2021 Feb: Aboriginal Community take legal action for community and cultural loss (Wreck Bay, NSW)

PFAS contamination class action filed by Jervis Bay community for cultural loss


Feb 3 2021

An Aboriginal community has launched a class action against the Federal Government claiming chemical contamination on their land from Department of Defence operations has “destroyed” their livelihoods.

An Aboriginal community has launched a class action against the Federal Government claiming chemical contamination on their land from Department of Defence operations has “destroyed” their livelihoods.

The residents of Wreck Bay, on the New South Wales south coast, allege Defence negligently allowed perfluoroalkyl and polyfluoroalkyl (PFAS) chemicals to leech into surface water, groundwater, and soil.

The chemicals are found in firefighting foams that had been used on neighbouring naval base HMAS Creswell and the Jervis Bay Range Facility for more than three decades since the 1970s.

Defence has since erected signs warning against fishing from waterways in the area, putting an end to Aboriginal practices that have existed inside Jervis Bay Territory for thousands of years.

“We can’t go and hunt and gather anymore, we can’t teach our younger generation coming through about our culture, like I learnt as a kid,” traditional owner James Williams said.

“We look at our land like our mother and that’s how we treat it — with respect,” Mr Williams said.

“Our land has been destroyed. Our mother’s been taken away from us.”

Community’s ‘greater exposure’

Hundreds of residents from Wreck Bay and neighbouring villages have joined the action, filed by Shine Lawyers in the Federal Court on Tuesday night.

“These chemicals are known around the globe to persist in the environment and in human bodies, and there’s a lot of evidence out there to suggest that there are possible human health affects that relate to these chemicals as well,” said the practice leader of class actions with Shine Lawyers, Josh Aylward.

“This class action is claiming three things. One is for loss in property value, the second is for inconvenience, stress and vexation, but unlike any other action that’s been run so far we’re also bringing a claim for cultural loss.

“For the people in Wreck Bay, because of their intimate connection with the land and how far back it goes, they appear to be exposed to the contamination more than most other people are in most other communities.”

The fresh suit follows the successful settlement of similar legal challenges brought by the firm on behalf of the communities of Katherine in the Northern Territory and Oakey in Queensland in 2020.

The government also agreed to compensate residents at Williamtown in New South Wales who pursued legal action separately.

Defence planning remediation

Mr Williams said for his family at Jervis Bay, the loss of culture is priceless.

“It can never be replaced. No compensation money can ever give us back what we’ve had taken away from us,” he said.

“People want peace of mind, for the Department of Defence to turn around and say ‘sorry’.”

In a statement, a spokesperson for the Department of Defence said it had started planning for remediation of the area.

“This remediation plan is expected to be finalised in mid-2021 and will consider a range of potential treatment options — for example, excavating contaminated soils, water treatment, and infrastructure upgrades,” the spokesperson said.

“Defence will continue to engage with the Wreck Bay Aboriginal Community Council (WBACC) throughout remediation planning.”

In December 2020, Defence completed an ecological risk assessment detailing the potential exposure risks to flora and fauna in the area.

It found that PFAS was primarily moving off Defence land through groundwater and surface water into Jervis Bay Territory creeks.

“Precautionary advice has been provided to the community advising that Mary Creek is closed to human use, and that collecting and eating seafood from Summer Cloud Creek, Captains Lagoon, and Flat Rock Creek should be avoided,” the spokesperson said.

“For the remainder of the investigation area, the Defence investigation did not identify any elevated PFAS exposure risks.”

To date, the Commonwealth has agreed to pay out more than $200 million in compensation to communities affected by PFAS contamination.