MS442: Statutory Management of Marine Resources
Assignment 2 – Essay
Community-Based Marine Conservation in Law: CFMDPs as a Tool for Formalizing
LMMAs in Fiji
1. Introduction
In 1992, the global community recognized the importance of protecting the marine
environment at the United Nations Conference on Environment and Development (UNCED),
also known as the Rio Earth Summit. Chapter 17 of Agenda 21, the action plan adopted at
UNCED, specifically identified the marine ecosystem as an essential component of the global
life support system (Agenda 21, 1992). This recognition highlighted the need to better manage
and conserve marine resources. A decade later, the 2002 World Summit on Sustainable
Development in Johannesburg reinforced this through a commitment to establish a global
network of marine protected areas (MPAs), as a tool to promote marine conservation (Plan of
Implementation, 2002).
MPAs have been described as the best tool available for protecting ocean biodiversity and
ecosystem health (Woods et al., 2015). When designed, located and managed effectively,
MPAs can provide ecological, social, economic and recreational benefits. At the local level,
they help maintain and protect ecosystem health. They also have benefits beyond their
boundaries, as they are interconnected to surrounding areas and ecosystems through ocean
currents and the movement of marine species. Well-designed MPA networks allow key habitats
and species to be protected through representation of these elements within multiple individual
MPAs. As a network, MPAs provide larger-scale protection and connectivity.
In 2005, the Fiji government made its own ambitious commitment to utilize MPAs for marine
conservation. At the 10 year review of the Barbados Programme of Action for Small Island
Developing States, Fiji pledged to protect at least 30% of its marine areas under a
comprehensive MPA network by 2020 (Pratt & Govan, 2010). This commitment was intended
to contribute to sustainable development and represented a proactive approach by Fiji to
address growing threats to its marine biodiversity and fish stocks.
Fiji currently has a combination of statutory and non-statutory MPAs in place. However, the
majority of designated MPAs are informal or customary, rather than legislated protected areas.
There are two main forms of customary MPAs in Fiji:

Tabu areas - Marine areas managed under customary law and traditional knowledge,
where fishing or extraction is prohibited (tabu) either permanently or temporarily. Tabus
have been used for centuries to regulate fishing activities, often with periodic openings and
closings overseen by chiefs.

Locally Managed Marine Areas (LMMAs) - A more recent form of community-managed
conservation area established through customary law and practices, but with additional
support from the Fiji Locally Managed Marine Areas Network (FLMMA Network). The
FLMMA Network partners with communities, government, NGOs and other stakeholders
to establish LMMAs that incorporate both traditional knowledge and modern science.
The FLMMA Network has grown rapidly since its formation in 2001, establishing over 450
LMMAs covering 35% of customary fishing grounds (qoliqoli) by 2014 (FLMMA, 2014). In
contrast, only a handful of small MPAs have been designated under Fiji's main fisheries law,
the Fisheries Act 1942. This indicates far greater uptake of LMMAs compared to legislated
protected areas.
Fiji is currently undertaking reform of its national marine laws and policies, including the
longstanding Fisheries Act. This presents opportunities to incorporate and strengthen statutory
mechanisms for designating and managing MPAs, in line with Fiji's commitments and
conservation goals. However, MPAs in Fiji also highlight particular challenges due to the
intersection of statutory and customary law in coastal waters. Integrating LMMAs and
customary practices into a reformed legislative framework will be an important consideration.
This paper focuses specifically on MPAs in Fiji's coastal zone, where complex issues arise
regarding indigenous rights and responsibilities. As part of the marine law reform process, draft
Inshore Fisheries legislation has been prepared to replace the Fisheries Act for inshore waters.
The draft Inshore Fisheries Decree introduces a mechanism called Community Fisheries
Management and Development Plans (CFMDPs) that could provide formal legal recognition
of LMMAs established by customary fishing right holders.
With Fiji still in the process of finalizing its approach to regulating coastal fisheries and MPAs,
the time is right to critically analyze the strengths and weaknesses of proposed mechanisms
like CFMDPs. This will help inform the development of contextually appropriate, acceptable
and effective laws and policies. Therefore, this paper undertakes an assessment of whether
CFMDPs represent a suitable tool for formalizing LMMAs under Fiji law. It does so by:

