Court Limits Fishing to Protect African Penguins

Pelagic fishing industry permits are to be amended to reflect new fishing exclusion zones around six key African Penguin breeding areas.

• Last week conservation groups and the fishing industry reached an out-of-court settlement to establish expanded no-fishing zones around penguin colonies for the next ten years.
• The agreement was made a court order on 18 March.
• BirdLife South Africa and SANCCOB had challenged former environment minister Barbara Creecy’s July 2023 decision, arguing her proposed closures were “biologically meaningless”.
• Environment Minister Dion George hailed the agreement as “a significant victory for conservation and sustainable development” that protects both penguins and fishing industry interests.

Current permits for the pelagic fishing industry must be amended within 14 days from 18 March to reflect new fishing exclusion zones around six key African Penguin breeding areas.

This follows an order issued in the Pretoria High Court on Tuesday. By agreement with all the parties, a July 2023 decision by former environment minister Barbara Creecy will be amended to install interim closures around penguin breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island and Bird Island for ten years.

Bird conservation groups BirdLife South Africa and the South African National Foundation for the Conservation of Coastal Birds (SANCCOB) brought a legal challenge to Creecy’s decision. They argued that the closures she had imposed were biologically meaningless and would not help limit competition between the critically endangered penguins and the pelagic fishing industry. Both compete for sardines and anchovies, the penguins’ prime food source.

Creecy’s successor, Dr Dion George, the Department of Forestry, Fishing and the Environment (DFFE) and two pelagic fishing associations were respondents in what was described as landmark litigation to protect the African Penguin from extinction.

The major case had been scheduled to start on Tuesday, but an out-of-court settlement was reached between all the parties, and was made a formal order of court by Gauteng High Court Deputy Judge President Aubrey Ledwaba this morning.

The agreement starts with a statement that Creecy’s decision is reviewed and set aside without any admissions that it was unlawful.

Agreed substitute closure areas, some of which are significantly larger than Creecy’s demarcations, will remain in place year-round for the next ten years, to be reviewed after six and will apply to small-pelagic (sardine/pilchard, anchovy and red-eye) purse-seine fishing at all times.

Permits for the 2025 fishing season of the rights holders will be amended by the department within 14 days of the order, or by any extension agreed in writing.

The parties are all paying their own costs.

Dr Alistair McInnes, BirdLife SA’s Seabird Conservation Programme Manager, hailed the court order as an important milestone in the fight to protect African Penguins.

“This case has been first and foremost about improving the chances of conserving Africa’s only penguin species. But the outcome of these closures will also benefit other marine predator species, such as Cape Gannets, Cape Cormorants, and other socio-economically important fish that also eat sardine and anchovy, as well as the livelihoods of many who derive benefits from marine ecosystems that are equitable and judiciously managed,” he said.

Nicky Stander, conservation head at SANCCOB, commented: “Today’s order is a significant step forward in our fight to save the African Penguin from extinction. We are immensely grateful for the widespread support from individuals and organisations that share our commitment to preserving biodiversity.

“However, while we celebrate today’s success, we remain acutely aware that our journey is far from over. The threats facing the African Penguin are complex and ongoing – and the order itself requires monitoring, enforcement and continued cooperation from Industry and the government processes which monitor and allocate sardine and anchovy populations for commercial purposes.”

Kate Handley, executive director of the Biodiversity Law Centre that represented the two conservation groups, described the order as “an important step in moving the dial in the long impasse between conservation and industry which has seen inaction since 2018”.

“We look to the DFFE and the Minister [George] to ensure full implementation of this order and to follow-through on taking all necessary steps to protect the African Penguin. Doing so is not only important for the well-being and survival of this iconic species but is critical to ensure that our ocean ecosystem is protected for the benefit of future generations.”

In a comment ahead of today’s order, George hailed the settlement as “a significant victory for conservation and sustainable development”.

“This agreement is a testament to what can be achieved when industries and conservationists unite for a common cause.

“It delivers on the DFFE’s vision of protecting our penguins and preserving our biodiversity, while ensuring the sustainability of our fishing industry … I celebrate this milestone as a triumph for all South Africans.”

In its response, Western Cape’s conservation authority CapeNature said it was “thankful” that the government, seabird conservation organisations and the pelagic fishing industry had worked together to reach the agreement on fishing restrictions around critical penguin breeding areas. But it also warned of “significant management challenges other than food sources” that also needed to be addressed if the species is to survive extinction in the wild.

The authority manages three of the six key breeding areas affected by the agreement: Stony Point Nature Reserve at Betty’s Bay, Dyer Island and Dassen Island.

In a joint statement, the two fishing groups involved in the case – the South African Pelagic Fishing Industry Association and the Eastern and Southern Cape Pelagic Association – said they were pleased that a compromise settlement agreement had been reached.

“This pragmatic decision by the fishing industry was based on considerations that balance increases in closed areas against adverse socio-economic impact.”

The groups said the perception that the fishing industry, or fishing near to breeding sites, was the primary cause of the decline in the penguin population, was false.

“We are especially pleased that this settlement will now allow scarce resources to be used constructively to scientifically determine the principal factors causing the decline in the penguin population and to ameliorate those where possible.

“Consistent with our past practice, we will positively participate in these forums and are optimistic that major strides will be made in penguin conservation actions.”

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