the Bill to assist with the further consultations that should take place and, we hope, assist the bold statement and action that Fiji is demonstrating in the face of the climate emergency. All the persons that have been involved in this review support Fiji’s initiative to introduce comprehensive climate change legislation, and provide comments in the spirit of raising awareness of, and assisting with consultation about, the legislation to best suit it to Fiji’s context.
To have your say on the Bill, and to obtain an electronic copy, please click: here
The primary purpose of the Bill is to implement Fiji’s international commitments and obligations to reduce its carbon dioxide and other greenhouse gas emissions. Human activity is resulting in the release of too much carbon dioxide and other greenhouse gases into the atmosphere and this is leading to changes in our climate. While the causes of climate change are understood, the effects of climate change and how to remedy the causes and impacts of climate change are matters of complexity.
We say that the Bill is both extraordinary and wide ranging because among other things, the Bill declares a climate emergency, creates new government bodies tasked with meeting emission targets, creates new criminal offences, and paves the way for regular review processes for existing policies and new policies to address climate related issues or to reduce/adapt to the impacts of climate change. These new climate change policies, include an Oceans Policy for Fiji and a 10 year moratorium on seabed mining.
By putting in place a framework to deal with climate change and its impacts in a coherent way the Bill has wide-ranging implications. For instance, it lays the foundation for carbon pricing and trading mechanisms to be introduced in the future. The Bill requires the disclosure by companies and state-owned entities of their exposure to climate risks and the measures they are taking through investment decisions to reduce them. It consolidates previous policy announcements on plastics and marine protection.
Further, the Bill also introduces innovative climate litigation, adaptation and resilience measures and includes principles and processes related to how those most affected by climate change should be relocated (climate displacement for at risk communities).
The Bill requires that all measures are underpinned by commitments to gender equality, social inclusion and human rights and this could be further strengthened by ensuring that the governance mechanisms proposed in this legislation are inclusive and require, for example, the representation of a certain proportion of men and women and persons with disabilities. Dealing with climate change will require a whole-of-society response and partnerships between government, civil society and the private sector. Specific mechanisms to formalise engagement and consultation processes with civil society and the private sector could also be added to the governance mechanisms proposed to ensure they are inclusive.
Speaking before Parliament on 7 August 2019, in his capacity as the Minister of Economy, the Honourable Aiyaz Sayed-Khaiyum made a statement to introduce the Bill. A full report of this statement can be found here.
Structure of this legal bulletin
We apologise in advance for the length and detail of this legal bulletin - this is because of the significance, length and wide ranging effects that the Bill will have when it becomes law.
The Bill itself is divided into 17 Parts which are both distinct in their intent but have overlapping effects, and the Bill should be understood as a whole to enable effective consultation before it becomes law. We therefore review each Part of the Bill and provide analysis for each Part. Within each Part of the Bill are numbered sections and sub-sections and wherever possible we include reference to the numbered sections.
This legal bulletin includes a final section on drafting notes and possible omissions that are included in the spirit of assisting the drafters.
Part 1 - The Objectives and Principles of the Bill
The Bill like all modern common law legislation includes Objectives to enable anyone reading to understand and interpret the law consistently with its objectives.
Section 4 sets out the Objectives of the Bill and these reflect Fiji’s commitment to meet its international obligations to reduce its emissions (Nationally Determined Contribution) by establishing processes to better estimate and monitor national emissions and reducing them in line with national targets. A summary of other significant Objectives includes:
- The long term national goal of reducing emissions to net-zero by 2050 and determining Fiji’s response to the climate emergency
- Establishing the necessary institutional and governance structures to implement the legislation
- Building Fiji’s resilience to climate change and ability to respond to climate change, including a healthy ocean, while providing for those most at risk
- Safeguarding Fiji’s national security and sovereignty particularly in relation to the possibility of sea level rise
- Developing national policies to tackle various responses or approaches to implement the legislation by providing incentives to reduce emissions, promote sustainable development, move towards net-zero emissions, or adapt to the effects of climate change
- Requiring and promoting government and private sector decision making that takes into account climate change issues and emissions
- Promote better decision making via improved transparency relating to the amount and sources of emissions and who/which communities are most vulnerable to the effects of climate change
- Requiring companies, financial institutions and State entities to disclose climate change risk and prepare for those risks and opportunities
- Develop a transparent framework for reporting, monitoring and verifying sources of emissions and “sinks” (natural stores) to reduce the release of emissions
- Developing the enabling environment to support Fiji’s access to international carbon markets for the trade of carbon rights
- Securing sufficient finance to implement the Act.
Section 5 of the Bill sets out Principles, and requires that the legislation is implemented in accordance with these principles to ensure that the implementation is appropriate and suitable to the Fiji context. Among other things this means that the Act must be implemented in accordance with the following:
- A climate emergency is faced by Fiji and the rest of the planet meaning that all nations should be transitioning towards net zero emissions
- Fiji’s Constitutional rights and freedoms as guaranteed by Fiji’s Constitution 2013
- The protection and enhancement of Fiji’s environment
- The precautionary principle, meaning that a lack of scientific certainty should not be an excuse to proceed with a development activity
- The United Nations Sustainable Development Goals
- Gender equality - and women’s empowerment - participation, access to services, and in decision-making
- In recognition of ownership of iTaukei Lands and Rotuman lands and cultures
- In recognition of the importance of healthy oceans for a healthy climate including the importance to reduce pollution of the ocean from waste and plastics.
