The Northern Territory's sacred sites watchdog is launching a High Court appeal over a ruling that found the Commonwealth could not be held legally responsible for sacred site damage in Kakadu National Park.
Last month, the NT Supreme Court found that Parks Australia had carried out illegal works during construction of a walkway to the top pools of Kakadu's Gunlom Falls, which was built too close to a sacred men's site.
But the court found the Commonwealth could not be prosecuted over the offence because of the wording of NT legislation.
The legislation does not explicitly state that the Commonwealth can be held liable under NT law.
On Friday the Aboriginal Areas Protection Authority (AAPA) filed an application for special leave to appeal to the High Court.
AAPA chief executive Dr Benedict Scambary said the principle relied upon by the NT Supreme Court — that the Commonwealth and its statutory corporations were "presumptively immune" from general criminal laws — had no place in modern times.
"It is an outdated principle," he said in a statement.
"It is unacceptable that Commonwealth officers and corporations are free to desecrate Aboriginal sacred sites with impunity."
AAPA chair Bobby Nunggumajbarr said custodians across the Territory were disappointed by the ruling and angry about the damage done.
"Our Aboriginal sacred sites and cultural heritage is important to the people of the Northern Territory and the nation," he said.
"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.
"The Aboriginal Areas Protection Authority will take all steps to ensure that the Director of National Parks is held accountable for the offence to the sacred site at Gunlom Falls."
The dispute has seen the popular swimming site that was previously open to the public closed since 2019.
Parks Australia apologised for the damage to the site in early 2021.
The previous federal government directed the agency to plead not guilty to the criminal charge on constitutional grounds.
Parks Australia said work to realign the Gunlom Falls walking track was nearly complete, following consultation with traditional owners and the Northern Land Council.
In a statement, Parks Australia director of National Parks Jody Swirepik said the authority was "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".
"As this matter is still before the courts I cannot comment further," she said.
