JUSTICE Michael Lee has been appointed to hear the Wreck Bay Aboriginal community's class action against the Department for Defence over contamination from the historic use of toxic firefighting foam.
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The matter has been listed for the Federal Court in Sydney next Friday, February 12.
Shine Lawyers filed the action on behalf of the Wreck Bay Aboriginal Community on NSW's South Coast, claiming the loss in property value, inconvenience, stress and vexation and cultural loss.
It is the fourth PFAS class action filed against the Commonwealth by the company.
Justice Lee is the federal court judge who has heard the other PFAS class matters.
EARLIER:
The Wreck Bay Aboriginal community at Jervis Bay has launched a class action against the Department for Defence over contamination from the historic use of toxic firefighting foam.
The substance, known as PFAS, leached into the soil and waterways, damaging culturally significant sites in Wreck Bay, negatively impacting the value of the land.
PFAS - per- and pol- fluoroalkyl substances, are a group of chemicals that include perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA) and perfluorohexane sulfonate (PFHxS), which were historically used by defence in their firefighting foams and have been discovered at numerous defence and other locations around the country. .
Shine Lawyers has filed the action in the Federal Court on behalf of the Wreck Bay Aboriginal Community, claiming the loss in property value, inconvenience, stress and vexation and cultural loss.
"Our claim will allege that the Commonwealth negligently allowed contaminants within the fire-fighting foam to escape from the HMAS Creswell and the Jervis Bay Range Facility bases," said Class Actions Practice Leader Joshua Aylward.
"That has considerably impacted the value of the surrounding land, and adversely affected the community's connection to country."
We can no longer go and hunt and gather and can't teach our younger generation coming through about their culture. Things I learnt as a kid.
- James Williams
Shine Lawyers lodged the claim with the Federal Court on Tuesday night. It is the fourth PFAS class action filed against the Commonwealth by the company.
"The people of Wreck Bay have been living in the South Coast region since before British settlement and as a result of this contamination, locals fear that the next generation will lose a spiritual connection to the water and land, that has been cultivated there for hundreds of years," Mr Aylward said.
"They regard the inland waters, rivers, wetlands and sea as something intimately attached to their homes and properties."
Hundreds of residents from Wreck Bay and neighbouring villages have joined the action, which is being funded by Shine Lawyers.
The Australian Defence Force started a detailed site investigation at HMAS Creswell and Jervis Bay Range Facility in March 2017.
Results detected PFAS in surface water, groundwater and sediment around the base.
Mr Aylward said the report found widespread PFAS contamination in groundwater both on and off-base, exceeding health-based recommendations for drinking water.
Precautionary advice was put out to the community advising that Mary Creek was closed to human use, and that collecting and eating seafood from Summer Cloud Creek, Captains Lagoon, and Flat Rock Creek should be avoided.
IN OTHER NEWS:
Defence erected signs warning against fishing from waterways in the area.
Those moves greatly impacted and virtually bought to an end the traditional Aboriginal practices of hunting and gathering that have existed inside Jervis Bay Territory for thousands of years.
James Williams, who has lived in Wreck Bay on and off for 49 years, has given up fulltime employment to pursue this class action says the community "can no longer go and hunt and gather and can't teach its younger generation coming through about its culture".
"Things I learnt as a kid," he said.
"I've put everything on hold to make sure that my community and I, see justice."
He is also currently his father Jimmy's full time carer.
Jimmy, who is suffering variety of illnesses, his family believes are connected to the PFAS contamination, at a previous community meeting even offered himself up as a "human guinea pig" to be tested.
James is also fathering eight children with his partner Kulani (four of his own), and he mourns the fact that these children, will never know the land as intimately as he has, over almost half a century.
"You have to take into consideration our cultural background and how we connect to the land, no money will compensate us for the loss of this spiritual connection," he said.
You have to take into consideration our cultural background and how we connect to the land, no money will compensate us for the loss of this spiritual connection.
