Groundbreaking legal action launched to save endangered African penguins

The African Penguin, once a thriving species, now teeters on the brink of extinction, with a staggering 97% decline in population.

BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB), represented by the Biodiversity Law Centre (BLC), have taken legal action to challenge a move made by Minister of Forestry and Fisheries and Environmental Affairs Barbara Creecy regarding fishing closures around critical penguin breeding sites.

Kate Handley, executive director of the Biodiversity Law Centre, emphasises the significance of this legal manoeuvre, citing the minister's constitutional duty to prevent species extinction.

“This is the first litigation in South Africa invoking the Minister’s constitutional obligation to prevent extinction of an endangered species. It follows her failure – since at least 2018 – to implement biologically meaningful closures around African Penguin breeding areas,” Handley said.

Despite scientific recommendations advocating for biologically meaningful closures to protect penguin habitats, Creecy’s decision has fallen short, extending interim measures that prove inadequate in safeguarding the species' future.

Dr. Alistair McInnes of BirdLife South Africa underscores the urgency of science-based decisions essential for the survival of African Penguins. “The African Penguin’s survival depends on the right decision being taken now. African Penguins at breeding colonies need access to food,” said Dr McInnes.

“Our challenge seeks to have the Minister take science-based decisions that are grounded in the internationally recognised and constitutionally enshrined precautionary principle. This is something that the Minister has consistently failed to do since 2018, notwithstanding having called multiple reviews,” Dr McInnes explained.

The litigation challenges the minister’s approach, arguing its irrationality and unlawfulness as it disregards critical scientific advice and perpetuates the penguin population's decline.

The core of the applicants’ complaint against Creecy is her failure to implement biologically meaningful closures around African Penguin breeding areas.

Instead, on August 4, 2023, Creecy announced the continuation of inadequate “interim closures around breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St. Croix Island, and Bird Island.

Dr. Katta Ludynia, research manager at SANCCOB, said that “the Minister was selective about which recommendations she followed. Inexplicably, she failed to follow the critical recommendation regarding how closures should be delineated.”

The “potentially precedent-setting case,” stands to give content to the South African government’s obligation to protect endangered species and, particularly in this instance, the African Penguin.

“It also takes a stance on the role of science-led decision-making in ensuring that future generations have their environment, and the well-being of an endangered species, protected,” Handley concluded.

The International Union for Conservation of Nature (IUCN) lists the African Penguin (Spheniscus demersus) as endangered with the species recovery status as being “largely depleted” and approaching functional extinction or unable to naturally recover.

“This species is classified as Endangered because it is undergoing a very rapid population decline, probably as a result of commercial fisheries and shifts in prey populations. This trend currently shows no sign of reversing, and immediate conservation action is required to prevent further declines,” noted the IUCN.

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