FEDERAL COURT OF AUSTRALIA

Cooper v Minister for Environment and Water [2025] FCA 1009

Summary

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the reasons for judgment and orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

Murujuga, also known as Burrup Peninsula, is part of the Dampier Archipelago in the Pilbara region of Western Australia. The area contains one of the densest concentrations of rock engravings in Australia as well as stone arrangements and sacred sites which are exceptional by Australian standards. The applicant, Ms Raelene Cooper, is a traditional custodian of Murujuga.

On 9 February 2022, Ms Cooper, together with another traditional custodian, Ms Josie Alec, applied in writing to the Minister for the Environment and Water for a declaration pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) seeking the protection of Murujuga from injury and desecration, primarily arising from existing and future natural gas extraction by Woodside Energy Group Ltd, a proposed urea plant development by Perdaman Chemicals and Fertilisers Pty Ltd, and existing and future ammonia and hydrogen production by Yara Australia Pty Ltd and related companies. The injury and desecration are said in the application to relate to, among other things, the removal of sacred sites and rock engravings, degradation of rock engravings from industrial emissions and chemical discharge, inappropriate location of industrial developments, degradation of cultural heritage values from visual and noise pollution, loss of amenity and lighting impacts and restricting access to sacred sites.

More than three and a half years later, the Minister has not yet determined Ms Cooper’s s 10 application. Ms Cooper commenced this proceeding on 22 May 2025 seeking a writ of mandamus requiring the Minister to make a decision on her s 10 application. On account of recent developments, she now seeks an order that the decision be made by 12 September 2025.

There is a positive duty under the relevant provision for the Minister to make a decision, and to do so within a reasonable time. The delay in this case is unreasonable in the legal sense, and it has not been adequately explained. Those conclusions are not based on criticisms of the individuals in the Department of Climate Change, Energy, the Environment and Water directed at showing that they were too slow, or took steps that another person might consider were unnecessary. The process as a whole was not progressed at the pace that the standard of reasonableness in the relevant context and in all the circumstances required; long periods of relative inactivity with little to no progress occurred.

Looked at differently, the point is that more than three and a half years for a decision on the s 10 application is, on the face of it, unreasonably long. That cast a burden on the respondent to explain why the decision has taken so long. Setting out the various steps that were taken merely shows what has been done; it does not explain why those particular steps took so long, let alone why the whole process has taken so long. There is no adequate explanation for the delay. It is not said that there was some extraordinary or unforeseen event that delayed matters. The fact of regular and timely steps being taken along the way, even if that had been the case, is not an explanation of why so much time was taken; regular activity that does not purposefully advance the process towards a determination is not on its own an explanation for delay.

However, it is likely that there will be a decision very shortly, probably within the next few weeks, and there is currently an appropriate level of commitment and determination to progress the application to a decision within that time-frame. For that reason, I accept that there is little utility in ordering the Minister to make a decision by a particular date, and there are some dangers in doing so. Consequently, in the exercise of my discretion, I will not make an order of that nature, but I will give Ms Cooper the liberty to apply for further relief if the decision has not been made by 12 September 2025.

Given the finding of unreasonable delay, and because the fact of this proceeding has led to the Minister’s decision now being imminent, my preliminary view is that the respondent should pay Ms Cooper’s costs of the proceeding. However, I cannot determine the question of costs until the Minister’s decision has been made and I have received the parties’ submissions on costs.

STEWART J

25 August 2025