review of policy and legislation relating to mangroves ... · mangrove conservation is not served...
TRANSCRIPT
Review of Policy and Legislation Relating to Mangroves,
the Use and Management of Mangroves in Tonga
MANGROVE ECOSYSTEMS FOR CLIMATE CHANGE ADAPTATION AND LIVELIHOOD
TABLE OF CONTENTS
LIST OF LEGISLATION ................................................................................................................................ i
ACRONYMS AND ABBREVIATIONS ........................................................................................................... ii
Executive Summary ................................................................................................................................. iii
Policy iii
Legislation ..........................................................................................................................................................iv
PART 1: INTRODUCTION ......................................................................................................................... 1
1.1 Background of the Review ....................................................................................................................... 1
1.2 Review Purpose, Scope and Methodology .............................................................................................. 1
PART 2: MANGROVES IN TONGA ............................................................................................................ 3
2.1 Mangrove Resources ............................................................................................................................... 3
2.1.1 Uses.......................................................................................................................................................... 4
2.1.2 Threats ..................................................................................................................................................... 4
2.2 Governance and Management Framework of Mangroves ..................................................................... 6
2.2.1 Mangrove Management .......................................................................................................................... 6
PART 3: POLICY ........................................................................................................................................ 8
3.1 Mangrove Policies in Tonga ..................................................................................................................... 8
3.2 Development Policies and Plans .............................................................................................................. 8
3.2.1 National Strategic Planning Framework 2011-2014 (2009) .................................................................... 8
3.3 Environment Policies and Plans ............................................................................................................... 9
3.3.1 National Biodiversity Strategy & Action Plan (2006) ............................................................................... 9
3.3.2 Environmental Management Plan for Fanga’uta Lagoon System 1998 (draft) ..................................... 13
3.3 Sectoral Policies and Plans ..................................................................................................................... 14
3.4.1 National Forest Policy (2008) ................................................................................................................. 14
3.4.2 Tonga National Aquaculture Fisheries Management and Development Plan ...................................... 15
3.4.3 Tonga National Infrastructure Investment Plan (NIIP) 2010 ................................................................. 16
3.4 Climate Change Policies and Plans ........................................................................................................ 17
3.5.1 National Disaster Management Plan and Emergency Procedures 2007 ............................................... 17
3.5.2 Joint National Action Plan on Climate Change Adaptation and Disaster Risk Management
2010-2015 (2010) ............................................................................................................................................. 18
3.5.3 Climate Change Policy 2006 .................................................................................................................. 19
3.5 Discussion- Reviewed Policies and Plans ............................................................................................... 19
PART 4: LEGISLATION ............................................................................................................................ 21
4.1 Overview of the Governance and Legal Systems of Tonga ................................................................... 21
4.2 Sectoral Legislation Regulating Activities which May Affect Mangroves .............................................. 25
4.3 Legislation Regulating Forestry Activities .............................................................................................. 25
4.3.1 The Forests Act 1961 [Cap 126] (commenced 2 November 1961) and Forest Produce
Regulations [Cap 126A] .................................................................................................................................... 25
4.3.2 The Land Act [Cap 132] (commenced 23 August 1903) and Land (Timber) Regulations [Cap
132B] 26
4.4 Legislation Regulating Fisheries, Shipping and Marine-Related Activities ............................................ 26
4.4.1 Fisheries Management Act 2002 (commenced 22 October 2002) ........................................................ 27
4.4.2 Aquaculture Management Act of 2003, Aquaculture Management (Amendment) Act 2005 and
Aquaculture Regulations 2008 ......................................................................................................................... 28
4.4.3 Shipping Act [Cap 136] ........................................................................................................................... 30
4.5 Legislation Regulating Mining and other Extractive Activities .............................................................. 30
4.5.1 Minerals Act 1949 [Cap 133] ................................................................................................................. 30
4.5.2 Land (Removal of Sand) Regulations [Cap 132D] .................................................................................. 31
4.5.3 Land (Quarry) Regulations [Cap 132E] ................................................................................................... 31
4.5.4 Petroleum Mining Act 1970 [Cap 134] and Petroleum Mining Regulations 1985 ................................. 31
4.5.5 The Petroleum Act 1959 [Cap 135]. ....................................................................................................... 32
4.6 Cross-Sectoral Legislation: Environmental Management, Waste Management and Pollution
Control, and Development Control ....................................................................................................... 33
4.6.1 Environmental Management and Control ............................................................................................. 33
4.6.1.1 Environment Management Act 2010 (commenced 30 August 2010) ............................................. 33
4.6.2 Development and Project Activity Assessment ..................................................................................... 34
4.6.2.1 Environmental Impact Assessment Act 2003 (commenced 11 September 2003) and
Environmental Impact Assessment Regulations 2010 (commenced 1 November 2010) ............................... 34
4.6.2.2 National Spatial Planning and Management Act 2012 (not yet in operation) ................................ 36
4.6.3 Waste Management and Pollution Control ........................................................................................... 37
4.6.3.1 Marine Pollution Prevention Act 2002 (commenced 22 July 2002) ................................................. 37
4.6.3.2 Waste Management Act 2005 (in operation 25 October 2005) as Amended by the Waste
Management (Amendment) Act 2009 (in operation 13 May 2010) ................................................................ 38
4.6.3.3 Hazardous Wastes and Chemicals Act 2010 (in operation 30 August 2010) ................................... 39
PART 5: NEXT STEPS .............................................................................................................................. 40
5.1 Policy: Key Findings, Recommendations and Options for Policy ........................................................... 40
5.1.1 Key findings of Policy Review ................................................................................................................ 40
5.1.2 Policy Recommendations and Options .................................................................................................. 40
5.2 Legislation: Key Findings, Recommendations and Options for Law Reform ......................................... 42
BIBLIOGRAPHY AND REFERENCES ......................................................................................................... 47
TABLE OF TABLES
Table 1: Key Thematic Areas for the NBSAP ......................................................................................... 10
TABLE OF KEY MESSAGES
Key Messages: Mangroves in Tonga ....................................................................................................... 3
Key Messages: Mangrove Policies .......................................................................................................... 8
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LIST OF LEGISLATION
Aquaculture Management Act of 2003
Aquaculture Management (Amendment) Act 2005
Aquaculture Regulations 2008
Birds and Fish Preservation Act [Cap 125]
Birds and Fish Preservation Amendment Act No 20 of 1989
Constitution of Tonga
Civil Law Act [Cap 14]
Environmental Impact Assessment Act of 2003
Environmental Impact Assessment Regulations of 2010
Environment Management Act No. 27 of 2010
Fisheries Management Act No 26 of 2002
Forests Act [Cap 126]
Forest Produce Regulations [Cap 126A]
Hazardous Wastes and Chemicals Act No 28 of 2010
Land Act [Cap 132]
Land (Occupation by Aliens) Regulations [Cap 132A]
Land (Quarry) Regulations [Cap 132E]
Land (Removal of Sand) Regulations [Cap 132D]
Land Timber Regulations [Cap 132B]
Marine Pollution Prevention Act of 2002
Park and Reserves Act [Cap 89]
Petroleum Act.[Cap 135]
Petroleum (Amendment) Act 20 Of 1997
Petroleum Mining Act [Cap 134]
Petroleum Mining Regulations
Roads Act [Cap 155]
Shipping Act [Cap 136]
Waste Management Act 2005
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ACRONYMS AND ABBREVIATIONS
CBD Convention on Biological Diversity
CITES Convention on International Trade of Endangered Species
ECCC Environment and Climate Change Committee
EIA Environmental Impact Assessment
EMP Environment Management Plan
FMAC Fisheries Management Advisory Committee
GEF Global Environment Facility
GHG Green House Gases
IUCN International Union for Conservation of Nature
IUCN ORO International Union for Conservation of Nature Oceania Regional Office
MCA Multi-Criterion Assessment
MEA Multilateral Environment Agreements
MESCAL Mangrove Eco Systems for Climate Change Adaptation and Livelihood
MLECCNR Ministry of Lands, Environment, Climate Change and Natural Resources
MOA Memorandum of Agreement
NATPLAN National Marine Spill Contingency Plan
NBSAP National Biodiversity Strategy and Action Plan
NGO Non-Government Organization
NIIP National Infrastructure Investment Plan
SMA Special Management Area
TEMPP Tonga Environment and Planning Project
UN United Nations
UNCBD United Nations Convention on Biological Diversity
UNFCCC United Nations Framework Convention to Climate Change
VEPA Vava’u Environment Protection Association
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Executive Summary
While the threats to mangrove ecosystems are increasing, the need for retaining and enhancing their
economic, social and environmental functions is only becoming greater. This requires the enabling
of policy and legislative support. Mangrove conservation is not served by the absence of policies
governing the use and management of mangroves, nor a fragmented and aging legislative
framework conducive to loopholes and inconsistencies.
The review report is one of the key activities under the Mangrove Ecosystem for Climate Change and
Livelihood project or MESCAL. The MESCAL project goal is to “Increase resilience to climate change in
Pacific Island countries through adaptive co-management of mangroves, associated ecosystems and
livelihoods”. The Review of policies and legislation relating to the use and management of mangrove
ecosystems in Tonga contribute to this objective by providing an overview of the main policy and
legal instruments and analyzing how they influence the use, conservation and management of
mangroves.
The report comprises two key sections – first section being Policy Review and second on Legislative
Review tracing the coverage of policy and legislation to the mangroves, the use, protection and
management of mangroves in Tonga.
The review also analyses and assesses these policies and legislation. Recommendations and options
for improving or reforming the policy and legal framework for mangroves are then articulated for
consideration by the Government of Tonga. These could and would allow protection, sustainable use
and management of mangroves in Tonga if implemented effectively.
Policy
There is no mangrove policy in Tonga.
The use and management of mangroves are implicitly and explicitly covered in environmental
policies such as the NBSAP, and sectoral policies like the Forest Policy. There is no clear policy
direction on the use and management of mangroves.
Government may wish to consider recommended actions to ensure better management,
conservation and protection of mangroves in Tonga. These include the following:
Mainstreaming of mangrove management, protection and conservation in sectoral polices.
Development of a mangrove management plan similar to the one developed for the
Fanga’uta Environment Management Plan or a co-management plan.
Allocation and provision of adequate resources (budgetary, personnel, transportation) to the
respective government ministries administering the various policies relating to mangroves to
enable enforcement and monitoring roles to be effectively carried out.
Better coordination of roles and collaboration between the key government ministries and
all stakeholders having some roles in mangroves and the management and protection of it.
Review, update and implementation of the Fanga’uta Environment Management Plan.
More education and public awareness on environment issues and on mangroves at all levels
of the community. All findings of the MESCAL project should be disseminated widely to
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stakeholders at all levels, including the communities. They should assist in the formulation of
policy on mangrove and provide basis for policy decisions on mangroves.
Legislation
There is no legislation in Tonga specifically designated to regulate the use, management and
conservation of mangroves. A range of acts and regulations regulating activities which directly or
indirectly impact on mangroves constitute the legislative framework for mangroves. Most of these
laws are old and do not require consideration for the environment generally and for mangroves in
particular. They also generally have not been amended to make reference to more recent legislation
particularly the Environmental Management Act and Environmental Impact Assessment Act
mandating the assessment of environmental impact of developments and activities. The legislation
however does provide command and control tools which could be utilised towards the sustainable
management of mangroves. Yet, in the absence of express legal requirement for the consideration
for mangroves, and as a result of a lack of policy direction, insufficient awareness of the value of
mangroves and of limited capacity and resources for law enforcement, it has proved ineffective in
achieving sustainable use and management of mangrove ecosystems.
This situation points to the need for law reform. One option is the enactment of an ‘umbrella’
mangroves legislation, either an Act or regulations under the Environmental Management Act. Such
legislation would give the Minister of Environment, Lands and Climate Change the stewardship of
mangroves, clearly state the objective to manage mangroves sustainably for preserving their climate
change adaptation and livelihood benefits, and outline the role and responsibilities of each line
ministry with regards to mangroves. It would also mandate the consideration for mangroves in
decision-making, and outline and clarify the permits and other requirements which may apply to
developments and activities which potentially impact on mangroves. Such legislation could also
create the institutions and processes for intergovernmental coordination in relation to all matters
relating to mangroves. Importantly it would establish the legal basis and outline the processes for
empowering coastal communities to manage mangroves as part of integrated coastal management
plans, ensuring coherence with the provision for designated coastal communities empowered with
respect to special management areas and aquaculture developments under the Fisheries
Management Act and the Aquaculture Management Act. Amendments to relevant existing laws
would also be required to harmonise them with the new coastal and mangrove management regime.
Another possible option is establish similar requirements and processes through a law reform
process confined to the review and amendments of existing legislation.
In any case, the effectiveness of such law reform and its benefits for climate adaptation and
livelihood will ultimately depend upon the ability to avail sufficient resources and capacity to ensure
consistent compliance and law enforcement.
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PART 1: INTRODUCTION
1.1 Background of the Review
The Mangrove EcoSystems for Climate Change Adaptation and Livelihood (MESCAL) project is a German-
funded project. The project is administered by the International Union for Conservation of Nature Oceania
Regional Office (IUCN ORO) through the Tonga’s Ministry of Lands, Environment, Climate Change and
Natural Resources (MLECCNR).
Tonga is one of the five project countries where the MESCAL project is implemented which also include Fiji,
Samoa, the Solomon Islands and Vanuatu. The MESCAL project goal is to “Increase resilience to climate
change in Pacific Island countries through adaptive co-management of mangroves, associated ecosystems
and livelihoods”.
MESCAL is part of the broader Pacific Mangroves Initiative (PMI) whose key goal is 'to assist the Pacific
island countries and territories (PICTs) to implement sound practices and capacity building in mangrove
management, including raising awareness of and maintaining high biodiversity values and ecosystem goods
and services that can sustain or even improve the livelihoods and wellbeing of the local population
depending of these coastal ecosystems'.
1.2 Review Purpose, Scope and Methodology
Purpose of the Review
The review of mangrove policies and legislation in Tonga (‘the Review’) provides an overview of the key
national policies, plans and legislation that could be relevant to the use, protection and management of
mangrove ecosystems and mangroves.
The Review contributes to the goal of the MESCAL project to “Increase resilience to climate change and
improve livelihood in Pacific Island countries through adaptive co-management of mangroves and
associated ecosystems” by proposing options and recommendations for policy and law reform for
consideration by the Government of Tonga.
