The Northern Territory supreme court has ruled the director of Parks Australia is exempt from prosecution after a dispute over the Gunlom sacred site in Kakadu national park.
The Aboriginal Areas Protection Authority (AAPA) brought the prosecution against Parks Australia in 2020 after a long-running dispute culminated in accusations Parks Australia had built a walking track through the sacred site within the Unesco world heritage-listed site without permission.
Kakadu, spanning nearly 20,000 sq km, is home to deep gorges, waterfalls, rainforests, wetlands, rare wildlife and ancient rock art. .
Parks Australia, which jointly manages Kakadu national park with traditional owners, has agreed to redirect the track located at the sacred site of Gunlom and works are taking place to ensure the tracks don’t violate culturally sensitive areas.
The current court case was not about the walking track, but to determine whether the director of Parks Australia could be prosecuted for any potential breach of NT laws.
In a judgment handed down on Friday, the court ruled the Northern Territory Aboriginal Sacred Sites Act 1989 did not apply to the director of Parks Australia.
The court found an offence within a sacred site could be defended on the basis it was carried out in line with their duties under the federal government or the crown.
It also found the director of Parks Australia has “the same legal status as the executive government of the commonwealth in relation to the imposition of criminal liability”, and is generally exempt from prosecution.
The director carried out the track realignment works without any certificates, which are required under the Sacred Sites Act, but has since received the approvals.
Joe Markham, a traditional owner of the site, told Guardian Australia the decision was “disappointing” and said traditional owners felt “voiceless”.
“It’s basically saying that it’s OK to desecrate one of our churches or sacred sites and that there’s nothing to stop them in the future, or anybody else for that matter,” Markham said.
“This could have been a mosque or a church … We’ve been done wrong. We didn’t get to tell our story it just came down to a legal matter.”
Markham said the area that was within the tracks is extremely significant to the local Jawoyn people as a sacred ceremonial men’s site.
“It means [it is an] initiation site for the Jawoyn people and resides on what is the oldest living religion on planet Earth. It’s a focal point for one of our ceremonies,” Markham said.
Sophie Creighton, the director of research and land information at the Aboriginal Areas Protection Authority, said the decision was a blow for Aboriginal land rights and cultural protection standards around the country.
“We can’t have a situation where there’s uncertainty about whether Aboriginal voices will be listened to when they’re seeking to protect cultural heritage on behalf of all Australians,” Creighton said.
“This is very out of step with the mood of the nation in regards to enshrining an Indigenous voice to parliament.
“The commonwealth is already engaging in that discussion around the nation to work out how to strengthen cultural heritage laws in every state,” Creighton said.
Bobby Nunggumajbarr, chair of the AAPA, said the decision undermined relationships between Parks Australia and local people.
“Trust has been broken between Parks and custodians. This is not joint management. This is deeply disrespectful and arrogant,” Nunggumajbarr said in a statement.
The AAPA said it is still reviewing the details of the decision and may consider further action.
Jody Swirepik, the director of Parks Australia, said in a statement the organisation is working with the traditional owners to move forward and apologised for the “distress” caused by the track’s construction.
“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,” she said.
“This court decision today was about constitutional issues and did not turn on the particular facts of the Gunlom walking track matter.
“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.”
The maximum penalty for undertaking works on a sacred site without a certificate is $314,000.
