African penguins at Boulders Beach in Cape Town. Archive photo: Ihsaan Haffejee
Former environment minister Barbara Creasy has been accused by two bird conservation groups of bowing to deep-sea fishing and siding with the industry in a dispute over the closure of fishing grounds near important breeding grounds for African penguins.
But Dion George, who replaced Creecy in July as part of the new Government of National Unity, continues to oppose the conservationists’ lawsuit, and court papers filed earlier this month state that Creecy’s decision is strongly defended.
However, George is exploring the possibility of resolving the dispute out of court. But his initial proposal to hold an informal meeting of all parties without lawyers present was rejected by both the conservationist applicant and his fellow defendants in the case, the deep-sea fishermen. .
Lawyers for the fishing industry also accused George of conducting “highly irregular” consultations with non-fishing conservation groups.
BirdLife SA and SANCCOB (South African Foundation for the Conservation of Coastal Birds) are the applicants in the case against Creasey (now George), along with two senior officials from the Department of Forestry, Fisheries and Environment (DFFE) and the Department of Forestry, Fisheries and Environment. Two organizations representing two organizations are also participating. Small Pelagic Fish (Sardines and Anchovies) Fisheries: SA Pelagic Fisheries Association (SAPFIA) and Eastern Cape Pelagic Fisheries Association.
Despite accepting the report of an international panel of experts appointed by Mr Creasy to break the impasse between conservationists and the fishing industry, the applicants have rejected some of its key recommendations. They claim that when they did not accept the offer, they acted unreasonably and illegally.
In a reply affidavit to the case, which is expected to be argued in the Pretoria High Court in October, Dr Alistair McInnes, BirdLife SA’s seabird conservation program manager, said Creasey would follow some of the panel’s recommendations but would not , it said it gave no reason not to follow the other recommendations. And certainly there was nothing that explained why the trade-off mechanism she was seeking shouldn’t be applied. ”
This is the “core” of the applicants’ lawsuit. He said Creasy “failed to make decisions that stood up to scrutiny by standards of reasonableness and legality.”
The applicant’s claim that Mr Creasy sided with fishermen was based on a letter sent by Mr Creasy to SA Deep Sea Fisheries Association chairman Mike Copeland on 24 January in which Mr Creasy sided with fishermen. We are grateful that the company accepted our proposal to continue fishing. The fishing area has been temporarily closed while additional scientific research is conducted.
The applicants argue that these existing temporary closures do not make biological sense and that simply maintaining them for the next 10 years will not halt the current population trajectory towards extinction of penguins in the wild by 2035. claims that it cannot be done.
In his affidavit, Mr McInnes said the contents of Mr Creasy’s letter were “particularly telling of the minister’s capitulation to industry”.
“(Penguin) It is clear that conversations are taking place between industry and DFFE to which the applicant is not a party, as no such proposal has been made to the Department of Conservation… (The letter is) It clearly highlights the irrationality and illegality of the decision.” It is not clear that the Minister had any understanding of the committee’s activities or its recommendations. On the contrary, it revealed a number of serious mistakes in understanding the closure recommendations. ”
George did not directly address the allegations in his response to an affidavit filed late Sept. 19 asking for clemency.
However, he vigorously defended Creecy’s decision-making, saying in particular that she had acted correctly in terms of the Constitution, law and international obligations.
“Ministers are politically and legislatively responsible for the management, monitoring and supervision of both areas. Often competing rights and different interests play a role in the decisions that have to be made. There is also no merit…This decision was properly approved in terms of the relevant law.
“Minister Creasy’s decision was reasonable given that it continued to provide reasonable and beneficial protection measures to slow the decline of the African penguin, while at the same time balancing industry rights. It was procedurally fair and substantively and procedurally reasonable.”
“Very irregular”
On August 21, the state’s attorney sent a letter on George’s behalf to other parties involved in the case, requesting a meeting “without legal representation to discuss the case and find common ground to resolve the matter.” requested. .
“The Minister is of the strong view that this litigation can and should be settled, having regard to the various interests and rights of the parties and stakeholders involved. “Prolonged litigation is not in the interests of either party, given the inconceivable possibility that it could last for years.”
Lawyers for BirdLife SA and SANCCOB responded that their clients were open to discussions, but that no concrete proposals were discussed.
“Therefore, it would be helpful to have clarity on what the Minister is proposing to discuss in advance of the proposed meeting.Furthermore, our clients feel more comfortable meeting in the presence of their legal team. I have received instructions that this is the case.”
Lawyers for the fishermen also noted in their response that no settlement offer had been submitted for their clients to consider and that the meeting would be “problematic” without lawyers present. advice”.
Their letter also stated that George had met and exchanged WhatsApp messages with representatives of BirdLife SA and SANCCOB.
“As we have previously pointed out, this interaction between ministers and their offices is highly irregular without the involvement and participation of industry respondents.”
In response to questions from GroundUp, DFFE spokesperson Peter Mbelengwa confirmed that no settlement agreement had been reached between the parties, but George remained committed to finding a solution out of court. .
“Therefore,[the minister]requested that we meet with all parties and their legal representatives to discuss how we can move forward together without taking the matter to court.”
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