Scope of the Review
This review seeks to (i) provide an overview of policies and plans that could be relevant to the use,
protection and management of mangroves and mangrove ecosystems; (ii) analyze and assess these
policies; and (iii) provide an overview of legislation regulating activities as well as environmental and land
use planning control mechanisms which impact the use and management of the mangrove ecosystems. The
review assesses the extent to which mangroves, mangrove ecosystems use, protection and management
are considered and addressed in the existing policies, plans and legislation being reviewed.
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Structure of the Report
This Report comprises four parts. Following this Introduction, Part 2 provides an overview of mangroves in
Tonga, including the governance and management systems in relation to mangroves.
The review of Tonga's policies in Part 3 assesses the extent to which mangroves, mangrove ecosystems use,
protection and management are considered and addressed in the existing policies and plans.
The review of Tonga's legislation in Part 4 identifies and analyses the legislation regulating activities that
could affect mangroves and their ecosystem, as well as cross-sectoral environmental management,
pollution control and planning legislation.
Next steps are proposed at Part 5, which includes a summary of the key findings of the policy and
legislation review, and articulates a series of options and recommendations for policy and law reform.
Review Process/Methodology
The primary components were research and a desktop-based review. The preliminary findings of the
desktop-based review were discussed through a half a day workshop at the MLECCNR. The workshop was
attended by government officials. An additional three and a half day consultation in Tonga with key
relevant stakeholders from government and civil society organizations was also conducted. This is part of
the ground truth process and to further solicit their views on mangroves in Tonga. A draft review report
was compiled following the consultation and this was sent to the MESCAL Tonga National Country
Coordinator for further circulation to stakeholders and for their final comments. This final report has been
compiled, taking into consideration the final comments received from the second round of consultation.
The second round of consultation was organized by the MESCAL Tonga through a workshop and was
attended by stakeholders from the government, Non-Government Organisations and communities. The
draft review report was widely circulated internally and externally for comments.
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PART 2: MANGROVES IN TONGA
2.1 Mangrove Resources
Tonga had an area of 1,000 ha of mangroves 20 years ago
(Saenger et al., 1983), but this has since been reduced by
clearance and conversion to other uses. The mangrove cover
has since reduced, with losses from coastal reclamation,
particularly on shores adjacent to Nuku’alofa. The World Atlas
of Mangroves (2010) gave an estimate of mangrove areas of
3.36 square kilometers for Tonga. An earlier estimate stated
the total area of mangroves at 10 sq km, representing 1.33
percent of Tonga’s total land area of 750 square km (Rohorua,H
and Lim, S, 2006).
There is a scattered distribution of mangroves in this large
archipelago, with the most important areas occurring on
Tongatapu; around an enclosed lagoon on Nomuka Island in the
Ha’apai Group, and in several locations along the complex
coastline of Vavau. Eight species of mangroves are found in
Tonga, but there is little information describing the structure or
productivity of these forests.
Source: Government of Tonga, MESCAL Tonga
Key Messages: Mangroves in Tonga
Tonga’s mangrove area is estimated at 1,000 hectares (ha) by 1983. A recent estimate provided
by the World Atlas of Mangroves 2010 was 3.36 square kilometers, or 336 hectares.
There is a scattered distribution of mangroves in Tonga, with the most important areas
occurring on Tongatapu; and around an enclosed lagoon on Nomuka in the Ha’apai Group
Eight species are found, most common species are the Rhizophora mangle, Rhizophora stylosa
(Tongolei/Tongo), Bruguiera gymnorrhiza (Tongo ta‘ane), Excoecaria agallocha (Feta‘anu) and
Lumnitzera littorea (Hangale)
Mangroves are being traditionally exploited for construction wood, and the gathering of crabs,
fish and fuel wood, for traditional medicines, and dyes for tapa-making
The major threats for the mangrove ecosystem in Tonga are clearance and reclamation for
urban development, waste disposal sites, construction of houses, agricultural expansion and
development
The Ministry of Lands, Environment, Climate Change and Natural Resources (MLECCNR) is
responsible for all environment and related matters, including mangroves and mangrove
ecosystems. Other Government Ministries and departments including Forestry, Fisheries and
NGOs also have some roles on mangroves .
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The most common species are the Rhizophora mangle, Rhizophora stylosa (Tongolei/Tongo), Bruguiera
gymnorrhiza (Tongo ta‘ane), Excoecaria agallocha (Feta‘anu) and Lumnitzera littorea (Hangale) (ESCAP,
1999).
2.1.1 Uses
The mangrove ecosystem provides important ecological functions (services) and also provides goods for the
local population. They play an important role in maintaining fish stocks. Mangrove ecosystems in Tonga, as
in other Pacific island countries, are valuable for the range of benefits and environmental services they
provide, as well as for their traditional cultural value. They play a crucial role for the reproduction of many
marine species and supply coastal communities with fish and shellfish, as well resources such as wood used
for firewood and timber for building of homes and daily livelihood.
For the people of Tonga, mangroves are being traditionally exploited for construction wood, and the
gathering of crabs, fish and fuel wood, for traditional medicines, and dyes for tapa-making. Tannins from
Rhizophoraceae are used for protection of nets and fish traps, owing to their fungicidal properties. The
prop roots of Rhizophora are used for the construction of fish traps, fuel-wood or light construction. The
timber of the Lumnitzera littorea is a good building material, being hard and durable, and resistant to
marine borers. The bark of the Bruguiera gymnorrhiza is used in Tonga to make decorative dye for tapa
(Prescott, 1992). The declining Bruguiera has led to the use of Rhizophora bark for this purpose.
2.1.2 Threats
Large areas of mangroves have been lost to urban development and agricultural expansion, particularly
around the main island of Tongatapu.
People have cut down mangroves along the coastal areas. People cut down mangroves for medicines,
housing, fishing tools, dye and firewood. Destroying mangrove species leads to a loss of ecological values
such as protecting coastlines, improving coastal water quality, etc.
Photo 1: Mangroves being cut for firewood
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In the area around the main town of Nuku’alofa, urbanization is the main cause of mangrove loss, as the
town expands towards swampy areas and edges of the lagoon (Ministry of Environment and Climate
Change, 2010). Continued land reclamation for town allotments from the shrinking mangroves forest in and
around the Fanga’uta lagoon in Tongatapu and the northern coast of Tongatapu poses a serious threat to
this ecosystem. Most of the reclamation is illegal and this type of encroachment will lead to pollution to the
lagoon as a result of human waste and rubbish disposals. Land reclamation around Tongatapu lagoon is the
main threat to the mangrove ecosystem. Mangroves are totally protected under the Birds Preservation Act
1988, which is implemented by the Ministry of Lands, Survey and Natural Resources (MLSNR) and
compliance role by the Police
Solid waste disposal is also a serious problem in Tonga, particularly in Nuku’alofa where the main garbage
dump for household waste and other non-hazardous waste is situated in the mangrove area.
The major threats for the mangrove ecosystem in Tonga are clearance and reclamation. This situation can
be observed in the context of the law that declares that all territorial land and sea (where mangroves are
found) belong to the Crown. Essentially, this open-access system is anti-conservation in nature. It is a
general reflection of the thinking amongst Tongans that 'it is best to harvest as much as possible as fast as
possible.'
The mangroves of Tonga are increasingly threatened by sea level rise, reclamation of land for agriculture
and development, and by land and sea-borne pollution, including sewage discharge from residential and
tourist facilities, by pesticides and other pollutions, and by storms, cyclones.1 The rate of mangrove
degradation is increasing and some species are becoming rare and difficult to find.
Climate change has introduced a new dimension to the challenges and renewed interest in the
management and protection of mangroves. Mangroves and their ecosystem are vulnerable to the impacts
of climate change, such as rising sea level, warmer seas and increased intensity and frequency of storms
and cyclones.2
Research on the ‘vulnerability of climate change and sea level rise risks in Tongatapu’, focusing on the
village of Kanokupolu reported that resort developments and the mangroves being destroyed contributed
the most to climate change and sea level rise risks in Kanokupolu (Kautoke,nd).
The study further concluded that the different developments carried out in these resorts include clearing of
coastal vegetation, removal of sand and land reclamation. This has led to coastal erosion, destroying of
habitats and livelihoods and makes the area more prone to the impacts of natural disasters.
1 See Kingdom of Tonga, CGIAR, at www.iwmi.cgiar.org/wetlands/pdf/Oceania/Kingdom%20of%20Tonga.pdf (accessed on 11th October 2012) 2 ‘Threats to mangroves from climate change and adaptation options’, Gilman E.L., et al., Aquatic Botany (2008) at p.1
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2.2 Governance and Management Framework of Mangroves
2.2.1 Mangrove Management
The Constitution vests the property in all lands in the King. In contrast with other Pacific Island countries,
there is no customary land or freehold land.
The MLECCNR is responsible for all environment and related matters, including mangroves and the
mangrove ecosystem. All programs contribute to achieving the common vision of 'Sustainable development
for Tonga’s present and future generations through coordinated environmental management and
protection, and climate change mitigation and adaptation'.
Other Government Ministries like the Ministry of Agriculture, Forestry, Fisheries, Food are also involved in
environment-related activities and in the decision-making process.
Non-government organizations (NGOs) like the Vava’u Environment Protection Association (VEPA), Tonga
Trust Foundation, play an important role in the implementation and, in some cases, the administration of
mangrove projects in Tonga. A number of youth replanting programs around the lagoon edge, sponsored
through Global Environment Facility (GEF) Small Grant and other funding agencies are expected to see an
improvement in the status of mangrove ecosystems. Efforts are now being focused on replanting and three
mangrove areas are incorporated within protected areas.
Photo 2: Fonuatanu Tree Planting Project with the communities. Trees including mangroves are planted to protect the coastlines
and are being fenced off.
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The government departments consulted at the consultation in November, 2012 highlighted the inherent
lack of coordination between MLECCNR and other government ministries and non-government
organizations in terms of enforcement and monitoring works on mangroves. The Ministry of Fisheries, for
instance, has their Special Managed Areas with its related management plan being implemented in
communities. The plan takes an integrated and an ecosystems approach of management, taking into
consideration mangroves if they exist in these managed areas. .
A further stakeholder consultation was conducted in May 2013 by the National Country Coordinator of
MESCAL Tonga project to discuss the first draft of the mangrove policy and legislative review report. A
comment highlighted was that perhaps relevant provisions are too scattered in different laws and thus
leading to the difficulty in detecting offences and the ability to effectively monitor mangrove management
and use.
Photo 3: Trees being planted and fenced off as part of the Fonuatanu project.
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PART 3: POLICY
3.1 Mangrove Policies in Tonga
Tonga ratified the Convention on Biological Diversity (CBD) in May 1998. The conservation of biodiversity
and biodiversity issues have been addressed through the formulation of National Biodiversity Strategy &
Action Plan (2006) (NBSAP).
The government seriously considers its responsibility of preserving economic opportunities and
environment resources for future generations. In addition, they are committed to integrating the principles
of sustainable development into all of its policies and budgetary processes. Raising the environmental
sustainability of economic development to safeguard the interests of future generations is vitally
important. Government acknowledges also the fact that the environment is not a separate entity from the
economy as changes in one affect the other. Thus, economy and the environment must be fully integrated
in decision-making.
There is no specific mangrove policy in Tonga. However, several sectoral policies have implicitly discussed
mangroves. For the purpose of this review, key policies related to the use and management of
mangroves/mangrove ecosystems are assessed and analyzed. The policies are categorized into
development, environment, sectoral and climate change policies.
3.2 Development Policies and Plans
3.2.1 National Strategic Planning Framework 2011-2014 (2009)
The 2011–2014 National Strategic Planning Framework is the overarching framework that provides Tonga’s
long-term spatial development plan. Given Tonga’s vulnerability to natural disasters, the Government has
made an attempt to incorporate environmental issues into national planning and development programs.
The plan is being administered by the Ministry of Finance and National Planning and has the vision 'to
create a society in which all Tongans enjoy higher living standards and a better quality of life through good
Key Messages: Mangrove Policies
There is no mangrove policy in Tonga
Mangroves, its protection and management have been explicitly and implicitly covered in the
existing policies and plans
Mangrove management needs to be mainstreamed into all sectoral policies and plans
The Fanga’uta Environment Management Plan could be revisited, reviewed and implemented
Similar plan like the Fanga’uta Environment Management Plan could be developed for the other
areas. Alternatively, a Mangrove Management plan which would be an issue based plan could
be developed using the Fanga’uta Management Plan as a guide or reference.
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governance, equitable and environmentally sustainable private sector-led economic growth, improved
education and health standards, and cultural development'.
The planning framework contains seven key outcomes, one of them being to 'integrate environmental
sustainability and climate change into all planning and executing of programs'. Four key enabling themes
have been further identified to achieve the seven outcomes being:
1. Continue progress to a smaller and more efficient government to transfer resources to improved
services and maintenance of resources.
2. Ensure State-Owned Enterprises are accountable to government as owner and that they provide
dividends for the benefit of the people in proportion to capital invested.
3. Improve the effectiveness of revenue collection to ensure a level playing field and that services to
the people can be appropriately funded.
4. Ensure a more coordinated whole of government approach to donor funding.
ANALYSIS: The plan as the overarching framework for Tonga provides the platform for other government
ministries to formulate and align sectoral policies to. This sees related activities and outcomes that will
'integrate environmental sustainability and climate change into all planning and executing of programs'.
The translation of this into specific policy and policy-related activities will be carried out by the government
ministries. More importantly, the importance and roles of mangroves and mangrove ecosystem in ensuring
sustainability and, as an important component of climate change, is yet to be seen to be specifically
addressed and integrated in sector, environment and climate change policies.
Mangroves undoubtedly, as an ecosystem and as a resource are implicitly covered in this key outcome of
the development framework. From the stakeholder meeting conducted in Tonga in November, 2012 it was
highlighted that there is no clear demarcation as to the government ministry responsible for mangroves.
3.3 Environment Policies and Plans
3.3.1 National Biodiversity Strategy & Action Plan (2006)
The National Biodiversity Strategy & Action Plan (NBSAP) is administered by the Ministry of Lands,
Environment, Climate Change and Natural Resources. The Plan addresses biodiversity management and
conservation issues in Tonga. The plan discusses issues, defines strategies and prescribes actions to address
biodiversity issues.
