The Northern Territory's highest court has found the Commonwealth cannot be held legally responsible for damage to a sacred site in Kakadu National Park because it is "immune" from prosecution under current NT laws.
Custodians of the site say the decision handed down on Friday morning is a "damaging" and disappointing ruling that they hope to appeal.
It prompted a swift promise from NT Attorney-General Chansey Paech, who said the government would look at changing legislation to address the issue.
The long-running case centred on alleged damage caused by the construction of a walkway to the top pools of Kakadu's iconic Gunlom Falls, which was built too close to a sacred men's site.
The federal government pleaded not guilty to charges brought by the NT's sacred sites watchdog, arguing Parks Australia could not be prosecuted under NT legislation on constitutional grounds.
On Friday the NT Supreme Court found the works would constitute an offence under the NT's sacred sites laws, but that Parks Australia could not be held criminally liable because of the wording of the legislation.
The NT legislation does not explicitly include the Commonwealth as able to be held liable under NT laws.
That meant Parks Australia "enjoy[s] the privileges and immunities of the federal executive government, including the presumption against the imposition of criminal liability", according to the three justices that made up the court.
They said the immunity could be removed if the NT government amended the Sacred Sites Act to explicitly include the Commonwealth and its entities.
The dispute has seen the popular swimming site that was previously open to the public closed since 2019.
Aboriginal 'churches' not protected, custodians say
Speaking outside court, Bolmo custodian Joseph Markham said he was upset at the decision, and felt traditional owners' voices hadn't been heard.
"It's basically our church that's been desecrated, and now it's been ignored," he said.
He said the decision cast doubt over the safety of Aboriginal sacred sites in Kakadu and throughout the Northern Territory.
"The fact of the matter is, we're still not protected by the law, and our churches aren't protected by the law," he said.
"Right now there's a distrust of what happens if something does go wrong, [as] we've got nothing to fall back on. We're basically at their whim."
Matjba Jawoyn clan group representative Bernadette Calma said the decision put traditional owners in a precarious position.
"There's going to be a lot of distrust again with Parks Australia, because if they can do this to us, they can do it to anyone within the Northern Territory and Australia," she said.
Research director at sacred sites watchdog the Aboriginal Areas Protection Authority (AAPA), Sophie Creighton, said the decision felt "out of step" with the national mood in the wake of Juukan Gorge and calls for an Indigenous Voice to Parliament.
"It's a difficult situation if custodians can't have faith in their decisions about how they want to protect sacred sites being upheld, and not [be] challenged the first time people don't like their decisions," she said.
Mr Markham said custodians could now consider further closures in Kakadu next dry season, saying while they wanted to share their culture with the public, "we can't do it at the cost of country".
Parks Australia seeks to 'move forward together', NT flags changes to laws
In a statement, Parks Australia director of national parks Jody Swirepik said the authority was committed to protecting Aboriginal cultural sites and heritage in Kakadu.
"This court decision today was about constitutional issues and did not turn on the particular facts of the Gunlom walking track matter," she said.
"Irrespective of the outcome of the court case, I will continue to work with all parties in the future to ensure that there is a robust framework for protecting sacred sites."
Ms Swirepik said work was now underway to realign the Gunlom Falls walking track following consultation with traditional owners and the Northern Land Council.
She also said the body had taken steps to ensure they would be properly consulted on park infrastructure in future, and was working closely with them to "move forward together".
"I again express my regret that the Gunlom walking track works undertaken in 2019 caused distress to the Traditional Owners of the Gunlom region and other members of the community, and I want to thank them for working together in good faith since that time to resolve the issues at the site", she said.
After the ruling, NT Attorney-General Chansey Paech said he was "disappointed and saddened" by the outcome and said Parks Australia's works were carried out "flagrantly" with disregard to consultations.
"The Northern Territory, in particular the region's custodians, have been failed by the Director of National Parks who failed to abide by the [NT] Sacred Sites Act," he said.
He said the NT government would work with the Federal Government "to explore legislative changes to ensure stronger protections of our cultural heritage."
Chief Minister Natasha Fyles echoed Mr Paech's comments, describing the outcome as "incredibly disappointing".
"We do need to respect the rights of traditional owners," she said.
The relationship between Parks Australia and custodians has been deteriorating for several yeears, with the alleged sacred site damage forming a flashpoint.
In early 2021 Parks Australia made a public apology for "shortcomings in the process adopted for the Gunlom works" and promised they wouldn't be repeated.