- James Williams
"We look at the land like it's our mother and you know everyone has great respect for their mother. We can't just pack up and move to another area and replace her. She is sacred."
He said the history within Booderee National Park goes back thousands of years, before any white man came here.
"When your identity is taken away from you, you are nothing. You have nothing left," he said.
"People come to our land and call it God's country because it's so beautiful. The government has just crucified our country.
"The land will give you back what you give it. You have to give it your respect and the government has poisoned it with PFAS instead."
In 2018, a Parliamentary Inquiry into PFAS contamination recommended that compensation be paid to people living on land contaminated by PFAS from defence sites.
"But the Wreck Bay community hasn't seen a dollar, and probably won't without legal intervention," Mr Aylward said.
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 Department of Defence is aware that Shine Lawyers have been engaged to act for parties in the Wreck Bay area but said "at this time, no formal legal proceedings have been served on the Commonwealth."
"It is open to any person or business that may have suffered loss or damage connected to a per- and poly-fluoroalkyl substances (PFAS)-related issue to deal directly with the Commonwealth," a Defence spokesperson said.
"Defence completed a detailed environmental investigation into the presence of PFAS on and in the vicinity of the Jervis Bay Range Facility in December 2020.
"All PFAS investigation reports have been published on the Defence PFAS website and the findings have been shared with the community.
"The investigation found that PFAS is primarily moving off Defence land through groundwater and surface water into Jervis Bay Territory creeks including Mary Creek, Summercloud Creek, Captains Lagoon and Flat Rock Creek.
"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. Signs have been erected along these waterways to notify users."
However, the spokesperson said for the remainder of the investigation area, the Defence investigation did not identify any elevated PFAS exposure risks associated with the local drinking water supply, eating home-grown produce (fruits, vegetables or eggs), or eating seafood from or swimming in Wreck Bay and Jervis Bay.
"Eating seafood and swimming in Wreck Bay and Jervis Bay was not found to present an elevated risk and is not subject to precautionary advice," the spokesperson said.
"The ACT Health Directorate has advised that the Jervis Bay Territory's water is safe to drink and residents of the Jervis Bay Territory can continue to use mains water for all purposes including drinking, washing and food preparation.
"Specific questions about the drinking water supply should be directed to the Jervis Bay Territory Administration."
At a community information session on December 3 last year Defence released the PFAS Management Area Plan (PMAP), covering the activities it would undertake to manage, monitor and reduce the risks of PFAS exposure in the Jervis Bay Territory.
Defence is now focusing on implementing the recommendations of the PMAP, including reducing further migration of PFAS from source areas; reducing the movement of PFAS through creeks, groundwater and sewers; continuing to follow precautionary advice that Mary Creek is closed to human use, and that collecting and eating seafood from Summercloud Creek, Captains Lagoon and Flat Rock Creek should be avoided, and monitoring the concentration and distribution of PFAS over the coming years.
"Defence has started planning for remediation at the Royal Australian Navy School of Survivability and Ship Safety (RANSSSS) facility with the aim of reducing the migration of PFAS into Mary Creek," the spokesperson said.
"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).
"Defence will continue to engage with the Wreck Bay Aboriginal Community Council (WBACC) throughout remediation planning."
Defence is also implementing an ongoing monitoring program and a PFAS groundwater treatment technology.
"Defence is engaging with relevant government agencies and industry experts to investigate and implement management strategies that target the specific conditions of the site to reduce PFAS exposure risks," the spokesperson said.
Community members who have questions about the investigation findings are encouraged to contact the dedicated investigation information line on 1800 987 618 or email JervisBay@ghd.com.
PFAS explained
PFAS are a class of harmful chemicals used by the Department of Defence and other agencies for around 40 years from the 1970s in firefighting foam. The chemical does not naturally break down, and is known to accumulate in the body, leading to high concentrations over time.
PFAS soil and groundwater contamination can lead to high levels of the chemical in drinking water, plants, animals and people.
While the health impacts of exposure to PFAS are still being researched, many PFAS experts have linked the toxin to various diseases, including cancer.