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The VISION of the NBSAP is to see that 'Tonga’s biological diversity and natural resources are protected, conserved and enriched and are appreciated
and enjoyed by her present and future generations and the rest of the world'3.
The Plan covers eight thematic areas which are summarized and tabulated in Table 1.
Table 1: Key Thematic Areas for the NBSAP
Theme Area Objectives
1. Forest Ecosystems 1.1 Arresting agro-deforestation
To minimize the loss and degradation of forest ecosystems and habitats as a result of agricultural expansion
1.2 Integrated land use planning
To ensure the optimal and sustainable allocation and use of Tonga’s biodiversity and natural resources
1.3 Sustainable forest management
To ensure the sustainable management of Tonga’s natural forest resources
1.4 Conservation Areas To improve the management of existing parks and reserves and, consistent with the integrated land use plan, to expand the conservation area network to cover a representative sample of all major terrestrial ecosystems
1.5 Information, Research and monitoring
To promote the effective and systematic collection and management of relevant information through scientifically designed research studies and surveys
1.6 Public awareness and education
To increase public understanding of and support for the conservation and sustainable use of forest biodiversity
2. Marine Ecosystems 2.1 Managing impacts of land based activities
To minimize the adverse impact of land based activities on coastal and marine species and ecosystems
2.2 Marine conservation areas
To expand the existing network of protected areas to effectively conserve major coastal and marine ecosystems and habitats of biological and socio-economic value
2.3 Sustainable management of marine biodiversity
To promote the use of environmentally sound practices in the management of marine resources
2.4 Information, research and monitoring
To promote scientific research and regular monitoring of critical marine ecosystems , and the proper management of scientific data to support the conservation and sustainable management of marine resources
2.5 Public awareness and education
To enhance public knowledge and understanding of Tonga’s marine ecosystems and of issues related to their conservation as a means of fostering public support for marine conservation objectives
3. Species Conservation Protection of priority species
To ensure the protection of viable populations of all priority species of Tonga
3 NBSAP, p15
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Theme Area Objectives
Sustainable use and management of species
To ensure the sustainable use and management of species of economic and cultural significance
Invasive Species Prevent the accidental introduction of known invasive alien species and reduce the adverse impact of invasive species on indigenous species and ecosystems, and agricultural biodiversity
Research and monitoring To encourage basic scientific research and monitoring surveys to identify, document and monitor progress in the conservation of priority species and to support on-going planning and conservation efforts
Public Awareness and education
To enhance public knowledge and understanding of priority species and their importance for conservation as part of Tonga’s natural heritage, as a way of fostering public support for species conservation objectives
Capacity Building To strengthen the technical, management and research knowledge and skills of local scientists and researchers, and the capacity of responsible agencies and organizations to effectively implement research programs supporting the protection, conservation and sustainable management of Tonga’s priority species
4. Agro biodiversity 4.1 Conservation and sustainable use of threatened agro-biodiversity
To preserve the genetic variability of Tonga’s agro biodiversity and promote the conservation and sustainable use of threatened agro biodiversity species of economic and socio-cultural importance
4.2 Research and development
To promote and support research initiatives that contribute to the conservation of threatened species and the sustainable use of commercial and traditional agro biodiversity
4.3 Public awareness and education
To foster public support for the conservation of threatened agro-biodiversity by enhancing awareness and understanding of their importance
4.4 Capacity building To strengthen the capacity of local farmers, agriculturalists and scientists to effectively implement programs for the protection, conservation and sustainable management of Tonga’s agro biodiversity
5. Local Community and Civil Society
5.1 Local communities and resource owners
To empower local communities and resource owners to effectively participate in the conservation and sustainable use of biodiversity resources in areas under their control
5.2 Civil society To empower civil society organization and groups to be effective advocates of biodiversity conservation
5.3 Schools To ensure the full integration of biodiversity conservation concepts into school curricula at all levels
6. Access& Benefit Sharing from the use of Genetic resources &traditional ecological knowledge
6.1 Access to genetic resources
To prevent illegal access to and unlawful exploitation of Tonga’s genetic resources
6.2 Fair and equitable sharing of benefits
To ensure the fair and equitable sharing of benefits generated from the use of genetic resources
6.3 Traditional practices and ecological knowledge
To prevent the loss of traditional ecological knowledge
6.4 Public awareness and To raise public awareness and understanding of the importance of Tonga’s genetic biodiversity resources
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Theme Area Objectives
education and traditional ecological knowledge
7. Mainstreaming Biodiversity Conservation
7.1 Legislation, policies and plans
To integrate concepts of conservation and sustainable use of biodiversity into all relevant sectoral policies, programs and plans
7.2 Multi-sectoral collaboration
To improve and strengthen multi-sectoral collaboration amongst all relevant sectors and stakeholders in support of biodiversity conservation and natural resources management
7.3 Environmental Impact Assessment
To ensure that environmental and social impacts of all proposed major projects and activities are thoroughly assessed using approved EIA guidelines and standards prior to their implementation.
7.4 Economic Valuation To encourage the quantification of benefits derived from the use of biodiversity and from other ecosystem services to support the full integration of biodiversity conservation into sustainable development planning and decision making
8. Financial Resources and Mechanisms
8.1 Assessment of biodiversity conservation capacities
To ensure a thorough and comprehensive assessment of the technical, managerial and administrative capacity for implementing biodiversity conservation within Tonga’s relevant line Ministries and all conservation organizations
8.2 Collation and dissemination of donor related information
To inform all interested organizations of potential funding sources for biodiversity conservation and of donors funding requirements.
8.3 Capacity building in conservation fund raising and management
To strengthen the capacity of key stakeholders in planning and implementing fund raising strategies and in the management of conservation funds
8.4 Economic tools and instruments for conservation funding
To generate local funding sources for biodiversity conservation
8.5 Partnerships To build effective partnerships with key local and international organizations to support the implementation of biodiversity conservation programs
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ANALYSIS: The use, management and protection of mangroves and mangroves ecosystems are indirectly
covered in the eight theme areas covered in the NBSAP. Given that ecosystems are interconnected, the
impact of activity in one has some impact on the other ecosystems. For instance, the impact of land-based
activities can have further impacts in coastal areas. Theme areas 1 on Forest ecosystems, 2 on marine
ecosystems directly relates to mangroves and mangrove ecosystems. Specific actions in relation to the
management of the forest ecosystems include the development and implementation of a national land use
plan; replanting of trees for fuel wood and for raw material for economic, cultural and social purposes;
review and update of forest legislation; the development and implementation of forest policy; the
involvement of local communities in conservation initiatives and awareness and education programs.
In relation to the marine ecosystems, specific actions include the strengthening of legislation to support
effective Environmental Impact Assessment (EIA) procedures as a means of regulating sand mining, land
reclamation, coral quarrying, mangrove destruction and waste disposal; implementation of EIA procedures
to assess and mitigate against adverse impacts of development activities on coastal environments;
discouraging unsustainable agricultural practices; reduce discharge of wastes to coastal areas from point
source pollution; identification of critical coastal and marine areas vital as habitats and for spawning of
species and promoting their strict protection as managed marine parks, reserves and or sanctuary areas;
explore the possibility of nominating areas of global significance like coral reefs and mangroves as World
Heritage properties or Wetland Areas under Ramsar Convention; promotion of marine conservation areas
involving communities; formulation of management plans; the promotion of scientific research and regular
monitoring of critical ecosystems and proper management of scientific data; and promotion of public
awareness and education on the ecological significance of mangroves as breeding and spawning grounds
and for coastal protection, on existing legislation related to management of marine resources, and on the
impacts of land based activities on coastal environments.
Theme 7 on mainstreaming calls for and recognizes the integration of concepts of conservation and
sustainable use of biodiversity into all relevant sectoral policies, programs and plans. The valuation of
benefits derived from the use of different biodiversity services, collation and collection of baseline data
related to economic valuation, designing and pilot of income-generating projects in a conservation area,
regular review of EIA procedures, and strengthening multi-sectoral collaboration amongst all relevant
sectors and stakeholders in support of biodiversity conservation and natural resources management.
The provisions to provide for the protection and management of mangroves have been provided in the
NBSAP. However, more specific actions that directly address mangroves and all issues surrounding it could
see the importance Government places on such a vital ecosystem on its own rather than being part of the
coastal and marine ecosystem. This can be one area that a review of the NBSAP could consider to have
specific activities addressing mangroves and its issues. Alternatively, a subsection of the marine ecosystems
could specifically address mangroves with its own objectives, strategies and specific activities and actions
developed.
13
The documentation and sharing of all findings of the MESCAL Tonga project could be widely shared
and disseminated as per the provisions and actions outlined in the NBSAP in relation to the
conservation and management of biodiversity in Tonga. More importantly, the involvement of
communities in the development of mangrove and/or marine management plans could also be an
important exercise that fulfills theme area 5 on local community and civil society.
The fully implementation of the NBSAP would have the greatest influence in mangrove management
and would ensure that this is achieved.
3.3.2 Environmental Management Plan for Fanga’uta Lagoon System 1998 (draft)
The Environment Management Plan (EMP) aims to manage the sustainable use of the lagoon and
resources of Fanga’uta Lagoon. The Plan is based on the community’s decision, scientific information
and also as the result of the Tonga Environment and Planning Project (TEMPP) in 1998 that the
lagoon should provide as many goods and services as possible to the people in and around
Nuku’alofa. The Plan sees the development of strategies to protect values of the lagoon and, at the
same time, allow for its many important uses. The EMP is a guide for action by Government, and
action by individuals taking responsibility for their own environment.
The lagoon has been adversely affected by pollution, habitat destruction and overfishing hence the
need to manage it. It has been noted in the plan that the mangroves and mangrove ecosystems of
the lagoon have been reduced in area by reclamation for house construction, cutting of trees,
dumping of rubbish, sewage discharge and damage from pigs. Mangrove die back had been noted at
the Mu’a and Pea/Ha’ateiho areas of the lagoon; mangrove losses had been reported in Mu’a, Pea
and much of the mangrove areas between Nukuhetulu and Veitongo.
ANALYSIS: Eight different usage types within the lagoon’s main ecosystem boundaries have been
identified. These proposed zones identified in the plan are4:
Zone 1: Lagoon Entrance Fisheries Area
Zone 2: Lagoon Subsistence Fisheries
Area
Zone 3: Conservation Areas
Zone 4: Sustainable Mangrove Use Area
Zone 5: Village and Agricultural Uses
Zone 6: Village Special Resource Use
Areas
Zone 7: Urban Use Area
Zone 8: Special Public Use Areas
The plan was never implemented. Given the
developments in the Fanga’uta lagoon since
the development of the plan, and given that
the Plan is very old now, it could be appropriate
4 Appendix 2 provides in detail requirements of these zones
Source: Environmental Management Plan for Fanga’uta Lagoon System
Fanga’uta EMP Map.
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to review, update and implement the Plan.
The use, management and protection of mangroves have been covered extensively and in more
detail in the Plan. The Plan offers a comprehensive guide to the identification of the eight zones
identified in the effort to conserve mangroves, mangrove ecosystems and the lagoon itself to ensure
its sustainability and for future generation. Such a Plan should be revisited and re-developed in the
conservation of mangroves and the mangrove ecosystem in Tonga. The MLECCNR should oversee
the review, monitoring and implementation of such plan.
3.3 Sectoral Policies and Plans
3.4.1 National Forest Policy (2008)
The forest policy, being one of the first national policies in the Pacific to specifically mainstream
climate change issues, is to provide some guide on how Tonga’s forest and tree resources should be
managed, to act as an agreed basis for planning and subsequent action, and to provide the basis for
enacting legislation.
The objective of the policy is to support the management of the forests and trees of Tonga, in a
sustainable manner to provide benefits for current and future generations of the Tongan people.
This includes indigenous forests, planted exotic forests, agro forests, and trees on farms and in urban
communities. Implicit in this is the requirement to manage the forests and trees for conservation of
biodiversity, soil, water and other environmental values, as well as for economic and social benefits5.
ANALYSIS: One of the policy statements focuses on Conservation and Environmental protection, of
which the section on 'coastal protection' is of relevance to the use and management of mangroves
and mangrove ecosystems. Policy statement 12, 13 and 14 of this section stipulates that (i)Shoreline
trees will not be removed; (ii) Coastal areas experiencing erosion will be rehabilitated by planting
trees such as mangroves and Pandanus and (iii)Wetlands will be protected areas. Other policy
statements comprised of conservation and environmental protection include forest protection,
conservation of biodiversity, soil conservation, water conservation and climate change and the
sustainable management of forests and land use.
The biodiversity of wetlands, problem of coastal erosion, importance of and threats imposed on
mangroves and the recognition of ever narrowing strip of vegetation along the shorelines has been
recognized and acknowledged in the policy. Policy statement 12 prohibits the cutting of mangroves
and coastal strip vegetation for fuel wood.
The use and management of mangroves have been briefly covered in the Forest Policy with the clear
statement prohibiting the cutting of mangroves for fuel wood. However, the enforcement of this
section is yet to be implemented and monitored. Mangroves are regarded as forests leading to its
inclusion in the Forest Policy. The Ministry of Forestry however, is unable to carry out related
activities on mangroves due to budgetary constraints. They are focusing on fruit trees and high value
species trees (e.g. sandalwood, cedar, mahogany and kauri). The general perception is that the
5 Extracted from the National Forestry Policy p5
15
MLECCNR will look after mangroves given its relevance to climate change amongst other
environment issues.
A land use policy is still being developed by the Ministry of Lands6. Mangroves are regarded as
forests however, related work and activities cannot be undertaken due to budgetary constraints. It
would be appropriate if the MLECCNR engages the Ministry of Forestry to replant mangroves where
needed and have it included in the Ministry of Forestry’s replanting program.
3.4.2 Tonga National Aquaculture Fisheries Management and Development Plan
The Aquaculture Management and Development Plan have been designed to be used as a guideline
for the establishment of commercial aquaculture in Tonga. The plan establishes mechanisms for the
development of a licensing procedure and selection, criteria of licenses and establishment of
committees.
The main guiding principles for this plan are specifically directed by the Aquaculture Management
Act 2003 and, in particular, are ‘to provide for the management and development of aquaculture in
the kingdom and other matters incidental thereto’.
More specifically, the objectives of aquaculture management in the Kingdom of Tonga that has some
relevance to mangroves are :
1. The aquaculture industry will be environmentally sustainable.
2. The aquaculture industry will be managed in a manner that considers and balances economic
and social gains against environmental costs.
