The environment minister, Murray Watt, has been advised by his department to declare a protection order over part of the Burrup peninsula in Western Australia due to its significance as an Aboriginal site, a government affidavit filed in the federal court shows.
A Murujuga traditional custodian, Raelene Cooper, applied in 2022 to protect the area’s cultural heritage from nearby industrial activities, including Woodside’s planned extension of its North West Shelf processing plant.
Her court action sought an order that would force the federal government to make a decision in her application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection (ATSIHP) Act.
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On Monday afternoon, the court found the government’s delay in determining Cooper’s application was unreasonable and had not been adequately explained, according to a summary of the judgment.
However, because the minister had demonstrated an “appropriate level of commitment” to progressing the application and reaching a decision in coming weeks, the court did not order the government to make a decision by 12 September, as requested by Cooper.
Cooper has been given liberty to return to court for further relief if a decision is not made by 12 September and the government was ordered to pay her costs “given the finding of unreasonable delay, and because the fact of this proceeding has led to the Minister’s decision now being imminent”.
“After three and a half years of waiting for this process, I am relieved that the federal court has found the delays have been unreasonable,” Cooper said in a statement.
“I am also relieved to hear that the department has finally recommended that the minister makes a section 10 Declaration for protection of Murujuga.”
Cooper said she had sought further information from the federal environment department “to help understand the nature of the protections they are recommending, and which areas will be affected”.
“It is deeply regrettable, and breaks my heart to know that many of the sites I tried to protect with the section 10 application have already been damaged or destroyed while this process has been under way,” she said.
A government spokesperson said it recommended a draft decision for the site following a numerous rounds of consultation with interested parties.
“In order to better understand any unintended consequences or impacts of the potential declaration, the department is undertaking a round of consultation with affected parties on the proposal,” the spokesperson said. “This isn’t a final decision but a consultation step.”
“A draft decision doesn’t stop current industry from operating and it doesn’t mean future industry will be banned.
“The minister is committed to making a decision as promptly as possible without compromising the objects of the ATSIHP Act.”
Cooper filed the application for protection due to concern about the impact of industrial activities on the Murujuga cultural landscape, including its globally significant collection of rock art, which was placed on the world heritage list last month.
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A redacted version of an affidavit filed by the minister last week, and released by the court to Guardian Australia, shows that the environment department has recommended Watt make a section 10 declaration over part of the site.
A brief provided to the minister last week shows the department advised Watt he could be satisfied “the specified area is a significant Aboriginal area” for the purposes of section 10 of the act and “is under threat of injury or desecration”.
The proposed order “would contain prohibitions and restrictions for the protection and preservation of the proposed declared area from injury or desecration”, according to emails sent by the department last Tuesday to affected parties including Cooper and her legal team, Murujuga Aboriginal Corporation, the WA government, Woodside and the chemical companies Perdaman and Yara.
The area the proposed declaration would apply to and the associated “prohibitions and restrictions” have been redacted, meaning it is unclear whether and to what extent any declaration would affect industrial activities at the site.
Emails sent by the department show the government is seeking comments from the affected parties and has asked them to meet officials this week before Watt makes a final decision.
Cooper said she had met with the department earlier on Monday, with another meeting scheduled for this Thursday on Murujuga.
A Woodside spokesperson said section 10 declarations were a matter for the federal government and declined to comment. Watt announced in May he had given the company’s North West Shelf extension provisional approval but a final decision is yet to be made.