Providing background on customary marine tenure and MPAs in Fiji

Describing LMMAs and analyzing their strengths and limitations

Outlining existing mechanisms for designating MPAs under current legislation

Explaining key aspects of the draft Inshore Fisheries Decree relevant to CFMDPs

Critically evaluating CFMDPs against the IUCN Guidelines for Protected Area Legislation
and the Fijian context
The analysis aims to support the development of integrated legislative provisions that leverage
the strengths of customary practices like LMMAs, while also promoting strategically designed
and sustainably managed MPAs. With appropriate mechanisms in place, MPAs can play a vital
role in safeguarding Fiji’s marine biodiversity, supporting coastal livelihoods and meeting
national conservation commitments.
2. A Brief History of Customary Marine Resource Ownership and Use
Prior to the arrival of Europeans, marine resources in Fiji were managed under a system of
customary law by indigenous inhabitants (Ruddle, 1995). Fishing areas were divided into
traditional grounds called qoliqoli, with fishing rights extending from the shoreline out to the
outer reefs of each area (De Mers & Kahui, 2012). Access and use of the qoliqoli was controlled
by the customary resource owners. Non-owners needed permission to fish, while owners
required approval from chiefs to fish in certain areas or during tabu periods (Milehlig-Hoffman,
2008). Tabus are customary prohibitions used to regulate fishing activities, including bans on
fishing in certain areas, at certain times, or by certain people (Govan et al., 2009).
When Fiji was ceded to Britain in 1874, ownership of the seas and shoreline transferred to the
State (Techera & Troniak, 2009). However, customary law continued alongside introduced
law. The Native Fisheries Commission, now called the iTaukei Lands and Fisheries
Commission, formally registers customary fishing rights. This provides some rights under the
Fisheries Act 1942, including requiring non-customary fishers to obtain permits for registered
qoliqoli areas (Clarke & Jupiter, 2010).
Initially, subsistence fishing under customary law had minimal environmental impact.
However, post-WWII changes increased pressure on inshore fisheries, including
commercialization, new technologies, population growth and erosion of traditional authority
(De Mers & Kahui, 2012). While customary management and subsistence fishing persists,
threats to sustainability have emerged. This indicates a need to incorporate customary practices
into reformed legislative frameworks.
3. LMMAS
Locally Managed Marine Areas (LMMAs) have emerged in Fiji in the last two decades as a
new approach to marine resource management. LMMAs are areas managed at the local level
by communities, resource owners, partner organizations and/or government representatives
from the immediate area (Govan et al., 2009). They are established through customary law in
qoliqoli fishing grounds, with the support of the Fiji Locally Managed Marine Areas Network
(FLMMA Network) (Veitayaki et al., 2011).
The FLMMA Network utilizes principles of community-based adaptive management. Local
stakeholders develop and implement management plans, monitoring outcomes and revising
strategies as needed (FLMMA, 2014). LMMAs apply various management tools including
permanent or temporary no-take zones, restrictions on gears, and seasonal or species-specific
bans (FLMMA, 2014). A key innovation is co-management, with communities managing in
partnership with FLMMA organizations to combine traditional knowledge and modern science
(Weeks & Jupiter, 2013).
Since its establishment in 2001, the FLMMA Network has expanded rapidly, establishing 466
no-take zones covering 79% of Fiji's qoliqoli by 2014 (FLMMA, 2014). LMMAs have far
greater uptake than the few MPAs designated under the Fisheries Act. However, customary
measures are only enforceable by resource owners against members, not under statute
(Hastings et al., 2015). Providing legal recognition for effective customary practices like
LMMAs through reformed legislation could enhance their impact.
3.1 Enforceability LMMA Measures
As customary management measures, LMMA restrictions exist under customary law and are
only enforceable by resource owners against member violators, not under statute (Hastings et
al., 2015). However, customary fishing rights have some recognition under Fiji law, creating
limited opportunities for state-sanctioned LMMA enforcement.
The iTaukei Lands and Fisheries Commission formally registers customary fishing rights,
conferring certain Fisheries Act rights (Clarke & Jupiter, 2010). Non-owners must obtain
permits to fish in registered qoliqoli areas (Fisheries Act s13). Permits can exclude fishing for
particular species, areas or methods, aligning with LMMA rules. Breaching permit conditions
is then enforceable under the Act (Minter, 2008).
However, permits aren't required for subsistence fishing by customary owners, except if rules
are incorporated into a Community Fisheries Management and Development Plan (CFMDP).
Exceptions for small-scale customary fishing reduce enforceability. Additional barriers include
difficulty monitoring remote areas and lack of formal protection for LMMAs from external
impacts like logging (Gillett, 2010). Statutory recognition of effective LMMAs could aid
enforceability.
3.2 Strengths and weaknesses
Key strengths of LMMAs are their foundations in community-based adaptive co-management.
Decentralized community-based management promotes local ownership and compliance,
while incorporating traditional knowledge (Clarke & Jupiter, 2010). Co-management combines
this with scientific input from partners, aiding adaptation (Weeks & Jupiter, 2013). The
FLMMA Network's rapid expansion indicates strong community support.
However, limited legal recognition and enforceability are major weaknesses. Customary
measures aren't legally binding on non-members (Hastings et al., 2015). The Fisheries Act
provides some opportunities to formalize LMMA rules through permits or regulations, but with
significant limitations:

