Environment Management Act, 2004
Current Status
1. The Act received Presidential assent on 17 March 2005 but will only come into effect on a date appointed by the Minister. The Department is still drafting regulations.
Previous Incarnation
2. The Act is the slimmed down version of the Sustainable Development Act Fiji’s previous attempt to introduce environmental legislation, which was eventually rejected as being too ambitious and costly. Although the Act is now drastically reduced in size it will still have a significant impact on the way business is done in Fiji in the future.
Object of the Act
3. The object of the Act is to protect the natural resources, control and manage developments and provide for waste management and pollution control.
Main Provisions
National Environment Council
4. The Act creates a statutory body, the National Environment Council; tasked with the job of ensuring the Act is complied with by monitoring and implementing the National Environment Strategy. The Council also has responsibility for ensuring that Government commitments made at international and regional fora on the environment and development are met. The council must report annually on its activities to Parliament.
5. A National State of the Environment Report must be produced every five years.
The Environment Department
6. Under the Act the Department will be responsible to the National Council and will carry out a number of specified tasks including formulating and implementing the National Environment Strategy and the National Resource Management Plan. The department is given power to inspect and instigate prosecutions for the purposes of enforcing the Act.
Development Activity
7. Is defined very widely and any activity or undertaking that involves building, depositing waste, removing natural resources (except fish), dredging, mining and drilling will be defined as a development activity for which a development proposal will need to be submitted to an approving authority
Environmental Impact Assessment Unit
8. Located within the department this unit is responsible for examining and processing every development proposal referred to it or which comes to its attention as having “significant environmental or resource management impact” or which in the opinion of the Minister is likely to cause public concern.
9. Every approving authority must carry out an Environmental Impact Assessment for each development proposal it receives that it determines is likely to cause “significant environmental or resource management impact”.
10. The Act schedules the different types of proposals and EIA processes to be followed for those differing proposals.
Significant Environmental or Resource Management impact
11. This is defined in the Act as meaning in relation to a development proposal, 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 developments effect on the environment and a non-exhaustive list of matters that could be regarded as effecting the environment is then set out.
EIA Reports
12. Environmental Impact Assessment reports are now required for all development proposals subject to the EIA process. The detailed process is set out at part 4 of the Act. An applicant has a right to a public hearing on its development proposal.
Exclusive Economic Zone
13. As defined in the Marine Spaces Act is included within the provisions of this Act and so the Act also catches offshore developments.
Waste Management and Pollution Control Part 5
14. Sets up a system of permits for the discharge, handling, production and activities that may have an adverse impact on human health or the environment.
Offences and Penalties Part 6
15. It is an offence to undertake a development activity without an approved EIA and a fine of $750,000 can be imposed.
Pollution offences
16. Introduces fine s of up to $250, 000 for first time offenders and $750,000 for subsequent offenders. An offence of creating a pollution incident with willful or reckless disregard is created for which the maximum fine is $1,000,000 and companies can be fined up to five times that amount.
17. Restorative orders and stop work orders can also be issued by a court along with assets seizure and items used n the commission of the offence. The Act also introduces personal liability for directors; regardless of whether or not the company is convicted.
18. Penalties against companies take priority over secured or preferred claims in bankruptcy actions.
Environmental Tribunal
19. Finally the Act establishes a Tribunal to hear appeals under the Act or any other environmental law.
What does the Act mean for Fiji business?
20. All businesses will need to factor in environmental planning and management. This applies as much to business currently established as to those contemplating development.
21. In the short term costs of developments may increase although the impact of proper environmental planning should reduce long-term costs. The personal liability of directors mean that companies cannot afford to take the Act casually and the various requirements that are imposed will need to be carefully managed.
22. The Act certainly appears to have teeth but whether the regulators will utilize those teeth or are given the resources to utilize the Act properly will be something that only time will reveal.
For further information contact: Nicholas Barnes