Cooper v Minister for Environment and Water

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FEDERAL COURT OF AUSTRALIA

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

File number: NSD 808 of 2025
Judgment of: STEWART J
Date of judgment: 25 August 2025
Catchwords:

ADMINISTRATIVE LAW – application for writ of mandamus or equivalent order under Administrative Decisions (Judicial Review) Act 1977 (Cth) – where applicant made application for declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in February 2022 in relation to Murujuga (Burrup Peninsula) – where Murujuga contains substantial rock engravings and stone arrangements said to be under threat of injury and desecration from industrial use of the land in the energy and resources industry – where no decision made on the application after three and a half years – whether delay unreasonable in all of the circumstances – whether relief should be granted – nature of appropriate orders to be made where decision is likely to be shortly made

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – application under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for a declaration to protect a significant Aboriginal area from a threat of injury or desecration – statutory objects and scheme – whether decision on the application made within a reasonable time
Legislation:

Constitution, s 28

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 4, 9, 10, 11, 13, 14, 16, 22, 23

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 7(1), 16(3)

Judiciary Act 1903 (Cth), s 39B

Aboriginal Cultural Heritage Act 2021 (WA)

Aboriginal Heritage Act 1972 (WA)
Cases cited:

AFX17 v Minister for Home Affairs [2020] FCA 807

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424

ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372

Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1

Australian Building and Construction Commissioner [2022] HCA 13; 274 CLR 450

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Chapman v Luminis (No 4) [2001] FCA 1106; 123 FCR 62

Cooper v National Offshore Petroleum Safety and Environmental Management Authority [2023] FCA 1112

Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; 279 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506

Onus v Minister for the Environment [2020] FCA 1807

Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1

Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 282 FCR 580

Plaintiff S279/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179

Thornton v Repatriation Commission [1981] FCA 71; 35 ALR 485

Tickner v Bropho [1993] FCA 306; 40 FCR 183

Vetter v Lake Macquarie City Council

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Details
Case
[2025] FCA 1009
Decision Date

CaseChat Overview and Summary

In the matter of Cooper v Minister for Environment and Water, the applicant, Ms Cooper, sought judicial review of the Minister's handling of her application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Ms Cooper's application, submitted in February 2022, pertained to the protection of the Murujuga (Burrup Peninsula), an area rich in Aboriginal rock engravings and stone arrangements threatened by industrial activities. The core of the dispute centred on the unreasonable delay by the Minister in making a decision on Ms Cooper's application over three and a half years. The court was tasked with determining whether the delay was unreasonable and whether any form of relief should be granted, particularly given that a decision appeared imminent.

The legal issues revolved around the statutory obligations under section 10 of the Act, the principles of administrative law concerning unreasonable delay, and the appropriate form of judicial relief. The court had to assess whether the Minister's prolonged inaction was justified and whether the delay was unreasonable in the given circumstances. Additionally, the court considered the nature and scope of any relief that might be appropriate, given that a decision on the application seemed likely to be made soon.

The court found that the delay in making a decision on Ms Cooper's application was unreasonable. The Minister's explanation for the delay was deemed inadequate, lacking specific reasons that would justify such a prolonged period without a decision. The court highlighted that despite the Department's detailed account of the internal processes, there was no convincing explanation for the extended delay. The court concluded that the delay was a result of oversight and neglect rather than any unforeseen circumstances or competing demands that could have reasonably prolonged the decision-making process. However, the court decided against granting an order compelling the Minister to make a decision within a specified time, noting that the Department appeared to be progressing the decision-making process more purposefully and resolutely following the proceedings. The court granted the applicant leave to apply for further relief if the Minister had not determined the application by a specified future date.

In summary, the court acknowledged the unreasonable delay but refrained from issuing a mandatory order, instead allowing the applicant to seek further relief if necessary, pending the Minister's decision. The court scheduled a case management conference to review the situation and required the respondent to inform the court once the decision was made.

Orders

Orders of the court

1. The applicant have liberty to apply after 12 September 2025 for further relief in the event that the respondent has not by that date determined the applicant’s application pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) made on 9 February 2022.

