Legal Analysis and Critique- LAWS1009 Assessment Task 3

Case Analysis

Wreck Bay Aboriginal Community Council v Commonwealth of Australia

[2023] FCA 660

Cover Page
Legal Analysis and Critique- LAWS1009 Assessment Task 3

I. Introduction
The purpose of this essay is to critically analyse the decision of the Federal COurt of
Australia in the case of Wreck Bay Aboriginal Community Council v Commonwealth
of Australia1 and evaluate whether the settlement agreed to by all the parties was fair
and reasonable. The essay also analyses the annexed opinion of the court based on the
legal elements and the reasoning of the court. In this process, the essay provides an
explanation of the relevant theoretical perspectives considered by the court and
analyses the reasoning of the court in relation to the cultural and historical context of
the Australian legal system and the indigenous laws which helps to understand the
interaction between Australian laws and the rights of the indigenous people. Lastly,
the essay evaluates whether the settlement awarded in favour of the Wreck Bay
Aboriginal Community Council was fair and reasonable for all the stakeholders.

II. Background
The Commonwealth government of Australia reached a settlement agreement with the
Wreck Bay Aboriginal Community Council to pay a compensation of $22 million for
the damage done to the land and water bodies of the aboriginal community because of
the using fire fighthing foam known as aqueous film forming foam (AFFF) which
contains poly-fluorinated compound chemical known as PFAS which has adverse
impact on the environment and human health2. The aboriginal council claimed that the
use of such a harmful chemical damaged the lands of the Wreck Bay leaving them
incapable of being used for traditional and cultural purposes and also contaminated
the water bodies posing significant risks to human health 3. After the settlement was
reached between the Commonwealth government and the aboriginal community
council, the Federal Court determined the settlement was fair and reasonable
considering all the circumstances. To be specfic, the decision of the court shows that
the Commonwealth breached the duty of care owed to the indigenous people and why
it is important for the commonwealth government to protect the rights of the
indigenous people after years of discrimination and unequal treatment.

1
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [2023] FCA 660
2
Sean Tarek Goodwin and Kelly Fuller, ‘Commonwealth reaches $22 million settlement with Wreck
Bay Aboriginal community over PFAS contamination’, (May 2023),
https://www.abc.net.au/news/2023-05-25/wreck-bay-pfas-compensation/102390538
3
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [NSD 70 of 2021]
Legal Analysis and Critique- LAWS1009 Assessment Task 3

III. Statement of Claims

The Wreck Bay Aboriginal Community Council brought several claims against the
Commonwealth government. First, they claimed that the right of the aboriginal people
to use and enjoy the land they own and occupy has been hampered by the AFFF
disposal at the fire fighter facility. They also claimed that the Commonwealth
breached its duty of care to the plaintiffs and other class action participants by using
and disposing of AFFF. Further, it was claimed that the Commonwealth failed in its
obligation to notify the claimants and other members of the usage and dumping of
AFFF into water bodies, which contaminated the soil and reduced the quality of the
water. Lastly, it was claimed that he use and disposal of AFFF containing harmful
chemical led to the violation of section 28 of the Environmental Protection and
Biodiversity Conservation Act 1999 (EPBC) since the government did not take
sufficient action to prevent the harmful effects even after being reasonably aware of
the adverse effects of AFFF4.

Based on all these claims, the plaintiffs requested compensation for the level of
property losses and how they impaired the enjoyment of the land in relation to all of
the aforementioned concerns. This may be attributed to the fact that the usage and
dumping of AFFF into Wreck Bay Land areas degraded the soil, which in turn had an
impact on the land's traditional and cultural uses. It has also been argued that the
negative effects of AFFF disposal will negatively affect future generations' access to
and enjoyment of their land. Finally, this case did not consider any personal injury
sustained by the any stakeholder and hence this settlement does not include those
personal claims and those stakeholders are entitled to bring personal claims apart from
this class action.

4
Environmental Protection and Biodiversity Conservation Act 1999 (No.91) s.28
Legal Analysis and Critique- LAWS1009 Assessment Task 3

IV. Theoretical Perspectives of Justice Lee

From the reasoning of the court and the opinion annexed to the decision of the court,
it can be seen that Justice Lee took the approach of positivism and equity. The court
rationalised its decision based on past decisions and precedents on indigenous matters
in relation to land and climate rights. For example, the court evaluated that the
Commonwealth government owed a duty of care to the aboriginal people because the
damage and harm was foreseeable and the Commonwealth government is in a
position to reasonably foresee the possibility of damage and take measures to mitigate
the harm inflicted. The damage caused to the land and water can be scientifically
calculated and is a direct violation of the environment protection legislation.
However, before touching upon the legislative violations, it is important to understand
how the Commonwealth government was negligent in its conduct by allowing the fire
fighting training to use and dispose harmful chemical into the environment and not
making the owners and occupiers of the land about the adverse impact it can have on
them.

