Krajniw v Minister for the Environment

Background 8 The substantive proceedings in this matter concerns a parcel of land at 1825 Creek Road, Cannon Hill, a suburb of Brisbane (the land). It appears that the land is or was undeveloped land owned by the Brisbane City Council. It further appears that, at some point, the Brisbane City Council gave permission to the fifteenth respondent - a property developer - to build a golf course and associated residential development on the land. I understand that this development permission remains extant. 9 Mr Krajniw claims that he has open standing under s 475(1)(b) and s 475(6) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to pursue his substantive claims. I understand from his oral submissions that Mr Krajniw lives in a caravan on or in the vicinity of this land. It is clear that Mr Krajniw is passionate about the wildlife he describes as living or previously living on the land, in particular squirrel glider possums. 10 In respect of his substantive claims Mr Krajniw has filed detailed and very lengthy pleadings in these proceedings. His originating application filed on 16 June 2015 is a document some 59 pages in length. His originating application lists many provisions of the EPBC Act with which, inter alia, Mr Krajniw alleges there has been non-compliance in respect of the process granting development permission. In all, Mr Krajniw seeks 154 orders by way of interim and final injunctive relief restraining the respondents from undertaking listed activities, additional orders in relation to land clearing and work designed to alter or affect wildlife corridors, 15 individual orders against named respondents (including prosecution or jail), and orders for the public shaming of a number of newspapers, including the Courier Mail and Quest Newspapers South East Advertiser. So, for example, Mr Krajniw seeks orders to: restrain the respondents from engaging in activity which will destroy a colony of squirrel glider possums in the area; restrain the respondents from engaging in activity which will adversely affect other flora and fauna in the region including woodlands, rainforest, native grasses, koalas, native rats and mice, deer, and identified species of birds; restrain the respondents from engaging in activity which contravenes the EPBC Act, and constitutes civil and criminal environmental offences; require the respondents to repair and mitigate damage to the land pursuant to s 475(3) of the EPBC Act; and restrain conduct and activity of a kind constituting an offence against matters protected, as defined by s 34 of the EPBC Act. 11 Mr Krajniw claims that the assessment process whereby the fifteenth respondent was permitted to develop the land under the EPBC Act was tainted and flawed, and in particular that: the relevant assessment and approval processes did not take into account the conduct and activity of the kind sought to be restrained; and the taking of controlled action within the relevant area would have a significant adverse impact on the life support systems of nature in the area. 12 I note that Mr Krajniw also alleges dereliction of duty of a number of the respondents (in particular the seventh through to fourteenth respondents) in relation to an adjacent parcel of land at 1833 Creek Road. 13 Further, Mr Krajniw seeks orders by way of: a pecuniary penalty payable by all respondents in an amount determined by the Court; an additional pecuniary penalty that the first to fourteenth respondents pay the Commonwealth Government of no less than $10 million; an additional order that the fifteenth respondent pay the Commonwealth Government the sum of $5 million, in addition to payment of the amount of $10 million into trust for the restoration of the land; prosecution and jailing of named respondents for gross dereliction of duty; payment of compensation to the applicant for depression and psychological trauma suffered by the applicant resulting from the wilful destruction of the possums and their habitat, in the amount of $4 million per named respondent (in respect of the first to seventh and eleventh to thirteenth respondents), $3 million per named respondent (in respect of the eighth, ninth, tenth and fourteenth respondent) and $5 million by the fifteenth respondent. 14 Mr Krajniw's statement of claim is 354 pages in length. Mr Krajniw lists the habitats of wildlife in the land, and the status of a large number of species of wildlife. He claims, inter alia, that: the respondents are responsible for the destruction of matters protected under the EPBC Act, and for the destruction of the koala and squirrel glider possum trees; the respondents have ignored specific sections of the EPBC Act; the proposed clearing and destruction in certain areas (Littoral Rainforest and Coastal Vine Thickets of eastern Australia, Lowland Rainforest of Subtropical Australia, Grey Box Grassy Woodlands and Derived Native Grasslands of south-eastern Australia, and Lowland Grassy Woodland in the south-east corner bioregion) will have a significant adverse ecological impact; the assessment and approval process has failed to take into account these issues; the respondents have contravened s 18A of the EPBC Act and are guilty of criminal offences; there is a record of a Queensland lungfish in the area, and there is danger of disturbance associated with work on wetlands in the area of the land by the respondents; the respondents do not have an Environmental Impact Statement or assessment documentation as no studies have been carried out to determine the presence, the numbers, the extent, and the distribution of the species of frogs; squirrel glider possums are not listed as endangered species under the EPBC Act because of political and fashion considerations. 