Clean-up battle not over as PFAS class action reaches settlement, top lawyer says

Three regional communities reach in-principle settlement of PFAS contamination class actions against the Australian government

Clean-up battle not over as PFAS class action reaches settlement, top lawyer says

The battle to rid Australian communities of PFAS (per- and poly-flouroalkyl substances) is not done, a top lawyer has said, as three regional communities have agreed to settle their long-running class actions against the Australian government over contamination of the toxic chemicals.

Residents of Williamtown in New South Wales, Oakey in Queensland, and Katherine in the Northern Territory have reached a confidential “in-principle” agreement to end three class actions in the Federal Court of Australia over PFAS contamination, both Dentons and Shine Lawyers have confirmed to Australasian Lawyer

Dentons, which recently notched a US$3bn win in Papua New Guinea, ran the Williamtown case that formally commenced in 2016. Shine Lawyers, which recently won the largest women’s health class action in Australian history, led in the actions for Oakey and Katherine, which were filed in 2017 and 2018.

All three class actions were backed by IMF Bentham, the global litigation funder that recently announced a change of name.

The three communities have been fighting for their claims for five years. The class actions alleged that the Department of Defence should be responsible for depressed land values and a decline in business outlook in towns near defence bases, where firefighting foams that contained PFAS were used until the early 2000s.

Senator Linda Reynolds, minister for defence, said that the parties are in the process of finalising detailed terms of the settlement, which will have to be approved by the Federal Court.

PFAS clean-up not over yet

“The announcement today that an in-principle agreement has been reached to settle these class actions against the Australian government does not mark an end to the battle for this ‘forever chemical’ to be cleaned up in Australia and for the Australian Government to take full accountability,” said Ben Allen, Dentons partner.

Some scientists have dubbed the compounds “forever chemicals” because they do not easily degrade and therefore linger longer in the environment.

Allen said that the government’s recent actions bode well for the fight to rid Australia of the compounds.

“The comments from the Australian government today when announcing the terms of settlement are encouraging. They show that the government will now take their responsibilities seriously and are committed to engaging with those impacted by PFAS contamination in Australia,” he said.

Five years too late

Oliver Gayner, investment manager and head of the Europe, Middle East and Asia office of IMF Bentham, said that it should not have taken this long for affected residents to get compensation.

“The senate twice recommended that communities be urgently compensated to allow people to move on with their lives. It should not have taken five years and tens of million dollars to resolve these issues, and compensation is only one part of the solutions needed to make communities safe from toxic ‘forever chemicals.’ But today’s settlement shows that, finally, their voice is being heard,” he said.

The sentiment was echoed by Cain Gorfine, class action member, who said that today’s settlement is in a sense “five years too late.”

“We shouldn’t have to sue our own government for basic justice. They underestimated local communities but left a dreadful emotional and physical toll that this contamination burden has placed on them,” Gorfine said.

He said that Dentons has been “flawless and relentless.” This type of action would cost a community tens of millions, which is why he said the community is thankful that IMF Bentham backed the unique and challenging legal action.

Gayner said that these are the Australians “who never wanted a fight but refused to back down when their government forced them into one.” IMF Bentham thanks the Williamtown, Oakey, and Katherine communities for “their courage in never stepping back in fighting for what’s right,” he said.

Living in limbo

Joshua Aylward, class actions practice leader at Shine Lawyers, said that the settlement is a relief to affected residents. He said that the agreement was reached overnight during formal negotiations between the parties.

“The people of Oakey and Katherine have been living in limbo for more than five years,” Aylward said. “We’re pleased to have achieved this outcome for these communities, which will help property owners to move forward with their lives.”

He said that the settlement “will go some way” in compensating affected residents financially for extensive property value losses and for the stress they have experienced.

Shine Lawyers said that the case was an exacting ordeal for their clients.

“Imagine moving into your dream home, where you plan to raise your family, only to discover that you’re potentially exposing your kids to toxic chemicals. This has been a protracted emotional and financial battle for many of our clients,” the firm said.

Total vindication

Allen said that the settlement is a “total vindication” for the residents of Williamtown and its surrounding communities, who he said refused to remain silent.

“The legal team at Dentons who worked so closely with the communities wish to acknowledge the tremendous resilience and courage of the residents. They were badly underestimated,” allen said. “Feeling that their concerns were not being heard by the polluter of their land, it was a group of dedicated community members on behalf of Williamtown and its surrounding communities who travelled to Sydney and engaged global law firm Dentons and litigation funder IMF/Omni to take on one of the first ever environmental class actions against the Australian Government.”

He said that Dentons was proud to have stood with the community, which spend considerable time understanding the issues in what was a very complex legal matter. Community members have become national experts in the dangers and risks of PFAS, he said.

Keep fighting

Gorfine, the Williamtown resident, said that other Australian communities still face their own PFAS contaminations.

“Our message to them today is simple – keep fighting,” he said.

He said that institutions that should protect Australians should take a trip to Williamtown, Oakey or Katherine.

“For all that we have seen the very best in people, from GP’s to farmers and families who have refused to be ignored, fobbed off or dismissed. And when no one would listen to them, regional and then national media did,” he said.

He said that the extent of Australia’s asbestos problem is yet to be fully understood, and communities are still battling PFAS exposure.

“So the great victory today is they now know that indifference is not a dam that can forever hold back a committed community that is fighting for what’s right,” he said.

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