With regard to the statement of claim presented by the applicant, the court gave its
reasoning for a number of legal principles. First, the court considered that the
Commonwealth government was negligent in its conduct by failing to prevent a
foreseeable harm. Justice Lee referred to a number of decision to justify that the
settlement decided in favour of the Aboriginal community was fair and reasonable.
For example, the case of Caltex Refineries (Qld) v Stavar 5 decided that when there is
not recognised duty of care, it must be determined through a close analysis of the
relationship between the parties as also affirmed by the decision of Electricity
Networks Corporation v Herridge Parties 6. The risk of harm mentioned in the
statement of claims clearly shows that the harm was foreseeable for a reasonable
person and also for a party who has expert and scientific evidence at hand. As per the
annexed opinion of the court, the Commonwealth should have known about the
harmful effects of AFFF on environment and human health based on which the
Commonwealth should have prevented the same. According to the decision of Wyong
Shire Council v Shirt, a reasonable person in the position of the Commonwealth

5
Caltex Refineries (Qld) v Stavar [2009] 75 NSWLR 649
6
Electricity Networks Corporation v Herridge Parties [2022] HCA 37 at 20
Legal Analysis and Critique- LAWS1009 Assessment Task 3

government would have taken all the necessary steps to prevent the disposal on land
and water bodies affecting the environment and human health.
In addition to the above legal element, it must also be noted that there was sufficient
factual causation between the damage caused and the failure of the Commonwealth to
comply with its duty of care. In negligence, it is necessary to show that the damage
caused was as a result of the breach of duty of care. Therefore, based on the above
explanation of the legal element and theoretical perspective, it can be said that the
Commonwealth owed a duty of care which was breached leading to damage caused to
the aboriginal people. Based on the statement of claims, it was also alleged that the
Commonwealth had the duty to warn the applicants and all the stakeholders about the
use of AFFF and the harmful effects of disposing AFFF. The soil suffered permanent
damage and the surrounding water bodies were contaminated by AFFF leading to
adverse effect on human health for the present as well as the future generations. The
Comonwealth had both statutory as well as common law duties toward the aboriginal
people who were adversly affected. As far as the environment protection legislation is
concerned, the court found that the Commonwealth violated section 28 of the EPBC
which makes the Commonwealth liable to pay compensation for the extent of
damages caused as per section 500(1) of the EPBC Act 7. All these led to the
degradation of soil quality decreasing the value of the land. The use of the land was
impaired which affected the entitlement of the aboriginal people to use the land for
agricultural and other traditional purposes.

V. Indigenous Human Rights and Australian Law Interaction

It is true that the indigenous people of Australia have been deprived of their rights for
many centuries and this led to the emergence of giving them constitutional
recognition which will ensure that the Commonwealth government safeguard their
interest and protect their rights. In the past, studies have suggested that the indigenous
people of Australia have certain land and environment rights that have not been
granted by the Australian government. This is the reason, common law had to step in
to recognise the perspective of the indigenous communities and to safeguard their
environmental interest8. Similar opinions can be seen from another past study where it
7
Environmental Protection and Biodiversity Conservation Act 1999 (No.91) s.500(1)
8
Peter Manus, ‘Indigenous people’s environmental rights: evolving common law perspectives in
Canada, Australia and the United States’, (2006) 33(1) Boston College Environmental Affairs Law
Legal Analysis and Critique- LAWS1009 Assessment Task 3

was suggested that the indigenous people lack redressal mechanism when it comes to
the violation of their environmental rights9. To be specific, as a result of the lengthy
history of institutionalised discrimination against them, the Aboriginal people had less
access to justice than the Australian white population 10. Most notably, the aboriginal
group frequently experienced terrible human rights violations when it came to climate
rights. Previous research has indicated that Australia's indigenous population is
susceptible to violations of their land rights due to their experiences of deprivation 11.
However, a number of High Court rulings have granted indigenous Australians some
rights over their land. Previous research has also demonstrated that Aboriginal people
have a shorter life expectancy because of the higher burden of sickness they impose,
which results in systemic disadvantages12. All these evidence show that there is an
emergence of safeguarding the interest of the entire aboriginal community of
Australia since they have limited access to justice and also limited recognition. The
aboriginal people are the First Nations people who have sovereign rights over the land
they own and occupy which help them to preserve their indigenous status and also
uphold their cultural practices. The Commonwealth being the ultimate authority of
governance must ensure that the indigenous traditions and cultures are protected along
with safeguarding their land and environment rights.

