Minister seeks legal settlement in case of South Africa’s imperilled penguins

African penguins, seen here on a beach in Cape Town, South Africa, could be extinct by 2035. Photograph: Anadolu Agency/Getty Images

South Africa’s new environment minister has said he wants to stop African penguins from going extinct by taking measures including settling a case brought by two environmental charities to stop fishing around the birds’ major colonies.

BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCOB) said they want an extension of no-fishing zones around six beaches and islands where the penguins breed, after failing to reach an agreement with fishing industry groups demanded by the previous minister.

African penguins face the threat of extinction by 2035 if their population continues falling at the current rate of 7.9% a year. A century ago, there were up to 1 million breeding pairs. Now there are fewer than 10,000.

Dion George, who became environment minister in early July as part of a new coalition government, said: “My objective is to ensure that the penguins do not go extinct and I think everybody has that objective in mind.

“I cannot see the benefit for the penguins of lawyers fighting in court, possibly for [a] long [time],” he said.

Conservationists and fishing industry groups have already been battling outside court for years. Among the things they disagree on is the extent to which the commercial fishing of the sardines and anchovies eaten by penguins is causing the birds’ population decline, and how far expanding no-fishing zones would arrest that fall.

Successive governments have been unable to get the two sides to come to a compromise on the trade-off between the losses to the fishing industry and those whose livelihoods depend on it, and the protection of the penguins. And, without a deal, they have been unwilling to implement the more drastic conservation measures that the environmentalists say are needed.

Alistair McInnes, who leads BirdLife South Africa’s seabird conservation work, said: “When these populations are at this sort of vulnerable level, and they are starting to dwindle, they actually become more sensitive to other random impacts.”

“If you, for instance, have a disease outbreak or [oil spill] out at sea, a disproportionate proportion of that colony will be affected,” he said. “So the sooner we can get these protections in, the better the chance the penguins can maintain their population sizes now and [have a] buffer [against] other random events.”

An “island closure experiment” was launched by the government in 2008 to try to settle the debate. The seas around four islands were closed to sardine and anchovy fishing for alternating three-year periods.

But, after more than 50 hours of meetings between two rival groups of scientists about the data, there was still no agreement. In late 2022, Barbara Creecy, the environment minister at the time, appointed a panel of international experts in a bid to break the deadlock.

Their report, published in July 2023, said that banning fishing around the breeding colonies would benefit penguin conservation, but the benefits were “small”. Fishing limits alone wouldn’t stop the penguins’ population from continuing to decline, it concluded.

Creecy said she would impose fishing bans around the colonies, but only if the conservationists and the fishing industry agreed. Since then, there have been partial bans, which the two charities have said are “biologically meaningless”. This prompted them to launch their court case, which named Creecy, two of her colleagues and two fishing industry groups as respondents. The case argues that the minister is legally mandated to implement the wider restrictions.

“Contrary to environmental NGOs’ statements in the media that the main driver is the purse-seine fishing industry, the impact of fishing [on penguin numbers] is small,” one of the respondents, the South African Pelagic Fishing Industry Association, told the Guardian earlier this year.

“As an industry, we have a responsibility to take all reasonable measures to protect penguin populations,” it said by email, adding it was committed to “having the matter resolved amicably”.

McInnes said that the “small” impact of fishing closures is still significant noting other factors affecting the penguin population, from shipping noise to predators and the climate crisis. SAPFIA previously said that the NGOs had delayed a “process that is tasked with establishing what are the main drivers causing the decline in penguin numbers”, which the NGOs’ lawyer denied.

George said he did not have an opinion yet on the science or policy of the issue, but had asked for a meeting with the fishing industry and environmental groups next week. “Lines are drawn and [there are] vested interests,” he said. “But where does that leave the penguins?”