High Court rules director of national parks criminally liable for alleged sacred site violation at Kakadu's Gunlom Falls

Looking down from the top of Gunlom Falls in the Northern Territory. (ABC Open Contributor Heath Whiley)

The High Court has found Parks Australia’s director of national parks can be held criminally liable for allegedly violating a sacred site in Kakadu National Park.

The case concerns allegations that a sacred men’s site at Gunlom Falls was damaged by Parks Australia during construction of a new walking track in 2019 and the agency did not obtain an authority certificate from the NT’s sacred sites watchdog.

The certificates are a formalised way of establishing traditional owners have consented to the work.

AAPA filed charges against Parks Australia over the incident in 2020.

“The prosecution will allege that Parks Australia constructed a walking track on the sacred site located at Gunlom without an Authority Certificate and close to a ceremonial feature of the sacred site that is restricted according to Aboriginal tradition,” an AAPA spokesperson said at the time.

In 2022, the NT Supreme Court found the national parks director was immune from the NT Sacred Sites Act because it was a Commonwealth agency.

But the High Court on Wednesday upheld an appeal by AAPA, dismissing that finding of immunity.

“The High Court held that the [director of national parks] can be criminally liable for breach of s.34(1) of the Sacred Sites Act,” the summary judgement said.

The judges found that while there was a basis in case law for a presumption against criminal liability for a “body politic”, there was no such presumption for a “natural person or a body corporate, such as the [director of national parks]”.

The unanimous decision means AAPA was within its rights to charge the director of national parks over walkway works.

The offending walking track, which was designed to allow visitors to reach the top of the falls more safely, has already been moved to a different location in consultation with Jawoyn traditional owners.

But AAPA has continued to pursue the case to establish a precedent that the Commonwealth is not above the NT’s sacred site laws.

Unlike most of the national parks in the NT, which are managed by the NT government, Kakadu — along with Uluru — is managed by the Commonwealth in “joint management” with traditional owners.

Large parts of Kakadu are Aboriginal land that has been leased to the director of national parks.

Gunlom Falls is one of Kakadu’s most famous tourist destinations. It has been closed since 2019 while the dispute has unfolded.