ANALYSIS: The use, management and protection of mangroves have been provided for in the Tonga
National Aquaculture Fisheries Management and Development Plan through a screening process of
application before issuance of license. Moreover, the one of the key requirement calls for all
aquaculture development license applications to be accompanied by an Environmental Impact
Assessment, other than those for freshwater and marine hatcheries. This is a requirement under the
Environmental Impact Assessment Act 2003.
Category B 'coastal marine hatchery-land based' requires the proponent to supply data on impact of
proposal on mangroves and intertidal environment, and to identify source of water, giving details
about impact of inlet and outfall construction on local environment and impact on local fisheries and
community access, via an Environmental Impact Assessment study as required under the
Environmental Impact Assessment Act and Aquaculture Management Act.
Category C 'Land-based pond culture using seawater (e.g. prawn farms, estuarine fish culture)', on
the other hand, requires a detailed EIA with particular attention the construction impact of water
inlet and outlet lines (including community access to the waterfront), impact of pond construction on
mangroves and coastal environments, the risk of disease introduction, the risk of nutrient discharge
from ponds into the sea and associated consequences, the potential for ground water and land
6 This was conveyed by the Ministry of Forestry official at the one-on-one meetings in Tonga in November,
2013
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contamination from pond leakage and adversely affecting adjacent eco-systems the social and
economic benefits to be derived from the proposal.
The aquaculture plan follows a detailed screening process through the various procedural, licensing
and regulatory mechanisms before an approval for aquaculture project is granted. However, at
times, comments to be obtained from other relevant government stakeholders, if need be, may be
delayed and/or may not be forthcoming affecting the processing of applications and advice.
In getting comments from all stakeholders, an approval or referral process could be developed to
ensure that comments are obtained from all relevant stakeholders within a set timeframe.
Additionally, the representation of a very senior officer holding some form of decision-making
powers at the Technical committee would ensure that response/views/comments from the
respective Ministry can be obtained at the meeting. The enforcement of licensing, procedural and
regulatory requirements on aquaculture projects needs to be adhered to, in particular EIA as an
important component of the approval process. The other government ministries forming the
technical committee need to work closely and coordinate well with the Ministry of Fisheries in
getting timely feedback on aquaculture project proposals and application.
3.4.3 Tonga National Infrastructure Investment Plan (NIIP) 2010
The National Infrastructure Investment Plan outlines the Government of Tonga’s priorities and plans
for major infrastructure initiatives over the next 5‐10 years. The plan covers infrastructure initiatives
with national, regional or local significance. The plan looks at the basic infrastructure facility that
supports everyday life and business termed as the economic infrastructure like energy supply
systems, telecommunications, water, waste management and transportation.
ANALYSIS: Various infrastructure projects – energy, telecommunication, water, solid waste, ports
and airports have been identified as priority sectors of investment. On solid waste, the construction
of a waste management/disposal facility for Vava’u has been identified as a high priority project.
Other important issues that should be addressed in the sector roadmap include solid waste disposal
arrangements for outer islands and sewage sludge treatment/disposal arrangements on Tongatapu.
The project prioritization process adopts a formal multi‐criterion assessment (MCA) methodology
and rating. Economic benefits emerged as clearly the most important driver for project prioritization.
Social benefits, project readiness, and environmental benefits have lower ratings, but all have
weightings in the 20‐25% range which means that they will still be strongly influential in the overall
project assessment.
A formal solid waste disposal system is not in place in outer islands. Thus, waste disposal into the
mangroves for outer islands should be addressed and considered as part of the solid waste
management priority areas.
The impacts of any of the identified infrastructure projects on the environment should be thoroughly
conducted and assessed. The development of these infrastructure projects may have some impact
on the mangroves and there is a need to ensure that these projects do not see the clearance of
mangroves. An Environmental Impact Assessment of these projects should be conducted, assessed
and analyzed properly by the relevant authority before the approval or decision is granted. A
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sustainable solid waste disposal facility should be developed that will see less impact to the
environment, mangroves and the mangrove ecosystem.
3.4 Climate Change Policies and Plans
3.5.1 National Disaster Management Plan and Emergency Procedures 2007
The aim of the plan is to detail the Government policy and management strategies for the design,
development and implementation of effective disaster management programs and activities, and
includes the operational procedures for effective response to designated high risk hazards.
The National Disaster Management Plan focuses on a comprehensive disaster management strategy
which clearly identifies and documents the essential organizational and procedural ingredients for
effective mitigation of, preparedness for, response to hazards, and recovery from disaster situations.
Various working groups and committees formed to see the coordination and implementation of the
plan. The National Disaster Management Committee, National Disaster Council (Cabinet) and
National Disaster Management Working Group further carry out the various program activities of the
plan.
ANALYSIS: Section 3.4 of the National Disaster Management Plan has identified the Mitigation
Working group will be responsible for the identification of and implementation of strategies on
disaster mitigation. The working group will also provide technical support and advice to stakeholders
to ensure that disaster mitigation activities are included in development plans. The Mitigation
Working Group has been tasked to identify, develop and assist in mitigation projects aimed at
reducing losses and sustaining development efforts; and collating information to facilitate a better
understanding of hazards.
Section 3.8 of the Disaster Management Plan is on Coastal Land Use Planning. This section
recognized the continuing growth in tourism development along the coasts, has been subjected to
storm surges and wind damages. Moreover, this has been identified to be the target for proper
foreshore land use and development controls to protect the environment and assist with sustaining
economic growth.
The importance of mangroves, its use, protection and management could be aggressively promoted
as part of the program activities related to mitigation measures and, in particular, on foreshore and
coastal development. The planting of mangroves to act as a buffer between the sea and the land
and, more importantly, as wind and wave breakers, providing the nature-based sea wall should be a
component of key activities and projects of coastal land-use planning and the mitigation working
group. The involvement of communities and all stakeholders at all levels should be called for to
implement activities and projects that relate to these sections of the plan.
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3.5.2 Joint National Action Plan on Climate Change Adaptation and Disaster Risk
Management 2010-2015 (2010)
The joint national plan highlights national and community priority goals and activities to be
implemented to enable the people and environment of Tonga to adapt to the impacts of climate
change and to mitigate disaster risks.
The vision of the joint Plan is to promote a safe, secure and resilient community to climate change
impacts and disaster risks. To ensure the fulfillment of the vision, the Plan has six goals, namely:
1. Improved good governance for climate change adaptation and disaster risk management
(mainstreaming, decision-making, organizational and institutional policy frameworks)
2. Enhanced technical knowledge base, information, education and understanding of climate
change adaptation and effective disaster risk management
3. Analysis and assessments of vulnerability to climate change impacts and disaster risks
4. Enhanced community preparedness and resilience to impacts of all disasters
5. Technically reliable, economically affordable and environmentally sound energy to support
the sustainable development of the kingdom
6. Strong partnerships, cooperation and collaboration within government agencies and with
civil societies and NGOs
ANALYSIS: The coastal areas, amongst other ecosystems/sectors were highlighted as a priority area
targeted for disaster risk management. The foreshore protection along the most vulnerable coastal
areas (< 3m above mean sea level); formulation of coastal management plan; reassessing design of
current protection systems; and the review and amendment of existing legislation (sand mining)
have been identified as some of the adaptation options.
The call for proper land use management and good farming planning techniques in the agriculture
and forestry sector was also identified by the stakeholders consulted as one of the priority areas.
Goal 1, 2 and 3 relates to the management and protection of mangroves. It focuses on the protection
of coastal areas, effective plant rehabilitation in coastal areas, the sharing and use of science and
technical information to assist in policy decision-making, capacity-building and awareness at the
community levels on climate change and disaster risk management assessments and analysis.
The protection of coastal areas through planting of mangroves and trees could be a national
initiative, involving all stakeholders and communities. The current mangrove stands in the coastal
areas of Tonga should all be protected and the relevant authority could ensure that these are not
removed. The Government with other stakeholders should be holding more awareness and
education at all levels on the importance of mangroves and the need to protect them in light of
climate change, sea level rise, sustaining livelihoods.
The findings of the MESCAL Project in Tonga could fulfill part of goal 2 of the Joint Plan and should be
widely disseminated to Government, decision-makers for information and policy decision and
formulation. Communities should also be made aware of these findings to make responsible
decisions and actions.
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3.5.3 Climate Change Policy 2006
The policy promotes understanding, and to formulate appropriate responses to climate change. The
policy will assist Government and the Stakeholders in order to reprioritize activities to meet the
resource requirements for implementing the envisaged climate change adaptation and mitigation
strategies. It also intends to define the direction or way forward and the various responsibilities of
each stakeholder in the short and long term.
The key policy objectives include:
1. To amend the existing framework or to endorse the proposed climate change framework
2. To mainstream climate change issues into all environmental, social and economic
processes, including enactment and amending existing legislation
3. To improve and strengthen the collection, storage, management, analysis and use of data
(including Green House Gases (GHG), vulnerability & climate data) to monitor climate, sea
level change and their effects
4. To promote the raising of awareness and understanding of climate change, variability, sea-
level changes, mitigation, vulnerability and adaptation responses
5. To protect the vulnerable areas at risk for populations, resources and assets from climate
change impacts
6. To mitigate the causes of human induced climate change
ANALYSIS: The identified six objectives relates to the management and protection of mangroves
directly and indirectly. These objectives should also see the protection of mangroves in the context
of climate change. Strategy 5.1 calls to 'Identify vulnerable areas and develop adaptation options
that are cost effective and culturally sensitive to reduce vulnerabilities (foreshore construction, tree
planting)'. Strategy 5.4 highlighted the need to 'Enforce and enact new regulations to support the
building code and all other relevant provisions prohibiting sand removal, mangrove cutting, smoking
vehicles and free ranging animals'. Strategy 6.3 (objective 6) is to 'Enact and enforce regulations to
prohibit human activities that are detrimental to the environment (sand removal, deforestation,
burning of solid waste, below par vehicles)'. This strategy calls for the development of new
regulations and adaptation measures to reduce or mitigate the risks from and causes of climate
change. Specifically, it calls on the enforcement and enactment of new regulations and also
provisions prohibiting mangrove cutting.
The Ministry of Lands, Environment, Climate Change and Natural Resources should ensure the
implementation of the policy and closely monitor and enforce the policy.
3.5 Discussion- Reviewed Policies and Plans
Tonga has a number of policies and plans that addresses mangroves, its use, protection and
management. The NBSAP, Environment Management Plan for the Fanga’uta Lagoon, the Forestry
Policy, and the National Aquaculture Fisheries Management and Development Plan highlighted
mangroves in the various sections of the plans. The Environment Management Plan for the
Fanga’uta Lagoon specifically addressed mangrove issues facing the lagoon and had identified the
proposed eight zones which would see the conservation and management of mangroves. The call for
20
a Mangrove Management Committee to oversee the implementation of the plan and all mangrove
issues in Tonga is an important initiative to take on board.
Given the coverage of mangroves implicitly or explicitly in the existing policies and plans reviewed,
the issues that Government needs to look into include: (i) the compliance and enforcement of these
policies by the people and government departments in charge; (ii) the availability of resources to
ensure enforcement and regular monitoring of these policies; (iii) proper coordination of roles
amongst the government departments; (iv) clear demarcation of roles as to which government
ministry or department is responsible for mangroves; (v) close collaboration of mangrove work to be
implemented amongst government departments, communities and civil society organizations; and
(vi) more public awareness and education on environment management, mangroves – its
importance and the need to protect and conserve them.
From the review of existing policies and plans that were provided by the National Country
Coordinator for the MESCAL Tonga project and government departments, it has been found that
there is no specific and stand-alone mangrove policy in Tonga. Nor is there a mangrove
management plan for Tonga that sees the overall management and protection of mangroves in
Tonga, providing some guidelines to its use.
Given the limited mangroves in Tonga, and its importance in the context of climate change and sea
level rise impacts in Tonga, it is critical that the Government seriously considers for mangroves, its
protection and management to be mainstreamed and integrated into all sectoral policies. Specific
actions that see the management and protection of mangroves should be clearly developed in the
sectoral policies. Alternatively, a mangrove management plan similar to the one developed for the
Fanga’uta Lagoon could be developed at the national level. Similarly, specific environment
management plans could be developed for islands and sites in critical need of protection and
conservation of its mangroves and environment as a whole.
The Fanga’uta Lagoon management plan should be revisited, reviewed/updated for implementation,
enforced and closely monitored by MLECCNR. Mangroves, mangrove conservation, protection and
management should be one of the key priority areas for Government to address in light of climate
change and sea level rise.
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PART 4: LEGISLATION
4.1 Overview of the Governance and Legal Systems of Tonga
The Kingdom of Tonga is a constitutional monarchy. The sources of law are:
• the Constitution of Tonga 1875, as amended
• the statutes of the Legislative Assembly approved by the King
• the ‘common law of England and the rules of equity in force in England from time-to-time,
only so far as no Tongan statute applies and so far as is permitted by the circumstances of
Tonga and its people’
Judicial power is vested in the superior courts being the Court of Appeal, the Supreme Court, and the
Land Court, and also in the subordinate Magistrates’ Court. The Supreme Court exercises jurisdiction
in major civil and criminal cases. Decisions of the Supreme Court and the Land Court (except in
relation to the determination of hereditary titles and estates), may be appealed to the Court of
Appeal. Decisions of the Magistrates’ Court may be appealed to the Supreme Court and,
subsequently, by leave to the Court of Appeal.
The Privy Council7 is a body appointed by the King to ‘provide him with advice’. It has jurisdiction to
hear appeals from the Land Court relating to the determination of hereditary estates and titles.
There is no written law in Tonga providing for the application of customs or customary law.
However, custom or customary law is applied by the courts in certain circumstances.
Another source of law in Tonga is international law and specifically international environmental law.
Tonga’s ratification of Multilateral Environment Agreements (MEA) creates obligations to develop
policies and to integrate or translate these international commitments in the national framework. Of
particular relevance to mangroves, the MEAs to which Tonga is a party include the Convention on
Biological Diversity (CBD) and has submitted a National Biodiversity Strategy and Action Plan in 2006;
the UN Framework Convention to Climate Change (UNFCCC) and the UN Convention on the Law of
the Seas, including the Agreement for the Implementation of the Provisions Relating to the
Conservation and Management of Struggling Fish Stocks and Highly Migratory Fish Species.