Permits not required for subsistence fishing by owners (Minter, 2008)

Decision to grant permits with LMMA rules ultimately discretionary (Fisheries Act s13)

No protection from external impacts like mining (Gillett, 2010)

Slow, inflexible gazettal process erodes management control (Clarke & Jupiter, 2010)
Statutory recognition could enhance LMMA effectiveness.
4. Existing mechanisms for formalizing LMMAs under the Fisheries Act
The Fisheries Act 1942 provides some opportunities for formal legal recognition and protection
of LMMAs, in addition to the permit system discussed earlier. However, these existing
mechanisms have significant limitations.
4.1 Restricted Fishing Areas
Section 11 of the Fisheries Regulations allows for declaring 'restricted fishing areas' by listing
these in the Regulations. In such areas, fishing is prohibited except by certain permitted gears
like hand nets, spears or lines. This could theoretically align with customary restrictions in
LMMAs. However, no restricted areas have actually been established using the Regulations to
date. Further, even if used, exceptions allowing subsistence fishing would persist and limit
enforceability of LMMA rules against customary owners.
4.2 Marine Reserves
More notably, section 9 of the Fisheries Act empowers the Minister to make regulations
prohibiting or restricting fishing in specified areas. Four such sets of regulations have been
passed establishing small 'no-take' marine reserves:

Fisheries (Wakaya Marine Reserve) Regulations 2005

Fisheries (Shark Reef Marine Reserve (Serua) Regulations 2014

Fisheries (Kiuva Marine Reserve) Regulations 2018

Fisheries (Naiqoro Passage Spawning Aggregation Marine Reserve) Regulations 2018
These regulations prohibit all fishing, aiming to create full protections. Some also establish
buffer zones around core reserve areas. In theory, this model could be applied to formally
recognize LMMA no-take zones under statute.
4.3 Limitations of these Existing Mechanisms
However, the existing marine reserve and restricted area mechanisms have significant
limitations when it comes to incorporating LMMAs:

No integration of community-based co-management or adaptive management principles.

Inflexible, lengthy gazettal processes that erode community control over resources.

No overarching policy guidance on strategically identifying priority MPAs.

Reserves established on an ad hoc basis, with few informal LMMAs formalized to date.

Scope to prohibit subsistence fishing by customary owners unclear.
While recent regulations suggest the existing tools retain potential value, integrating elements
like co-management could improve community acceptance and management effectiveness.
More strategic planning could also help establish MPAs in an ecologically comprehensive
network. (Fisheries Regulation, reg 11) and (FELA, USP, & EDO NSW, 2017)
5. The Draft Inshore Decree: The CFMDP Mechanism And Other relevant
Provisions
The draft Inshore Fisheries Decree proposes introducing a new mechanism called Community
Fisheries Management and Development Plans (CFMDPs) that could provide formal legal
recognition of Locally Managed Marine Areas (LMMAs) in Fiji (Long 2018).
The draft decree has several other provisions relevant to CFMDPs:

The objectives include sustainable use and management of inshore fisheries for the benefit
of Fijians. Principles refer to sustainable use, precautionary approach, and recognising
customary rights .

The decree does not apply to subsistence fishing in qoliqoli areas unless stated otherwise.

CFMDPs are established by the Minister following a request from customary resource
owners. They must contain specified content like objectives, management measures, and
monitoring requirements.

CFMDP provisions have no effect until gazetted. They apply to artisanal and subsistence
fishing. Customary owners are responsible for overall management.

The permit system requires applicants to obtain written consent from customary owners,
strengthening their rights. Breaching a CFMDP could be an offence.

The decree also allows government-driven aquatic protected areas which seem to be notake zones. Few details are provided on establishing these areas.

