In making submissions to the Law Reform Commission on the Mining Act 1965, the University of Fiji said that state sovereignty over natural resources was an international legal principle that had been adopted in Fiji by way of both the 1997 and 2013 Constitutions. In Fiji this meant state sovereignty over minerals.Mining Act
The international legal principle of state sovereignty over all natural resources was enshrined in the UN Declaration of Permanent Sovereignty over Natural Resources and had been approved by the UN General Assembly in its Resolution 1803. It was reflected both in section 186 of the 1997 Constitution and section 30 of the 2013 Constitution.
The Vice Chancellor, Professor Shaista Shameem said that the foundational principle of the Declaration was that the state had sovereignty over all the natural assets, including any minerals found within the jurisdiction of the state. The state had the responsibility to manage these resources in the interest of national development and the well-being of the people. In Fiji, where those natural resources were minerals, section 30 of the 2013 Constitution, which is identical to section 186 of the 1997 Constitution, obligated the state to fairly share any royalties it earned through extraction of the minerals with the customary or freehold owners of any land or water where the minerals were found.
Professor Shameem said that, constitutionally, the proportion in which any royalties are shared is based on a number of factors, namely, any benefits of extraction received or may be received by the owner; the risk of environmental damage; any cost of repairing or compensating for environmental damage that will be funded by the state; the cost to the state of administering exploration or exploitation rights, and any contribution to the general revenue of the state made by the person granted exploration or exploitation rights.
Specifically for environmental compensation, the cost of implementing the Environment Management Act 2005 enacted during the term of the Qarase Government, as amended by the 2025 Act, served as the blueprint for reparation in the national interest for mining activities, she said. “The Act covers activities where environment damage can occur due to mineral extraction and establishes a range of agencies for monitoring extraction activities such as a Council, Tribunal and Units as well as a Register”. Managing just this aspect of state responsibility for its sovereignty over mineral extraction would be a significant cost to public revenue and the question is whether the current fraction of royalties going to the state allows adequate environmental protection and longer term benefits for the next generations, particularly in relation to climate crisis, she said. The current distribution of 20% royalties to the state may not permit sufficient and robust protection of Fiji’s environment so that future generations can benefit.
Professor Shameem said that the UN Declaration on Permanent Sovereignty over Natural Resources was a decolonization commitment linked to the right to development of newly independent nations such as Fiji. The Declaration empowered all new states to use their natural resources, including minerals found within their territorial jurisdiction, for the benefit of all its citizens and for future generations. While the land and areas of the sea may be subject to either customary or freehold ownership, the minerals found and extracted in any state territory belonged to the state which exercised its responsibility on behalf of everyone. Whatever earned by the state as its share of royalties had to be enough for that state to be able to afford to exercise its responsibility as a public and inter-generational duty.
Professor Shameem said the new Mining Act should also include provisions on deep sea and seabed mining, as well as remove the extent of discretionary power vested only in certain public officials, introduce stronger enforcement provisions, and modernise the regulatory framework to incorporate changes in mining practices in the 21st century including in health and safety.
She said that the 20th and 21st centuries had witnessed massive changes in the mining sector, with technology, safety and environment issues at the forefront of civil society concern and any legislation pertaining specifically to the sector had to ensure not only compliance with the Constitution of Fiji but also with international jurisprudence on state responsibility to protect.
1965 University of Fiji Submissions Final