However Tonga is not a party to the Convention on Wetlands of International Importance or to the
Convention on International Trade of Endangered Species (CITES).
1.1 Mangroves, Land Tenure and Legal Mechanisms for Conservation
1.1.1 Land Tenure
Land tenure in the context of this Review means ‘the relationship, whether legally or customarily
defined, among people, as individuals or groups, with respect to land.
The key legal instruments governing land tenure in Tonga are the Act of Constitution of Tonga 1875
[Cap 2] (as amended) and the Land Act [Cap 132]. The Constitution vests the ownership in all lands
7 The Privy Council is constituted of the monarch, cabinet, and two governors.
22
in the King. In contrast with other Pacific Island countries, there is no customary land or freehold
land.
Land is divided into estates known as 'tofiá' which are either controlled through traditional
inheritance by the royal family and nobles, according to the prescribed rules of succession or by the
government. The King’s ownership of land is essentially nominal as two thirds of the land was
granted to the nobles of Tonga to hold as tofiá. One sixth of the land was allocated for royal and
royal family estates and the remaining 15% for Government purposes.
Land cannot be sold, but may be leased or mortgaged in accordance with the Constitution. The term
of a lease is to be determined by Cabinet but may not exceed 99 years without the consent of His
Majesty in Council.
The Land Act echoes the Constitution in affirming that all the land in Tonga is the property of the
Crown. The Minister of Lands is the representative of the Crown in all matters concerning the land
of the Kingdom.
Subjects of the Crown may hold land in various categories, namely: the hereditary estate, tax
allotment or town allotments. The holder of a hereditary estate in land, a tax allotment or a town
allotment has a life interest in the land but it is subject to prescribed conditions. Every male Tongan
over 21 years must build a dwelling house on his (town) allotment.
The King may, with the consent of the Privy Council, make regulations for the administration of the
Land Act, including on matters which may be relevant to the conservation of mangroves such as (i)
the cutting, getting and removal of timber and other materials on and from Crown Land or any
holding, and (ii) commons and public reserves in cases not provided by law
The Land Court is established in Part X of the Land Act. It has jurisdiction to hear and determine all
disputes, claims and questions of title affecting any land or any interest in land in Tonga, except in
relation to land resumed by the Crown for public purposes under the Act
1.1.1.1 Foreshore lands
Tonga’s land Constitution and land law contain some specific provisions on foreshores, which are
particularly relevant to mangroves. The Constitution establishes that all foreshore areas, namely: ‘all
beach frontage of this Kingdom … from 15.24 meters above high water mark’ belong to the Crown.
The Land Act defines the foreshore as ‘the land adjacent to the sea alternately covered and left dry
by the ordinary flow and ebb of the tides and all land adjoining thereunto lying within 15.24 meters
of the high water mark of the ordinary tides’, reiterating Crown ownership of the foreshore and
provides that the Minister will require the consent of the Cabinet for the grant of a lease or permit to
erect a specified building on the foreshore.
A lease of land may be subject to conditions but there are no statutory requirements compelling any
lease holder to act in a manner that ensures the protection and preservation of coastal ecosystems
such as mangroves.
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1.1.1 Legal Mechanisms for the Conservation of Land, Water and Species
This section briefly outlines the provisions for the conservation of land, waters, and species in the
legislation of Tonga which may be used to the benefit of mangrove ecosystems.
1.1.1.1 Protected Areas under the Birds Preservation Act [Cap 125] (as amended by the Birds and
Fish Preservation (Amendment) Act 1989)
The Birds and Fish Preservation Act originally made provision for the preservation of species of birds
(listed in the First Schedule of the Act) and fish and turtles (as listed in the Second Schedule of the
Act) though the declaration of ‘protected areas’. It was amended in 1989 to remove all reference to
‘fish’ in the title and text of the Act and to repeal the Second Schedule.
The Act as amended remains highly relevant to the conservation of mangroves as the sole ‘protected
area’ declared by the Second Schedule of the Act and includes all mangrove and foreshore of ‘the
lagoon in Tongatapu known as Fanga’uta and Fanga Kakau, etc., including the Straits known as
Holeva’. This Schedule may be amended by the order of the Prime Minister with the consent of the
Privy Council.
The activities prohibited in protected areas without the prior written consent of the Prime Minister
are:
i. the discharge of effluent, noxious and toxic liquids and substances;
ii. the erection of any harbor, wharf, pier, jetty or other building works, whether temporary or
permanent;
iii. the cutting, damaging, removal and destruction of any mangrove;
iv. the erection of any fish-fence, the setting of any fish trap the trawling for fish (including
shellfish) and fishing for commercial purposes; and
v. the carrying out of boring, drilling and dredging operations.
It is a punishable offence to undertake without consent a prohibited activity, such as the cutting of
any mangrove, whether located in the foreshore area or otherwise. Police officers are given
investigative powers to enforce the Act.
COMMENT: Regrettably, the Birds and Fish Preservation Act has not been enforced. Much
development has been allowed to proceed on the edges of the lagoon, including the cutting of
mangroves and the reclamation of mangrove areas. This is as a result of a number of factors,
including the pressure for land allocation (town allotments) as a result of population growth on
Tongatapu, together with a failure to observe and implement the legislation.
1.1.1.3 Prohibitions under the Town Regulations Act [Cap 44] and the Order in Public Places Act [Cap
37]
The provisions of the Town Regulations Act provide that it is unlawful and an offence for a person to:
• Deposit, leave or throw in a public place or on the beach, any glass, bottles, can, bits of metal
or iron, paper, rubbish, litter or material of any sort, whatsoever
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• Neglect to bury the carcass (sic) of an animal the property of that person, which is found
lying on any beach
• Deposit on a beach or other public place, the carcass (sic) of a dead animal
Under the Order in Public Places Act, it is an offence to place or leave any obstruction on the beach,
including dirt, rubbish, carrion and offal, or cause such obstruction to be so placed or left.
COMMENT: Mangroves are effective waste traps and act as natural waste processing plants.
However their absorption capacity is limited. The effective enforcement of the provisions of the Act
highlighted above is therefore important to preserve the health of urban mangrove areas.
1.1.1.4 Special Management Areas and Protected Species under the Fisheries Management Act 2002
Mangroves may benefit from the provisions of the Fisheries Management Act and be declared a
Special Management Area (SMA). An SMA may be declared within an area of fisheries waters and
corresponding subjacent areas by the Minister for the purposes of coastal community management,
the application of certain conservation and management measures, subsistence fishing operations or
other specified purposes.
Fisheries waters include the territorial waters and internal waters of Tonga, including lagoons; thus
mangroves in these areas could be the subject of special conservation and management measures.
The Minister may make regulations in respect of the SMA, relating to the implementation of a fishery
plan for the conservation, management and sustainable utilization and development of fisheries
resources. Any person who fishes or otherwise acts contrary to the Order creating an SMA commits
an offence.
Species of fish may be declared a protected species by the Minister, who may make regulations for
their management which, depending on the species, might afford some protection to mangrove
ecosystems.
1.1.1.5 Parks and Reserves Act [Cap 126] (commenced operation 31 March 1977)
Mangroves could possibly be protected under the Parks and Reserves Act, which provides for the
establishment of a Parks and Reserves Authority and for the establishment, preservation and
administration of parks and reserves (including marine reserves).
Under the Act, the Parks and Reserves Authority is the regulating body and, from time to time, with
the consent of Privy Council, may declare any area of land or sea to be a park or reserve for the
purposes of the Act, and in the same manner may revoke any such declaration.
The Authority may, with the consent of Privy Council, make regulations prescribing conditions and
restrictions that are necessary for the protection, preservation and maintenance of natural,
historical, scientific or other valuable features of any park or reserve.
Subject to any conditions or restriction imposed by the Parks and Reserves Authority, every reserve
‘shall be administered for the protection, preservation and maintenance of any valuable feature of
such reserve, and activities therein and entry thereto shall strictly be in accordance with any
25
(imposed) conditions and restrictions. A marine reserve must be administered ‘for the protection,
preservation and control of any aquatic form of life’.
The Act creates offences, including the undertaking of a willful act which ‘damages, destroys,
removes defaces or, in any way, interferes with any feature whether organic or inorganic in any
reserve or park’.
1.1.2 Forest Reserves or Reserve areas and Village Forest Areas
Forestry and other related activities may be subject to special regulations, relating to forest reserves
or reserved areas as provided by the Forests Act [Cap 126].
Village Forest Areas may also be demarcated and the subject of regulations prescribed by the
Minister for the protection, control and management of forest produce.
4.2 Sectoral Legislation Regulating Activities which May Affect Mangroves
Mangroves are said to have one foot in the land and one foot in the sea. Both land and marine-based
activities potentially impact on mangrove ecosystems. The main laws regulating these activities are
reviewed and analyzed to highlight how they provide – or not - for the consideration of the
environment and of mangrove ecosystems specifically. Most of the sectoral legislation predate the
policy shift towards ecological sustainability, and have generally not been amended to reflect the
requirements for environmental impact assessment pursuant to the Environmental Impact
Assessment Act. Nevertheless, any development or activity regulated by the legislation reviewed
which is likely to have a significant effect on the environment should be subject to an EIA, and
approval should be conditional to impact mitigation measures.
4.3 Legislation Regulating Forestry Activities
There is no comprehensive forestry law or authority responsible for all forests in Tonga. Forestry is
regulated partly by the Forests Act, and partly by the Land Act, and the relevant regulations.
4.3.1 The Forests Act 1961 [Cap 126] (commenced 2 November 1961) and Forest
Produce Regulations [Cap 126A]
Mangroves are trees and a number of mangrove trees may constitute a forest. Their timber and bark
is ‘forest produce’ within the meaning of that term in the Forests Act, but they are not protected as
forest produce under the Forest Produce Regulations8.
The principal purpose of the Forests Act is to ‘provide for the setting aside of areas as forest areas or
reserved areas and for the control and regulation of such areas and of forest produce9. An area of
un-alienated land (land that is not leased or otherwise disposed of) may be declared a forest reserve
or reserved area10. The reserved areas would consist of areas of land that may be needed for
8 ‘Tongo’ is not included in the list of trees in the Schedule to the Forest Produce Regulations 9 Long title of the Forests Act [Cap 126] 10 s3 Forests Act
26
afforestation in the future, while forest reserves would be areas of existing forest but excluding
village forest reserves11. There have been no declarations of either forest areas or reserved areas.
Village forest areas may be created under the Act with the approval of the Minister 12 in un-alienated
land. A village forest area may be regulated by the Minister for protection, control and management
of forest produce.13 There are no regulations.
COMMENT: The protection of mangrove areas is not a primary focus of the Forests Department.
There are insufficient resources to focus on the protection of mangroves given competing interests
and priorities. The consideration of mangroves as resources or forest produce may not be in the
best interest of mangrove conservation. However the Act could be used to declare all mangrove
forests as forest reserves.
4.3.2 The Land Act [Cap 132] (commenced 23 August 1903) and Land (Timber)
Regulations [Cap 132B]
The Land Act reflects the constitutional provision that all land is the property of the Crown. The Minister of Lands is the representative of the Crown in all matters concerning the land of the Kingdom.14 As was referred to above at section 2.1 (land tenure) of the Review, the King may, with the consent
of the Privy Council, make regulations for the administration of the Act, including for:
the cutting, getting and removal of timber on and from Crown Land or any holding
the regulation of commons and public reserves in cases not provided by law15
The foreshore is Crown land.16. Timber may be cut and removed from Crown land only pursuant to a
permit17 excepting that even with a permit, timber may not be cut within 50 feet (15.24 meters) of
the high water mark (that is, within the foreshore area).18 The term ‘timber’ is not defined in the Act
or the Regulations, but in its ordinary meaning would include mangroves.
COMMENT: There appears to be a conflict between the Land (Timber) Regulations and the Birds
Preservation Act. In Tongatapu, the Prime Minister may permit the cutting of mangroves under the
Birds Preservation Act. Although it could be inferred from the Land (Timber) Regulations that a
permit from the Minister of Lands to cut timber on Crown land under the Land (Timber) Regulations
excludes mangroves in the foreshore area, this should be articulated clearly in the Act.
4.4 Legislation Regulating Fisheries, Shipping and Marine-Related Activities
The marine environment is an important part of the mangrove ecosystems. Conversely, mangroves
play an essential role in the marine ecosystems, particularly as nurseries for fish. It follows that the
11 s2 Forests Act 12 S7 Forests Act 13 S 7 and 8 Forest Act 14 S19(1) Land Act Chapter 132. 15 Section 22 (1) (e) and (f) of the Land Act [Cap 132] 16 s113 Land Act 17 Reg 2 Land (Timber) Regulations 18 Reg 8 Land (Timber) Regulations
27
relevant legal framework will include laws relating to land and sea based activities. Legislation
regulating maritime activities, shipping, ports and fisheries could potentially contribute to preventing
or mitigating adverse impacts of human activities on mangroves and maintaining a healthy,
sustaining environment for them.
4.4.1 Fisheries Management Act 2002 (commenced 22 October 2002)
The Fisheries Management Act provides for the ‘conservation, management, sustainable utilization
and development of fisheries resources in the Kingdom’ and other incidental matters19.
The essential provisions of this Act relate to the management and conservation of fisheries resources
of Tonga and the processing and exportation of fish. The Act also regulates fishing in Tongan waters
by domestic and foreign fishing vessels, and fishing by Tongan vessels on the high seas.
In the exercise of the considerable discretionary powers vested in the relevant Minister, the latter
must consider the following needs (among others):
a) To ensure the long-term conservation and sustainable use of fishery resources;
b) To ensure that management measures are based on the best available scientific evidence;
c) To conserve aquatic living resources and protect biodiversity in the marine environment; and
d) To protect the ecosystem as a whole and the general aquatic environment.20
A Fisheries Management Advisory Committee must be established to advise the Minister on matters
relating to the conservation, management, sustainable utilization and development of fisheries in
Tonga.21
The Minister may prohibit fishing or related activity in relation (among other matters) to:
any specified area of water or specified place
any fishing method22
An important feature of the Act in the context of this review is the power in the Minister to declare
‘Special Management Areas’ (SMA),23 to designate a local community to be a coastal community for
the purposes of community-based fisheries management24 and to declare a fish as a protected
species25. A designated coastal community must act ‘in a manner that is conducive to the effective
conservation and management of fisheries resources in the SMA’26.