Part 2 - Declaration of a Climate Emergency
Section 6 of the Bill declares a Climate Emergency that is faced by Fiji and the rest of the planet. This demonstrates both leadership and an acceptance of the weight of scientific understanding and places Fiji among progressive nations that are trying to deal with the complex causes and effects of climate change. The Climate Emergency is also mentioned twice within the Objectives in section 4 of the Bill.
Section 6 also recognises that Fiji, the Pacific region and the planet needs to move towards net zero emission economies, and section 6(2) states that the purpose of the Act is to provide a detailed framework to address the Climate Emergency.
The declaration of a climate emergency reflects global calls for the declaration of a climate emergency that stem from a recognition that to avoid dangerous climate change and keep temperature increases within the 1.5C temperature rise deemed necessary for small island states to survive a rapid and ambitious transformation of industrial economies is needed. This requires urgent action by all nation states to put in place the necessary incentives and legislation to transform economies from those based on fossil fuel extraction and consumption to greener technologies and solutions.
Part 3 - Implementing the Paris Agreement
Section 7 of the Bill gives full effect to Fiji’s obligations under the Paris Agreement and therefore introduces into national law Fiji’s international commitment to monitor and reduce its national emissions (or Nationally Determined Contribution (NDC)) over time and report to the United Nations Framework Convention on Climate Change (UNFCCC) Secretariat, in line with their guidelines, on whether Fiji is meeting its emission reduction targets every five years.
The commitments to undertake this task falls on the Minister and Head of Division of a government Ministry and Division that will be created by this Bill (Part 4). These commitments will require a National Inventory Report on all sources of greenhouse gas emissions and sinks (stores) and regular reporting and updating requirements to track Fiji’s progress to meet its ambitious commitments.
Section 8 includes further details on how the Minister and Head of Division will meet its commitments and what they must consider or take into account and this includes but is not limited to:
- The Low Emissions Development Strategy (LEDS) developed by the Low Emissions Development Strategy Steering Committee who will prepare the Nationally Determined Contribution for Fiji (NDC)
- Fiji’s National Development Plan
- Fiji’s National Adaptation Plan (NAP) prepared by the NAP Steering Committee
- The National Ocean Policy (to be developed under Part 14)
- All other relevant policies
- Long term reduction targets
- National inventories
- Any national climate change reports
The implementation of these policies and the achievement of emission targets is likely to be dependent on additional legislation to incentivise a transition to a net zero emissions economy.
Part 4 - Governance [Institutions who will assist with the implementation of the Bill]
The scope and ambition of the Bill will require government coordination across government ministries, departments and agencies. This part of the Bill sets out who will implement the Bill and defines the powers and duties of the Minister and Head of Division who are expected to work together to ensure that all government departments make decisions that are consistent with the Bill and take into account climate change.
Section 9(1) provides the Minister with a number of powers and duties and these include, but are not limited to, the following powers and duties:
- Set out Fiji’s Nationally Determined Contribution of emissions and emission reductions (NDCs) pursuant to the Paris Agreement
- To take all reasonable steps to implement/comply with the Paris Agreement
- To review all national policy and guidelines that are relevant to climate change periodically
- To coordinate all negotiations in relation to climate change in partnership with the Minister responsible for foreign affairs
- To report back to Parliament on national and international obligations
- To progress Fiji towards a low carbon economy
- To hold public consultations regarding implementation of the legislation
- To establish and implement measures for climate change adaptation, mitigation and relocation in the face of threats
- To ensure climate change and its threats are included in all national plans, policies and decision making
- To design and promote creation and implementation of finance mechanisms, including market-based instruments
- To encourage research and technology relevant to climate change
- To draft budget provisions for implementation of Act
- To establish an independent advisory body to assist in the implementation and determining carbon budgets
- To undertake any other function necessary to fulfil the Objectives to Act and respond to Climate Change.
In accordance with general principles the Minister has the power to create regulations (secondary legislation) that will give further effect to the legislation and develop standards and codes or practice as required to support the implementation of the legislation. The Minister also has the obligation to review implementation every 5 years (Section 10) and the power, after consultation, to put obligations relating to climate change on any State entity, meaning that this State entity must then act in a manner to promote successful implementation of the Act (Section 11).
