Traditional Kakadu owners take Gunlom Falls appeal to High Court

Four years after a sacred site was damaged, traditional owners have travelled to Canberra for their final fight.

Gunlom Falls has been closed to the public since illegal construction work was carried out on the site in 2019.

Traditional owners still reeling from damage caused to a sacred Northern Territory site are optimistic the High Court will take their side in their last ditch effort to hold Parks Australia liable.

The Aboriginal Areas Protection Authority is appealing a NT Supreme Court decision that found the Director of National Parks cannot be held criminally responsible for damage done to Gunlom Falls which occurred while construction work was being undertaken.

The work, sanctioned by Parks Australia in 2019 and carried out by an independent contractor, was to build a new walking track close to the site in the Kakadu National Park.

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

Custodians had approved one of Parks Australia’s plans for the walkway in 2018, but during construction, noticed plans had changed and the sacred site was now exposed to the public.

Damage was caused to a sacred men’s site during the construction of the walkway to the falls’ top pools and it has been closed since.

In 2020, the AAPA initially charged the DNP with violating the Sacred Sites Act, to which the body pleaded not guilty in the NT local court, before it was referred to the territory’s 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 site laws and could not be held criminally responsible.

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

Unsatisfied, custodians have now taken the battle to Canberra.

The High Court justices must ponder whether the NT’s laws apply to the Director of National Parks (DNP) as a Commonwealth entity.

The argument of Parks Australia is that penalties under the Act can only be applied to “individuals and bodies corporate”, but not to the Commonwealth as a body politic, as per historical presumptions.

On the first day of hearings, AAPA’s solicitor, Justin Gleeson SC, argued that the DNP was not a “body politic” but a “body corporate” and therefore fell outside the law on which the Supreme Court made its decision.

He explained to the court why the 1940s precedent on which the Supreme Court made its decision was “irrelevant” because as a statutory authority, the DNP could not benefit from the immunities of the Executive Government.

He put to the justices they must consider whether crown immunity could be extended to Commonwealth body corporates like the DNP, arguing that it should not, and that the historical presumption that criminal laws do not apply to the Crown is outdated.

Appearing on behalf of the Commonwealth, Solicitor-General Stephen Donaghue KC sought to outline why the DNP should enjoy the same protections and immunities that are shared by the Crown and its agencies – arguing that it was inherently a Commonwealth agency.

Mr Donaghue KC went on to explain the NT’s laws were written so as to not impose criminal penalties on executive bodies, and pointed to a decision by the territory government to not impose criminal penalties on the Crown under the sacred sites laws.

“It’s impossible to read that as anything other than ‘no, the Commonwealth should not be criminally liable’,” he told the bench.

Traditional owners are hopeful the High Court will find the Director of National Parks criminally responsible for the destruction of Gunlom Falls. Picture: Supplied

If the High Court goes AAPA’s way, it could set a precedent for how sacred sites are protected in the future.

Speaking outside the court, senior traditional owner Josh Hunter said the destruction of Gunlom Falls continued to have an impact on him and others on the land.

“We have lost a lot of visitors since it’s been closed,” he said.

“It’s important that we work together. We worked with AAPA for a long time and the federal government in creating our sickness country protocol for the area, and it is vital that we follow those conditions.

“And hopefully we can open Gunlom Falls back up for everyone to come out and be a part of our story.”

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.”

The hearing will continue on Wednesday, but the High Court bench could reserve its decision until next year.

Originally published as Traditional Kakadu owners take Gunlom Falls appeal to High Court