O¯ hakea residents ‘should be ready to fight’
For O¯ hakea residents, 2018 has been a year of uncertainty. Unbeknown to those residents living adjacent to the O¯ hakea airbase, a contaminant had been leaching off the New Zealand Defence Force base for a generation. The Defence Force had known about contamination from chemical compounds known as PFAS on its base since 2015. However, the public was not notified of the contamination issue until late 2017.
In early 2018, O¯ hakea residents were greeted by Defence Force staff taking superficial water samples on various locations across their properties. The resulting findings of PFAS contamination on adjacent properties came as a complete surprise to those residents.
Like the New Zealand Defence Force, the Australian Defence Force has been dealing with a similar issue across multiple sites. However, the differences between the Australian and New Zealand response could not be more stark. In Australia, a comprehensive testing regime has been embarked upon by the Australian Defence Force. Those testing results were publicly available on a website with dedicated information about the PFAS contamination issue (defence.gov.au/environment/pfas/).
In contrast, the NZ Defence Force has taken a shambolic piecemeal approach to testing. The Defence Force first undertook superficial testing of water only. After severe criticism, it has now undertaken testing of some soil, and other organic material. All testing results produced by the Defence Force are confidential. The only public access to those records have been via Official Information Act requests.
This means that the testing has been sheltered from criticism. The Defence Force is not using the TOPA test (being the most reliable and up-to-date methodology). The Government’s response to the PFAS contamination issue is emblematic of a corporation limiting its liability.
What is known, through the actions taken in Australia, is that Pfas-contaminated land suffers diminution in value. Put simply, landowners do not want to take the risk of living on Pfascontaminated land.
The landowners need to engage in a process to address the diminution in value of their land. The ‘‘wait and see’’ approach currently adopted by O¯ hakea residents will not work. The Government will not meet its obligations without threat or commencement of legal action. The contamination issue is real. Pretending that the issue will go away or hoping that the Government will honour its obligations and address the diminution in value of land is unrealistic.
The New Zealand Defence Force will continue to undertake substandard testing in secret and the Government will continue to absolve itself of responsibility. Residents need to take action. Residents need only look to Christchurch and the saga of the Christchurch earthquakes to see that compensation does not come without a fight.
O¯ hakea residents should be ready to fight. For O¯ hakea residents, 2019 will be the year of class actions. O¯ hakea residents need to join together to push back against the Defence Force to obtain rightful compensation.
Tim Gunn is a solicitor for Shine Lawyers New Zealand. The firm has called for more comprehensive PFAS testing and its Australian counterpart is involved in class actions in Australia.