Section 12 of the Bill creates the Head of Division whose role is to assist the Minister. The powers and duties of the Head of Division include, but are not limited to:
- Providing advice/support to other Ministers - to mainstream climate change into decision making and policy
- Preparing and providing reports under the legislation, Paris Agreement and relevant Conventions
- Developing and maintaining the following national initiatives:
- An information platform
- Hazard, exposure and loss data
- The Greenhouse Gas (GHG) inventory
- The adaptation registry
- Consulting the Cabinet Committee to model risks
- Collecting and maintaining data relating to sources of emission and removals by sinks
- Assessing applications for approval to carry out emission reduction project, programmes and activities developed in accordance with emission reduction methodologies
- Declaring any Fiji reduction programme, project or activity
- Assessing applications for the issuance of Fiji mitigation outcome units and approving their transfer
- Establishing and maintaining a registry of emissions and emission reduction units to support accurate recording
- Developing and coordinating policies and standards
This section aims to improve the estimation and monitoring of emissions and adaptation actions and it mirrors many of the obligations within the United Nations Framework Convention on Climate Change for Annex 1 countries (mainly OECD members and economies in transition[MM1] ). The section also lays the foundation for introducing emission reduction units that could be allocated to entities, generated by them (by undertaking emission reduction projects, programmes and activities) and trading them between entities. Further regulations, guidelines and standards will be needed to establish such arrangements and no doubt this has been anticipated by the drafters.
All State Entities are required by the Bill to assist the Head of Division as much as possible and are required to appoint a focal point in each government Ministry and in accordance with s12(5) each focal point must report back to the Head of Division bi-annually on progress relating to the implementation of the legislation.
Section 13 of the Bill creates a further government entity named the National Climate Change coordination Committee of which all Permanent Secretaries are members. The Permanent Secretary responsible for Climate Change is able to nominate others to be part of this Coordination committee which must meet once a year and must also meet with the National Security Council and National Environment Council. The purposes of the National Climate Change Coordination Committee, include, but are not limited to:
- Promoting the creation, implementation and monitoring of cross cutting policies and align Ministries activities to these policies
- Advising and guiding Ministers
- Mainstreaming climate change advice through all national and local government levels including provincial levels
- Providing advice on harmonising laws and policies to achieve objectives
- Assisting other State entities
- Providing an Annual Report to Parliament
In accordance with section 14 the Minister may convene a Cabinet Committee on Climate and Disaster Risk that is intended to:
- Provide high level oversight and national responses
- Support inter-governmental response
- Provide oversight where required for relocation of at-risk communities
- Assist the Head of Division to model risk and other projected risks of CC
- Provide guidance to national disaster management council.
Pursuant to section 15 of the Bill, authorised officers or inspectors for the purpose of enforcing the legislation are appointed in accordance with s18 of the Environment Management Act, 2005, (EMA) and all inspectors appointed pursuant to EMA become inspectors under this Act. This provides them with various investigation and enforcement powers in pursuit of compliance with the Bill including powers to search (with a warrant where permission is refused by the occupier) and to collect evidence.
These duties expand the responsibilities of inspectors under the EMA substantially and would need to be supported with appropriate additional resources and capacity to perform these additional functions.
Part 5 - Obligations of State Entities
Section 16 of the Bill requires all State Entities to ensure any decision made or any Policy Programme or Activity implemented must take climate change into account as well as the Objectives and Principles of the Bill.
In the event that a government department does not adequately take these factors into account the High Court has power to set aside the decision, policy or programme.
This means that government decision makers must have regard to climate change. Further, section 17 points to the list of Acts (current legislation) in Schedule 1 to the Bill and requires that all decisions that are taken pursuant to those Acts must be made in a way that is consistent with achieving the Objectives and Principles of the Bill as well as mitigation of and adaptation to climate change and relevant national policies or guidelines issued by the Ministry.
Schedule 1 to the Bill includes legislation relating to primary industries and legislation intended to provide regulation and protection of those industries as well as legislation relating to harmful substances, land use, forestry, petroleum and national disasters.
Section 19 places further obligations on government ministries to mainstream climate change. Focal points established in each ministry (Section 12) have responsibility to take all reasonable steps to support implementation within their own ministry and report on this annually.
In relation to the EMA, and the requirement for Environmental Impact Assessments (EIAs) that are required under the EMA for certain developments, if those developments could lead to greenhouse gases or climate change impacts then the Environmental Impact Report must also consider climate change as part of the decision (Section 20). This will impact the Ministry of the Environment and its officers and other relevant government officers whose role is to undertake EIAs.
Further, the government is required (Section 21) to develop procurement standards that take into account sourcing zero or low emission products and promoting adaptation and resilience to climate change impacts. This ensures that the government sources products and technology that are aligned to the objectives of the Act and Ministers are to revise key performance indicators (KPIs) and job descriptions for all civil servants to ensure that all civil servants are capable of implementing the Bill.
The Minister of Education is required to integrate learning about climate change into all levels of education including advising Fiji's universities (Section 22) and all state entities must report on the financial and economic implications of climate change mitigation and adaptation as part of their budget submission processes.
Part 6 - Development of a National Climate Change Policy
Part 6 is at the heart of the Bill as it sets out how Fiji will create and implement its National Climate Change Policy (NCCP). The approach is to embed the NCCP within all government departments and to demonstrate how Fiji will meet its international and national commitments in relation to climate change.
