A fight to hold Parks Australia to account over a walking track built through a sacred site in the Kakadu national park could be heading to the high court after a lower court found a Northern Territory law did not apply to the federal organisation.
The Aboriginal Areas Protection Authority (AAPA) has sought leave to appeal against a decision by the NT supreme court in September which found the director of Parks Australia was exempt from prosecution under the NT Aboriginal Sacred Sites Act.
The dispute began in 2020 with allegations Parks Australia had built a walking track through a sacred men’s site within the Unesco world heritage-listed area without permission from the Gunlom people.
Under the act, Parks Australia required an authority certificate issued by the AAPA to carry out the work, which includes any conditions to protect sacred sites.
Parks Australia, which jointly manages Kakadu national park with traditional owners, agreed they performed work on a sacred site without the necessary permissions and have since promised to redirect the track and consult to ensure no work is performed in culturally sensitive areas.
The case is not about the walking track but about whether the director of Parks Australia could be prosecuted for breach of NT laws.
Parks Australia was directed to plead not guilty by the previous Coalition government.
In a judgment handed down in September, the NT supreme court found that because the wording of the law did not explicitly state that federal agents can be held liable under NT law, an offence could be defended on the basis it occurred while performing duties required under federal law.
AAPA’s chief executive, Dr Benedict Scambary, said the suggestion that the federal government was “presumptively immune from criminal laws of general application” was a relic of the past.
“It is an outdated principle,” Scambary said on Friday. “It is unacceptable that commonwealth officers and corporations are free to desecrate Aboriginal sacred sites with impunity.”
The AAPA chair, Bobby Nunggumajbarr, said the case was important as “no one should be above the law”. “All people, all corporations and all government entities should work with custodians to respect and preserve our sacred sites,” he said.
Nunggumajbarr said AAPA would “take all steps” to ensure “the director of national parks is held accountable for the offence to the sacred site at Gunlom Falls”.
The director of national parks, Jody Swirepik, said she could not comment as the matter was before the courts and directed any comments on constitutional matters to the federal attorney general’s department.
“The director national parks is committed to the protection of Aboriginal sacred sites and will continue working closely with Gunlom’s traditional owners, the Gunlom Land Trust, to ensure remediation of the track at Gunlom,” she said.
Parks Australia previously apologised for the damage to the site in early 2021.
