Traditional owners from Kakadu are questioning the integrity of joint-management with National Parks, if their voices are ignored on sacred sites.
The High Court is considering this week whether the Commonwealth can rely on "crown immunity" to avoid criminal penalties for damaging sacred sites in the Northern Territory.
A spectacular sacred site at Gunlom Falls, which featured in Crocodile Dundee and is also a popular tourist destination within Kakadu National Park, was damaged by works undertaken by Parks Australia in 2019.
The issue arose when the director of National Parks conducted works on the site against the wishes of Aboriginal custodians and without consultation with the Aboriginal Areas Protection Authority (AAPA).
The sacred site was exposed to the public when a new walking track – which differed to the design approved by traditional owners during consultation – was built.
Joshua Hunter is a senior custodian of Gunlom, who gave instructions to Parks Australia regarding construction of the track, which were ignored.
Kakadu is jointly managed by traditional owners and Parks Australia.
But Mr Hunter said traditional owners lose trust in the system if they are not listened to.
"It creates a lot of anxiety when it comes to our sacred sites, places that mean a lot to us as traditional owners," he said.
"It's our job to protect them as traditional owners and if we give that proper authority to joint management, we expect the government to respect and do the same thing and protect these areas.
"It's vital to keep these areas the way that we inherited them, they're sacred."
In October 2022, the Supreme Court of the NT found that the director of National Parks cannot be held criminally responsible for offences under the NT Aboriginal Sacred Sites Act 1989, because the position has the benefit of crown immunity.
Traditional owners and the AAPA are appealing this decision in the High Court in Canberra, with hearings that began on Tuesday.
AAPA board members Valerie Martin and Barbara Shaw said the case is a fight for protection of all sacred sites in the NT.
"Because it's in our hearts and our minds and our bodies and we dance to it, so that we can carry and pass on our knowledge and wisdom to our future generations," Ms Martin said.
"A lot of our sacred sites in the Territory are actually very significant to both men and women and we want to protect our cultural heritage," Ms Shaw said.
AAPA chief executive Dr Benedict Scambary said to have commonwealth corporations claim crown immunity leaves Aboriginal sacred sites vulnerable across the whole of the Territory.
"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," he said.
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," he said.
"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 intervener in court proceedings.
NLC chief executive Joe Martin-Jard said Kakadu traditional owners were trying 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.
Mr Hunter said the falls had been closed to tourists while the track was rerouted and traditional owners were hoping to allow access as soon as practicable after the court has handed down its decision.
"Anyone can come visit as long as you're respectful and as long as our authority is heard," he said.
"We're guides as traditional owners and we welcome people who enter our country, our traditional land, to have a good experience."
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