The federal environment minister has taken an unreasonably long time to assess two Traditional Owners' application to protect Indigenous rock art near a gas plant, a judge says.
But Murray Watt won't be ordered by the Federal Court to make a decision concerning an an area of sacred sites and rock engravings in northwest Western Australia, despite a delay of more than three-and-a-half years.
Justice Angus Stewart told Mardathoonera woman Raelene Cooper, who brought the matter to the court, there was little utility in making the order, but the minister was likely to make a decision "very shortly".
"More than three-and-a-half years for a decision on the section 10 application is, on the face of it, unreasonably long," Justice Stewart told the Sydney courtroom on Monday.
"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 judge said there was "no adequate explanation for the delay".
"It is not said that there was some extraordinary or unforeseen event that delayed matters," he said.
Justice Stewart also said Ms Cooper could bring the matter back to court if the minister failed to make a decision by September 12, which was the date she had asked the court to set in her application.
The judge indicated the federal government should pay Ms Cooper's legal costs, although these won't be determined until after the minister makes a decision on the section 10 application.
In February 2022, Ms Cooper and Josie Alec applied for a declaration under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act to protect sites on the Burrup Peninsula from injury and desecration.
They alleged damage included the removal of sacred sites and rock engravings, the degradation of rock engravings from industrial emissions and chemical discharge, and the degradation of cultural heritage values from visual and noise pollution.
Woodside Energy's gas processing facilities and two fertiliser plants were said to be the cause of the harm in the application, Justice Stewart said in his judgment summary.
In May, Ms Cooper launched legal action to force Mr Watt to determine the section 10 application following the delay.
Ms Cooper claimed victory in the court battle but said she was heartbroken that many of the sites listed in the original section 10 application had been damaged or destroyed during the assessment delay.
"While the minister has sat on this application, important sites recommended for protection by the section 10 report have been destroyed," she said in a statement.
"This has echoes of Juukan Gorge," she added, referring to the 46,000-year-old rock shelters destroyed by Rio Tinto.
The Burrup Peninsula, which is about 27km long and also known as Murujuga, contains some of the world's oldest and largest petroglyphs.
Its rock art landscape was listed by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) as a heritage site in July.
The inscription recognises the First Nations cultural value of the more than one million engravings at the site, some of which are thought to be more than 50,000 years old.
The matter will return to the same court on September 19 for a case management hearing.
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