The Federal government is on notice that dragging its feet on decisions under the Aboriginal and Torres Strait Heritage Protection Act 1984 is unacceptable. This will be relevant to recent high-profile applications such as Yagara Magandjin Aboriginal Corporation’s application to protect Victoria Park/Barrambin from Olympics development.
The Federal cultural heritage regime has always been extremely slow moving. But in a new decision, the Federal Court has said that a three-and-a-half-year delay is unreasonable.
Two Traditional Owners of Murujuga (Burrup Peninsula) applied on 9 February 2022 for protection under s 10 of the Aboriginal and Torres Strait Heritage Protection Act 1984 (Cth). The area is part of the Dampier Archipelago in the Pilbara region and contains one of the densest concentrations of rock engravings in Australia. The applicants sought protection from injury and desecration arising from future and current natural gas extraction and other industrial developments.
While the Department’s evidence showed their elaborate processes of engaging experts, consulting with numerous stakeholders, briefing the Minister and liaising with the Western Australian government, there were also two 10-month periods where the Court found ‘apparent inactivity’.
It was common ground among the parties that the Minister has a duty to decide an application. However, as Justice Stewart noted, ‘It is hard to imagine that it might be reasonable for the Executive to take more than three years to make a decision that it is under a duty to make pursuant to legislation passed by the Parliament (which is itself subject to a maximum three-year lifespan).’
Justice Stewart found that, ‘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.’
As the Department gave evidence that the Minister’s decision is expected within weeks, the Court declined to make a mandatory order. However, the applicant has liberty to apply for further relief after 12 September 2025 if the Minister has not made a decision by that date.
The Federal Court’s decision is here:
Cooper v Minister for Environment and Water [2025] FCA 1009
The SBS article also has a useful summary: