The Commercial Use of Marine Areas Bill 2025: Reversion of Rights, Sovereign Risk, and the Investment Climate in Fiji

By Esha Sharma

Key takeaways

• The Commercial Use of Marine Areas Bill 2025 intends to establish a progressive framework for the management of indigenous resources

• The Bill has generated controversy and is currently in draft form

• The Bill is still in draft form with no legal effect, but its future implementation is creating uncertainty for tourism operators

• It introduces a major shift from State control to customary ownership of commercial marine areas

• Customary access rights under the Bill conflict directly with leaseholder exclusivity, creating operational uncertainty

Introduction

The Commercial Use of Marine Areas Bill 2025 (Bill) is currently before the Parliament of Fiji for consideration. The Bill intends to establish a progressive framework for the management of indigenous resources. However, it creates several legal issues.

Currently the Bill is in draft form, however it has already generated a lot of controversy. At present, the provisions of the Bill have the power to override pre-existing contractual rights and limit the jurisdiction of the courts. The impact of this is that the Bill threatens to replace statutory and contractual certainty with administrative discretion, which could raise serious concerns for investor confidence in Fiji’s tourism sector. Amidst these uncertainties, reports of landowners ‘jumping the gun’ and demanding payments have prompted the Government to issue a clarification notice on the status of the Bill.

With so many uncertainties, much needs to be considered and worked through to protect customary owner’s interests and Fiji’s vital tourism sector.

Status Quo Notice

On 7 January 2026, the Permanent Secretary for Tourism, Salaseini Daunabuna, issued a Public Advisory to quell market uncertainty. The Ministry confirmed that:

• The Bill is currently in draft form and has no legal effect.

• The Regulation of Surfing Areas Act 2010 remains in full force.

• Crucially, no compensation is currently payable for the use of commercial marine areas.

  
  

While this notice provides immediate reassurance that operators should not accede to premature demands for payment, it creates uncertainty asoperators know the law is changing, but the timeline and terms of that change remain unknown.

Policy Shift: From Confiscation to Negotiation

The Bill is intended to replace the Regulation of Surfing Areas Act 2010 (Surfing Act). The Surfing Act was a blunt instrument that vested surfing areas in the State and extinguished private exclusivity without compensation. The Bill attempts to correct this by introducing a "balanced approach" of managed reversion of marine areas used for commercial use to the customnary landowners.

Under the mechanisms of the proposed Bill, Customary owners (Vanua, Yavusa, Tikina) will be able to apply to the iTaukei Fisheries Commission (TFC) to verify boundaries and assess economic impacts.

The Vesting Authority, a committee comprising the Ministers for Tourism, Fisheries, and iTaukei Affairs, issues a "Vesting Order" to transfer absolute ownership to the customary owners.

The "Interested Holder" Trap

Crucially, the Bill’s impact extends far beyond major resorts. Under Clause 2, the legislation explicitly defines an “interest holder” as:

“a person, other than the customary owners of a commercial marine area, with a legal interest in or rights over a commercial marine area”.

This definition is comprehensive and creates a hidden risk for small-to-medium enterprises. By defining “commercial purposes” as “the use of a marine area for a commercial tourism activity”, the Bill seemingly captures any operator conducting business in these waters, not just those with fixed leases.

Because the Bill defines “commercial tourism activity” simply as “a prescribed commercial activity in the tourism industry”, until regulations are passed, it is not known what relevant commercial activities are intended to be captured,  however on a broad reading this could capture local surf tour operators, boat owners, and dive shops who rely on access rights rather than land leases.

As the Bill presently provides no minimum threshold to exclude smaller tourism businesses, the Bill could have an undesired consequence of forcing minor small local operators into the same complex negotiation process as large resorts/major multinational resorts.

Sovereign Risk and Contractual Certainty issues

The Bill establishes a mechanism for “vesting orders”, whereby the TFC may make recommendations to the Vesting Authority for control of certain marine areas to be vested with customary owners. Per section 11(4) of the Bill, a vesting order will “wholly and absolutely [vest] in the customary owners” despite provisions of “the State Lands Act 1945 or any other written law”.