15 At paragraph 70 of his statement of claim Mr Krajniw lists the issues in dispute as: 1. whether the salient provisions of the EPBC Act 1999 are justiciable in this Court. 2. whether the Respondents must have regard to the construction and application of the provisions of the EPBC Act. 3. whether the Respondents are exempt from the relevant salient provisions of the EPBC Act. 4. the issues concerning adverse impacts on the listed threatened species, the matter protected. 5. the issues concerning adverse impacts on the listed threatened ecological community, the matter protected. 6. the issues concerning adverse impacts on a species, a thing that is not a matter protected. 7. the issues concerning adverse impacts on environmentally sensitive ecological communities, a thing that is not a matter protected. 8. whether clearing and poisoning of the environmentally sensitive listed ecological communities constitute the taking of an action. 9. whether poisoning and removal of vegetation within the listed threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, constitute the taking of an action. 10. whether poisoning and removal of vegetation within the listed threatened ecological community, the Lowland Rainforest of Subtropical Australia, constitute the taking of an action. 11. whether poisoning and removal of vegetation within the listed threatened ecological community, the Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, constitute the taking of an action. 12. whether poisoning and removal of vegetation within the listed threatened ecological community, the Lowland Grassy Woodland in the South East Corner Bioregion, constitute the taking of an action. 13. whether poisoning of listed threatened migratory and non migratory species, the matter protected, constitute the taking of an action. 14. whether poisoning of migratory and non migratory species, a thing that is not a matter protected, constitute the taking of an action. 15. whether poisoning and clearing ephemeral wetlands constitute the taking of an action. 16. whether poisoning and clearing riparian vegetation constitute the taking of an action. 17. whether poisoning and clearing marine vegetation constitute the taking of an action. 18. whether poisoning and clearing marine couch constitute the taking of an action. 19. whether poisoning and clearing ground vegetation constitute the taking of an action. 20. whether poisoning and clearing of indoor plants (Cycads?) that stored water, and provided an essential micro habitat for a variety of resident frog constitute the taking of an action. 21. whether poisoning and clearing significant landscape trees constitute the taking of an action. 22. whether poisoning and clearing Glider traffic trees constitute the taking of an action. 23. whether clearing Glider den trees, stags with hollows constitute the taking of an action. 24. whether poisoning and clearing sub-story vegetation constitute the taking of an action. 25. whether poisoning and clearing palm trees constitute the taking of an action. 26. whether poisoning and clearing of ground fern constitute the taking of an action. 27. whether poisoning and clearing of marine fern constitute the taking of an action. 28. whether saturating the land with insecticides, pesticides, herbicides, and weedkillers constitute the taking of an action. 29. issues in relation to approval of actions. 30. the taking of Actions. 31. taking actions with approved Governmental Authorization. 32. taking actions without approved Governmental Authorization. 33. the taking of controlled actions. 34. the taking of Actions in contravention of environmental authorision. 35. the taking of Actions in contravention of specific environmental authorision. 36. the taking of Actions which are lawful continuation of land. 37. the taking of Actions which are NOT lawful continuation of land. 38. whether the clearing activity was a lawful continuation of land use. 39. was the authorization process, if any, carried out in accords with the Acts 40. whether the State of Queensland and the Commonwealth of Australia are parties to the Recovery Plans, in relation to matters protected, the listed threatened species, and listed threatened ecological community. 41. whether the land was under environmental authorisation prior commencement of the clearing activity. 42. whether the land was under specific environmental authorisation prior commencement of the clearing activity. 43. whether the respondents have prior authorisation to interfere with National, and State Recovery Plans. 44. whether the respondents have prior authorisation to ignore and obfuscate salient provisions of the National Recovery Plans. 45. whether the Respondents are exempt from the construction and application of the salient provisions of the Recovery Plans. 46. whether the Principal Agreement, the Bilateral Agreement between the Commonwealth and the State of Queensland is a Bilateral Agreement within the terms of the EPBC Act 1999 (Cth). 