Gunlom Falls
The Gunlom Falls in the NT are at the centre of a legal stoush decided by the High Court. Image by Larine Statham/AAP PHOTOS
  • indigenous people

Commonwealth liable for sacred site damage: High Court

May 8, 2024

Traditional owners have praised a High Court decision ruling the Commonwealth can be held criminally liable for damage to Aboriginal sacred sites.

In a unanimous ruling, the country’s highest court on Wednesday overturned a Northern Territory Supreme Court decision in relation to Parks Australia causing damage to an Indigenous sacred site in Kakadu National Park in 2019.

The case had centred on damage to Gunlom Falls within the national park, after the construction of a walkway was built too close to a sacred men’s site.

The cascading waterfalls had gained prominence after featuring n the classic Australian film Crocodile Dundee.

The Aboriginal Areas Protection Authority filed a legal challenge against the Director of Nationals Parks – the Commonwealth body corporate of national parks – following the damage.

The NT Supreme Court had ruled that while the track works weren’t properly authorised, the Commonwealth could not be held legally responsible for the damage under territory law.

The Director of National Parks had previously pleaded not guilty to charges due to arguing that as a government body, it held the privileges and immunities of the Commonwealth.

But following an appeal to the High Court, it found the director can be held criminally liable for breaching the Sacred Sites Act.

“It is not a presumption against construing a statute to impose criminal liability on a natural person or a body corporate, such as the (director of national parks),” the court said in its ruling.

Traditional owner Bernadette Calma, a Matjba woman, said the decision was a significant step.

“I hope it leads a way for every other organisation and other clan groups like traditional owners throughout Australia … it leads a way for them to stand with their clan group and say ‘yes, we can take action, we can go further’,” she told reporters in Darwin.

The Aboriginal Areas Protection Authority’s chief executive Benedict Scambary said the High Court ruling had reinforced the protection of sacred sites.

The Indigenous flag flies next to a sign for the High Court.
 The High Court held the Commonwealth can be held to account for damaging Aboriginal sacred sites. Image by Lukas Coch/AAP PHOTOS 

“This successful High Court appeal makes very clear that National Parks can be held to account under the NT Sacred Sites Act for damaging Aboriginal sacred sites,” he said.

“Going forward, Commonwealth corporations and officers in the NT cannot assume that territory criminal laws, including the Sacred Sites Act, do not apply to them.”

The authority’s chair Bobby Nunggumajbarr said the decision from the court was the right one, with the legal dispute causing concern among traditional owners.

“Kakadu is an important place for the whole nation.  Aboriginal people want to be able to share it with everyone, but they must have confidence that its sacred places will be respected,” he said.

“Now we can all work together to keep our sacred places safe.”

The group has indicated the original prosecution following the damage to Gunlom Falls will resume in the NT’s local court.

Should that prosecution prove successful, a maximum fine of $350,000 could be imposed.

While the falls had been a popular destination for visitors to Kakadu National Park, it had been closed following the damage to the sacred site.

Ms Calma said no decision had been made about reopening access to the falls.

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