The Fiji Government has made progressive efforts to mainstream climate change across all sectors of the economy and this section provides the legal basis to requires these actions by placing obligations that can be reviewed on both state and non-state actors.
Pursuant to section 24 the Minister and Head of Division will publish online the NCCP for Fiji between 2020-2030 and then renew it each year. The NCCP will, amongst other things, be based on and/or take account of all data collected, the best scientific knowledge of Intergovernmental Panel on Climate Change (IPPC), technological innovations, economic circumstances and impact on oceans.
Section 24(4) of the Bill requires the NCCP to state clear targets, be consistent with international frameworks and provide clear guidelines and embed gender and human rights.
The purpose of the NCCP is to show how Fiji will achieve its Nationally Determined Contribution under the Paris Agreement and achieve its aim to reduce emissions over time. The NCCP will also mainstream climate change and disaster risk mitigation programmes and create more public awareness of climate change and disaster reduction.
The objective is to put the NCCP into all parts of the Fiji economy and mainstream it into all aspects of Fiji’s economy. The implementation of the NCCP will be subject to Monitoring, Evaluation and Learning frameworks with its progress measured against objectives. The NCCP must also be reviewed by the Minister and Head of Division and once they do this they are required to publish the report to Parliament and online. Parliament will consider the report and reject or approve any recommendations for amendments to the NCCP for future periods.
Part 7 - Measurement, Reporting and Verification
Fiji’s ability to reduce national emissions is tied to the ability to measure and monitor emissions over time.
The national greenhouse gas inventory does not currently estimate or monitor all sources of emissions. This part places the obligation for developing Fiji’s Greenhouse Gas (GHG) inventory with the Head of Division in accordance with Fiji’s international obligations, notably under the Paris Agreement and the NCCP.
In order to support improved estimation of national emissions, Section 27(1) requires any person who operates a facility in Fiji or facilities that collective emit more than an amount of carbon dioxide equivalent that is designated by the Minister, then that person must from 1 August 2020 keep and provide:
- Net greenhouse gas emissions
- Any reductions of transferred
- Or, any other matter specified in Regulations.
The threshold above which reporting is required is not specified and should be subject to further consultation with state and non-state actors including the private sector.
Providing false information or inadequate information after being requested to provide adequate information by the Head of Division is a serious offence, could result in a $750,000.00 fine. [note at present all offences under the Bill include a potential $750,000.00 fine].
Facilities may cover transport, industrial, waste, agricultural and other land uses and pursuant to section 27(6) regulations can determine what a facility is under the Act and emissions estimation and monitoring standards that would apply.
The details relating to how records must be kept and declared to be true will be in Regulations along with reporting requirements.
However, in accordance with section 28 the Head of Division must produce a National Inventory Report must biannually, to submit to the Minister in accordance with the Paris Agreement. This report must also be made publicly available online.
This section has wide ranging implications for the engagement of the private sector in Fiji’s emission monitoring and emission reduction efforts. Further consultation with the private sector will be necessary to determine appropriate regulations to support implementation.
Part 8 - Research, data collection, reporting
A National Information Platform will be created by this Part to be a repository for all the relevant and important information, reports, and scientific research in relation to climate change. In accordance with section 29 of the Bill this is to improve communication and increase consistency of the State Entities response to climate change and to improve public awareness of the issues. This platform will also include information relevant to Fiji’s progress towards achieving its Nationally Determined Contributions or NDCs.
Section 31 and 32 requires any individual or organisation conducting research relevant to climate change to provide it to the head of Division within 30 days and this applies to anyone undertaking research in accordance with a research permit, as part of a University course or by or on behalf of any donor organisation. The Bill enables applications to be made to the Head of Division to seek an exemption to this requirement.
This supports the consolidation of all climate change related information and research available to government and the general public to promote informed and evidence-based decision making. It also supports the public disclosure of all policy related documents, reports, emission projections, projects, hazard and loss data, information relating to vulnerable places and groups and climate finance.
Pursuant to section 34 the Head of Division must create a central repository for data relating to hazard exposure and loss models to enable the development of insurance mechanisms led by the private sector.
Part 9 - Mitigation - Long Term Emission Reduction
This Part sets out the methods that should be used to create Fiji’s carbon budgets for each year in line with the overall objective to move Fiji towards zero net emissions. The Minister must publish a report every 5 years that takes into account Fiji’s NCCP, NDCs and LEDs and publishes Fiji’s progress towards its NDCs and its 5 year carbon budget in line with Fiji’s aim of achieving net zero emissions by 2050.
This requires the Minister and Head of Division to determine carbon budgets for Fiji for 5 year periods up to 2050 with reference to a 2020 emissions baseline. The Minister may request technical assistance to achieve this in accordance with s36(9) and should determine Fiji’s carbon budget in accordance with IPCC methodologies. This requires a determination of what Fiji’s emission of carbon is in 2020 and what it should be reduced by, while taking into account Fiji’s NDC, NCCP and LEDs, the best available scientific knowledge, Fiji’s economy and the social and the likely social and economic effects.
