High Court rejects Crown immunity for sacred sites damage: AFR

Michael Pelly Legal editor

The Commonwealth can now be prosecuted for damage to Indigenous sacred sites, after the custodians of Kakadu National Park won a test case in the High Court over a walking track at picturesque Gunlom Falls.

The court on Wednesday overturned a ruling of the Northern Territory Supreme Court that the Director of National Parks (DNP) could claim crown immunity for breaches of the Sacred Sites Act.

The 7-0 decision means charges laid by the Aboriginal Areas Protection Authority (AAPA) against the DNP over changes to the walking track can now proceed to trial.

Gunlom Falls was a popular tourist spot until it was closed in 2019 due to unauthorised work on a walking track. 

It could also force a rethink in how governments manage Indigenous heritage on federal land and even clear the way for significant damages claims for cultural loss.

The CEO of the AAPA, Benedict Scambary, said the decision “makes very clear that National Parks can be held to account under the NT Sacred Sites Act for damaging Aboriginal sacred sites”.

“The former attorney-general of Australia should be ashamed to have directed National Parks to claim the right to freely damage Aboriginal sacred sites,” Dr Scambary 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.”

Gunlom Falls has been one of Kakadu’s most popular tourist attractions, and featured in the classic Australian film Crocodile Dundee. Since 2019, it has been closed at the request of the traditional owners, the Jawoyn people.

The DNP changed the agreed route of the upgraded walking track to save money, but it wove around a sacred rock art site that elders understood would remain hidden. They were further angered when the Commonwealth admitted fault but sought to escape liability via crown immunity.

Gunlom Falls was leased to the DNP on the condition that it be a Commonwealth reserve under the Environment Protection and Biodiversity Conservation Act.

The AAPA charged the DNP under section 34(1) of the act, which says “a person shall not carry out work in or use a sacred site” – an offence that is punishable by up to two years’ jail.

It said a contractor was engaged to realign the walking track without the required approval under the Sacred Sites Act.

The DNP argued it was not a person under the act, but the High Court said it came within that definition because it was established as corporation and could not rely on the historical exception for a body politic.

Chief Justice Stephen Gageler and Justice Robert Beech-Jones said section 34(1) “is properly construed to exclude the imposition of criminal liability on the Commonwealth but not to exclude the imposition of criminal liability on the DNP or on any officer of the Commonwealth”.

Justice Simon Steward said the presumption of crown immunity did not extend beyond “the body politics that comprise our federation”.

“It is not a reference to those agents, instrumentalities or corporations that exercise executive power.”

A section of the track was removed in 2021 and the traditional owners have asked that the entire Gunlom area remain closed until construction of a replacement track is finished.

Gunlom Land Trust chairman Mick Markham said that decision was “a result of the Parks breach of our lease agreement”.

“We have to protect the sites, it’s our religion. That site has been there for over 10,000 years, when the salt water was eroding the cliff face,” Mr Markham said.

The Northern Land Council, which intervened in the case on behalf of Jawoyn elders, said it was “encouraging to see them get justice”.

“This ruling just shows that the Director of National Parks, nor any other similar entity, cannot weasel out of their obligations by using out-of-date, out-of-touch legal loopholes like Crown immunity,” said NLC chairman Matthew Ryan,

“We stand in solidarity with Aboriginal and Torres Strait Islander people across the country, and hope this can pave the way for greater protection of sacred sites everywhere.”

Tour operators who once relied on the star attraction say the closures at Gunlom Falls have damaged the park’s appeal to tourists.