This case may set a precedence for how sacred sites are protected in the future.
By Roxanne Fitzgerald – 12 Dec. 2023
Key points:
- Gunlom Falls has been closed to the public since 2019
- The High Court has been asked whether the NT’s laws apply to the Commonwealth
- The case may set a precedent for how sacred sites are protected in the future
The High Court is set to hear the final appeal from custodians who want to prosecute the Commonwealth over illegal construction work at a sacred site within a UNESCO World Heritage-listed park.
The two-day legal battle begins today and will play out in front of Australia’s highest court.
It is the last chance for traditional custodians — who have flown from the NT to Canberra — to seek justice for what took place at Gunlom Falls in Kakadu National Park.
The case may also set a precedent for how sacred sites are protected in the future.
Why is the case in the High Court?
The long-running legal battle centres on damage caused during the construction of a walkway to the top pools of Kakadu’s iconic Gunlom Falls that was built too close to a sacred men’s site.
Gunlom Falls was one of the park’s most popular destinations but has been closed to the public since 2019.
Custodians had approved one of Parks Australia’s plans for the walkway in 2018 but at some point during construction they noticed it had veered off track and the sacred site was now exposed to the public.
In 2020, NT sacred sites watchdog the Aboriginal Areas Protection Authority (AAPA) filed charges against the director of National Parks in relation to the works, arguing it was done without proper authority.
Parks Australia, which jointly manages Kakadu National Park with traditional owners, apologised and agreed to redirect the track.
But two years after AAPA launched its legal action, Parks Australia successfully argued in the Northern Territory Supreme Court that as a Commonwealth body, it was not bound by the NT’s sacred sites laws.
Custodians, traditional owners and AAPA are now appealing that decision.
This week’s case is the last chance for traditional custodians to seek justice.
What can be expected over the next two days?
The High Court has been asked to answer a specific question: do the NT’s laws apply to the director of national parks?
Over the next two days, legal teams for the Commonwealth, the Northern Land Council and AAPA will put forward their arguments.
In its submissions to the court, Parks Australia says the penalty in the Northern Territory Aboriginal Sacred Sites Act applies only to “individuals and bodies corporate”, but not to the Commonwealth.
The submissions say the question to be answered by the High Court is whether Parks Australia is bound by NT legislation.
AAPA lawyer Michael McCarthy said lawyers would rely on a historical presumption that criminal laws do not apply to the Crown.
He said the presumption “is outdated and has no contemporary justification”.
“The attorney-general is going to take the position that they should continue to enjoy this protection from the criminal law,” he said.
“We say that no one is above the law, and that the Aboriginal Sacred Sites Act applies to all people and all corporations, government or otherwise,” he said.
Darwin lawyer Michael McCarthy says AAPA will be arguing “no-one is above the law”.
Over the weekend, traditional owners and the AAPA board flew to Canberra to sit in on the landmark case.
At the Darwin International Airport on Sunday, AAPA chief executive Ben Scambary said the case was of national importance and it was disappointing the matter had not been resolved earlier.
“The Commonwealth is moving towards strengthening national protection for Aboriginal cultural heritage [but] in this case they are arguing they are not accountable for the protection of those places,” Dr Scambary said.
Gunlom Falls traditional owner Rachael Kendino Willika said the outcome of the case would have widespread ramifications for the protection of sacred sites in the future.
“We need to get this country protected for the next generation,” she said.
“Country is medicine to us.”
Rachael Kendino Willika says sacred sites need protection.
Will there be an immediate outcome?
Unlikely.
At the end of the two days, it is likely the High Court bench will reserve its decision until next year.
Ultimately, this appeal is the last avenue for traditional owners to prosecute Parks Australia.
If the High Court finds Parks Australia can rely on “crown immunity” to avoid criminal penalties for damaging sacred sites in the NT, it will be the end of the matter.
“There aren’t any other appeal grounds,” Mr McCarthy says.
However, if traditional owners are successful, the matter will go back to the Darwin Local Court and AAPA will be able to continue its prosecution.
Northern Land Council chief executive officer Joe Martin-Jard said the legal loophole “must be closed”.
“Not only to achieve a fair resolution in the case of Gunlom Falls, but to deter any future desecration of sacred sites by Commonwealth entities,” he said.
Read the original article here on the ABC website