Marine Environmental Impact Assessments
Fiji’s Environment Management Act 2005 (“EMA”) came into force on 1 January 2008. Additionally, the Environment Management (Environment Impact Assessment (EIA) Process) Regulations 2007 and the Environment Management (Waste Disposal and Recycling) Regulations 2007 (“Waste Disposal Regulations”) have also come into force. Prior to the enactment of the EMA, environmental legislation was approached on an ad-hoc basis, with different pieces of legislation enacted to deal with specific issues. Although this other legislation still exists, the EMA seeks to consolidate aspects of their administration. Specifically, the EMA provides inspectors under the EMA with powers to conduct inquiries for breaches and issue improvement notices to ensure compliance with the EMA and those other acts.The EMA provides for the protection of natural resources as well as the control and management of developments, waste management and pollution control and for the establishment of a National Environment Council. Enterprises may also be requested to establish environmental management committees (section 16). The Waste and Pollution Control Administrator may give an order to stop work in emergency situations (section 39). Further, workers are not to be punished by the employer if they report a contravention of the Act (section 48).
Of particular importance to industry is section 35 which provides that a facility must not (a) discharge any waste or pollutant into the environment; (b) handle, store, process, or control any hazardous substance; (c) produce or generate any waste, pollutant or hazardous substance; or (d) engage in any activity that may have an adverse impact on human health or the environment, unless the facility is issued with a permit. The transitional provision at section 63(4) requires that an existing facility that is discharging any waste or pollutant must apply for a permit within twelve months of the EMA coming into force. The Waste Disposal Regulations specify in more detail the nature of the permits required, the terms of such permits and also the process for obtaining a permit.
The EMA also contains a new general pollution offence. Thus, a person who, without lawful authority or reasonable excuse (the offender shall prove lawful authority or reasonable excuse), causes or contributes to the discharge of a waste or pollutant from any vessel, aircraft or facility commits an offence and is liable on conviction:
- for a first offence, to a fine not exceeding $250,000 and to a term of imprisonment not exceeding 3 years or both;
- for a second or subsequent offence, to a fine not exceeding $750,000 and to a term of imprisonment not exceeding 10 years or both.
Also, if a corporation commits an offence under the EMA, directors, officers, employees or agents of the corporation who directed, authorised, assented to, acquiesced in or participated in the commission of the offence are also taken to have committed the offence, whether or not the corporation has been prosecuted or convicted.