Native title year in review 2025-2026

What you need to know

• On 28 January 2026, the Darwin Local Court handed down the first prison sentence in the 36-year history of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act).
• Kimberley Smith mined more than 8 tonnes of turquoise from the registered Putyenge Sacred Site on Ammaroo Station, and was sentenced to four months' imprisonment (suspended for 18 months) for working on a sacred site in breach of section 34 of the Sacred Sites Act.
• Mrs Smith was also fined $28,000 for two breaches of the Mineral Titles Act 2010 (NT) (Mineral Titles Act) and banned from entering the Northern Territory for 18 months.

What you need to do

• Don't believe that this case sets the ceiling for Sacred Sites Act offences. A 2027 incident is unlikely to be dealt with so lightly.
• Ensure that all work on or in the vicinity of sacred sites in the Northern Territory is covered by an Authority Certificate. The absence of an Authority Certificate removes the primary statutory defence to an offence under section 34.

Background

In June and August 2022, Queensland woman Kimberley Smith hired a 25-tonne excavator and arranged for a team to enter the historical Tosca mine site on Ammaroo Station, a large cattle station approximately 350 kilometres north-east of Alice Springs. The mine sits on the area of the Putyenge Sacred Site, registered under the Sacred Sites Act.

Mrs Smith and her husband and business partner, Scott Smith, had a licence to explore the Tosca mine site. The Smiths were also provided with a map showing the Putyenge Sacred Site. However, the couple failed to obtain a mining management plan or express authorisation before conducting works or selling minerals – both of which their licence required them to do.

More than 8 tonnes of turquoise ore were dug up, resulting in substantial damage to Putyenge. Mrs Smith then reportedly offered the turquoise for sale in Australia, the United States and China, at $1,000 per kilogram. The amount sold was unquantified, but Judge Greg Macdonald said even a "conservative estimate" would "well exceed $100,000".

Sentence imposed

In joint proceedings, the Aboriginal Areas Protection Authority (AAPA) and the Department of Mining and Energy prosecuted Mr and Mrs Smith for breaches of the Sacred Sites Act and the Mineral Titles Act.

Charges were initially also brought against Mr Smith. However, these were withdrawn due to serious health issues.

Mrs Smith pleaded guilty to working on the sacred site. She was convicted and sentenced to four months' imprisonment under section 34 of the Sacred Sites Act, suspended over 18 months. Mrs Smith was also fined $28,000 after pleading guilty to two counts of contravening a condition of a mineral title under section 147 of the Mineral Titles Act.

The prosecution had urged the court not to impose a period of imprisonment due to Mr Smith's declining health, noting that imprisonment would have consequences on Mrs Smith's ability to care for her husband.

A milestone – but a limited one 

The prosecution of Mrs Smith is a significant enforcement milestone, being the first prison sentence imposed for an offence under the Sacred Sites Act.

However, the four month suspended sentence is on the lower end of the scale under the Sacred Sites Act. Section 34 carries a maximum penalty, for a natural person, of 400 penalty units ($75,600 at the time of the sentence) or imprisonment for two years. For a body corporate, the maximum fine is 2,000 penalty units ($378,000 at the time of the sentence). Mrs Smith's four month suspended sentence was just one-sixth of the maximum custodial term.

Each fine under the Mineral Titles Act was only about one-seventh of the highest penalty (500 penalty units, $94,500 at the time of sentence).

The sentence raises questions about the adequacy of the current penalty regime. Mrs Smith's actions were part of a planned commercial operation, involving heavy machinery, a team of workers, and the extraction of more than 8 tonnes of ore. She was aware that she was operating on a registered sacred site. The relatively low sentence suggests the deterrent effect of the offence provisions is limited.

Broader enforcement context

The prosecution sits alongside a period of change for the Sacred Sites Act. As we reported in our Native Title Year in Review 2024-2025 article, "Little Progress in Cultural Heritage Reform around Australia in 2024-2025", the Northern Territory Aboriginal Sacred Sites Legislation Amendment Act 2025 introduced several reforms in 2025. This included a new enforceable undertaking regime that allows AAPA to accept written undertakings from persons in connection with alleged contraventions of the Act or Authority Certificate conditions. These undertakings can include requirements for remediation work, publication of notice of the contravention, and compliance with specified terms, monitored by AAPA. If breached, AAPA may apply to the Supreme Court for enforcement orders.

At an Estimates Committee hearing on 15 June 2026, Mrs Smith's prosecution was discussed in the context of the recent reform. AAPA's Chief Executive Officer, Robert Pocock, noted that the offence provisions under the Act had not changed, but that a policy on the new enforceable undertaking provisions was nearing finalisation. Mr Pocock emphasised that enforceable undertakings must be requested by someone who may have committed an offence: AAPA cannot make the request itself. AAPA will then undertake an investigation, consider issues relating to the offending, and receive legal advice about the prospects of success of a prosecution, before seeking board endorsement of whether or not to proceed.

Mr Pocock separately noted that significant development activity across the Northern Territory has created sustained demand for Authority Certificates and engagement with AAPA processes. This demand may draw increased attention to compliance with Authority Certificates, and potential enforcement measures.

Mrs Smith's case is a reminder that the sacred site protection framework carries real criminal sanctions, even if the penalty imposed on this occasion may appear modest relative to the scale of the harm and commercial benefit gained.

Want to know more? 

• Native Title Year in Review 2024-2025 (9 September 2025)
• Little Progress in Cultural Heritage Reform around Australia in 2024-2025 (9 September 2025)

Authors: Clare Lawrence, Partner and Brigid Horneman-Wren, Lawyer.