The Minister must ensure that each 5 year carbon budget achieves reductions in greenhouse gas emissions from previous budgets to achieve net zero by 2050. Parliament must be notified of each carbon budget and any proposed amendments to it.
Section 41 of the Bill establishes the LEDS Steering Committee which must be chaired by an employee of the Ministry and assists in monitoring and determining future carbon budgets and Fiji’s NDCs to meet Fiji’s Long term Emission targets towards the goal of net zero emissions. The Committee must take into account the best science, and various other factors including IPCC guidance and the impacts on oceans. The LEDS Committee can call on civil experts or other experts including CSOs to assist as well as convening groups and workshops.
The Minister approves Fiji’s Long Term Emission targets and must take into account the report by the LEDS Committee and the Head of Division must publish this report. In accordance with section 43, the Minister then has the power to put in place Regulations (secondary law) to limits and incentivise greenhouse gas emission reductions across all industries in Fiji and this includes but is not limited to industries like fishing, shipping, energy, transport, forestry, tourism and waste disposal.
This section also lays the foundation for introducing a carbon pricing mechanism including trading schemes, fees, levies and/or other fiscal incentives that encourage public and private investment in new technology. It enables the Minister to enhance protection for land and oceans, to halt deforestation, create more areas for conservation across land and ocean areas, adopt regulation and standards to promote construction of sustainable, energy-efficient and climate resilient infrastructure and buildings. This will also lead to a detailed transport policy to decarbonise the transport sector in Fiji (Section 44).
Part 10 - Emission reduction Projects, Programmes and Activities
This Part looks to incentivise Projects, Programmes and Activities that aim to reduce carbon emissions in Fiji. This creates a system for units of value to be created that must be approved and regulated by the Head of Division who must consent that a Project, Programme or Activity is an Emission Reduction Project for Fiji in accordance with Article 6 of the Paris Agreement.
This Part seeks to do this by creating Fiji Mitigation Outcome Units for projects that are personal property and can be registered and therefore exchanged or transferred. This requires the creation of a Fiji National Registry for projects to receive the Reduction Units that are approved under an approved reduction standard and then these Units can be internationally transferred.
Further detail, including relevant standards and approval crtieria, will be provided by Regulations (secondary legislation) made by the Minister, but this will set out what Programmes Projects and Activities may be approved and how a person/company may become eligible to apply. As in other countries that have established national registries a key concern is to ensure emission reduction units are granted that relate to approved methodologies, emission reductions that would not have otherwise have occurred (additionality) and which are permanently reduced (permanence). Stringent requirements are necessary to avoid any double counting of emission reduction units as they have value and therefore there is a concern relating to fraudulent conduct.
In line with Fiji’s legal and governance context there are also requirements to consult with relevant government or State entities that may also have an interest. For example, the Minister of Forests must be consulted prior to any project relating to forests or blue carbon.
The Head of Division will carry the responsibility to administer this scheme and this includes providing Emission Reduction Statements in accordance with section 49 of the Bill for any verified Programme, Project or Activity provided there is no double counting and all preconditions have been met. Once the Head of Division verifies the emission reductions then the relevant person will be issued with a number of Fiji outcome reduction units that are noted in the Registry and are held by the registered person as the legal owner of the Units that are personal property and can be transferred at will. However, if there is a reversal or loss of carbon the owner of the registered unit is required to report that to the Head of Division which may require the proponent to remedy the situation or forfeit the unit within a strict time frame, that could be as little as 90 days.
The Bill creates criminal offences, punishable by up to a $750,000.00 fine for either undertaking an Emissions Reduction Activity for the purposes of Article 6 of the Paris Agreement without consent or for selling Emission Reduction Units without the relevant approvals. This same fine also applies for any transfer of a Unit without consent. The transfer of Units is therefore intended to be strictly controlled by the Minister and the Head of Division who will allow the transfer where it meets the purposes of the Act and accords with the Paris Agreement or other conventions.
Section 57(4) of the Bill establishes the National Registry that records the units but will also be subject to further Regulations (secondary legislation) from the Minister regarding how the account is opened and regulated. The Head of Division must publish information relating to the registry each year and has the power to appoint an independent auditors where contravention of the requirements is suspected. Any fraudulent conduct can lead to the account being cancelled.
Part 11 - Emission reduction Projects Programmes and Activities involving Forests and Blue Carbon
Part 11 supplements Part 10. Pursuant to section 64 the Minister can make Regulations (secondary legislation) to facilitate emission reduction for forests and blue carbon. The Minister responsible for forests may provide advice for methodologies to be used.
These become carbon sequestration property rights and in Bill this means an exclusive property right to carbon stocks a grant by the Registrar of Titles with together with the Conservator of Forests.
In the event that the carbon sequestration property right is not owned by the land or lease holder then the 3rd party must get the consent of the landowner and if it is iTaukei land then it require consent from the ITaukei Lands Trust Board (ITLB). In order for this carbon sequestration right to be registered, then
- It must be in a form approved by the Registrar of Titles and Conservator of Forests
- The Registrar of Titles must list all carbon Sequestration rights on the title
- The Registrar of Titles cannot issue more than one entitlement on one piece of land
- The registered property right can be transferred but not varied
- No mining or similar activity can take place where there is a either a REDD Plus programme or a registered carbon sequestration right on the land.
