High Court rules Parks Australia criminally liable for alleged sacred site damage at Kakadu's Gunlom Falls

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

Traditional owners and custodians have welcomed a High Court decision finding Parks Australia can be held criminally liable for allegedly violating a sacred site in Kakadu National Park, saying it will set a precedent for future cases.

The ruling marks a major win for sacred sites watchdog the Aboriginal Areas Protection Authority (AAPA) in a long-running Northern Territory case centred on allegations Parks Australia damaged a sacred men’s site at Gunlom Falls during construction of a new walking track in 2019.

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

In 2022, the NT Supreme Court found Parks Australia was immune from the NT Sacred Sites Act because Parks Australia was a Commonwealth agency.

But the High Court on Wednesday upheld an appeal by AAPA, dismissing the earlier 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]”.

“If the [director of national parks] had the immunity from criminal liability that it asserts then it could knowingly carry out work on a sacred site without a certificate and without incurring criminal liability,” the judgement read.

“It could knowingly desecrate a sacred site without incurring criminal liability.

“The Legislative Assembly of the Northern Territory should not be taken to have intended in the Sacred Sites Act to carve out such an immunity from criminal liability for the [director of national parks].”

The unanimous decision means AAPA was within its rights to charge Parks Australia over walkway works.

The sacred sites watchdog will now head back the NT Local Court and prosecute its original case against Parks, where it will be seeking penalties up to a maximum of a $350,000 fine.

An AAPA spokesperson said the Park Australia’s director of national parks was being prosecuted as a body corporate, not as an individual.

‘A proud day’: Traditional owners, custodians welcome ruling

In a press conference following the decision, AAPA acting chief executive Shannon Tchia said the outcome was a hard-fought victory for Kakadu’s traditional owners and custodians.

She said Parks had “ignored” a well-established process for carrying out works on sacred sites and had tried but failed to argue they were “above the law”.

“The territory’s sacred site protections have been tested and they are strong,” Ms Tchia said.

AAPA lawyer Michael McCarthy said the High Court’s ruling set a precedent for future cases.

“This establishes that the sacred sites laws that are in place in the Northern Territory are the strongest in the country,” he said.

“There is almost no one [the sacred sites laws] will not reach and, going forward, the [director of national parks], in particular in both Kakadu and Uluru, will need to follow the processes that have been put in place.”

Bolmo clan member Joseph Markham acknowledged that many people had passed away since the sacred site was allegedly damaged in 2019, and said they would have been “overjoyed” at the High Court decision.

“It’s a proud day for all of us,” he said.

“We’ve continued to keep strong in our culture and we carry it around for them and ourselves and the kids, next generation as well.”

He said he wanted to welcome visitors back to Gunlom Falls, but that wouldn’t happen until the director of national parks was prosecuted in the local court.

“We’re looking forward to finally getting open Gunlom again and bringing people back to experience that special part of Australia,” he said.

“We want to share it, but we need the [Local Court] decision first.”

Federal Environment and Water Minister Tanya Plibersek, whose portfolio Parks Australia falls under, said the questions raised by the High Court decision “concerned broader constitutional and legal issues than the particular facts relating to Gunlom Falls”.

“The Government will consider the decision of the High Court and its broader implications,” she said.

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.

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.