Proposals to Protect Penguins Would Cripple R5.5-Billion Fishing Industry, Court Told

New proposals to protect penguins from extinction are to be heard in court in October.

• BirdLife South Africa and SANCCOB (Southern African Foundation for the Conservation of Coastal Birds) have asked the courts to impose tougher no-take zones for fishing in penguin breeding areas.
• The industry says the new plan would cripple the R5.5-billion pelagic fishing sector.
• The matter has been set down for hearing in the Pretoria division of the Gauteng High Court in October.

Implementing proposals by conservationists for revised “no-take” fishing zones around African Penguin breeding islands would cost the pelagic fishing industry as much as R190-million a year, the South African Pelagic Fishing Industry Association says.

Under the current no-take zones, the industry is forfeiting R90-million a year. These closures were introduced around six islands in October last year to help slow the slide in penguin populations and confirmed in July this year by former environment minister Barbara Creecy.

Mike Copeland, chairperson of the South African Pelagic Fishing Industry Association (SAPFIA), says in court papers that the proposed new closures will cost 794 jobs, more than double the estimated 371 jobs lost through the current scheme.

He describes the economic impact of the proposed new system as “eye-wateringly high” and states: “The pelagic fishing industry will be crippled by the proposed closures.”

Creecy’s plan was meant as a compromise to temporarily assist penguin conservation by reducing competition with commercial fishers for the endangered seabird species’ food source – mainly anchovy and sardines – around their breeding islands.

Creecy hoped this would be a stop-gap measure while the fishing industry and conservationists negotiated a long-term agreement on the equitable sharing of limited fish stocks between birds and humans.

But talks between the parties have not resulted in any agreement, and the conservation lobby has in the meantime launched high court action to have Creecy’s decision reviewed.

Urgent

The two applicants in the case – BirdLife South Africa and SANCCOB (Southern African Foundation for the Conservation of Coastal Birds) – are arguing that the litigation is urgent because of the dire state of the penguin population and because the current closures are biologically meaningless for penguin conservation. At the present rate of decline, the species could go extinct in the wild by 2035, they warn.

In 2022 Creecy appointed an International Review Panel of Experts to help break the deadlock. The Panel accepted that the interim closures did provide some small benefit to the penguins, but it recommended using the highly technical “marine Important Bird and Biodiversity Area – Area Restricted Search” (mlBA-ARS) method of delineating island closures as the best scientific basis for resolving the impasse.

The Panel’s recommendation could facilitate agreement because closures would be developed through a “sweet spot” trade-off mechanism at each island that provided maximum conservation benefits for penguins with the lowest possible costs to the fishing industry and to society in general. (“Benefit” is defined as the number of penguins that, without the implementation of closures, would have died.)

The applicants have now used the Panel’s recommended trade-off mechanism to propose a set of new no-take zones around the six islands that they argue will be more effective in protecting penguins. They want a court order substituting this proposal for Creecy’s interim closures.

Included in the applicants’ court papers is an “expert” affidavit by marine ecologist Eleanor Weideman, Coastal Seabird Project Manager at Birdlife SA. She states: “I confirm the content of the mlBA method and trade-off mechanism and the expert opinion expressed therein. I further confirm that the methods and data relied upon are robust, credible and based on methods recognised by Birdlife International and consonant with the trade-off mechanism recommended by the Panel.”

Challenge

But two of the respondents in the litigation – SAPFIA and Eastern Cape Pelagic Association (ECPA) – strongly challenge this claim in their answering court papers.

They in turn rely on an “expert” affidavit from Dr Mike Bergh, Chief Technical Officer at Cape Town company OLSPS Marine, which has provided fisheries resource analyses over three decades.

In his affidavit Bergh challenges many of the “theoretical elements” in the calculations of Weideman and colleagues to determine the applicants’ proposed new closures.

“I have very serious difficulties with the applicants’ approach to each of those theoretical elements,” he states. “The applicants’ underlying rationales and methods are subjective and incomplete, such that they would not pass objective and independent scientific assessment.”

Bergh also notes that the applicants denied the respondents access to the relevant penguin telemetry data and computer code, “making it impossible to verify the reliability of the methods and the final results”.

“… it is not possible at this stage for a scientifically defensible trade-off decision consistent with the recommendations in the Panel report to be made,” he states.

5,800 employees

Copeland explains in his affidavit that the small pelagic sector is South Africa’s largest in terms of catch and second-most important in terms of value, with an estimated wholesale catch value of around R5.5-billion at present. It employs some 5,800 people – 4,300 on a permanent basis and 1,500 on a seasonal basis.

“It is this sector, and the local communities that it supports, that is directly impacted by the island closures that are the subject matter of this review application,” he states.

Copeland says the new proposals for closures around the six islands are “scientifically contentious, disputed and incomplete”.

He says the application should be dismissed so that more work can be done “to obtain further data, quantify the impact on industry and local communities, and then conduct a properly informed trade-off analysis to establish the optimum area for closures that adequately balances the benefits to penguins against the damage to the pelagic fishing industry.”

He calculates that the annual losses to the economy as a whole from the current scheme are R254-million and that this would more than double to R543-million if the proposals were implemented.

Bergh’s calculations, he says, show that the current scheme already produces 65% of the benefit to penguins that would be gained by the proposed closures.

New minister

Creecy’s replacement as environment minister, Dr Dion George, stirred the litigation pot with his surprise announcement last week that he had instructed his department’s lawyers to seek an out-of-court settlement with BirdLife SA and SANCCOB.

George has now replaced Creecy as first respondent in the case, and two of his senior officials are second and third respondents.

It is apparent that George did not brief or consult the fourth and fifth respondents (SAPFIA and ECPA) before making his announcement last Monday, and they filed their answering affidavits last Friday.

Asked why George had not spoken to them before making his announcement, Department of Forestry, Fisheries and the Environment spokesman Peter Mbelengwa ducked the question, saying only: “The Department has reached out to all parties (Birdlife SA, SANCCOB and SA Pelagic Fishing Industry) in the litigation in order to enter discussions for a possible settlement and therefore cannot disclose any details at this point in time.”

The case has been set down for hearing in the Pretoria division of the Gauteng High Court from October 22 to 24.

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