In accordance with section 69(1) if the government participates in the transaction then the Minister may have authority to sell the rights provided the Minister has the prior informed consent from the landowner, a benefit-sharing plan is in place and the Minister provides compensation to the iTaukei Land Trust Board and where relevant other landowners. The Minister must consider the market value or the emission reductions at time of evaluating the transaction.
In this way it is possible that the Fiji government/State may benefit from participating in carbon sequestration property rights registered by the Registrar of Titles on land in Fiji.
Part 12 - Climate Change Adaptation and Resilient Development
Part 12 establishes the National Adaptation Plan steering Committee who must prepare the National Adaptation Plan (NAP) for all areas of Fiji’s economy including in relation to marine and terrestrial pollution, fisheries, land use, natural resource management measures. The purpose of the NAP is to raise awareness of climate change and enhance understanding of the issues and provide information to adaptation stakeholders as well as according with the international adaptation process. The NAP Steering committee must review the NAP regularly, when told to by the Minister and at least every 5 years.
The NAP should be based on best available science by IPCC and take into account traditional knowledge. The NAP can call on the expertise of the civil service or independent experts to assist to progress decision making. The Head of Division must make the NAP publicly available.
The Minister will make Regulations (secondary legislation) to increase Fiji’s resilience to climate change but these Regulations must have regard to the objectives and principles of the Bill and how they align with policies including the NAP.
In accordance with section 73 Integrated Risk Scenarios must be developed that model the impacts of climate change that must be developed and made available online. These model scenarios must be developed in accordance with best available science.
There is also intended to be an audit of public infrastructure at risk with an accounting and replacement value indicated with the Head of Division required to register all public infrastructure. Pursuant to section 75(1) all Ministries must undertake climate risk assessment for all new infrastructure and other relevant scenarios before determining whether to approve the new public infrastructure or not.
Section 76(1) requires the Minister for Health review and expand the scale up of the National Building Code - immediately and every 5 years to improve climate resilience of buildings and comply with the new legislation to lift the standard of the building Code and all relevant policy instruments.
The NAP must be publicly available online and in accordance with s78(1) a person who implements an adaptation project may report to the Head of Division who must register any report if it is considered to be an adaptation project.
Part 13 - Climate Displacement - Relocation
Tragically, climate change will (and already has) led to the relocation of people in the Pacific. This Part sets out how Fiji's government will engage with this difficult and sensitive task.
Section 79(1) establishes the Fiji Taskforce for relocation and s80 provides the Relocation Guidelines. Pursuant to s81(1), the Minister responsible for any relocation must take into account the Objectives of the Bill and allow for an orderly move of affected communities and provide a coordination mechanism that guarantees a minimum standard of protection and enables the engagement of all stakeholders affected to manage the relocation.
Relocation should only occur when all other NAP measures exhausted and it is necessary to obtain full prior consent of the person or community being relocated. Relocation should only take place where there is suitable land and infrastructure is already there to meet needs. In the event there is an at risk community their rights or concerns must be taken into account and relocation is to be non-discriminatory, bottom up - human rights based and after participatory processes taking into account traditional knowledge and Fiji’s multicultural backgrounds and beliefs.
This requires the Minister to consult in a “talanoa” style. Talanoa is a defined term in section 2 and the Minister is required to hold a public hearing in the talanoa style where views can be taken into account. If after this process the Minister decides relocation is necessary then the Minister must ensure that relocation in in accordance with the Principles of the Act. The Minister is also allowed to use money from the Trust fund in accordance with section 82 to assist community relocation.
Section 83 provides the possibility of introducing regulations to facilitate the acceptance of persons from small island developing states in the Pacific who have been permanently displaced or are at risk of being permanently displaced as a result of climate change impacts. This provision has implications for relevant national immigration legislation and would require the consideration of issues relating to the citizenship and associated rights of such displaced people.
Part 14 - Oceans and Climate Change
Section 84 recognises healthy oceans are critical for healthy climate and that oceans must be protected from plastic pollution. Oceans are also linked to Fiji’s national security and sovereignty.
This part sets a long-term target for all (100%) of Fiji’s maritime/ocean areas to be ocean areas under sustainable management. This also includes establishing protected areas across 30% of all ocean areas via Marine Protected Areas (MPAs) to be established by 2030.
The Minister must take all reasonable steps for the long-term sustainability and the creation of MPAs via the development and implementation of the National Oceans Policy.
This Part also establishes a National Oceans Policy Steering committee which is to be chaired by a Ministry employee and includes representatives from the Ministry of Fisheries, Economy and Maritime Security. The National Oceans Policy must be prepared by the National Oceans Policy Steering Committee who must review and update it every 5 years. The National Ocean Policy must be based on the long-term sustainability target, best available scientific knowledge and the Climate change mitigation impact of oceans (IPCC), reporting requirements to the Minister, the SDGs, Fiji’s economic circumstances, and the impact of the National Ocean Policy on the competitiveness of sectors of econ, social circumstances and the likely impact of the National Ocean Policy on land and international law.
