Major showdown in court over African Penguin’s future

Conservation groups want new “sweet spot” no-fishing zones around African Penguin breeding colonies, arguing current zones are inadequate to prevent the species’ extinction. Archive photo: John Yeld

• All parties have now filed their legal papers for next month’s crucial high court hearing which may determine the fate of the critically endangered African Penguin.
• Former environment minister Barbara Creecy’s decision on closed fishing areas around penguin breeding islands is being challenged and defended.
• Constitutional rights and complex scientific and legal issues involving domestic and international law affecting the African Penguins and other endangered species will be argued.

The stage is now fully set for a major High Court legal encounter, the outcome of which could determine the survival of critically endangered African Penguins. Heads of argument have been filed by all the parties involved in the case.

A review application brought by bird conservationists against the state and the commercial pelagic fishing industry is set down for three days in the Pretoria High Court next month, from 18 to 20 March.

There is general agreement that increased competition for fish stocks (sardines and anchovies) between penguins and people is at least one factor in the seabird’s catastrophic population decline this past century.

But differing opinions on the extent of this competition and how to alleviate the problem will be argued during the hearing.

Making matters even more urgent is that since the first papers in this case were filed in January last year, the conservation status of the African Penguin has been uplisted from “endangered” to “critically endangered”.

The application is described in court papers as a matter of great public interest and importance, involving constitutional rights and “complex scientific and legal issues which implicate domestic and international law”.

Background

The dispute is over an August 2023 decision by then environment minister Barbara Creecy to extend no-take fishing zones (also called island closures) around six key African Penguin breeding colonies for a period of ten years as a way of protecting the availability of the birds’ food source (sardines and anchovies), thereby boosting their breeding success.

These island closures had been in place since September 2022 but only on an interim basis while the seabird conservation community and the commercial pelagic fishing industry were supposed to find consensus on future no-take closures. They did not reach agreement.

Earlier in 2022, Creecy had appointed a panel of international experts (“the Expert Panel”) to consider and make recommendations about stemming the rapid decline in African Penguin numbers. They were also to report back on whether island closures were of any conservation benefit to the penguins, and, if so, how such benefits could be maximised with the least cost to the economically important pelagic fishing industry.

In its report, submitted in July 2023, the Panel confirmed that island closures were an appropriate conservation measure and of benefit to African Penguins, but that existing closures were not optimal.

It recommended a scientific method for determining more functional and biologically meaningful “sweet spot” island closures that would be of maximum conservation benefit to the penguins and the smallest economic cost to commercial fisheries ­– the so-called trade-off mechanism. But the Panel did not itself delineate any new closure maps using this method.

Creecy accepted some of the Panel’s recommendations but decided that she wanted more scientific advice. Instead of adopting the Panel’s proposed trade-off mechanism, she simply extended the existing island closures for a further ten years, with a review after six.

It is this decision that is at the heart of the review application. The applicants want it rescinded and replaced with a new closure system based on the trade-off mechanism for which they have submitted detailed plans.

They want the court to order either that their new closure system be implemented immediately, or that current island closures be withdrawn and the current environment minister Dr Dion George delineate and implement new island closures based on the trade-off mechanism within 90 days.

Heads of Argument

In heads of argument filed with the court over the past fortnight, none of the parties pulls any punches.

The two applicants – non-profit conservation organisations BirdLife South Africa and the South African National Foundation for the Conservation of Coastal Birds (SANCCOB) – refer to “a tragedy of indecision” relating to penguin management from 2019 and 2023. They describe the former minister’s response to the Panel’s recommendations as “the epitome of an irrational and unreasonable decision”.

“The Minister took a gamble on the extinction of the African Penguin by ignoring the Panel’s expert advice and opting instead to convert a half-baked temporary solution into a long-term one … The interim closures have become ‘permanent’ and will remain in place for the next decade, thus sounding the death knell of the African Penguin.”

The Minister’s decision was also unlawful because her duties and principles in terms of the Constitution and environmental management legislation were not adhered to, the applicants claim.

Arguing that the extinction of the species is “imminent”, they say, “The African Penguin population has been severely prejudiced by the minister’s dithering and delay in dealing with their rapid decline.”

The respondents charge the conservation groups with underplaying other relevant factors that feed into the penguin crisis, such as predation by seals, climate change, ship-to-ship bunkering at sea, and underwater noise near breeding islands.

They accuse the applicants of “persistently” failing to acknowledge the impacts of restrictions like closed fishing areas on livelihoods and the socio-economic well-being of people employed in the fishing industry.

The first three respondents (the state) are the Minister of Forestry, Fisheries and the Environment and two senior officials in the department. Their heads of argument describe the applicants as “aggrieved” because Creecy had taken a decision that they [the applicants] didn’t like.

“This does not make the minister’s decision irrational,” the respondents argue.

“Pertinently, the Expert Panel concluded that future closures of forage-fishing around penguin colonies would be likely to benefit penguin conservation but will need to be part of a larger package of conservation measures as such closures alone would be unlikely to reverse the decline in penguin population numbers.”

The fourth and fifth respondents – the South African Pelagic Fishing Industry Association and the Eastern Cape Pelagic Association – acknowledge that the two bird conservation organisations are “pursuing a noble cause” because of their concern for the declining African Penguin population. However, they also accuse the organisations of “adopting a blinkered approach”.

“The applicants refuse to accept that the current closures and the closures that they will have this court impose affect the livelihoods and socio-economic well-being of those employed in the fishing industry … They have persistently failed to acknowledge that the fishing industry has any interests worthy of consideration.”

These respondents also say it is important to be clear about why the application should be refused.

“It is not because penguins do not deserve protection. And it is not because conservation of a threatened species is unimportant. It is rather because the applicants’ case depends on them showing that the minister acted irrationally and unlawfully when all she did was to follow the guidance of her Expert Panel.

“It should also not succeed because it depends on this court taking up a hotly contested scientific issue and redrawing closure maps around islands that not even the international experts on the Panel were willing to draw.”

Non-profit company Animal Law Reform South Africa has been admitted as amicus curiae in the proceedings.

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