Avery, John --- "Rights to Mortuary Rites" [2002] IndigLawB 6; (2002) 5(14) Indigenous Law Bulletin 15

Rights to Mortuary Rites

by Dr John Avery

Everywhere, people attach powerful emotions to the deaths of others and feel the need to dispose of the bodily remains of the dead in a suitable manner. In Australia, there is ancient evidence for such rites of disposal. Human remains recovered from Lake Mungo dated to 30,000 years or possibly much older[1] were buried with red ochre and carefully positioned for burial. Similar mortuary practices have been recorded ethnographically and many Aboriginal people continue aspects of these traditions in their care for the dead. Although Aboriginal people have modified their practices so that many see Christian burials as appropriate, the duty to dispose of the dead with due respect is very deeply felt.

Regrettably, Aboriginal life spans are short compared with the rest of the Australian population. Among Aboriginal communities, deaths and funerals are frequent events. Because mortuary obligations ramify widely through extended family and regional networks, especially in rural and remote Australia, much activity and effort is focused on attending and conducting funerals successively over the whole year.

Given the number of funerals, the numbers of people affected and the emotions involved, disputes inevitably arise over funeral arrangements. Where, when, what kind of rites, and who will conduct them are all issues that may be disputed. Ultimately, these disputes reduce to who has the rights to conduct and direct a funeral. Evidently the vast majority of these disputes are settled practically without leaving any public record of what was disputed, how the disputes were resolved or the principles underlying the solutions. This is the same for funerals in general, not just for Aboriginal funerals: a search of law cases produces few results. It seems that the rights to conduct funerals are embedded in extra-legal, informal practices. Disputes rarely surface in legal contexts and there is very little guidance to be found in law.

Recently, one such dispute arose in the Northern Territory upon the death of an Aboriginal man. He left a widow with whom he had been in a de facto relationship. She and his entire family are people of Aboriginal descent and part of an Aboriginal community who still practise modified traditional mortuary rituals. The dispute was between the widow, who wished her husband's remains to be buried in a plot close to where they had been living, and some other members of the family who wanted the body to be taken to their homelands some distance away. There they would perform the customary range of mortuary rites that they currently practice. The mother of the deceased man was particularly adamant that this happen, and she had the support of others who carried the weight of traditional authority in the community.

A number of those supporting the mother’s position sought advice from the Aboriginal Areas Protection Authority (‘AAPA’) in Darwin, in the company of an Aboriginal member of the AAPA board. Fortunately when I saw them at AAPA, they were due to go to mediation with the widow the next day. I encouraged them to participate in that process and to consider reaching a compromise that everyone could live with.

Nonetheless, they had some concerns about what they understood to be the principles at work. An official had advised them that legislation applying to such cases would give the widow the sole entitlement to determine the funeral arrangements. If so, this would ignore their particular claims based on the customs applying in their community. Obviously, they thought this would be wrong. I undertook to find out if any particular relative or category of mourner had rights to determine the conduct of funerals in the Northern Territory and if Aboriginal customary laws had any standing in these issues.

Under the Coroners Act 2000 (NT) (‘the Act’) the ‘senior next of kin’ have certain rights in relation to autopsies, exhumations and the publication of certain information.[2] By designating these rights to the senior next of kin, the legislation identifies a person to represent people who may be presumed to have an interest in the disposal of a dead person’s remains while these are held by the Coroner. Of course, the Act is silent about rights to conduct funerals.

‘Senior next of kin’ is defined in s 3 of the Act:

... in relation to a deceased person, means -
(a) where a person was, immediately before death, married - the person's spouse;
(b) where the person was not, immediately before death, married or, if married, the spouse is not available - the person's son or daughter of or over 18 years;
(c) where a spouse, son or daughter is not available - the person's parent;
(d) where a spouse, son, daughter or parent is not available - the person's brother or sister of or over 18 years;
(e) where a person is an Aborigine - a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person; or
(f) where paragraphs (a) to (e) inclusive do not apply or a person who would be the senior next of kin under those paragraphs is not available - a person who immediately before the death of the deceased person had a relationship with the deceased person that, in the opinion of the coroner, is sufficient for the purpose of being the senior next of kin;

‘Spouse’ includes a person's de facto partner.

