Climate Change in the Pacific - Directors Duties (Fiji edition)

By Gavin Robertson and Samantha Cook


Introduction

No Director of a company doing business in the Pacific Region can afford to be a climate change denier. The World Bank in its publication “Acting on Climate Change and Disaster Risk for the Pacific” notes amongst other things that: “Pacific Island countries are on the frontline of climate change and natural hazard. In some countries, tides have already flooded homes and devastated livelihoods while rising sea levels have contaminated precious fresh water supplies”.

As many Pacific Nations are dependant on fishing, agriculture and tourism, companies operating in these sectors are particularly vulnerable to the impact of climate change. However, given the central importance of these sectors to the economies of Pacific nations, all companies if they are not directly impacted are likely to be indirectly impacted by climate change.

As these risks emerge, Directors of companies operating in Pacific nations are and will increasingly be required to have regard to the implications of climate change on their businesses in carrying out their duties.

Duties of Directors


The duties of Directors are set out in the companies legislation of the various Pacific nations.


While these duties are variously expressed, the central over arching obligation is to act in the best interests of the company. This requires not just a focus on the short term interests of the company but on its long term prosperity and survival. While this has traditionally involved a focus on ensuring returns to shareholders, modern governance practice requires Directors to have regard to the interests of broader stakeholders, such as employees, suppliers, customers and the community generally, in recognition of the fact that the company’s prosperity and survival relies on the ongoing support of its stakeholders.


What is specifically happening in Fiji?


Fiji has been at the forefront of international climate change diplomacy and has advocated for the interests of small island developing nations in international climate change talks. This rhetoric has also been reflected in some of its recent legislative reforms. Aside from taking practical steps to reduce the negative impacts on climate through for example legislation that was introduced to ban plastic bags and Styrofoam takeaway containers, Fiji has taken an active approach to ensure directors need have regard to climate change related matters in their decision-making.


In Fiji, directors are under a further obligation to promote the success of the company. This statutory duty also appears in the United Kingdom, which has gone so far as to state factors relevant to the success of the company, including the need to consider the long-term increase in value in a company as well as a company’s regard to environmental factors (among other things). However, in Fiji the statutory duty lacks such additional guidance.


Despite this it is reasonable to think that for a company to have a long-term increase in value, it will likely need to be successful throughout the climate crisis and in the wake of climate induced natural disasters, so it’s important that directors give due consideration to the financial position and value of their business, and how these may be affected in the short, medium and long term.


Additionally, Fiji is looking to introduce new climate change laws in the way of the Climate Change Bill 2019 (Bill) that will place further requirements on directors to think about the impacts of climate change when making decisions. The Bill expands the duty of directors to exercise care and diligence already contained within the Companies Act 2015, to require that directors “consider and evaluate climate change risks and opportunities to the extent they are foreseeable and intersect with the interest of the company.” The Bill goes further to state that climate change risks include, physical and chronic risks (such as increases in temperature and sea levels), transition risks (such as those related to adjusting to policy and legal change), the associated liability risks for failing to stem other risks, and financial and economic loss. The Bill has broad implications, and means that directors who fail to turn their minds to climate change when making decisions will likely be failing to exercise reasonable care and diligence.


Directors of public companies and large private companies, and other companies that are required to submit financial statements will also be required to submit as part of their financial statements a disclosure of climate change risks and details of measures adopted to reduce climate change risks. Meaning, directors are under further regulatory obligations to verify that the businesses they manage are taking action on climate change risks.


Although, debate of the Bill has paused because of COVID-19, if the Bill is enacted and comes into force, directors who fail to comply with the Bill could face civil penalties including damages for economic loss arising from a breach of the Bill, and criminal penalties of fines of up to FJD$750,000 or 10 years imprisonment, or both.


Net Zero Emissions


Many large international companies have set themselves target dates by which they plan to reach net zero emissions. Some two hundred members of the World Business Council on Sustainable Development have committed to achieving net zero emissions by 2050.


It is unrealistic to expect that small Pacific based companies could achieve outcomes to match those of major international corporations, and no Court would find that Directors of such companies were duty bound to do so.

Nevertheless, having regard to their place in the Pacific community and recognising that the ongoing support of each company’s local community is necessary to ensure its prosperity and long term survival Directors should as a matter of good governance consider reasonable measures to reduce emissions and mitigate the impact of their operations on the environment.


Practical Action


In terms of practical action that Directors may take, the Australian Securities and Investments Commission has published Climate Change Risk Guidance for Directors. This guidance includes four factors:


1. Consider climate risk - Directors are required to identify and analyse climate risk as it affects their businesses in the short and long term as part of their normal decision making.

2. Develop and maintain strong and effective corporate governance – Directors need to ensure that climate risk is properly managed within the company and that the Board has proper oversight of this.

3. Comply with the law – Directors need to be aware of all applicable laws including in particular disclosure of risk in annual reports, prospectuses and the like.


4. Disclose useful information to investors – Shareholders and potential shareholders need to be made aware of climate related risks affecting the company.


ASIC’s guidance provides an appropriate framework within which Boards should identify, manage and disclose climate risk as it affects companies’ operations.


The key element is of course managing climate risk which, depending on a company’s business, may involve disaster contingency planning, insurance, the establishment of financial reserves, maintaining higher stock levels and diversification. Providing support to affected communities in which the company operates could also be seen as being in the company’s best interests.

Conclusion


Identifying and managing climate risk is a key Director responsibility which should be addressed to ensure that Directors are properly discharging their duties. This is particularly the case for Directors operating in the Pacific nations which are very vulnerable to the effects of climate change. This includes not just companies in sectors that are potentially directly affected by climate change, but all businesses.


An important but subsidiary issue is that Boards should consider what reasonable measures can be taken to reduce emissions and the impact of their operations on the environment.


Pacific Legal Network publish a "Directors Duties Guide to the Pacific" which you can access here.


Please feel free to contact us if you have any questions about Directors Duties and corporate governance in the Pacific.



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