As at November 2012, 2 SMAs had been declared (North Minerva Reef and South Minerva Reef27),
while 8 local communities had been designated ‘coastal communities’. The existing and proposed
SMAs are reefs or small islands, without mangroves. The coastal communities are requesting
19 The long title of the Fisheries Management Act 2002 20 S 4 Fisheries Management Act 21 S 8 Fisheries Management Act 22 S19(1)(a)(v) and (vii) Fisheries Management Act 23 S 13 Fisheries Management Act 2002 24 S14 Fisheries Management Act 2002 25 S 16 Fisheries Management Act 2002 26
s14(5) Fisheries Management Act 27 see Special Management Area Order GS 20 of 2004.
28
assistance from the Department for Regulations and to develop community coastal management
plans that consider the impacts on mangroves, including the designation of ‘no-take’ zones.
Licenses are required under the Act for a range of fisheries activities, including local fishing28,
commercial fishing sports fishing 29 , locally-based-and-visiting-foreign-vessels fishing 30 and the
operation of fish processing and export establishments31.
The use of fishing methods particularly detrimental to corals and mangroves, such as chemicals,
explosives, poisons and noxious substances, is prohibited. Significant penalties apply for breach of
these provisions: a fine of $100,000 or imprisonment of up to 2 years32.
COMMENT: There is awareness in coastal fishing communities of the significance of mangroves to
the health of the fisheries resource and a desire to manage the coastal area in the interests of the
fisheries resource. 33
4.4.2 Aquaculture Management Act of 2003, Aquaculture Management (Amendment)
Act 2005 and Aquaculture Regulations 2008
The development of aquaculture could have devastating impacts on mangroves, as it may disturb the
balance of the ecosystems, involve conversion of mangrove areas to fish or shrimp farming, and
result in chemical pollution of waters and land. Conversely, aquaculture establishments are
vulnerable to pollution and other activities which may impact on their operation.
Tonga’s Aquaculture Management Act provides a detailed and strict regulatory framework for the
establishment and management of aquaculture activities.
‘Aquaculture’ is defined in the Act as ‘any operation involving the husbandry, cultivation,
propagation or farming of fish, during the whole or part of its life cycle and includes any operation in
preparation for any aquaculture or other related activity’.34 'Fish' under the Act means ‘any fish and
includes any aquatic animal or plant’.35
The first step in the development of aquaculture is the declaration by the Minister with the consent
of Cabinet, of an area as an aquaculture area, which may be followed by the declaration of a
development buffer zone around an aquaculture area36. The Minister in consultation with the
Aquaculture Advisory Committee37 may also publish codes of practice for aquaculture.38
Restricted activities listed in a Notice, proposed to be carried out within a buffer zone or an
aquaculture area require the prior written consent of the Minister39. Consent will only be given upon
28 S 29 Fisheries Management Act 2002 29 S 30 Fisheries Management Act 2002 30 S 31 and S38 Fisheries Management Act 2002 31 S33 Fisheries Management Act of 2002 32 S 17)(1), (4) Fisheries Management Act 2002 33 Ellison, JC, Tonga Environmental Planning and Management Strengthening Project, Working Paper no. 5 First Report on Development of a Mangrove Environmental Management Plan for Tongatapu (1998) at p5. 34 S 2(1) Aquaculture Management Act 2003 35 S 2(1) Aquaculture Management Act 2003 36 SS 5, 6 Aquaculture Management Act 2003 37 a joint industry-government body established under s11 of the Aquaculture Management Act to advise the Minister 38 s10 Aquaculture Management Act 2010 39 S 9(1) Aquaculture Management Act 2003
29
consideration of the public interest and if it is deemed that the proper measures will be taken to
prevent harm to aquaculture activities40.
Responsibilities and rights in respect of an aquaculture area and a buffer zone may be delegated by
the Minister to ‘designated communities’, which can include a community designated as a ‘coastal
community’ under the Fisheries Management Act 41. A community may have control over the
environmental management of its coastal areas. The development of a management plan will assist
the community.
Aquaculture activities are subject to licensing requirements. Applications for licenses or other
authorization may be made to the Minister accompanied by an Environmental Impact Assessment
(EIA) report and the recommendations of the person or authority tasked with reviewing the EIA
report.42
The Minister upon assessing aquaculture development license applications must consider the following:
whether the site for which the license or authorization is applied is located in an aquaculture area
the impact of aquaculture on the general environment
the impact on any community located in the vicinity, and the fishing practices of the community
the effect of proposed aquaculture development on fish species located in the area43. The Act enables adaptive management of aquaculture operations, in that the condition of an aquaculture development license may be varied if the Minister considers it is desirable in order to prevent or reduce the risk of damage to the environment; or to deal with any circumstances which were not foreseen at the time the license was issued, in order to ensure safe and responsible aquaculture practice44. A duty is imposed on every holder of an aquaculture development license. A licensee must ‘take all
reasonably practical measures to avoid or minimize pollution and any harmful environmental impact
caused by aquaculture or related activity, including the discharge of effluent and the disposal of
sludge’45.
The Minister may require the holder of a license to commission an assessment of the environmental
impact of the existing aquaculture or related activities if the Minister deems that an activity may
have a detrimental impact on the environment46.
An aquaculture officer (includes fisheries officers and police officers47) may, without a warrant:
order the cessation of any aquaculture or related activity;
40 S9(2) Aquaculture Management Act 2003 41 S 8(1) (a), (b) Aquaculture Management Act 2003 42 S 13(4) Aquaculture Management Act 2003 43 S 15(2) (a),(b), (c) Aquaculture Management Act 2003 44 S 18(1)(b), (c) Aquaculture Management Act 2003 45 S 26(1) Aquaculture Management Act 2003 46 S27(1) Aquaculture Management Act 2003 47 s31 Aquaculture Management Act
30
order the cessation of any activity within an aquaculture area or a buffer zone which the
officer has reasonable grounds to believe contravenes the provisions of the decision which
established that aquaculture area or buffer zone.48
The Act provides for severe fine and imprisonment for any contravention of the Act49.
As at November 2012, no aquaculture license had been issued, although 20 applications for license
were under consideration.
4.4.3 Shipping Act [Cap 136]
The main object of this Act is to make provision with respect to registration of ships (including all
Tongan-owned ships, having a length of 15 meters or greater50) in Tonga and provides rules for
navigation by ships registered in Tonga and any ship in Tongan waters and for matters related to
navigation and seamen.
Regulation of shipping traffic is important to this Review only in so far as it enables the control and
regulation of ships for safety and pollution prevention purpose, and is therefore, only mentioned in
passing.
Ships and boats may be engaged in coastal trade or commercial activity in the coastal waters of
Tonga under a license from the relevant Minister51.
Shipping is also regulated by the Marine Pollution Act, which is discussed below at section 5.2.1.
4.5 Legislation Regulating Mining and other Extractive Activities
Mining and other extractive activities may have a direct or indirect impact on mangroves as a result
of land or water contamination caused by mining operations. A brief outline of the main features of
the laws regulating these activities which may have relevance to mangroves is provided below.
4.5.1 Minerals Act 1949 [Cap 133]
The object of the Minerals Act 1949 is to establish the ownership and provide for the control of
minerals within the Kingdom. All minerals are the property of the Crown52.
'Minerals' is defined in section 2 to include gas in natural state, precious metals, precious stones,
coal, earthly minerals and metalliferous minerals, but not ‘clay, coral, lime, sand, …’. ‘Land’ includes
submerged land.
The Act does not refer to the impact of mining on the environment generally or mangroves. It merely
provides for the obligation of the holder of an exploration license to make and pay reasonable
48 S31(2) (d), (h) Aquaculture Management Act 2003 49 S33 Aquaculture Management Act the 2003 50 s8, Shipping Act, as amended by s3 Shipping (Amendment) Act 2001 51 s203 Shipping Act 52 s3 Minerals Act Cap 133
31
compensation to owners, including the Crown or lessee of land for all injuries suffered to the surface
of the land and to any crops under cultivation on the land53.
4.5.2 Land (Removal of Sand) Regulations [Cap 132D]
Removal of sand may disturb the balance of mangrove ecosystems. This activity is excluded from the
scope of the Minerals Act but is regulated by the Land (Removal of Sand) Regulations.
The removal of sand from any Crown land or foreshore outside the limits of any harbor is prohibited
without a permit in writing signed by the Minister54. It is an offence to remove sand without a
permit55.
4.5.3 Land (Quarry) Regulations [Cap 132E]
The Regulations prohibit any person from allowing his tax allotment to be used as a quarry56. Any person who offends against these regulations commits an offence and is liable to a penalty not exceeding $10057.
4.5.4 Petroleum Mining Act 1970 [Cap 134] and Petroleum Mining Regulations 1985
The Act makes provisions relating to the exploration, prospecting, and mining for petroleum in
Tonga58. These activities are prohibited on any land (defined to include submerged land within the
territorial sea) without a license issued under the Act or a concluded petroleum agreement59. Both a
license and a petroleum agreement may contain terms and conditions60.
A party to a petroleum agreement under the Act must:
adopt all practicable precautions ‘to prevent pollution of the high seas and coastal waters by
oil, mud or other fluid or substance…61', and take all steps practicable to ‘prevent the
pollution of any water well, spring, stream, river, lake, reservoir, estuary or harbor’62
not carry out work which interferes unjustifiably with fishing in nearby waters or which
interferes with the conservation of the living resources of the sea63
There is no provision in the Act creating an obligation for a petroleum miner to remedy any damage
caused to land or a marine ecosystem when a pollution incident has occurred, but it is anticipated
under the Regulations that this would be addressed in the terms and conditions of a license or
petroleum agreement. The Minister may require a bond or other security for the performance and
observance of conditions64.
53 S 5 Minerals Act [Cap133] 54 Regs 2 , 3 Land (Removal of Sand) Regulations 55 Reg 4 Land (Removal of Sand) Regulations 56 Reg 1 Land (Quarry ) Regulations 1929 57 Reg 4 Land (Quarry ) Regulations 1929 58 The long title of the Petroleum Mining Act 59 S 3(1) Petroleum Mining Act 60 ss7, 8 Petroleum Mining Act 61 Reg 29(1) Petroleum Mining Regulations 1985 Cap 134A 62 Reg 36(2)(d) Petroleum Mining Regulations 63 Reg 21 Petroleum Mining Regulations. 64 Reg 58
32
The Tongan Government has reserved to itself the right to withdraw granted exploration rights over
land, where the land is needed for a public purpose65.
With respect to foreshores, ‘the rights granted by a petroleum agreement shall be exercised on the
foreshore only when it is necessary to carry out any operations under a petroleum agreement’, and a
party to a petroleum agreement ‘shall not cause any reasonably avoidable obstruction to the use of
[the] foreshore for other purposes’66.
The beneficiary of a petroleum license has a duty to ‘adopt all possible precautions’ to prevent
pollution of the coastal waters. Should pollution occur as a result of petroleum operations, the
licensee shall take the measures specified in the license or petroleum agreement to remedy the
damage and minimize the consequences to the environment67.
The regulations also require the Minister to approve the manner of disposal of petroleum mining
waste68.
4.5.5 The Petroleum Act 1959 [Cap 135].
The main object of the Petroleum Act is to control and regulate the carriage and storage of
petroleum; both activities carrying significant risks of oil pollution of waters and land, and thus of
mangroves.
The import and export of petroleum is permitted only at and from declared harbors69.
The Government may grant permission, subject to conditions, to the builder of petroleum storage
petroleum facilities, to enter any land to lay, alter, repair or remove pipes for the conveyance of
petroleum to and from a storage facility70. Works must be executed with minimal damage and
restoration of the land, and compensation is to be made for any resulting damage71.
The maximum penalties for breach of the Act are a fine of $10,000 or a term of imprisonment not
exceeding 6 months or both72.
The Act does not contain any provision requiring the undertaking of clean-up activities in the event
of any oil spill near the foreshore.
Although the Act does not mention environmental impact assessment, approval would nevertheless
be required under the Environmental Impact Assessment Act for the development of a facility to
store petroleum, which would be a major project73.
65 Reg 20 Petroleum Mining Regulations 66 Reg 26 Petroleum Mining Regulations 67 reg 29 Petroleum Mining Regulations 68 reg 38 Petroleum Mining Regulations 69 S 3 Petroleum Act [Cap 135] 70 s 9 Petroleum Act. [Cap 135] 71 s9 Petroleum Act. [Cap 135] 72 S 8 Petroleum (Amendment) Act 1997 Act 20 of 1997 73 ss6, 7 and Schedule 1, Environmental Impact Assessment Act 2003
33
4.6 Cross-Sectoral Legislation: Environmental Management, Waste Management
and Pollution Control, and Development Control
It would be unusual to find sectoral legislation that imposes a duty to consider the impact of an
activity requiring a permit or license on a specific ecosystem or species; for example, mangrove
ecosystems. Tongan sectoral legislation is not unusual. However, such a duty or function may be
imposed by cross-cutting legislation, addressing environmental management, pollution control and
land-use planning.
4.6.1 Environmental Management and Control
4.6.1.1 Environment Management Act 2010 (commenced 30 August 2010)
The objectives of the Environment Management Act are set out in section 4 and include the
following:
‘to coordinate the role of government in relation to all environmental management,
including climate change issues
to promote meaningful public involvement in relation to issues of environmental
management, including climate change
to promote the understanding, management, conservation and protection of biological
diversity of Tonga
The functions of the Ministry of Lands, Environment, Climate Change and Natural Resources
(MLECCNR) are wide-ranging and include assisting other Government ministries and departments to
meet their obligations in relation to the protection of the environment, climate change issues and
the development of the natural resources of Tonga, and advising Government in relation to matters
of environmental management, including the preservation of wetlands and the management and
protection of coastal areas74.
The Minister has a broad power to do ‘all things necessary or convenient to be done in connection
with the functions of the Ministry and in order to attain or further the objects’ of the Act75.
However, it is noted that there are no regulations made under the Act, despite extensive powers to
do so,76 including prescribing matters in relation to the following:
regulating or prohibiting the pollution of air, water or land, and the depositing or dumping of
litter, rubbish, or any substance of a dangerous, noxious or offensive nature77.
The Ministry, with Cabinet approval may establish an ‘Environment and Climate Change Committee’
for the purpose of achieving the objects of the Act78.
