A group of African penguins are seen during a rehabilitation session in Cape Town, South Africa on March 22, 2022. African penguins, whose populations have fallen sharply in the last century, may become extinct in the next few decades, experts say. File photo by Murat Ozgur Guvendik/Anadolu Agency via Getty Images
Two conservation groups have hauled Forestry, Fisheries and Environment Minister Barbara Creecy to court to prevent the imminent extinction of the continent’s only penguin: the African penguin.
BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob), represented by the Biodiversity Law Centre, are seeking the review and setting aside of the minister’s recent decision on fishing closures around key African penguin breeding colonies, instead of biologically meaningful closures.
Their review application, which has been filed in the high court in Pretoria, contends that the interim closures do not adequately protect the rapidly declining African penguin population and that if this is not urgently addressed, it will facilitate the extinction of the unique seabirds.
‘On the precipice’
The African penguin has lost 97% of its population. If current trends persist, the species will be extinct in the wild by 2035. The crisis facing the seabirds is predominantly driven by a shortage of food, for which they must compete with commercial fishers who use a purse seine — a large net around an area or a school of fish.
Sardine and anchovy are caught in the waters surrounding the six largest African penguin breeding colonies — Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island and Bird Island — home to about 90% of the country’s African penguins.
“This is the first litigation in South Africa invoking the minister’s constitutional obligation to prevent the extinction of an endangered species,” said Kate Handley, the executive director of the Biodiversity Law Centre.
“It follows her failure — since at least 2018 — to implement biologically meaningful closures around African penguin breeding areas, despite scientific evidence that such closures improve the species access to their critical sardine and anchovy food source, thereby contributing toward arresting the decline of the African penguin.”
Creecy has statutory and constitutional obligations to ensure that necessary measures are put in place to prevent the extinction of African penguins, Handley said. Instead, the minister has “failed to fulfil these obligations to African penguins, South Africans, the international community, and future generations. It is for this reason that we are taking her office to court”.
The review application is a “watershed, and potentially precedent-setting case” because it stands to give content to the government’s obligation to protect endangered species and particularly, the African penguin.
The department did not respond to the Mail & Guardian’s inquiry on the legal action.
‘Alarming decline’
According to the applicants, for more than six years, the minister has placed her preference for a consensus-driven solution above her obligation to ensure the survival of African penguins. Over this period, the population has suffered an alarming decline of 8% a year “on her watch”.
Their survival “depends on the right decision being taken now”, said Alistair McInnes, the seabird conservation manager at BirdLife South Africa. “African penguins at breeding colonies need access to food.
“Our challenge seeks to have the minister make science-based decisions that are grounded on the internationally recognised and constitutionally enshrined precautionary principle. This is something that the minister has consistently failed to do since 2018, notwithstanding having called multiple reviews.”
The main thrust of the applicant’s complaint against the minister is her failure to implement biologically meaningful closures around African penguin breeding areas. Instead, on 4 August 2023, she announced the continuation of “inadequate interim closures” around the six breeding colonies.
These closures were first imposed in September 2022 while an international panel of experts reviewed the science collected since 2008 as part of an Island Closure Experiment (Ice).
In 2008, the former department of environmental affairs implemented the pioneering decade-long Ice, alternatively opening and closing four of the largest breeding colonies — Dassen, Robben, St Croix and Bird Islands — to the pelagic fishing sector for a radius of 20km. This was to understand whether fishing affected the species.
McInnes’ founding affidavit noted that “despite its weaknesses”, the Ice showed that excluding purse seine sardine and anchovy fishing from waters around the breeding colonies is likely to contribute to reducing the rate of decline of the African penguin population.
The international panel recommended that closures of sardine and anchovy fishing grounds to commercial small pelagic fisheries around the six main breeding colonies were an appropriate and necessary conservation intervention with demonstrable benefits to African penguin populations.
It also provided a method for determining the appropriate island delineations, which would seek to optimise benefits of closures to African penguins, while minimising costs to the small-pelagic purse seine industry.
In doing so, it put an end to scientific debates on how to determine closure delineations and also confirmed the appropriate method for determining African penguins’ preferred foraging range.
‘Selective’ decision-making
The applicants said the panel’s recommendations were provided to the minister in July last year with the express purpose of enabling her to take definitive, science-based decisions regarding island closures after years of indecision and debate.
In this period, the species fell below the 10 000 breeding pairs mark for the first time in history. On 4 August last year, the minister announced her decision.
Creecy was “selective” about which recommendations she followed, according to Katta Ludynia, research manager at Sanccob. “Inexplicably, she failed to follow the critical recommendation regarding how closures should be delineated.
“Instead, the minister decided to extend the meaningless interim closures, unless agreement between the conservation sector and the fishing industry could be reached on an alternative.”
The African penguin population in South Africa has dwindled from 27 151 breeding pairs in 2008, when the Ice commenced, to 15 187 breeding pairs when the results of the experiment were first published and peer-reviewed in 2018. There are now only an estimated 8 750 breeding pairs.
“The minister has unfortunately failed to act,” Ludynia said. “Biologically meaningless closures are now in place until December 2033 — just more than a year from the possible extinction date of 2035.”
‘Irrational approach’
This approach was “patently irrational”, said the applicants, who noted that it is unclear why certain recommendations should be followed but not others. They argued that crucially, the interim closures themselves are incapable of meeting the purpose of closures, namely to reduce competition between African penguins and the purse seine commercial fishing industry for sardines and anchovies.
McInnes noted that instead of acting on the panel’s clear recommendations regarding closure delineations, the “minister ignored them, imposed closures with little to no basis in scientific data (let alone the recommended methods) and, once again, referred the matter to ‘agreement’ between stakeholders”.
“Predictably, no agreement was reached between industry and the conservation sector to alter the interim closures by the deadline and … demonstrated the fundamental flaws in the minister’s conduct. The interim closures are now ‘permanent’ and will remain in place for the next decade. This sounds the death knell of the African penguin.”
As matters stand, there is “little to no prospect” of the conservation sector reaching an agreement with industry to agree to island closures.
“This being so, the interim closures — without any rational connection to the preferred foraging areas of African penguins around colonies where the activities of purse seine small pelagic fishing are a known risk to this species are now in place for the next 10 years. This is the very period during which this endemic species is anticipated, at current rates of population declines, to become extinct in the wild.”
Over the past 30 years, African penguin populations have dwindled to the “precipice of extinction”, McInnes said. This has already been seen in Namibia, where remaining colonies — historically threatened by inadequate prey availability because of overfishing of sardine and anchovy from the 1960s to 1980s now show very little chance of recovery.
“It is in the face of the rapidly declining African penguin population, and the imminent risk of extinction, that the minister has failed to implement adequate fishing closures,” McInnes said.