The need to strengthen the Department of Environments’ EIA Unit
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Mr Speaker Sir, I rise to give my end of week statement where I wish to highlight the dire need to strengthen the powers of the Environmental Impact Assessment Unit of the Dept of Environment, in light of recent incidents of grave environmental degradation in Fiji, some of which have only recently come to light.
Fiji has now ratified all of the major global human rights treaties, including last year’s ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Environmental protection is essential to fulfilling many of the rights recognized in these agreements.
Mr Speaker, Sir, my following comments therefore should not be taken by the Minister responsible as an attack on his or government’s competency. Rather, because I offer feedback, observations and suggestions after having consulted with stakeholders from Environmental Law, from Civil Society and environmentally-minded members of the public, I hope the Hon Minister will take on board the points I highlight as I lobby for more resources for the EIA Unit, as we are all stakeholders in this plight.
The report by the UN Special Rapporteur for Human Rights and Environment, Dr David Boyd at the end of his visit to Fiji last December made a number of significant observations regarding the Environment Management Act and in particular the EIA process.
For the information of Honourable Members and the public, Sir, Dr Boyd is an Environmental Lawyer and an internationally renowned expert on human rights and the environment, who was appointed by the UN Human Rights Council last year. I accompanied Dr Boyd and his colleague, Ms Soo-young Hwang on several site visits in Suva during their stay here.
In his report Sir, Dr Boyd said it was clear that the Ministry of Environment is seriously under-resourced. For example, according to the Department of Environment website, under the heading Challenges, the website says “One of the major challenges is the lack of financial and technical resources; currently there are only “5-6 staff who handle waste and pollution related matters Fiji-wide” as part of the Waste Management and Pollution Control Unit.
The report goes on to recognise Fiji as a regional leader in recognizing the right to a healthy environment, having ratified multilateral environmental agreements, as well as the human rights treaties I mentioned earlier. BUT the report stressed that We must have a strong Ministry of Environment to fulfil those commitments.
An issue Dr Boyd said had been raised repeatedly with him were problems with Environmental Impact Assessments, with members of the public expressing to him frustration with their inability to gain easy, timely and affordable access to important information, the lack of adequate consultation, constraints on the public’s ability to participate in assessment processes, the poor quality of some EIA reports, and the lack of access to remedies. Examples cited include proposed mining projects and the raising of the Wainisavulevu weir in Naitasiri by EFL.
Sir, Dr Boyd had heard from landowners about extensive mineral exploration activities affecting their lands without consultation and before the completion of any environmental assessment.
Dr Boyd agreed with me and many, many others and called the fee of $4.85 per page for an EIA report excessive, suggesting that it be waived for individuals and groups seeking to protect the environment and human rights. I think EIA reports should be public documents, available to the public free. This is basic transparency and good governance.
Sir, The Environment Management Act 2005 provides for the appointment of an Environmental Tribunal, but there is no publicly available information regarding its members, procedures, or decisions. Rules governing the tribunal were published in 2013, but the absence of other public information makes the process as clear as mud.
Dr Boyd made an excellent suggestion in encouraging Fiji to consider creating an online environmental registry that would make extensive information publicly available, including permit applications and decisions, pollution data, and enforcement actions taken. Such a registry would enhance the public’s ability to participate meaningfully in environmental decision-making in Fiji.
Mr Speaker, Sir. The following are comments gathered from my consultations with environmental law experts and conservationists working in and around Fiji and based on a number of cases reported to them by the community;
They all agree that the DoE does not have enough expertise, capacity or resources to adequately implement EMA and the EIA.
Also highlighted, Sir, was an apparent lack of proper and meaningful consultation. Two cases from Lautoka are prime examples; Field 40, Lautoka where a cement factory is placed right on the edge of the large community, with only a road separating the community from the cement factory. Here families have been complaining about health, noise and many other issues associated with having such a factory placed in your backyard. In Vakabuli paipai River between Lautoka and Ba representatives of a community complained about gravel extraction affecting all aspects of their livelihood. Sir the extent of extraction has left the river and its banks with nothing but mud. The human cost is also high, generations of families have lived in the area and have lost livelihoods. In these communities, residents complain about the lack of consultation, lack of information and lack of knowledge about developments that occur in their backyards.
If I may dwell briefly on Terms of Reference, Sir. In some instances the TORs , which guide the content required of the EIA have tended to be generic, rather than specific to the proposed development. Case in point – building a jetty at Maui Bay had same TOR as Magma Mines for mining in the Sigatoka river.
The TOR must be developed to reflect not only the specific requirements of the law, but also to ensure that it is relevant to the type of development, so that risks that are specific to certain developments are properly assessed.
This requires persons with relevant expertise and or knowledge about the type of development and able to provide relevant input to the TOR.
The observation is that DOE staff don’t seem to be able to critically review EIA reports – often times the TORs are not fulfilled though the EIA was approved, and the reports are largely desktop surveys rather than new data. If we don’t have suitably qualified people in Fiji; can we not ask our friends Australia and in particular NZ to second us personnel with experience in their much more robust environmental regulation space?