47. whether assessment of adverse environmental impacts, assessment bilateral, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 48. whether assessment of adverse environmental impacts, the poisoning of the listed threatened species, matter protected, and the species, a thing that is not matter protected, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 49. whether assessment of adverse environmental impacts, the poisoning and clearing of ephemeral wetlands, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 50. whether assessment of adverse environmental impacts, the poisoning and clearing riparian vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 51. whether assessment of adverse environmental impacts, the poisoning and clearing marine vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 52. whether assessment of adverse environmental impacts, the poisoning and clearing ground vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 53. whether assessment of adverse environmental impacts, the poisoning and clearing significant landscape trees, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 54. whether assessment of adverse environmental impacts, the poisoning and clearing Glider traffic trees, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 55. whether assessment of adverse environmental impacts, the clearing of Glider den trees, stags with hollows, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 56. whether assessment of adverse environmental impacts, the poisoning and clearing sub-story vegetation, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 57. whether assessment of adverse environmental impacts, the poisoning and clearing palm trees, has been undertaken in accords with the provisions of this Act and the Bilateral. 58. whether assessment of adverse environmental impacts, the poisoning and clearing ground fern, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 59. whether assessment of adverse environmental impacts, the poisoning and clearing marine fern, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 60. whether assessment of adverse environmental impacts, the poisoning and clearing vine thickets, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement in, in that thousands of vines have been poisoned or cleared. 61. whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Littoral Rainforest and Coastal Vine Thickets of eastern Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 62. whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Lowland Rainforest of Subtropical Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 63. whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Grey Box (Eucalyptus macrocarpa) Grassy Woodlands and Derived Native Grasslands of South - eastern Australia, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 64. whether assessment of adverse environmental impacts, the poisoning of the threatened ecological community, the Lowland Grassy Woodland in the South East Corner Bioregion, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 65. whether assessment of adverse environmental impacts, the baiting of the threatened listed species, matter protected, and the species, a thing that is not matter protected, the poisoning and clearing ephemeral wetlands for the species of Frog, the platypus, and the Lung Fish has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 66. whether assessment of adverse environmental impacts, the poisoning and clearing ephemeral wetlands for the species of Frog, the platypus, and the Lung Fish has been undertaken in accords with the provisions of this Act and the, the National Recovery Plan. 67. whether assessment of adverse environmental impacts, the saturation of land with insecticides, pesticides, herbicides, and weedkillers, and the poisoning and clearing of vegetation, and removal of den trees, for the rare Squirrel Glider Possums, a species, a thing that is not a matter protected, has been undertaken in accords with the provisions of this Act and the Bilateral Agreement. 68. whether Respondents are exempt from Environmental Assessment under the terms of the Bilateral Agreement by virtue of exemption under section s524(2). 69. whether assessment and approval has taken into account the Precautionary Principle. 70. whether Respondents are exempt from Environmental Assessment under the terms of the Governmental Authorization by virtue of exemption under section s524(2). 71. whether Respondents are exempt from Environmental Assessment under the terms of Specific Environmental Authorization by virtue of exemption under section s524(2). (Emphasis in original.) 16 Throughout the 3,261 paragraphs of his statement of claim Mr Krajniw expands upon these issues, including listing: relevant sections of the EPBC Act; flora and fauna he claims are threatened by the respondents' conduct, and the habitats of those species; all flora and fauna which may be in the area; migratory species and marine bird species; matters not protected under s 48A(2) of the EPBC Act; incidents where flora and fauna have been affected. 17 Before turning to the issues before me I note that proceedings similar to these, involving many of the same parties, were recently the subject of judgment in Krajniw v Newman (No 2) [2015] FCA 673. In that case Mr Krajniw had commenced proceedings against seventeen respondents in respect of nearby land at 1833 Creek Road (including a number of the respondents in the proceedings before me), and, as Reeves J there explained, sought: … permanent injunctive relief to prohibit future conduct allegedly undertaken in breach of the EPBC Act. (at [5]) 18 In that matter the State and Brisbane City Council respondents sought orders mandating the removal of certain respondents from the proceeding, and summary judgment and/or strike out of Mr Krajniw's statement of claim. I note that Reeves J made the orders sought by the respondents in that case. 19 In the interests of completeness I note other judgments of this Court involving Mr Krajniw and various of the respondents currently before me, as well as similar issues relating to land in the same area as the land the subject of these proceedings, namely Krajniw v Newman [2014] FCA 1454, Krajniw v Brisbane City Council [2010] FCA 1366 and Krajniw v Brisbane City Council (No 2) [2011] FCA 563.