Enforcement powers are vested in Environment Officers appointed by the Minister79. They include
the powers to investigate whether an offence has been committed against the Act and to monitor
74 s8 Environment Management Act No.27 of 2010 75 s9 Environment Management Act 76 s19 Environment Management Act 77 s19(c) Environment Management Act 78 s13 Environment Management Act
34
the impact of any activity on the environment80. An Environment Officer may, for example, issue a
precautionary notice where he or she reasonably suspects that an activity is impacting upon the
environment, which may require the recipient to comply with a direction81. The Notice may require
that the activity be temporarily suspended82.
The Director has the power to issue a ‘Notice to cease activity’ where the Director ‘is of the opinion
that there is occurring, or may occur, an act which involves an immediate threat or risk to the
environment ‘83.
Section 18 of the Act sets out the offences and penalties upon conviction. In addition to any penalty
imposed, a Court may order any person convicted of an offence to do the following:
reinstate the environment as far as practicable to its prior state
pay to Government a sum, representing the cost of reinstating the environment
pay compensation for the damage caused to the environment84
It follows from the provisions of the Act, that where an act or activity has resulted in adverse impacts
on mangroves, the Ministry through its environment officers is empowered to investigate and take
the necessary actions, including issuing a precautionary notice and notice to cease the activity. Upon
proof of an offence, the Courts may order the payment of compensation and, most importantly, the
reinstatement of the mangrove environment affected by the commission of the offence.
4.6.2 Development and Project Activity Assessment
4.6.2.1 Environmental Impact Assessment Act 2003 (commenced 11 September 2003)
and Environmental Impact Assessment Regulations 2010 (commenced 1
November 2010)
The assessment of the likely impact of proposed developments and activities prior to their
authorization is arguably the most effective environmental management and protection tool for
mangroves currently available. This is because it may enable either the refusal of an authorization if
the estimated impact is too great or the grant of an authorization subject to conditions (perhaps
secured by a bond or other form of security for the observance of the conditions) designed to
minimize the impact upon the mangrove ecosystem. Of course, monitoring for compliance and
enforcement are also necessary tools to uphold the conditions and lead to a culture of compliance.
In Tonga, an environmental impact assessment is the subject of a separate Act and supporting
regulations. The Act binds the Crown85. The term ‘environmental impact assessment’ is given the
following meaning for the purposes of the Act: the study and evaluation of the potential effects that
a development project may have on the environment86.
79 pursuant to s11 Environment Management Act 80 s12 Environment Management Act 81 s15 Environment Management Act 82 s15(2) Environment Management Act 83 S 16 Environment Management Act 84 S 18 5) Environment Management Act 85 s3 Environment Impact Assessment Act 86S 2 Environment Impact Assessment Act
35
Where a project requires an approval or license or permit from a determining authority, that
authority is not able to determine the application for approval/license/permit prior to an assessment
of whether the project is a major project and, if so, the receipt of a recommendation from the
Environmental Assessment Committee after it has assessed the project EIA87. Even if a development
activity/project does not require any approval/license/permit, it must be notified to the Minister and
be assessed for major project status and cannot be commenced without the assessment and where
an EIA is required, the Minister’s decision made, following the recommendation of the
Environmental Assessment Committee88.
The Schedule to the Act includes a broad range of activities which must be the subject of an EIA. As
regards activities not included in the Schedule, whether a project is ‘major’ will depend on the
opinion of the Minister, but a project is deemed by the Act to be major if the Minister reasonably
forms the opinion that the project is likely to result in specified effects, has features the
environmental effects of which are uncertain, or where utility services are unavailable or
inadequate89.
It is an offence to carry out an activity or project without approval, or in breach of the conditions of
approval and continuing penalties may apply90. In addition, the Court may order the offender to
return the site to its original condition91. The Court may also recommend the revocation of the
license or refer it back to the Minister for a review of the application92.
The maximum penalties for carrying out a project or activity without approval are very low93.
COMMENT: The EMA and the EIA Act play an essential role in the conservation of mangroves by
requiring the assessment of the environmental impacts of development and activities activities
which are regulated by sectoral legislation which do not provide for any environmental consideration
in decision making and implementation of these developments and activities. The EIA Act could be
strengthened by reducing the discretion of the Minister in deciding whether activities non-listed in
the Schedule should be subject to EIA, and specifically, with regards to mangroves, requiring
systematic EIA when the development is likely to have an impact on mangroves.
Resources are needed to raise awareness of and enforce the legislation. In this regard it is noted that
the Business Licenses Act 2002 has recently been strengthened to provide that, if a person who holds
a business license has been required to produce for inspection ‘an approval or permit from another
governmental agency or permitting authority that the person is legally obliged to have’ and fails to
do so within 2 working days, the business person commits a punishable offence94. This provision
complements the requirements of the Environmental Impact Assessment Act by reinforcing the need
for all business operators (especially those engaged in businesses likely to have an environmental
87 s7 Environmental Impact Assessment Act and Reg 8 Environmental Impact Assessment Regulations 88 ss 6,8,16 Environmental Impact Assessment Act; Reg 8, Environmental Impact Assessment Regulations 89 Reg 9 Environmental Impact Assessment Regulations. Also see Reg 12 Environmental Impact Assessment Regulations 90 ss 19, 20 Environmental Impact Assessment Act 91 S19 (2) Environmental Impact Assessment Act 92 S21 Environmental Impact Assessment Act 93 a fine of $500 or imprisonment for 1 month: s19 Environmental Impact Assessment Act 94 s19(2) Business Licences Act 2002 as amended by s17(3) of the Business Licences (Amendment) Act 2012
36
impact) to have addressed their obligations under the EIA legislation. Here again, the effectiveness of
this measure is dependent upon consistent enforcement.
4.6.2.2 National Spatial Planning and Management Act 2012 (not yet in operation)
The National Spatial Planning and Management Act 201295 is the first legislation regulating and
controlling land use planning in Tonga, but it is yet to come into operation.
Under the National Spatial Planning and Management Act, which binds the Crown96, unless a spatial
plan (prepared under Part 3 of the Act) or the regulations provide otherwise, all development will
require consent before it can be carried out. ‘Development’ includes the use of land (including land
covered with water), the erection of buildings and the carrying out of any work or subdivision, where
‘work’ includes ‘any change to the natural or existing condition … of the land, including the removal,
destruction or lopping of trees….97'. The Regulations (not yet made) may exempt development that is
of minimal environmental impact98.
Presently, some aspects of ‘development’ are addressed under other legislation. The Building Control
and Standards Act 2002 requires a permit to be obtained from the Building Controller before a
building (excepting a traditional Tongan building having a plan area of 25 m2 or less) may be erected,
reconditioned or removed, or structural alterations, additions or repairs made to an existing
building99. Allotments of land (town and tax) may be subdivided upon application to the Minister of
Lands under the Land Act100.
Development consent must be the subject of an application to the Minister for Lands101 in his
capacity as the National Spatial Planning Authority (the Authority), and the application must be
accompanied by an EIA if required under the Environmental Impact Assessment Act102. The Authority
must consider a number of specified matters in determining the application, including submissions
received, the contents of any relevant spatial plan, the potential environmental effects including the
EIA, and the public interest103. A person who made a submission, and the applicant, have a right of
appeal on the merits of the case to the Planning Tribunal established under the Act, if dissatisfied
with the decision of the Authority (including in relation to conditions imposed) on an application104.
The decision of the Tribunal is final105.
The Authority has power to issue enforcement orders106, and the Authority and any interested
person may seek an order in the Supreme Court to remedy or restrain a breach of the Act, including
an order requiring reinstatement of land altered as a result of the breach107. To carry out
development without consent, to fail to comply with development consent or to otherwise
95 Act No. 7 of 2012 received royal assent 17 September 2012; not yet in force. 96 S74 National Spatial Planning and Management Act 97 S2 National Spatial Planning and Management Act 98 s30(2) National Spatial Planning and Management Act 99 S10 Building Control and Standards Act 2002 100 ss51, 53 Land Act [Cap 132] 101 currently the Minister for Lands, Environment, Natural Resources and Energy. 102 ss 32, 37 and 3 National Spatial Planning and Management Act 103 s41 National Spatial Planning and Management Act 104 s48 National Spatial Planning and Management Act 105 s63 National Spatial Planning and Management Act 106 s66 National Spatial Planning and Management Act 107 s69 National Spatial Planning and Management Act
37
contravene the Act, is an offence carrying a significant maximum penalty with continuing offence
penalties applicable108.
4.6.3 Waste Management and Pollution Control
Mangroves live in a fragile ecosystem particularly vulnerable to both sea-borne and land-borne
pollution.
4.6.3.1 Marine Pollution Prevention Act 2002 (commenced 22 July 2002)
This legislation addresses an important cause of sea-borne degradation of mangroves, coral reefs
and the marine environment generally.
The Marine Pollution Prevention Act is intended to ‘provide for the prevention of and response to
marine pollution and the dumping of wastes and other matters and to give effect to international
marine pollution conventions109'.
The Act prohibits, in most circumstances, the discharge from a vessel into Tongan waters of any
‘pollutant or harmful substance, including but not limited to oil, plastics, synthetic ropes and
synthetic fishing nets110'. Any pollution incident resulting from a breach will attract significant
penalties upon conviction, namely fines of up to $250,000 or ten years imprisonment, as well as
incurring liability for payment of the entire cost of any clean-up operation necessary to restore the
environment to its original condition111.
The discharge from a vessel into Tongan waters of ballast water containing non-indigenous harmful
aquatic organisms and/or pathogens is also prohibited by the Act112. A ‘discharge permit’ may be
obtained for the purpose of legitimate scientific research or to combat a specific pollution incident,
after the Secretary for Marine and Ports has considered the likely environmental impacts 113.
A National Marine Pollution Committee is to be established under the Act for the purpose of giving
advice to the Minister on matters including:
the response to specific marine pollution incidents
the fixing of the Marine Pollution Levy referred to in section 25 and administration of
the National Marine Pollution Fund established under section 21114
The Act also provides for the management of marine pollution incidents, through the development,
maintenance and implementation of a ‘National Marine Spill Contingency Plan’ [NATPLAN].
All owners and operators of ports and oil and chemical handling and storage facilities also have an
obligation to develop, implement, exercise and maintain site-specific marine spill prevention and
contingency plans for their facilities, consistent with the NATPLAN115.
108 s70 National Spatial Planning and Management Act 109 Long title of the Marine Pollution Prevention Act 2002 110 Section 5(1) Marine Pollution Prevention Act 111 Section 5(2)(a),(b),(c),(d) and (e) Marine Pollution Prevention Act 112 Section 6(1) Marine Pollution Prevention Act 113 Section 10(2)(b) (c) Marine Pollution Prevention Act 114 Section 16(1) (b),(d) Marine Pollution Prevention Act 115 Section 17(2) Marine Pollution Prevention Act
38
A national marine pollution response equipment inventory is to be established and maintained at the
initiative of the Secretary. This response is to take the form of a ‘joint partnership between
government and the relevant industry, including owners and operators of all ports and oil and
chemical handling and storage facilities116. The Secretary may also require owners or operators of
vessels and platforms to carry on board and maintain marine pollution response equipment117.
Non-compliance with provisions of this Act or Regulations made under the Act is an offence
punishable by a potentially significant fine and continuing offence penalties may apply118.
4.6.3.2 Waste Management Act 2005 (in operation 25 October 2005) as Amended by the
Waste Management (Amendment) Act 2009 (in operation 13 May 2010)
Poor management of solid waste constitutes a source of disease and may result in contamination of
land, as well as surface and ground water. Land or water contamination may eventually affect
foreshores and mangroves ecosystems.
The Waste Management Act regulates the collection and disposal of solid waste and the
management of all wastes in Tonga119. The two authorities responsible for approvals under the Act
are the Waste Authority Limited for Tongatapu, and the Ministry of Health or another appointed
entity for the other islands120. In practice the management of waste in the outer islands is the
function of the Ministry of Health. The functions of these authorities are to establish, improve,
maintain, operate and manage the collection and disposal of all waste121.
All dump sites for wastes require the approval of the MLECCNR and must be licensed by the Minister
for Environment122. Environmental impact assessment is required for a ‘waste processing works’,
which is deemed to be a major project123. Any person who drops or throws or deposits waste on any
foreshore or into any stream, creek, pool, lake or sea commits an offence124. Any person who
deposits or dumps wastes at a place other than an approved waste site so as to cause pollution to a
public area or to land, belonging to the Government commits an offence125. Offences under this Act
may be prosecuted by police officers, environmental officers and persons authorized by the Public
Health Act126.
The Act does not contain any provisions that would require the rehabilitation of mangroves or other
natural vegetation that has been lost or damaged by the unlawful deposit of waste but the
Environmental Management Act could require this.
116 Section 20(1), (2) Marine Pollution Prevention Act 117 Section 20(4) Marine Pollution Prevention Act 118 Section 31 Marine Pollution Prevention Act 119 The long title, Waste Management Act 2005. 120 Section 2 Waste Management Act 2005 121 Section 6 Waste Management Act 2005. 122 S 23(1) Waste Management Act 2005 and s9 Environment Management Act. Note that the relevant Minister in both cases is the same: the Minister for Lands, Environment, Natural Resources and Energy. 123 See the Schedule to Environmental Impact Assessment Act 124 S24(4) Waste Management Act 2005 125 S24(3) Waste Management Act 2005 126 S26(1) Waste Management Act 2005
39
4.6.3.3 Hazardous Wastes and Chemicals Act 2010 (in operation 30 August 2010)
The use of hazardous waste and chemicals, for purposes ranging from pesticides to medicine and
manufacture of products, requires effective regulation to prevent any significant harmful impact to
the population and the environment. The unregulated transport, storage and use of such substances
carries the risk of land and fresh water pollution, which may be a source of pollution of the foreshore
areas and affect the health of mangroves and their ecosystems.
The Hazardous Wastes and Chemicals Act 2010 provides for the regulation and management of
hazardous wastes and chemicals in accordance with accepted international practices and the
international conventions applying to the use, transboundary movement and disposal of hazardous
substances127.
The Act controls the generation, importation, management, storage and disposal of hazardous
wastes. They may be disposed of only at approved sites in accordance with the law128.
The Act also provides for its enforcement arrangements and penalties for breach of its provisions129.
127 The long title, Hazardous Wastes and Chemicals Act 2010. 128 S12(c) Hazardous Wastes and Chemicals Act 129 Section 39(c ) and 42(1), (2) Hazardous Wastes and Chemicals Act
40
PART 5: NEXT STEPS
5.1 Policy: Key Findings, Recommendations and Options for Policy
5.1.1 Key findings of Policy Review
The policy review finds the following.