My consultations found issues with the way in which EIA Consultants are hired, Sir.
The roster of Department of Environment (DoE) approved EIA Consultants continues to include some that have undertaken, and been allowed to undertake, their EIA consultancies with disregard to their TORs, contrary to the EIA procedures.
[Example if required – We have experienced where an unethical “consultant” failed to reveal to folks in an informal settlement that a development would result in their homes in the settlement being removed and then asked them to sign a document that they have no objection to the development].
Sir, the DoE must, in accordance with the Environment Management Act, be equipped, and be allowed, to fully manage the whole EIA process which appears not to be the case at present. The extent and manner in which the critical “public consultations” are to be conducted is ill-defined. The DoE fails to accompany and monitor the manner in which a consultant conducts an EIA in particular the extent and integrity of the public consultations. Currently the DoE frequently appears limited in its ability to monitor environmental issues; to take proactive measures to mitigate against environmental degradation; and also to respond when members of the environmentally concerned public draw its attention to cases of environment degradation and seek its intervention
Public Consultations are frequently not properly advertised, held during working hours, not minuted, and not attended by the relevant town council nor by senior DoE personnel suggesting that they do not take the development and the EIA process seriously. At times it appears as though the public is only included in a “box ticking” exercise in a pretence of a “public consultation” process when in reality the decision has already been made that the development will proceed irrespective of the concerns of the potentially effected community*. There still remains the ludicrous notion that only those living within a 1 kilometre radius of the proposed development may be subject to its environmental impact.
*[In the case of the Tengy Cement factory an EIA consultant held a charade of a public consultation after the construction of the factory was near completion].
Currently, Mr Speaker Sir, it is the developer that pays the EIA consultant which obviously risks a potential, or actual, conflict of interest. It is not in the commercial interest of an unethical EIA consultant to reveal to the public what they may know to be the full extent of the potential negative impact of a development. It is proposed therefore that the developer should instead pay the DoE who then pays the consultant who is then directly answerable to the DoE in terms of the manner in which he/she complies with the TORs and conducts the EIA.
In addition, the EIA study must be reviewed after it is completed. This is mandatory under section 30 of EMA. The review must be conducted by an independent consultant or by a review committee appointed by the EIA Administrator or the approving authority. After the review the report should be available for public inspection. There is little to no information about the review of any of these reports however the review process is a very important part of the EIA process.
Sir, the first case we are aware of that was prosecuted under EMA is indicative of the lack of awareness and knowledge of EMA by both the Prosecutor and the Courts. In the DPP vs China Railway First Group (Fiji) Limited CR 788/2017 the China Railway Company was charged with one count of Undertaking an Unauthorized Development contrary to section 43(1) of EMA. A penalty of $10,000 (from a possible or maximum fine of $750,000) fine was given to the Company for the development of an asphalt plant that was 90% completed without a proper EIA. The sentencing remarks by the Magistrate Court indicated a lack of understanding of the EIA process and EMA as a whole given that there were no remedial actions ordered and the magistrate accepted the lack of evidence of environmental impact as a mitigating factor.
I beg the Hon Minister to find out if the DOE has been requiring environmental bonds from projects, including those that may be at high risk of damaging the environment (i.e. dredging, mining). If the answer is no, it means the law is not being used to its full capacity.
To quote Dr Boyd again, Sir, Fiji faces major challenges related to the implementation and enforcement of the commitments made in its environmental laws, regulations and decrees.
EIA unit of the dept of the environment needs teeth, sharp ones.
As I wind up, Sir, and in case I have not yet convinced the House; here is a short story of my own;
- Last year, some friends of mine in Nadroga needed my help to file a complaint to the Dept of Environment about some dredging equipment which had come lose during a storm and had been thrown onto the reef just outside the mouth of the Sigatoka River. These friends had called the Dept, which had informed them that they had to fill out the complaints form. Which is NOT available on their website! So in order for these environmentally-minded friends in Nadroga to file a complaint to the Dept, I had to go to the Dept office on MacGregor Road for a hard copy of the form, scan it and email to Sigatoka, for them to download, print, fill out, scan and email back to the Dept! This was a small inconvenience for me, but would be virtually impossible for many in rural and maritime areas, where much of the environmental degradation occurs out of sight and out of mind as it were.
- I asked a question in the comment section of the Dept’s website on April 17, 2018. Yesterday, February 14th, 2019, some 10 months later, my comment was, and I quote from the website, “still awaiting moderation”!
- My comment on the website was to request that the complaint form be made available on the website.
I hope Sir that the EIA Unit of the Dept of the Environment gets the urgent support and resources that it so desperately needs to carry out the work it is supposed to do under the Environmental Management Act of 2005. And I hope Sir that the Unit is allowed to do this work independently, within the bounds of the law and without any meddling.
Mr Speaker, Sir, I end by registering my appreciation to the Parliament of Fiji, which I dare say, took note of my sentiments in my December Maiden Speech and earlier social media comments in regards the number of single-use plastic bottles used in this chamber. It was pleasing to find this note on my desk on Monday; it is a step in the right direction.
Change is indeed coming.
Thank you, Mr Speaker, Sir