High Court hearing on Gunlom Falls appeal wraps up with decision expected next year

Traditional owners who launched an appeal over damage caused to a sacred site will now begin the anxious wait for a High Court decision.

Traditional owners who took their fight over destruction caused to a sacred Northern Territory site to the High Court will have to wait until the new year to learn the outcome.

The Aboriginal Areas Protection Authority had first taken the Director of National Parks to court over damage done to sacred sites at Gunlom Falls in Kakadu National Park in 2019, when a new walking track was built contrary to pre-approved plans.

The work was ordered by Parks Australia and carried out by an independent contractor, and custodians had approved plans in 2018 but during construction they noticed work had veered from those plans and the sacred site was now exposed to the public.

The falls’ top pools have been closed since.

In 2020, the AAPA charged the DNP with violating the territory’s Sacred Sites Act – the matter was referred on to the Supreme Court.

Although Parks Australia apologised and agreed to redirect the track, Parks Australia successfully argued before the full court of the NT Supreme Court that as a Commonwealth body, it was not bound by NT’s Sacred Sites Act.

In their reasoning, the Full Court found that under territory law, arms of the Commonwealth could not be criminally liable under the sacred sites law.

Gunlom Falls was a popular tourist destination within Kakadu National Park, but has been closed since the damage was caused in 2019.

In stating their case to the full bench of the High Court, Justin Gleeson SC, as counsel for AAPA, argued that the DNP was not a “body politic” but a “body corporate”.

The bench is being asked to consider overturning the precedent that statutory bodies are extensions of the government.

Mr Gleeson explained the DNP should not benefit from the immunities of the Executive Government, and put to the justices they must consider whether crown immunity could be extended to Commonwealth body corporates like the DNP.

He argued that it should not, and that the historical presumption that criminal laws do not apply to the Crown is outdated.

Counsel for the DNP on Wednesday argued that the director was an extension of the minister and the department, as it was subject to ministerial direction and had its finances and terms of employment controlled by the minister.

Ultimately, they argued the director was a Commonwealth agency, and should have the same legal status.

Traditional owners launched an appeal against the NT Supreme Court decision in the High Court, which is hearing the case this week. Picture: NCA Newswire/Gary Ramage

Earlier, Solicitor-General Stephen Donaghue KC had offered a plethora of examples of times statutory authorities and corporations, as arms of the Executive Government, had been treated as an extension of the Commonwealth.

He argued that precedent should continue, and the DNP as one such body should enjoy the same privileges offered to body politic, like being immune from criminal liability.

He called on the bench not to re-open the precedent-setting case from the 1940s on which the Supreme Court had made its decision, saying to do so would have wide ramifications.

If the High Court sides with the authority, it could set a new precedent in how statutory authorities are considered under territory law.

The hearing wrapped up before lunch on Wednesday, and the bench reserved its decision.

Custodians will have to wait for up to six months to find out whether they had been successful.

The optimism they shared ahead of the hearing was still being felt as the hearing concluded.

On Tuesday, AAPA deputy chair Valarie Martin said the outcome of the case was “very important” and that sacred sites needed to be protected for the benefit of everyone.

“(The) Commonwealth are saying they are above the law, but we say (they) must be held accountable at all costs.

“Each one of us, living across the NT as Aboriginal people, no matter who we are, where we are, which tribe – law and order counts in our cultural ways of living.”

Originally published as High Court hearing on Gunlom Falls appeal wraps up with decision expected next year