An Inshore Fisheries Advisory Council is established but is not independent, with mostly
government representatives. It is not specifically tasked with a role regarding MPAs.
So in summary, the CFMDP mechanism in the draft Inshore Fisheries Decree provides a way
to formally recognize LMMAs in law but has limitations regarding co-management, unclear
links with aquatic protected areas, and an advisory council that lacks independence and focus
on MPAs.
5.1 Objects and Principles
The draft decree has an objective of sustainable use and management of inshore fisheries to
benefit Fijians. The principles refer to sustainable use, ensuring management is based on best
scientific evidence, applying the precautionary approach, protecting the ecosystem, and
recognising customary fishing rights including participation in management.
5.2 Application
The draft decree does not apply to subsistence fishing or customary fishing in qoliqoli areas by
customary owners, unless stated otherwise in the decree or specified in a Fisheries Management
and Development Plan.
5.3 CFMDPs
CFMDPs are established by the Minister following receipt of a request from registered
customary owners. They must contain identified content like objectives, management
measures, monitoring requirements, etc. CFMDP provisions have no effect until gazetted and
apply to artisanal and subsistence fishing. Customary owners are responsible for overall
CFMDP management in planning and implementation.
5.4 Permit System
The permit system incorporates a new requirement for permit applicants to obtain written
consent from customary owners, contrasting with the current system of only requiring
consultation. This strengthens customary rights. Breaching a CFMDP that prohibits fishing
could require a permit and be an offence.
5.5 Aquatic Protected Areas
The decree allows government-driven aquatic protected areas that appear to be no-take zones,
with the Director of Fisheries responsible for identifying and recommending them. Few details
are provided on establishing these areas.
5.6 Inshore Fisheries Advisory Council
The decree establishes an advisory council but it is not independent, comprised mostly of
government representatives. It is not specifically tasked with a role regarding MPAs.
6. Assessment of the CFMPD Mechanism
A key strength of CFMDPs is supporting legal recognition of LMMAs, which adopt effective
community-based adaptive co-management approaches. Formalizing voluntarily conserved
areas aligns with IUCN guidance. However, CFMDPs lack statutory support for comanagement or government assistance for customary owners, contrasting with IUCN advice
on the continuum of co-management arrangements appropriate in different contexts. The
uncertain relationship between CFMDPs and government-driven aquatic protected areas is also
critiqued (Long, 2018).
Further weaknesses analyzed include absence of a strategic planning approach to developing
integrated MPA networks, which IUCN guidelines emphasize. Slow gazettal processes
undermine responsiveness, while IUCN recommends interim protection during nomination.
The advisory council privileges government representation over independence and technical
expertise. Good governance measures to verify community agreement are also lacking.
Overall, while the CFMDP mechanism has strengths in aligning with customary practices,
there are issues regarding co-management, unclear links with government MPAs, strategic
planning, gazettal lags, advisory arrangements, and local governance. Refinements to the draft
decree, regulations, and policy could address some weaknesses. However, CFMDPs appear a
promising tool for formalizing LMMAs, supporting Fiji’s MPA commitments, if limitations
are addressed (Long, 2018).
7. Conclusion
In conclusion, this paper provided a critical assessment of the proposed Community Fisheries
Management and Development Plan (CFMDP) mechanism in Fiji's draft Inshore Fisheries
Decree for formalizing Locally Managed Marine Areas (LMMAs) into legal Marine Protected
Areas (MPAs). The strengths and weaknesses of existing customary LMMAs and formal
mechanisms under the current Fisheries Act were analyzed, alongside guidelines from the
International Union for Conservation of Nature (IUCN) on protected area legislation.
A key strength of CFMDPs is enabling legal recognition of LMMAs, which utilize effective
community-based adaptive co-management (Long, 2018; Clarke and Jupiter, 2010). This
aligns with IUCN guidance on formalizing voluntary conserved areas (Lausche, 2011).
However, CFMDPs lack statutory support for co-management or government assistance for
customary owners, conflicting with IUCN advice on appropriate co-management
arrangements. Unclear links between CFMDPs and government aquatic protected areas were
also critiqued.
Additional weaknesses identified include the lack of strategic MPA network planning
promoted in IUCN guidelines; slow gazettal processes, when IUCN recommends interim
protection; an advisory council favoring government over expertise and independence; and
absence of governance measures to verify community agreement.
In summary, while CFMDPs show promise for formalizing LMMAs and achieving Fiji’s MPA
commitments, refinements to address co-management, links with government MPAs, strategic
planning, gazettal lags, advisory arrangements, and local governance would strengthen the
mechanism. With limitations addressed, CFMDPs can likely support customary practices and
marine conservation in Fiji.
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