Even though the aboriginal community received institutional and judicial protection,
however, such protections did not guarantee the land and climate rights to the
indigenous people. For example, the Native Title Act of 1993 gave certain land rights
to the indigenous people but with limitations. Untill the landmark Mabo v Queensland
(no.2)13 case, the Australian judiciary was also reluctant in recognising the aboriginal
rights. The principle of equity and interpretivism led to the termination of terra nullius

Review 2.
9
Emily Gerrard, ‘Climate change and human rights: issues and opportunities for indigenous peoples’,
(2008) 31(3) UNSW Law Journal 941
10
Chris Cunneen, Fiona Allison and Melanie Schwartz, ‘Access to justice for Aboriginal People in the
Northern Territory’, (2014) 49(2) Australian Journal of Social Issues 219
11
Kent McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’, (2004) 42(2)
Osgoode Hall Law Journal 272.
12
Narelle Bedford, Tony McAvoy and Lindsey Stevenson-Graf, ‘First nations peoples, climate change,
human rights and legal rights’, (2021) 40(3) University of Queensland Law Journal 371.
13
Mabo v Queensland (no.2) (1992) 175 CLR 1
Legal Analysis and Critique- LAWS1009 Assessment Task 3

which gave the government the exclusive right to take over lands 14. Most importantly,
the exclusion of the indigenous people from policy making has also been recognised
by the Australian government in its report. It shows that most of the past government
policies did not consider indigenous rights and were discriminated against based on
being inferior race. However, with time the Australian legal system started to adopt
indigenous rights and laws in order to fit them into the sphere of Australian law
making policies15.

VI. Is the Settlement Fair and Reasonable?

Justice Lee at para 23 clearly mentioned that the settlement agreed to is fair and
reasonable considering all the circumstances of the case 16. This is because the
aboriginal community faced significant detriment because of the negligent conduct of
the Commonwealth and hence, the Commonwealth must pay compensation to the
aboriginal community to mitigate the harm caused. Even though the harm is
irreparable, but the aboriginal people are entitled to compensation for the potential
economic loss that the present generation as well as the future generations will face.

VII. Conclusion
From all the above discussion and reference to evidence, it can be concluded by
saying that the Federal Court of Australia was not reluctant in upholding the
indigenous rights and made sure that such a grave violation of human rights is
compensated by the government. The negligent conduct of the government created
nuisance since it affected the right to use and enjoy the land and also take sufficient
measures to prevent foreseeable harm. All these factors made the settlement fair and
reasonable.
Bibliography

Cases

14
Kerrin Schillhorn, ‘The Status and Rights of Indigenous Peoples in Australia’, (1999) 59 Heidelberg
Journal of International Law 452.
15
Michelle Sanson and Thalia Anthony, ‘Connecting with law’, (2019) Oxford University Press (4 th
ed.).
16
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [2023] FCA 660 at 23.
Legal Analysis and Critique- LAWS1009 Assessment Task 3

Caltex Refineries (Qld) v Stavar [2009] 75 NSWLR 649

Electricity Networks Corporation v Herridge Parties [2022] HCA 37
Mabo v Queensland (no.2) (1992) 175 CLR 1
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [2023]
FCA 660
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [NSD 70
of 2021]

Statutes
Environmental Protection and Biodiversity Conservation Act 1999 (No.91)

Journal Articles
Chris Cunneen, Fiona Allison and Melanie Schwartz, ‘Access to justice for
Aboriginal People in the Northern Territory’, (2014) 49(2) Australian Journal of
Social Issues 219

Emily Gerrard, ‘Climate change and human rights: issues and opportunities for
indigenous peoples’, (2008) 31(3) UNSW Law Journal 941

Kent McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and

Canada’, (2004) 42(2) Osgoode Hall Law Journal 272.

Kerrin Schillhorn, ‘The Status and Rights of Indigenous Peoples in Australia’, (1999)
59 Heidelberg Journal of International Law 452.

Narelle Bedford, Tony McAvoy and Lindsey Stevenson-Graf, ‘First nations peoples,
climate change, human rights and legal rights’, (2021) 40(3) University of Queensland
Law Journal 371.

Peter Manus, ‘Indigenous people’s environmental rights: evolving common law

perspectives in Canada, Australia and the United States’, (2006) 33(1) Boston College
Environmental Affairs Law Review 2.

Books
Legal Analysis and Critique- LAWS1009 Assessment Task 3

Michelle Sanson and Thalia Anthony, ‘Connecting with law’, (2019) Oxford
University Press (4th ed.).

Others
Sean Tarek Goodwin and Kelly Fuller, ‘Commonwealth reaches $22 million
settlement with Wreck Bay Aboriginal community over PFAS contamination’, (May
2023), https://www.abc.net.au/news/2023-05-25/wreck-bay-pfas-compensation/
102390538