decision

Cooper v Minister for Environment and Water - decision

Litigation

Sabin

Sabin Litigation

Filing Year For Action

The case was brought by Raelene Cooper, a traditional custodian residing in Murujuga (Burrup Peninsula), in the Federal Court of Australia on May 22, 2025. Plaintiff alleged that the Minister for the Environment and Water breached its duty by causing an unreasonable delay in determining her application. When the case was filed, almost three and a half years had passed since Ms. Cooper, along with another traditional custodian, Josie Alec, had applied for a declaration pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (hereinafter the "Act") §10. In the application, that was filed on February 2, 2022, Ms. Cooper and Ms. Alec sought protection of Murujuga from injury and desecration, arising from natural gas extraction by Woodside Energy Group Ltd, ammonia and hydrogen production by Yara Australia Pty Ltd and related companies, and a proposed urea plant development by Perdaman Chemicals and Fertilisers Pty Ltd.

Justice Stewart, on August 25, 2025, found that there was an unreasonable delay and granted the applicant the liberty to apply for further relief in the event that the ministry has not determined by September 12, 2025, the application made by Ms. Cooper and Ms. Alec. In reaching the conclusion, the court explained that while there is no express provision specifying a certain time limit in deciding on an application under §10, the section is subject to an implied condition of reasonable time. The court explained that while the applicant originally carries the burden of proof to show a delay that calls for explanation, once this is established, the minister carries the burden to make the explanation. The justice stated that "[t]he point is that the mere length of time to make the decision calls for an explanation of why it has taken so long," and that even "[t]he fact of regular and timely steps being taken along the way – which is not this case . . . – is not an explanation of why so much time was taken." Based on the facts, the court concluded that there was an unreasonable delay with no adequate explanation.

Justice Stewart noted that the decision-making process is moving forward purposefully due to the pressure of this proceeding, and that a rigid court-ordered deadline might interfere with proper administrative decision-making if unforeseen issues arise. Therefore, following the approach in AFX17 v Minister for Home Affairs [2020] FCA 807, the applicant is given liberty to apply for further orders if the decision is not made soon.