2. The proceeding be listed for case management on 19 September 2025.

3. The respondent advise the Court when the determination referred to in order 1 has been made.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Minister relied on two affidavits by Ms Michelle Dumazel, the Head of the Heritage Division of the Department. Ms Dumazel essentially documents the process of dealing with the s 10 application within the Department leading to a recommendation to the Minister. Ms Dumazel was not cross-examined. The Minister also relied an affidavit, deposed to the day before the hearing, of a solicitor acting for the Minister. Exhibited to that affidavit is the covering submission of a recommendation to the Minister which was signed by the Minister the day before the hearing, and emails to interested parties later that day seeking further submissions from them. I will return to the details of those matters.The material facts The Department has different divisions. One of those is the Heritage Division. Within the Heritage Division is the First Nations Heritage Protection Branch. That branch is primarily responsible for processing applications under the Act. Between May 2023 and the present, the number of staff in the branch has fluctuated between 11 and 20. As mentioned, the s 10 application was made on 9 February 2022. At the same time, Ms Cooper and Ms Alec lodged a s 9 application seeking an emergency declaration to protect a specified area from “serious and immediate threat of injury or desecration”. The application sought to detect petroglyphs within the Perdaman urea plant development footprint. The application was on the basis that it was expected that Perdaman would remove the petroglyphs “imminently”. Between 22 February and 31 March 2022, the Department dealt principally with the s 9 application. It was refused by the then Minister for the Environment, the Hon Sussan Ley MP, on 31 March 2022. That was on the basis that Perdaman had undertaken not to remove the subject petroglyphs within 60 days thereby placing the perceived threat beyond the maximum possible operative period of a s 9 declaration. Other than initial letters by the then Minister to the Western Australian Ministers for Aboriginal Affairs and the Environment seeking submissions on the ss 9 and 10 applications, nothing appears to have been done by the Department in relation to the s 10 application until June 2022. In the meanwhile, there was a change of government on 21 May 2022 and a new Minister, the Hon Tanya Plibersek MP, with effect from 1 June 2022. The result is that nothing meaningful was done on the s 10 application for nearly four months. On 6 June 2022, Ms Cooper made a further application under s 9 seeking an emergency declaration in relation to petroglyph features within the Perdaman works footprint on the Burrup Peninsula. That was dealt with by the Department between then and 22 August 2022 when it was refused by the Minister. Although the Minister was satisfied that the sites in respect of which protection was sought are of particular significance in accordance with Aboriginal tradition, the petroglyphs were not under threat of injury or desecration because the proposal was to appropriately remove and conserve them prior to relevant construction being undertaken.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a further example, as detailed above, at several places Ms Dumazel states that she and officers of the Department were considering or reviewing the relevant documents. I accept that they were, but in the periods already dealt with there is no explanation of why so much time was taken or required for such review, or what that review involved. Bald and generalised statements applicable over long periods of time that documents were being “reviewed” or “considered” are relatively meaningless. The ability to give a proper and convincing explanation of what was actually being done during those periods of time lies entirely with the Department, not the applicant.Conclusion on delay I consider that the delay in the Minister making a decision in this case is unreasonable in the legal sense, and it has not been adequately explained. It is perverse that the decision should have taken as long as it has; no considered reason has been given for the delay. The delay is the consequence of oversight and neglect. Those conclusions are not based on criticisms of the individuals in the Department 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. It is not said, for example, that some third party over whom the Department has no control caused significant time to be lost. It is not said that the competing demands on the Department made it impossible, or impractical, for it to progress matters to a decision more quickly. It is not said that some key decision-maker was ill or incapacitated. In short, the Department has not progressed the decision-making process with the purposefulness and resoluteness that is required.Relief As mentioned, Ms Cooper seeks an order requiring the Minister to make the decision within a specified time. As a matter of discretion, I am not satisfied that such an order should be made. That is principally for two reasons. First, I am satisfied on the evidence that despite the long delays in the past as a consequence of oversight and neglect in the past, the Department is now progressing the decision-making process to finality with the degree of purposefulness that it deserves. There is a resoluteness to what they are doing, and they are doing it to identified timeframes. It appears that the fact of this proceeding is a major driver of that purposefulness, and so it should be in the light of the delay in the past.

Ratio Decidendi

Legal Principle Established

Also within Pt II, s 10, which is at the heart of the case, is in the following terms:10 Other declarations in relation to areas (1) Where the Minister:(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;(b) is satisfied:(i) that the area is a significant Aboriginal area; and (ii) that it is under threat of injury or desecration;(c)has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and (d) has considered such other matters as he or she thinks relevant;he or she may, by legislative instrument, make a declaration in relation to the area.(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.(3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:(i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;(ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and(iii) specifying an address to which such representations may be furnished; and (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:(a) the particular significance of the area to Aboriginals;(b) the nature and extent of the threat of injury to, or desecration of, the area;(c) the extent of the area that should be protected;(d) the prohibitions and restrictions to be made with respect to the area;(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);(f) the duration of any declaration;(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;(h) such other matters (if any) as are prescribed. Pursuant to s 3(2)(a), an area is “injured or desecrated” if (i) it is used or treated in a manner inconsistent with Aboriginal tradition; (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition. An area is “under threat” of injury or desecration if it is, or is likely to be, injured or desecrated: s 3(3).