The High Court of Australia will this week hold two days of hearings on the question of crown immunity for Commonwealth body corporates, and whether the Director of National Parks can be prosecuted for offences under section 34 of the Northern Territory Aboriginal Sacred Sites Act 1989 (Sacred Sites Act).
The Aboriginal Areas Protection Authority and Traditional Owners are appealing a decision by the Supreme Court of the Northern Territory that found the Director of National Parks had the benefit of crown immunity.
The matter arose when the DNP conducted works on the Gunlom Falls sacred site within the Kakadu National Park against the wishes of Aboriginal custodians and without consultation with the Aboriginal Areas Protection Authority.
In 2019 a sacred site at Gunlom Falls, within Kakadu National Park, was damaged by works undertaken by Parks Australia. The sacred site was exposed to the public as the result of a new walking track being built. The construction of the walking track was discovered to differ to the designs that were approved by Traditional Owners during consultations.
In October 2022, the Supreme Court of the Northern Territory found that the Director of National Parks cannot be held criminally responsible for offences under the Northern Territory Aboriginal Sacred Sites Act 1989. This week, at the High Court of Australia, Traditional Owners and the Aboriginal Areas Protection Authority are appealing that decision.
AAPA Chief Executive Officer Dr Benedict Scambary, said the original prosecution of the DNP began more than three years ago, and he welcomes the opportunity to have the full bench of the High Court finally resolve the question of immunity.
"To have Commonwealth corporations claim Crown immunity leaves Aboriginal sacred sites vulnerable across the whole of the Northern Territory," he said.
"The vibrant living culture of the Northern Territory and the continuation of Aboriginal tradition, ceremonies, and songs depend on these powerful and ancient sacred sites being protected for all Australians, now and into the future."
AAPA Chair Bobby Nunggumajbarr said that custodians need to know their sites are safe and that the law is strong.
"Kakadu is an important place for the whole nation. It is meant to be cared for under joint management between Traditional Owners and the Commonwealth Government, but custodians feel disrespected and angry.
"We have come to Canberra to show the High Court the importance of this issue."
The Northern Land Council is serving as an intervenor in court proceedings, supporting its constituents: Traditional Owners Rosiena Browne, Bernadette Calma, Bessie Coleman, Joseph Fergusson, Martin Fergusson, Joshua Hunter, Rachael Wilika Kendino and Joseph Markham.
The Council said the appeal is significant because it will settle whether the Commonwealth can rely on so-called 'Crown Immunity' to avoid criminal penalties for damaging sacred sites in the Northern Territory.
Northern Land Council Chief Executive Joe Martin-Jard said the NLC stands behind the Kakadu Traditional Owners in their long-running effort to hold the Director of National Parks to account.
"This legal loophole, which has afforded immunity, 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.
"The NT's Aboriginal sacred sites and cultural heritage are of highest importance - we need to prevent any further, irreparable damage."