DA: Environment minister wants out-of-court settlement on ‘fishing rights versus penguin protection’

Forestry, Fisheries and the Environment Minister Dion George has “thrown a lifeline” to endangered African penguins by instructing his department’s lawyers to settle a lawsuit brought by conservation groups challenging the inadequate closure of areas surrounding their colonies to fishing.

The surprise announcement was made on Tuesday by the Democratic Alliance’s (DA’s) national executive in a social media post. It said George was securing the primary food sources of African penguins “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 penguin’s fish diet for years to come”, the post read. The endangered penguin species “will now have a fighting chance at long-term survival”.

The litigation was launched in March by BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds, represented by the Biodiversity Law Centre, to challenge then environment minister Barbara Creecy’s “biologically meaningless” island closures to purse-seine (a large vertical net) fishing around key African penguin colonies.

Later on Tuesday, Andrew de Blocq Sheltinga, the DA’s spokesperson on forestry, fisheries and the environment, issued a statement welcoming the decision by George to pursue an out-of-court settlement.

“This initiative is crucial for ensuring penguins have sufficient food near their breeding grounds, a factor biologists have identified as vital for their conservation,” he said. “By reducing competition between penguins and industrial fishing, this measure addresses a significant threat to the species. Continuing a court battle while penguins starve and their numbers decline would be counterproductive.” 

Apart from Creecy, the other respondents in the lawsuit include the department of forestry, fisheries and the environment’s deputy director general of fisheries management and the deputy director general of oceans and coasts; the South African Pelagic Fishing Industry Association and the Eastern Cape Pelagic Association.

Kate Handley, the executive director of the Biodiversity Law Centre, said the applicants had been “caught off guard” by the DA’s statement.

“We are encouraged by the DA’s statement insofar as it demonstrates commitment to African penguin conservation,” she said. “The African penguin faces extinction by 2035 if more is not done to curb the current rate of population decline.”

Handley pointed out that 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 the country’s African penguins”.

She said the litigation was entered into as a last resort, given Creecy’s failure to implement adequate island closures. “It was extended government-led processes that were convened between government, industry and the conservation sector to reach agreement on these island closures. There were basically four different iterations of this process culminating in the high-level international scientific panel — and none of those came to a resolution.

“That is why the panel was appointed. So, when the minister [Creecy] put in place these inadequate interim closures and then said they would stay in place unless the conservation sector and industry could agree to different closures, the [conservation] sector was just left with no choice but to approach the courts because there was just no possibility of this impasse being resolved.”

The applicants hope for a favourable settlement proposal from the minister’s legal team, she said. The matter is set down for hearing from 22 October to 24 October. “That remains unchanged and we are hoping to have affidavits in the near future from the respondents and then we’ll get going with preparing our replying affidavits,” she said.

Given that the applicants have yet to see a favourable settlement proposal, the DA’s statement was “perhaps a bit misleading”, she noted. This is “because it’s ultimately the office of the minister that would need to put forward a proper settlement proposal” for all the parties in the litigation, not only the applicants. 

“Of course, there are the industry respondents so settlement is not a unilateral activity. It actually requires the buy-in and engagement of other litigants, so I do think the statement was a little bit premature,” she said.

De Blocq Sheltinga said the set of closure areas put forward by the scientific panel was carefully formulated to be biologically meaningful while limiting the potential consequences for fishing. Creecy “chose not to follow this recommendation”, which resulted in the legal case being brought against the minister’s office. “This decision will now be corrected by Minister George.”

The implementation of the closure areas recommended by the panel will also have positive effects for the support of other dependent fisheries such as linefish as well as other marine predators, including whales, dolphins, sharks, seals, birds and other fish.

“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,” De Blocq Sheltinga said. 

George could not be reached for comment on Wednesday.