The National Ocean Policy steering committee can include expertise from the civil service or independent experts to assist and can convene consultative groups. The steering committee must report its findings and how to update the National Ocean Policy and the Head of Division must make the National Oceans Policy available online (section 87).
Pursuant to section 88(1) the Minister may make Regulations, including but not limited to promoting restoration and conservation of all ocean areas, sustainable management, protection of blue carbon, fiscal incentives, alternatives to plastic. Pursuant to section 89 the Minister can implement policies to enhance blue carbon and improve offshore electricity generation, and the Minister also has the power to direct the Fiji Meteorological Service and others to provide reports on impacts of climate change. The Ministry of Education is empowered to establish marine research centers within Fiji’s Universities.
In relation to plastics and styrofoam, the Bill introduces new and serious offences. This illustrates or reflects the devastating impacts that plastic pollution is having on the oceans, marine life and human health and the urgent need to fix this pernicious problem.
Section 92 makes it any offence for any business, as business is defined within the Business Licensing Act which includes all vendors, to provide, sell or make available any single use plastic bags after 1 Jan 2020. The fine for committing this offence can be up to FJ$750,000.
Note: “single use plastic bag” is not a defined term of the Bill, and it may be that this will be defined further in Regulations or should be defined in the Bill.
Section 92(2) and 92(3) makes it a similar offence with the same fine provisions - but for styrofoam and single use plastic containers, straws, cups and utensils from 1 Jan 2021. Again, it is noted that these terms are not defined in the Bill.
Section 93 introduces a 10 year moratorium on seabed mining from 1 January 2020 “in Fiji’s internal waters, archipelagic waters, territorial seas, and exclusive economic zone."
It is respectfully noted that section 93 does not include mining on, under or within Fiji's seabed subject to sovereignty or Fiji's continental shelf. Section 93 only refers to maritime areas where seabed mining will not occur. In our respectful opinion this should be rectified. We also note that seabed mining is not a defined terms within section 2 of the Bill.
This section also enables or exempts exploration for activities that are authorised and marine scientific research provided that the authorised person meets the reporting requirement every quarter describing activities undertaken. This provides the opportunity for the government and others to learn more about the potential benefits and risks of seabed mining in advance of granting any mining rights.
Section 93(3) provides that any seabed mining undertaken in contravention of the Bill is an offence and the offender is liable to a fine of FJ$750,000.
Part 15 - Sustainable Financing
Part 15 provides that the Minister Responsible for the Economy will play the role of conduit between donors and other sources of funding in accordance with a collaborative approach for funding to support the implementation of the Bill. This includes the obligation to work closely with all sources of funding and monitoring of all funding sources that will be published in publicly available reports. The Ministry will also oversee Fiji engagement with the Global Environment Facility (GEF), the Green Climate Fund (GEF), the Adaptation Fund (AF) multilateral development banks, review donor engagement and enhance donor benefits.
Section 95(1) provides the opportunities to introduce incentives to encourage mitigation (reducing emissions) or adaptation to the effects of climate. In accordance with section 95(3) incentives must take into account international standards and best practice. This opens up the possibility of incentives such as fiscal and tax incentives, concessional lending and other financial instruments to promote climate action. These measures have been important elsewhere in supporting the private sector accelerate the introduction of green technology.
Entities accredited to climate funds, such as the GCF, are allowed to be recipients and administrators of public or private funds for mitigation or adaptation with approval of the Minister. The Minister, supported by the Head of Division can establish guidelines for private or public entities. This allows for the possibility of public and private sector entities, including for example commercial banks and lending facilities, to become accredited to international climate finance mechanisms and act as conduits for climate finance in the future.
The Minister responsible for the economy has the power to implement financial instruments pursuant to the Objectives of the Act and this includes bonds, guarantees, convertible sovereign loans, insurance products and any other fiscal instruments. The Minister responsible for the Economy and the Reserve Bank of Fiji are tasked with designing and monitoring climate finance strategies to support the need for ongoing financing to address Fiji’s climate change needs and address Fiji’s readiness to receive funds.
Part 16 - Private Section Transition and Engagement
Climate change risks will impact the private sector in multiple ways and reducing climate change risks to the economy and society is not possible without action by the private sector. The private sector also has a vital role in the transition to a low-carbon economy by identifying market opportunities to shift consumer preferences, conducting research and development into greener technologies and investing in technology, assets, goods and services that support this transition. The Bill recognises this.
Pursuant to this Part Directors of all Fiji registered Companies, the Fiji National Provident Fund (FNPF), Licensed Financial Service Providers and the Reserve Bank of Fiji must evaluate risks posed by climate change and determine opportunities to the extent that they are foreseeable and intersect with the interest of the company. Risks include physical risks arising from climate change impacts, risk arising from the transition to a lower-carbon economy, liability risks and economic and financial losses. Opportunities including reducing costs, identifying and capitalising on new markets, shifting consumer preferences and innovation towards lower emissions products and services.