There is no mangrove policy in Tonga.
The use and management of mangroves are implicitly and explicitly covered in environmental
policies such as the NBSAP, and sectorial policies like the Forest Policy. There is no one overarching
policy and no clear policy direction on the use and management of mangroves.
There is a lack of enforcement, monitoring and delay in the implementation of policies relevant to
mangroves that are currently in place. This may be due to the lack of staffing capacities of the
various government ministries, the lack of clearly defined roles, demarcation of activities and
responsibilities on mangrove use and management played by the various government
agencies/ministries.
There is a lack of collaboration and coordination of activities relating to mangroves between the
Ministry of Land, Environment, Climate Change and Natural Resources, Ministry Agriculture,
Fisheries, Forestry (MAFF), Non-Government Organizations (NGOs) and communities.
Given the coverage of mangroves implicitly or explicitly in the existing policies and plans reviewed,
the issues that Government needs to look into include: (i) the compliance and enforcement of these
policies by the people and government departments in charge; (ii) the availability of resources to
ensure enforcement and regular monitoring of these policies; (iii) proper coordination of roles
amongst the government departments; (iv) clear demarcation of roles as to which government
ministry or department is responsible for mangroves; (v) close collaboration of mangrove work to be
implemented amongst government departments, communities and civil society organizations; and
(vi) more public awareness and education on environment management, mangroves – its
importance and the need to protect and conserve them.
5.1.2 Policy Recommendations and Options
The following policy options and/or recommendations are made and may be considered by
Government.
5.1.2.1 Mainstream of Mangroves, Mangrove Management, protection and conservation
The management, protection and conservation of mangroves have been explicitly and implicitly
covered in the existing policies under review. Government should ensure that mangrove
management, protection and conservation are mainstreamed into sectoral policies. For instance, a
section on mangrove ecosystems should be included as one of the sections on marine ecosystems in
the NBSAP. This will ensure that the issue on mangroves, its use and management is not overlooked
and/or ignored, and that it be regarded of high importance and full recognition.
41
5.1.2.2 Mangrove Management Plan
Given the limited mangroves in Tonga, and its importance in the context of climate change and sea
level rise impacts in Tonga, it is critical that the Government seriously considers for mangroves, its
protection and management. A mangrove management plan similar to the one developed for the
Fanga’uta Lagoon could be developed by Government at the national level. The Mangrove
Management Plan would establish guidelines to activities that affect mangroves and ensure overall
protection and management of mangroves. A specific government Ministry or agency will be
responsible for the administration and enforcement of the plan. Government may designate
mangroves as protected areas.
Specific management plans may be developed for the urban and island or rural areas addressing the
mangrove issues prevalent in these areas. Currently, the communities have been involved in special
management areas (i.e. marine protected areas) program with the Fisheries Department which
involves the development of management plans. A similar approach could be used for mangrove
management. Mangrove management may be included as one of the sections in these already
existing management plans.
Alternatively a co-management plan could be developed. The Government, through the Crown as
owners of the land could provide and share decision- making power, management responsibility and
accountability to local communities over mangroves. This could ensure that the mangroves are used
sustainably.
5.1.2.3 Allocation of Resources (Budgetary, Personnel, Transportation)
That the respective government ministries administering the various policies relating to mangroves
to be provided adequate resources to ensure enforcement, implementation and monitoring roles to
be effectively carried out. The Forest Policy, for instance, has clearly defined policies related to
mangroves but lacks enforcement and implementation of this, given the budgetary constraint. This is
to ensure that the objectives and outcomes of these policies are met to ensure sustainable
development and protection of ecosystems like mangroves.
5.1.2.4 Better Coordination and Collaboration
The key government ministries and all stakeholders having some roles in mangroves and the
management and protection of it should closely work together and be aware of each other’s
activities. If possible, they could explore having joint awareness programs in communities or
monitoring programs to ease the workload and share the costs of organizing such exercises. For
instance, the Ministry of Fisheries could assist the MLECCNR in the development of mangrove
management plans for communities or to integrate mangrove management and protection in the
marine management plans they currently have with communities. Similarly, the Department of
Forestry could be provided seedlings, nursery and or some budget for mangrove replanting programs
to assist MLECCNR in this area.
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5.1.2.5 Revisit and Implement the Fanga’uta Environment Management Plan
The Fanga’uta Lagoon management plan should be revisited, reviewed/updated for implementation,
enforced and closely monitored by MLECCNR and relevant government ministry. The
implementation of the plan and development of similar plans on mangroves in Tonga should be
seriously considered if the current mangroves are to be conserved, protected and new areas to be
rehabilitated. The eight zones initially identified in the plan should be reviewed and updated by
Government. The revised plan could be submitted to Cabinet for approval and implementation.
5.1.2.6 Public Education and Awareness
More education awareness on environment issues and on mangroves should be conducted by
Government and non-government organizations at all levels of the community. The importance of
conserving mangroves and the important role they play should be clearly shared with members of
the community. This could ensure that they be responsible to protect these resources and could
possibly see their involvement in replanting initiatives.
All findings of the MESCAL project should be disseminated widely to stakeholders at all levels,
including the communities. They should assist in the formulation of policy on mangroves and provide
basis for policy decisions on mangroves.
5.2 Legislation: Key Findings, Recommendations and Options for Law Reform
5.2.1 Key findings for Law Reform
The Environment Management Act, through its objective 'to establish the Ministry of Environment
and Climate Change to ensure the protection and proper management of the environment and the
promotion of sustainable development’, and through the functions of the Minister, including ‘liaising
with Government ministries, departments and agencies in relation to issues affecting the
environment and climate change', including ‘monitor impacts on the environment’; and notably ‘the
preservation of wetlands and the management and protection of coastal areas’ in effect designates
the Minister with the responsibility for the sustainable use and the conservation of mangrove
ecosystems.
The Minister of Fisheries is responsible for the conservation and management of fisheries resources
and in the exercise of powers under the Fisheries Management Act must consider ‘the need to
protect the ecosystem as a whole and the general aquatic environment130'.
Both the Ministry of Lands, Environment, Climate Change and Natural Resources and the Ministry of
Agriculture, Forests, Food and Fisheries logically have a stake in the protection of mangrove
ecosystems; the former as the custodian of environmental management and climate change issues
and the latter because it has responsibility for fisheries and food security.
The Minister for Environment may establish an Environment and Climate Change Committee, while
the Minister of Fisheries has power to establish a Fisheries Management Advisory Committee. The
disposal of waste is regulated, with designated authorities given responsibility for the collection,
130 s4 Fisheries Management Act
43
management and disposal of waste. The parties to petroleum agreements have a duty to take all
possible precautions to prevent pollution of coastal waters. The Ministry of Infrastructure along with
Ministry of Lands Environment Climate Change and Natural Resources and Urban Planning has
responsibilities for mangroves associated in the issuance of permits for building and reclamation.
The effects of activities and development on mangroves must be considered under the cross-cutting
Environmental Impacts Assessment Act prior to the grant of any other required approval, permit or
license by any authority, but the effectiveness of this law is dependent on all stakeholders’
awareness of the Act; the effectiveness of its implementation including the quality of the
assessments – definition of terms of reference their geographic scope (‘ridge to reef’ rather than site
specific, as well as the assessment of cumulative impacts); the quality of the review of the EIAs and
of the recommendations and conditions and their enforcement, as well as the adequacy of penalties
for offences.
There exists presently in the MLECCNR and of the Ministry of Agriculture, Forests, Food and Fisheries
adequate power and responsibility for the protection and management of mangroves and their
ecosystems, provided that they are consistently exercised.
The declaration and establishment of coastal community areas with regulations and management
plans under the Fisheries Management Act will facilitate local management of coastal areas and thus
mangrove ecosystems in the community interest, for the purposes of fisheries management and
aquaculture development and management. However, much more could be achieved through local
coastal community management.
It is suggested that management of coastal areas is best achieved through integrated and
community-based or co-management. Management at the local community level by persons with
appropriate knowledge and interest who are given supplementary training could provide the best
outcomes for the protection and health of mangroves and mangrove ecosystems. As already
explained, this is presently occurring for fisheries matters, particularly in a special management area
through coastal management plans and regulations for the assistance of designated coastal
communities under the Fisheries Management Act and also concerning rights and responsibilities in
respect of an aquaculture area and adjoining buffer zone. It should also be contemplated for
matters affecting the general environment of the coastal areas.
Each designated coastal community, in addition to direct responsibilities for community-based
fisheries management under the Fisheries Management Act and the Aquaculture Management Act
could, with appropriate legislative amendment providing empowerment, in the interests of their
coastal community and the wider Tongan community, by way of a collaborative partnership with
Government or by legislative fiat, agree to undertake the following:
Raise awareness of the value of mangroves and the benefits of protection and management
Collect evidence and report the unauthorized disposal of waste in foreshore areas
Collect evidence and report polluting activities adjacent to the foreshore and pollution of the
coast and coastal waters
Collect evidence and report unauthorized cutting, damaging, extraction and destruction of
mangroves
Manage/oversee the rehabilitation of damaged mangrove areas
44
Undertake the replanting of degraded mangrove areas
Collect information and produce regular reports to the (1) Environment and Climate Change
Committee, and (2) the Fisheries Management Advisory Committee
In this regard, the Fisheries Management Act provides an established base for the model proposed,
creating as it does, not only the prospect of designated coastal communities, but also enabling
coastal management plans and regulations for each coastal community. What is proposed in the
recommendations is to build on this advanced legislative model, towards integrated cross-sectoral
management, including, for example, the avoidance or prompt addressing of pollution incidents, in
addition to the nurturing of healthy fisheries communities.
5.2.2 Recommendations for Law Reform
The following recommendations are made:
1. Expressly designate the Minister of Lands, Environment, Climate Change and Natural Resources
the steward of mangroves with the mandate to ensure the protection and management of
mangroves to sustain their ecological, social and economic services, and to facilitate and
coordinate an integrated and community-based mangrove management approach.
2. Articulate in the Fisheries Management Act the responsibility of the Minister to protect and
support the sustainable management of mangroves as essential fisheries habitat.
3. Establish the institutional support for intergovernmental coordination and co-management of
mangroves to oversee the integrated management and regeneration of mangroves. The joint
committee is to include the MLECCNR and the Ministry of Energy, Agriculture, Forests, Food and
Fisheries.
4. Ensure consistent compliance with development control requirements, and build the capacity and
provide additional resources consistent compliance with and enforcement, in particular to ensure
that developers comply with the conditions of granted development approvals.
5. Amend the Land Act to require the preservation of mangroves in foreshore lands.
6. Give consideration to the following mechanisms to achieve integrated management and
regeneration of mangroves in coastal communities:
a) The Environment and Climate Change Committee (ECCC) in consultation with the Fisheries
Management Advisory Committee (FMAC) identify those areas where:
i. mangroves communities are extant and in need of management
ii. mangroves have been replanted and are in need of care and nurture
iii. suitable conditions exist or could exist for the planting or replanting of mangroves.
This could alternatively be achieved by a Mangrove Management Plan.
b) A designated coastal community (one or more villages) be invited to enter into a
memorandum of agreement (MoA) with the Government of Tonga whereby the community
takes responsibility for the management of its coastal area in accordance with its community
coastal management plan developed under the Fisheries Management Act. The MoA would
set out the goals and the roles and responsibilities of each party.
c) In the alternative to b) above, relevant legislation (including the Environment Management
Act, the Waste Management Act, the Minerals Act, the Petroleum Act, the Petroleum Mining
Act) be amended to empower coastal communities appropriately by providing for designated
coastal communities, in the same way that the Fisheries Management Act and the
45
Aquaculture Management Act presently provide for the establishment of designated coastal
communities and empower them with respect to special management areas and aquaculture
developments respectively, for the following purposes:
i. To manage existing mangrove area(s) and the foreshore in accordance with the
community coastal management plan;
ii. To plant, replant, care for and nurture mangrove species and communities;
iii. To manage and oversee the rehabilitation of damaged mangrove areas;
iv. To raise awareness of the value of mangroves and the benefits of protection and
management;
v. To collect evidence and report for prosecution the unauthorized deposit of waste in
foreshore areas;
vi. To collect evidence and report for prosecution polluting activities adjacent to the
foreshore and pollution of the coast and coastal waters;
vii. To collect evidence and report for prosecution unauthorized cutting, damaging,
extraction and destruction of mangroves; and
viii. To collect information and produce periodic reports to the joint Committee established
by the Ministry of Lands, Environment, Natural Resources and the Ministry of Energy,
Agriculture, Forests, Food and Fisheries.
d) The further amendment of the Environment Management Act or include provisions in a
mangrove management regulations under the Act to enable the following, as necessary:
i. The development of a community coastal management plan for each established coastal
community, in consultation with the community and the Ministry of Fisheries, having
regard to the powers of the Ministry under the Fisheries Management Act;
ii. The provision of appropriate regulation, making powers as necessary in the Environment
Management Act, and the making of regulations for each established coastal
community under that Act and in consultation with the community and the Ministry of
Fisheries, having regard to the powers of the Ministry under the Fisheries Management
Act.
5.2.3 Options for Law Reform
One option is to draft an umbrella mangrove-specific law or regulations under the Environmental
Management Act, designating the Minister of Environment, Lands, Climate Change and Natural
Resources the stewardship of mangroves with the mandate to ensure the protection and
management of mangrove. The mangroves legislation would establish the institutional framework
for intergovernmental coordination in decision-making and processes relevant to mangroves, and
clarify the requirements, processes and permits required under various legislation regulating
activities with potential impact on mangroves. The legislation would also and importantly affirm the
principle and establish the processes for the development and recognition of integrated and
community management or co-management management of coastal areas including mangroves.
Such Act or regulation would best be drafted with the guidance of a mangrove management plan
or/and policy clearly defining Tonga’s policy choices on mangrove conservation and management.
Another option is for a comprehensive review of existing legislation, without the enactment of a umbrella mangroves Act or regulations, to achieve the objectives and enable the measures recommended above.
46
Whether the Government of Tonga opts for a new legislation or confines the law reform to a review
of existing statutes, its effectiveness will depend upon the capacity and will of all stakeholders to
comply with the law, and upon the improved ability to enforce the law and prosecute environmental
offences.
47
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