North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia

The High Court of Australia considered a dispute between the North Australian Aboriginal Justice Agency Limited (NAAJA) and the Northern Territory of Australia. NAAJA, a community-controlled Aboriginal legal service, sought to challenge the validity of certain provisions of the *Northern Territory Aboriginal Sacred Sites Act 1978* (NT) and the *Northern Territory Aboriginal Sacred Sites Amendment Act 2010* (NT). The core of the dispute concerned the extent to which these Acts, which established a framework for the protection of Aboriginal sacred sites, were valid and effective in light of the Commonwealth's constitutional power to make laws with respect to Aboriginal and Torres Strait Islander peoples.

The primary legal issues before the High Court were whether the impugned provisions of the Northern Territory legislation were inconsistent with the *Aboriginal and Torres Strait Islander Heritage Protection Act 1984* (Cth) and, if so, whether the Commonwealth Act validly attracted the operation of s 109 of the *Constitution*. Section 109 provides that when a law of a State or Territory is inconsistent with a law of the Commonwealth, the Commonwealth law shall prevail, and the State or Territory law shall, to the extent of the inconsistency, be invalid. The Court was required to determine the scope and effect of the Commonwealth's protective scheme for significant Aboriginal sites and to assess whether the Northern Territory's legislative regime created an impermissible impediment to the Commonwealth's exercise of its constitutional power.

The High Court held that the Northern Territory legislation, in its operation, was inconsistent with the Commonwealth *Aboriginal and Torres Strait Islander Heritage Protection Act 1984*. The Court reasoned that the Commonwealth Act established a comprehensive scheme for the protection of areas of significance to Aboriginal peoples, and the Northern Territory legislation, by creating a parallel and potentially conflicting system of authorisation and prohibition, impermissibly encroached upon the Commonwealth's legislative power. Specifically, the Court found that the Northern Territory's power to grant or refuse permission for works affecting sacred sites, and its associated penalty provisions, created an inconsistency with the Commonwealth's exclusive power to make determinations and issue injunctions for the protection of such sites. Consequently, the Court declared the relevant provisions of the Northern Territory Acts invalid to the extent of the inconsistency.