Defence pays $22m settlement over cultural loss from poisoned river

The Department of Defence has agreed to pay $22 million to settle a class action after its base on the NSW South Coast sent a river of poisonous firefighting foam into the heart of an Aboriginal community, devastating their sacred connection to the land.

The historic settlement was reached on Thursday morning, just days before the Wreck Bay Aboriginal Community Council’s lawsuit over cultural loss and property damage – the first of its kind in Australia – was due to go to trial in the Federal Court.

Homes at the Indigenous community of Wreck Bay on the NSW South Coast.Credit: Rhett Wyman

Up to 1000 people are eligible to share in the funds and so far 700 community members have registered to participate.

It comes after a two-year investigation by the Herald this week revealed the startling loss of life in the community of 400 people and documented how the per- and poly-fluoroalkyl chemicals (PFAS) have jeopardised their spiritual connection to the land and waters of Wreck Bay, cultivated over thousands of years.

Justice Michael Lee noted that the recent publicity had achieved “great prominence” and it was important people in Wreck Bay understood the case did not have anything to do with the health difficulties they may have suffered.

The case had a “laser-like focus” on harm to their land and cultural practices, he noted.

“It’s not a claim relating to any degree of personal injury,” Lee said.

He stressed that the settlement would not stop community members from pursuing a lawsuit for personal injury if they believed there was a causal link between their illnesses and their exposure to PFAS.

In June, Justice Lee will consider whether the settlement sum is fair and reasonable to the group members before it can be approved.

There will be a further hearing to determine how the funds will be distributed to the community.

Administration and distribution costs will be taken from the $22 million, while Shine Lawyers is also seeking to deducted $5 million in legal costs. The firm’s barrister told the court that sum was less than its total spend on the case, but it was willing to forgo the rest of its fees.

Outside the court, Shine Lawyers joint head of class actions Craig Allsopp said it was a “groundbreaking” outcome for the traditional owners of the land.

“It’s a bittersweet victory,” he said.

“The Wreck Bay community has to grapple with the impacts of PFAS contamination for years to come.

“Importantly they’ve lost their connection to the country by reason of the contamination and monetary compensation will never be adequate to repair that kind of loss.”

Allsopp said his firm was actively looking at the possibility of pursuing a lawsuit on behalf of people claiming health effects from exposure to the chemicals, although that would be more challenging than the claim for property damages.

“Every community I’ve been in where there’s been PFAS contamination, the health issues and personal injury claims have been the top priority, so it’s been good to get some compensation for land value claims, but I believe in the years ahead the real fight will be in relation to the personal injury claims,” he said.

Allsopp said he was aware of the Australian government’s advice that the health effects of PFAS are “minimal” and “it has not been shown to cause disease”.

In Europe and the United States the chemicals are recognised as a human health hazard that may cause cancer, high cholesterol, liver damage, suppress the immune system and disrupt hormones at high levels of exposure.

“Our hope is the Australian advice will come up to match the advice that’s in the US and European jurisdictions,” Allsopp said.

The chemicals, better known as “forever chemicals” because they do not break down in the environment, were formerly the key ingredient in 3M’s firefighting foam which has contaminated dozens of sites across the country.

Health authorities advise that PFAS are expected to be found at low levels in the blood of all Australians due to their use in a range of household products.

Last week, the federal government agreed to pay $132.7 million to settle a class action launched by seven other communities also polluted by toxic firefighting foam used on Defence bases.

They included Richmond and Wagga Wagga in NSW, Wodonga in Victoria, Darwin in the Northern Territory, Bullsbrook in Western Australia, Townsville in Queensland and Edinburgh in South Australia.

After last week’s settlement Prime Minister Anthony Albanese became the first Australian leader to express concerns about the health effects of PFAS.

It followed the first class action to be settled in 2020, which saw $212.5 million paid out to residents of Katherine in the Northern Territory, Williamtown in NSW and Oakey on Queensland’s Darling Downs.

Shine Lawyers, who were representing the people of Wreck Bay, alleged the Commonwealth negligently allowed the toxins to escape from HMAS Creswell and the Jervis Bay Range Facility and leach into the community of Wreck Bay.

In a landmark decision last year, the United States EPA last year ruled there was no safe level of PFAS in drinking water, based on science showing they could suppress the immune response in children.

“Levels at which negative health effects could occur are much lower than previously understood,” the agency explained.

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