Legal battle looms as African Penguin population faces critical decline
In advocating for the protection of African penguin from extinction, BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB), will head to the Gauteng High Court, Pretoria, next month in a landmark litigation.
The environmental organisations, represented by the Biodiversity Law Centre, have hauled the Minister of Forestry, Fisheries and the Environment to court.
This comes after former minister Barbara Creecy announced the continuation of inadequate “interim closures” around breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St. Croix Island and Bird Island in August 2023.
The organisations want the court to review and set aside the minister’s decision to put in place island closures at six breeding colonies “which are not biologically meaningful”, saying the decision was irrational and unlawful.
According to the organisations, the African penguin population has suffered an alarming decline of 8% per year since 2018.
BirdLife SA and Sanccob have called for proper implementation of the constitutionally enshrined precautionary principle, which requires decision-makers to exercise a “cautious approach in the face of possible environmental harm” to protect threatened species and prevent their extinction.
According to Birdlife SA’s seabird conservation manager, Dr Alistair McInnes, 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.
“Moreover, the notion that an alternative set of closures could be delineated by agreement between conservationists and industry defeats the purpose of the panel, which was initiated to end many rounds of disagreement between these stakeholder groups and the various conservation and fisheries focused branches of the DFFE,” said McInnes.
In a replying affidavit, current Minister Dion George, said island closures are meaningful conservation measures to protect the penguins.
“This is demonstrably supported by the fact that the applicants themselves seek more extensive island closures… There is no scientific data which conclusively proves that island closures will arrest the decline of the African penguin and prevent its extinction. This means that the objective the applicants ultimately seek to achieve is not capable of being met by the relief which they seek,” said George.
George further submitted that 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,” George submitted.
Sanccob research manager, Dr Katta Ludynia, said the minister was “selective”.
“(The minister) was selective about which recommendations she followed. 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,” said Ludynia.
The case is set down for hearing from March 18 to 20 at the Gauteng High Court, Pretoria.
Cape Times