Surprise move in litigation over African Penguins

African penguins, photographed here in Simon’s Town, could be extinct as soon as 2035, according to BirdLife South Africa and SANCCOB (Southern African Foundation for the Conservation of Coastal Birds). Photo: Dan Callister

• The new environment minister Dion George has ordered his department’s lawyers to seek an out-of-court settlement to end conservation groups’ legal challenge over ‘irrational’ fishing restrictions to protect penguins’ food supply.
• Conservation groups are ‘encouraged’ by the minister’s move but are waiting to see details of the settlement offer.
• For now, a court hearing is still scheduled for October.

The new environment minister in the Government of National Unity, Dion George of the DA, has instructed his lawyers to settle High Court litigation being brought against his department by bird conservation groups to protect African penguins from likely extinction in the wild as soon as 2035.

Tuesday’s announcement by George via social media came as a surprise to conservation groups BirdLife South Africa and SANCCOB (Southern African Foundation for the Conservation of Coastal Birds), who in March this year initiated the action against George’s predecessor, Minister of Forestry, Fisheries and the Environment Barbara Creecy from the ANC and two of her directors-general.

Although Creecy imposed some fishing restrictions on small pelagic species like sardines and anchovy that are the penguins’ major food source, the two conservation groups are arguing that these restrictions are insufficient to properly protect the penguins from competition with commercial fishing vessels near their breeding islands and are therefore arbitrary and biologically irrational.

Two pelagic fishing associations are also named as respondents in the litigation.

The case is still set down for hearing in October, and the State Attorney, which is representing the Department of Forestry, Fisheries and the Environment, had already requested an extension to its deadline of 5 August for filing answering affidavits.

The announcement by the DA implied that a settlement was definitely on the cards.

A social media post from the party’s national executive was headed “Lifeline for African Penguins as DA Minister protects feeding grounds”.

It stated: “The Minister of Forestry, Fisheries and Environment, the DA’s Dr Dion George MP [George] is securing African Penguins’ primary food sources, by using his Ministerial powers to end a legal challenge and settle the dispute around fishing rights versus penguin protection. The Minister has instructed department lawyers to settle the matter and secure the Penguins’ fish diet for years to come.

“The endangered, iconic penguin species will now have a fighting chance at long term survival, in line with the DA commitment to protect South Africa’s iconic wildlife, diverse environment and natural beauty.”

However, a further DA statement by Andrew de Blocq Sheltinga, the party’s spokesperson on Forestry, Fisheries and the Environment, was more carefully phrased.

Although praising George for his “action to protect endangered African Penguins”, it noted that he was “pursuing” an out-of-court settlement regarding the closure of areas surrounding African Penguin colonies to fishing.

“This initiative is crucial for ensuring penguins have sufficient food near their breeding grounds, a factor biologists have identified as vital for their conservation…

“The Minister and his Department are constitutionally mandated to ensure the survival and protection of our threatened species. We are encouraged by the positive actions being shown by our new Minister in this regard. We are confident that future positive steps for conservation will follow.”

The reaction from the applicants in the litigation – BirdLife South Africa and SANCCOB, who are represented by the non-profit Biodiversity Law Centre – was cautious.

Kate Handley, executive director of the Centre, said they were “encouraged” by the DA’s statement “insofar as it demonstrates commitment to African Penguin conservation”.

But she pointed out that they were waiting for an approach by the minister’s lawyers and that in the meanwhile, the litigation was continuing and was still set down for hearing from 22 to 24 October.

“The African Penguin faces extinction [in the wild] by 2035 if more is not done to curb the current rate of population decline,” Handley said.

“The crisis is driven primarily by their lack of access to prey, for which they must compete with the commercial purse-seine fishery for sardine and anchovy in the waters surrounding the six largest African Penguin breeding colonies, which are home to an estimated 90% of South Africa’s African Penguins.

“The litigation was entered into as a last resort, given the previous Minister’s failure to implement adequate island closures. The litigation is ongoing, and in the circumstances, we await a favourable settlement proposal from the Minister’s legal team.”

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