In considering which family member might be entitled to the rights provided by the Act to the senior next of kin, the first thing to notice is that s 3(a) to (d) comprise a range of alternatives, setting out a clear hierarchy in which the spouse has first place. The second point is that any of the specified kin (spouse, child, parent or sibling) could be a suitable candidate, but one has to be chosen.

With s 3(e) the hierarchical pattern is broken. Where the deceased is Aboriginal, the senior next of kin will depend on the relevant customs and traditions. However, the senior next of kin is not necessarily the only one with rights under the Act. As s 3(a)-(d) and sub-s (e) work concurrently, the Act does not state whether a senior next of kin acting according to specific customs or traditions has priority over a spouse, or vice versa. Their claims are of equal weight.

It is revealing that s 3(f) gives the Coroner discretion to appoint someone who, in the Coroner’s opinion, can act in the role of senior next of kin in the event that no one else is available. This indicates that the main emphasis of the Act is about doing what needs to be done to bodily remains with due respect to those involved in other aspects of the death. It is not about defining who holds rights in the deceased or in the mortuary processes.

The only relevant Northern Territory Supreme Court case in this regard is Calma v Sesar.[3] This case involved ‘apparently unprecedented issues’[4] including ‘whether the remains of a deceased son of the plaintiff and first defendant should be committed to the possession of his mother, the plaintiff, for burial in Darwin or to his father, the first defendant, for burial in Port Hedland, Western Australia.’[5] In this case, the father of the deceased maintained that his culture indicated that a person should be buried in his own country.[6]

In these respects Calma v Sesar is similar to the current dispute in Darwin. Both involve the rights to dispose of a dead person who left no will and both reflect on the application of Aboriginal custom in such circumstances. However, in Calma v Sesar Justice Martin’s reasoning dwelt on many facts specific to the case, revealing that the outcome of any such case will inevitably depend on the particular facts of the case. The possession of the body was a focus of this particular case, as indicated in the following paragraph:

12. That the father's agents had first obtained possession of the body in fact does not alter the position at law and could not be a weighty consideration. The mother had worked towards making arrangements for burial in Darwin and it was in the course of trying to obtain the body for that purpose that she found it was with the second defendants and destined for Port Hedland. The mother took a step in the right direction by applying for a grant of letters of administration. The father did not apply, but sought to restrain any grant to her.[7]

To this end, Justice Martin held that:

13. The right to possession of a dead body runs with the duty to dispose of it. Each parent in this case had that duty, or at least accepted it, and attempted to carry it into effect, thus claiming that right. Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased's extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.[8]

Moreover, his Honour considered that the ‘conscience of the community’ would not approve of fighting over the remains of the dead: ‘It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.’[9]

In light of this judgment, I advised the people who had sought advice about the role of customary law in these matters that customary law was not irrelevant. However, the wishes of the widow were also relevant. In such matters involving Aboriginal persons leaving no will, a person could have standing because of some relevant custom. This could entitle them to equal but not superior status vis-à-vis some other relative.

In the meantime, all parties reached a solution and the proposed mediation became unnecessary.

Dr John Avery is Principal Anthropologist with the Aboriginal Areas Protection Authority in Darwin, Northern Territory.

---

[1] A Thorne, R Grun, G Mortimer, NA Spooner, JJ Simpson, M McCulloch, L Taylor & D Curnoe, ‘Australia's oldest human remains: age of the Lake Mungo 3 skeleton’ (1999) 36 Journal of Human Evolution 591-612.

[2] Coroners Act 2000 (NT) ss 22, 23, 43.

[3] Calma v Sesar and ors [1992] NTSC 17; (1992) 106 FLR 446.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid para 12.

[8] Ibid para 13.

[9] Ibid para 14.