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High Court rules Parks Australia criminally liable for alleged sacred
site damage at Kakadu's Gunlom Falls
(HTM) Source
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* **In short:** The High Court has ruled Parks Australia can be held
* The case concerns allegations that a sacred men's site at Gunlom F
* **What's next?** The Aboriginal Areas Protection Authority will r
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.
But the High Court on Wednesday upheld an appeal by AAPA, dismissing
the earlier finding of immunity.
Traditional owners want to reopen the site once the issues with Parks
Australia have been resolved.(ABC News: Chelsea Heaney)
"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 to 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 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.
Traditional owners, custodians and members of AAPA have welcomed the
decision.(ABC News: Lillian Rangiah)
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.
Joseph Markham said he hoped Gunlom Falls could soon reopen.(ABC News:
Lillian Rangiah )
"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 next generation as well."
He said he wanted to welcome visitors back to Gunlom Falls, but that
wouldn't happen until Parks Australia 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," Mr
Markham said.
"We want to share it, but we need the [Local Court] decision first."
The High Court found Parks Australia could be held liable, overruling
a previous NT Supreme Court finding.(ABC News: Gregory Nelson)
A Parks Australia spokesperson said the High Court decision "resolves
important constitutional issues concerning crown immunity from
criminal liability".
"[The] Director of National Parks … acknowledges initial works to the
Gunlom walking track in Kakadu National Park caused significant
distress to Traditional Owners, and regrets the distress this caused,"
the spokesperson said.
"The Director and Parks Australia staff have worked closely with [the]
Traditional Owners of the Gunlom site to remediate and realign the
walking track."
The spokesperson said Gunlom Falls would remain closed until
traditional owners agreed to the site's reopening and the national
parks director obtained an authority certificate for its continued
use.
Tanya Plibersek says the federal government will consider the decision
and its implications.(ABC News: Luke Stephenson)
Federal Environment Minister Tanya Plibersek, whose portfolio Parks
Australia falls under, said the questions raised by the ruling
involved "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.
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