High Court rules Commonwealth can be criminally liable over damage to Gunlom Falls

The High Court has unanimously agreed the Commonwealth can be held criminally liable for damage done to sacred sites at Gunlom Falls, in a major win for traditional owners.

Following a two-day hearing last December, the High Court on Wednesday overturned a 2022 decision from the Northern Territory Supreme Court in a “critical” judgment that could change the way Commonwealth corporations and offices operate with respect to the country’s sacred sites acts. 

The case centred around damage done in 2019 when the Director of National Parks authorised works within Kakadu National Park that allowed a walkway to be constructed too close to a sacred men’s site.

The waterfall, which featured in the film Crocodile Dundee, has been closed to visitors since the damage.

The Aboriginal Areas Protection Authority launched legal action against the Director of National Parks before the NT Supreme Court, where a decision was ultimately made that although the track works weren’t properly authorised, the Commonwealth could not be held legally responsible for the damage under territory laws.

The DNP had maintained it was a government body and held the privileges and immunities of the Commonwealth.

The High Court on Wednesday ruled the DNP was established under the national Environment Protection and Biodiversity Conservation Act as a “body corporate” and therefore could be held criminally liable for breaching the Sacred Sites Act.

In its judgment on Wednesday, the High Court said the ultimate question was whether the DNP “can be criminally liable for breach of the prohibition of the (Sacred Sites Act) against carrying out work on a “sacred site”.

“The answer is that the DNP can be criminally liable for breach of the prohibition it imposes,” the judgment said.

The case will now return to the local court “where it all began”.

Celebrating the win, custodian Rachel Wilika said after such a long fight, she felt a “really good spirit” inside of herself.

“It’s good to see it all come together in the end,” she said.

Bernadette Calma, a member of one of another local clan groups, said while the fight was still not over she was hopeful the judgment would mean no other clans had to experience what they had been through.

“We hope that from this day on, hopefully this is the last time this happens,” she said.

“We know the Sacred Sites Act is strong and all Commonwealth body corporates … state and territory laws do apply to them.”

Acting chief executive of AAPA, Shannon Tchia, said it was “disappointing and frustrating” it had taken so long, but Wednesday’s judgment was a significant win.

“This is a critical judgment. I think a successful High Court appeal makes it very clear that National Parks and other government body corporates can be held to account under the Sacred Sites Act for damaging sacred sites,” she said.

“Going forward, Commonwealth corporations and offices cannot assume territory criminal laws do not apply to them. I think it is pretty significant.”