AAPA takes legal fight over Kakadu’s Gunlom Falls walking track to High Court

A legal fight over a popular destination in Kakadu National Park is heading to the High Court in the nation’s capital. Read the latest from the court case.

Aboriginal Areas Protection Authority board member Chris Neade speaks to the media at Darwin airport on his way to Canberra on Sunday. Picture: Jason Walls

A legal battle over whether the federal government is liable for damage to sacred sites in the NT is headed for the High Court, with the case listed for two days of arguments from Tuesday.

It comes more than four years after the office of the Director of National Parks signed off on construction work on a walking track at Gunlom Falls in Kakadu National Park in March 2019.

Despite the area being a registered sacred site for the region’s Jawoyn people, no authority certificate under the Sacred Sites Act was obtained before excavation and construction work was completed.

The Aboriginal Areas Protection Agency then filed criminal charges against the DNP in the Darwin Local Court in June 2021.

The Gunlom plunge pool. Picture: Tourism NT/Jewels Lynch

At the time, incoming director Jody Swirepik said she would be pleading not guilty to the charge on the basis of Crown immunity at the request of then commonwealth Attorney-General Michaelia Cash.

“The matters before the court are now outside of my control while the applicability of the relevant offence to commonwealth bodies is being determined by the court,” she said.

“Today’s plea was necessary and in fact, the result of directions from the Attorney-General to allow the constitutional law issues to be addressed.

“It does not diminish my commitment to working with Kakadu’s traditional owners to protect sacred sites and preserve the natural and cultural heritage of Kakadu National Park now and into the future.”

In September last year, the Full Court of the NT Supreme Court ruled a presumption that legislation will not “impose criminal liability on the Crown without the clearest of indications” meant the DNP was immune from prosecution.

“The proposition that section 4(2) of the Sacred Sites Act is intended to impose criminal liability on the Territory Crown, and not on the executives of other polities, receives support from the legislative history and the extrinsic material,” the court held.

“The only available conclusion is that there was no intention to impose criminal liability on other polities in the federation.”

After appealing the ruling to the High Court, AAPA board member Chris Neade said on Sunday it was “very disappointing” the government had continued to claim Crown immunity, saying “nobody’s above the law”.

“You can’t have one law for one mob and a different law for another,” he said as he prepared to board a flight from Darwin to Canberra.

“It’s mainly about protecting our sacred sites and holding everybody to account, everyone should be accountable.”