African penguins, endemic to Southern Africa, are one of the most threatened seabird species globally and they face the risk of extinction in the wild by 2035. Populations have shrunk by 90% in the past 70 years, dwindling to about 8 500 breeding pairs today.
Former minister of forestry, fisheries and the environment Barbara Creecy “took a gamble on the extinction of the African penguin” by disregarding the recommendations of a panel of international experts on the appropriate approach for delineating fishing closures around their key breeding colonies.
By allowing the continuation of “inadequate” interim closures, the then-minister “opted to convert a half-baked temporary solution into a long-term one”. This is contained in the heads of argument that BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds, recently filed in their litigation against the minister to prevent the imminent extinction of the continent’s only penguin.
The applicants, who are represented by the nonprofit Biodiversity Law Centre, are seeking the review and setting aside of a decision taken by Creecy in August 2023 to put in place interim closures around the seabirds’ breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island and Bird Island.
Their case turns on the irrationality and unlawfulness of the minister’s decision to put in place island closures, which are not biologically meaningful.
The argue this requires the court to set aside the decision and put in place scientifically-informed fishing closures, which strike an optimal trade-off between maximising protection of the African penguins’ foraging areas and minimising the effect on the fishing industry.
The applicants call for the proper implementation of the constitutionally-enshrined precautionary principle, which requires decision-makers to exercise a cautious approach in the face of possible environmental harm.
In October, the African penguin was classified as critically endangered. “It is therefore only one step away from being classified as extinct in the wild,” the applicants said. “That fate is predicted to befall the species by as early as 2035, just one decade from now.”
They noted that since at least 2018, scientific studies have demonstrated that the dramatic decline of the population may be partly arrested by optimising the availability of their preferred prey of sardine and anchovy around their largest breeding colonies.
This is achieved through long-term closures of African penguin preferred foraging areas to commercial sardine and anchovy fisheries. This has been known to the department of forestry, fisheries and the environment and its predecessor departments.
“The minister admits this and expressly recognises island closures as a meaningful conservation measure to mitigate the decline of the African penguin population.”
Despite acknowledging the species’ plight and the urgent need to implement timeous conservation actions to prevent its extinction, the minister “has consistently failed to implement appropriate and effective measures”.
“Rather than taking decisive steps to protect the population and fulfil their constitutional and international environmental protection obligations, the department and the minister have engaged in at least four rounds of ‘scientific review’ for purposes of … determining consensus-driven island closure delineations.”
Efforts to find consensus between the conservation sector and the small-pelagic purse-seine fishing industry on island closure delineations came to naught. “During all those engagements, industry persistently refused to accept the well-established conservation benefits of island closures. And the minister persistently failed to delineate appropriate island closures.”
The last of these scientific review processes involved the appointment, by the minister in October 2022, of an international panel of experts, which reviewed the science collected since 2008 as part of an island closure experiment.
Creecy had implemented a set of “highly compromised” and “largely ineffective” island closures, which were intended to operate as a temporary stop-gap measure pending the finalisation of the panel process.
In its report, the panel endorsed the need for fishing closures and made clear, scientifically supported recommendations for the optimal approach to determining their delineation.
“Quite inexplicably, the minister accepted the panel’s finding that island closures are an appropriate conservation measure, but then completely ignored the trade-off mechanism she had sought.
“Instead, the minister decided that restrictions on purse-seine sardine and anchovy fishing would be implemented in the waters around the six identified African penguin colonies for a minimum of 10 years, with a review after six years and the fishing restrictions would accord with the interim closures unless the conservation sector and industry agreed to alternative closure delineations by 31 December 2023.”
Predictably, no agreement on alternative island closures was reached by the deadline, the applicants said. “As a result, the interim closures were set in stone and, absent this court’s intervention, will remain in place until 31 December 2033 — just a year from the anticipated extinction date.”
The applicants said while they seek to hold the state — and particularly the minister — accountable to the duty to act to mitigate known threats to the African penguin population, both the state and industry respondents maintain that “more science, better science and further delay is reasonable, notwithstanding the African penguin population’s continued decline”.
“Moreover, they deny the scientific conclusions and recommendations of those scientific experts engaged in study of the African penguin and the panel appointed to resolve scientific debate.”
In his answering affidavit filed in September, current Environment Minister Dion George said Creecy took a decision on 23 July 2023 to implement no-take fishing zones for a period of 10 years around the six breeding colonies.
“These island closures were implemented as a conservation measure to mitigate the decline in the population. The applicants seek to review and set aside this decision and through the court’s intervention, effectively seek to implement more extensive island closures than those which are now in place.”
These island closures already cover about 65% of the total geographical·range of the applicants’ proposed closure delineations.
“The island closures directly impact the management of fisheries and fishing rights, which have been granted to right holders in the small pelagic sector. The island closures directly affect the small pelagic fishing industry for the reason that small pelagic fish, in particular, sardine and anchovy, are the preferred prey of the African penguin.”
The small pelagic fishing industry and the African penguin thus compete for access to small pelagic fish: the fishing industry for human and other consumption, and the African penguin for prey, George said.
“There are accordingly different interests and competing rights at stake: the rights of the applicants who represent conservation interests and the rights and interests of the small pelagic fishing industry.
“The minister … is politically and legislatively responsible for the administration, monitoring and oversight of both sectors often where competing rights and divergent interests play a role in decisions which must be made.”
The decision to impose island closures therefore involved a “balancing of rights and interests”, he said. While the applicants sought to challenge Creecy’s decision as irrational, unlawful and unconstitutional and seek a substitution of the decision by the court, the minister argued that there is no merit to the application.
“This is so because the decision was properly authorised in terms of the relevant legislation. The decision was based on the expert panel’s report, which was the subject of extensive consultation and engagement with the relevant stakeholders, including the applicants. The decision was consistent with the purpose of the empowering legislation and the minister’s constitutional, statutory and international obligations.
“There is no scientific data that conclusively proves that island closures will arrest the decline of the African penguin and prevent its extinction”, George said.
“Multiple factors are responsible for the decline of the African penguin population yet the application proceeds from the scientific premise that the major — if not the sole driver — of the African penguin decline is commercial small pelagic fishing which, according to the applicants, is fast depleting the preferred foraging and prey of the African penguin, around the·breeding colonies.
“They allege that the shortage of preferred prey can only be·reversed and sustained by more extensive island closures, which effectively means more invasive no-take fishing areas around the penguin colonies.”
The facts, he said, demonstrate that although this is a contributing factor, it is not the only factor which has contributed to the decline of the penguin population. A long-term solution is “substantially more complex and polycentric than what is being proposed”.
The results of further scientific studies, investigations and analysis, identified by the international review panel in its report, are critical to the process, the minister said.
The respondents’ heads of argument are due on 10 February and the case is set down for hearing from 18 to 20 March.