The purpose of this Part is to require these entities to consider climate change risks in their business and investment planning, adopt measures to reduce risks from climate change, and disclose how climate change risk is integrated in their decisions as part of their financial statements and other reporting mechanisms. The risks should include impacts on revenue, impacts on expenditure, impacts on valuation of assets. They also require these entities to disclose the climate change impacts of their operations including the goods and services they produce, and how they comply with long term temp goal of the Paris Agreement.
Part 17 - Enforcement
Part 17 deals with the enforcement of the Bill and section 106 imposes a 3 year limitation period for any offence committed under the legislation.
Section 107 creates a general offence that is committed by any person providing any false information required under Act, failure to submit required report - or attempting to get something by false statement. This will result in a fine not exceeding FJ$750,000.00 or 10 years imprisonment or both.
Section 108 provides that where any offence is committed where no penalty is provided, on conviction the punishment is a fine not exceeding FJD 750,000 or 10 years imprisonment or both.
Section 109 enables 3rd parties to seek an order from the High Court for an order/injunction to restrain any person for a breach of the legislation.
Section 110 provides power to the High Court to make orders for the removal for the restoration/reinstatement of damaged environments and for the payment of compensation.
Section 112 preserves the right to bring civil claims for damages for losses or loss of any natural environment or resource.
Section 113 provides that not only a company may be held liable under the legislation and expands this to directors, officers, employees or agents who directed authorised assented to acquiesced in or participated in the offence.
Section 114 provides that any financial penalty imposed under the Act has priority against any secured or preferred claim
Drafting Points, Suggestions and Possible Omissions in relation to the Climate Change Bill
Drafting any legislation is challenging and while reviewing the Climate Change Bill we have noted the following minor typographical errors to assist the drafters to complete their task. These are pointed out, in addition to any suggestions made above and in the spirit of assistance and are in no way meant to detract from the impressive task of drafting a comprehensive piece of legislation.
- Definitions section 2 - includes a definition for the National Environment Council but mistakenly refers to the Environmental Management Act - when it is the Environment Management Act
- Definitions section 2 - references Fiji GHG Inventory established under section 26. Neither the definitions section or section 26 defines GHG.
- Suva Declaration is referred to in section 4(c) of the Bill but “Suva Declaration” is not, at present, a defined term under section 2 of the Bill.
- Section 4(j) typo “an carbon budgets”
- Section 4(p) - this refers to Fiji’s sovereignty but does not include Fiji’s sovereign rights that are granted by operation of International Law (UNCLOS) for completion these sovereign rights should in our view) be asserted and included
- Section 5 (g) - typo “in lights of”
- Section 6(2) - query whether this is necessary - as the Bill includes Objectives and Principles, does it also require a purpose. Also the purpose is perhaps too widely drafted as this one piece of legislation cannot address the global climate emergency
- Section 57(f) typo “transfer or Fiji” - should this be “transfer or otherwise xxx”
- Section 58(b) typo or missing word “in relation to project”
- Section 83 typo “for foreign affairs, has to power…”
- Section 93 - 10 year moratorium on seabed mining. This section appears to omit Fiji’s continental shelf and seabed from the moratorium on mining. It is likely that it is in or under these areas where seabed mining would actually take place, not “in Fiji’s internal waters, archipelagic waters, territorial seas and EEZ."
Australia's PM, Scott Morrison visits the Pacific Islands Forum Leader's meeting held in August 2019, in Tuvalu. Australia's current leaders appear unwilling to recognise the likely effects of climate change or reduce their carbon emissions for fear of economic consequences.
In the Pacific, Fiji, has, in its leadership role, made commitments to welcome Pacific Islanders who are forced to relocate due to the effects of climate change.
The Bill restates that intention, providing the basis for further legislation that will have implications for existing immigration and human rights related legislation.
Climate Change will have both fisheries and maritime security impacts as fish migrate due to changing sea temperatures. The above article from the Fiji Times 24 October 2019 illustrates this point and the current preparations being made by New Zealand.
With thanks to: Marita Manley for her expert analysis and co-authorship of this piece.
Marita is an environmental economist and has worked in Fiji for thirteen years on climate change issues. She is passionate about supporting the transition to a greener and equitable economy and society.
She is the Director of Talanoa Consulting, a small Suva-based consulting firm that provides services in the areas of economic analysis, climate change and resilience, gender and social inclusion, agriculture, agribusiness and food security and enterprise development. Recent work includes developing a Guide for Green Entrepreneurship for GGGI, co-authoring a Fiji Women's Fund paper on lessons from women's economic empowerment in Fiji, and collating key success factors and constraints of agribusinesses in the region.
Prior to moving to Fiji in 2006 she worked for the UK government on climate change mitigation policy, including the introduction of the European Union Emissions Trading Scheme, managing the process of developing sector-based projections and allocations and consulting with industry associations on the legislation.
Please note: This legal bulletin is not, and nor is it intended to be, legal advice.