The most alarming provision of the Bill for investors is found in Section 21(3). This section deems every vesting order to be a condition of all leases and licences, whether those instruments were issued before or after the Act’s commencement.

The Conflict of Rights: Leasehold Exclusivity vs. Customary Access.

Section 13(1), guarantees customary owners the right to access and enjoy the marine area “regardless of any existing or future lease or licence over the area”.

While these provisions appear to attempt to create a form of statutory native title/customary right, this provision creates a direct operational conflict. By definition, a commercial "lease" grants the lessee exclusive possession and the right to control who enters the property. However, Section 13 strips this fundamental right away.

The "Fragile" Exemption

While the Bill does allow the Vesting Authority to exempt an operator from renegotiation if their current terms are “fair and equitable”, this is a discretionary power under Section 12, not a guarantee. It creates an environment where contract continuity relies on executive favour rather than legal right.

Structural Conflicts of Interest in Administration

Once a marine area is vested, it is not managed directly by the owners but by the iTaukei Land Trust Board (TLTB). The Bill mandates that:

1.    All leases and licenses are issued in the TLTB’s name.

2.    TLTB collects all rents and fees.

3.    TLTB retains up to 25% of these proceeds for administration.

So rather than vesting marine areas back to customary landowners from local communities, the vested areas will form part of TLTB’s growing portfolio.

The Legislative Vacuum

 Furthermore, the Bill fails to set out the framework for collection of ‘rents and fees’ in what is a lucrative segment of the tourism market. With the global surfing industry projected to reach USD $6 billion by 2030, Fiji is leaving the mechanism of fee collection to regulations that are not yet written.

If the Bill is enacted, precisely how the TLTB will regulate and oversee marine areas once vested will be a critical issue going-forward. For example, if a system of licensing is adopted, how will license fees be collected? Currently this is addressed through section 33(2)(d), which gives the power of the Minister to make regulations relating to (among other things), the “methodology, formula, payment schedules or distribution procedures”. This unfortunately creates a legislative vacuum where a multi-million dollar sector is subject to future administrative discretion rather than statutory certainty today.

The "No Court" Rule

Perhaps the most critical issue is Section 16(3). The Bill establishes a Marine Area Appeals Tribunal to hear disputes regarding fees or lease terms. The Bill explicitly states:

“A decision of the Tribunal is final and cannot be challenged in a court of law”.

From a rule-of-law perspective, this would appear to oust the jurisdiction of the courts and the ability to seek judicial review. If the Vesting Authority unilaterally sets a compensation fee that an operator believes is commercially fatal, and the Tribunal upholds it, any legal avenue is exhausted. There is no recourse to the High Court or Court of Appeal. For foreign investors accustomed to the protection of the courts, this lack of judicial oversight is a major deterrent.

Next Steps

The Commercial Use of Marine Areas Bill 2025 is a well-intentioned effort to restore indigenous rights and ensure equitable returns for customary owners. However, in its current form, it creates a legally fragile operating environment. By retroactively altering contracts (Section 21), ensuring customary access overrides commercial exclusivity (Section 13), and removing the protection of the courts (Section 16), the Bill risks damaging investor confidence. As the Standing Committee reviews the draft Bill, further consideration ought to be given as to whether this "balanced approach" has tipped too far into uncertainty.

Interestingly, in Vanuatu the recent enactment of the Ocean Act 2025 (Vanuatu) established a national spatial planning framework for maritime areas. This law applies to all marine areas and allows for zoning based on different usages. So, this law applies to a wider set of marine areas and to a boarder category of commercial and non-commercial activities. Further, rather than creating a complex network of licensing fees and ownership structure, the rights vested with customary owners relate to management and stewardship, including a need for commercial operates to actively engage with and discuss commercial usage of marine areas with traditional custodians. Although, the Vanuatu law is yet to be fully implemented, maybe some additional insight for Fijian lawmakers. If you want to know more about the Vanuatu law you can read more from our colleagues at La’au Lawyers in Port Vila here: https://www.pln.vu/single-post/catching-the-wave-ocean-act-passes-into-law-in-vanuatu