FEDERAL COURT OF AUSTRALIA

Wanambi for himself and on behalf of the Marraŋu People of East Arnhem Land v Wanambi [2026] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    Within 7 days of the date of this order, the Respondents file and serve any submission they wish to make with respect to the costs of the proceeding, limited to 3 pages.

3.    Within 14 days of the date of this order, the Applicant file and serve any submission he wishes to make in response with respect to the costs of the proceeding, limited to 3 pages.

4.    Subject to further order, the question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

A.    INTRODUCTION

1    Mr B D Wanambi, now deceased, was born at Raymangirr. He was a member of the Marraŋu (also spelled Marrangu) people, a clan of the wider Yolŋu (also spelled Yolngu) people of East Arnhem Land.

2    In 1986, Mr B D Wanambi married the first respondent, Mary Wanambi, who is a Tiwi Islands woman, under the Marriage Act 1961 (Cth) (Marriage Act). They were married at St Therese’s Catholic Church at Wurrumiyanga on Bathurst Island and lived most of their lives together on Bathurst Island. Mr B D Wanambi died in Wurrumiyanga on 7 April 2025 and, since that time, has lain in a morgue there.

3    Mr B D Wanambi died intestate; that is, not having made a will. Mrs Wanambi has taken steps towards obtaining letters of administration for her deceased husband’s estate and to arrange her husband’s burial, in accordance with the provisions of the Administration and Probate Act 1969 (NT) (Administration Act) and the Burial and Cremation Act 2022 (NT) (Burial Act). Mrs Wanambi wishes to bury her deceased husband on the Tiwi Islands, where they spent most of their lives together.

4    Although Mrs Wanambi has not yet been granted administration of the estate of her deceased husband under s 14 of the Administration Act, it is common ground that:

(a)    section 22(2) of the Administration Act gives priority to the spouse or de facto partner of a deceased person, over other next of kin, in the grant of administration;

(b)    if a person has been appointed as administrator of the estate of a deceased person, s 9 of the Burial Act designates the administrator as the ‘decision maker’ for the deceased and s 14 of the Burial Act stipulates that the decision maker has the power to make any decisions required under the Burial Act regarding the human remains of the deceased person in accordance with the Burial Act and to decide the outcome of any dispute regarding the human remains of the deceased person under the Burial Act;

(c)    section 66 of the Administration Act governs the distribution of an intestate estate and, relevantly, stipulates that:

(i)    by s 66(1), the persons entitled to inherit the estate are ascertained by reference to Schedule 6 of the Administration Act; and

(ii)    by s 66(2), where an intestate is survived by his or her spouse or a de facto partner, his or her intestate estate is taken, for the purposes of Schedule 6, not to include any personal chattels of the intestate; and

(d)    in broad terms, Schedule 6 of the Administration Act gives priority in the distribution of an intestate estate to a surviving spouse or de facto partner and the children of the deceased.

5    The applicant, Gawura Wanambi, is Mr B D Wanambi’s brother. On 19 June 2025, the applicant lodged a caveat against the grant of administration for his deceased brother’s estate on the basis that he intended to apply to be recognised as “senior next of kin” for the purpose of the Burial Act (and ultimately to be recognised as the “decision maker” for the deceased). On 27 June 2025, the applicant commenced a proceeding in the Northern Territory Civil and Administrative Tribunal (NTCAT) seeking an order to that effect.

6    On 26 September 2025, Mrs Wanambi commenced a proceeding in the Northern Territory Supreme Court seeking orders removing the caveat lodged by the applicant and staying the NTCAT proceeding brought by the applicant pending the determination of Mrs Wanambi’s application for a grant of administration of her deceased husband’s estate. On 14 November 2025, the NT Supreme Court granted those orders in favour of Mrs Wanambi: Wanambi v Wanambi [2025] NTSC 77 (Wanambi NTSC).

7    On 19 November 2025, the applicant commenced this proceeding on behalf of himself and the Marraŋu people. In his statement of claim, he alleges that the Marraŋu people are the traditional Aboriginal owners of the land encompassing their traditional lands of Raymangirr and Gapuwiyak in East Arnhem Land, within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). He further alleges that the traditional laws and customs of the Marraŋu people require that Mr B D Wanambi is buried on his traditional lands, being the lands of the Marraŋu people, at a time, in a place, and according to burial rites and ceremonies determined and conducted by the Djimkay (the senior elder of the Marraŋu people, who was previously Mr B D Wanambi and is now the applicant) and other senior elders of the Marraŋu people. In the statement of claim, the traditional laws and customs of the Marraŋu people relating to burial are referred to as ‘burial rights’. Whilst that is a convenient shorthand, and is used in these reasons, it does not capture the full extent of the traditional laws and customs relating to burial, and the spiritual beliefs that underpin those laws and customs, which are described in the statement of claim and in an affidavit made by the applicant for the purposes of this proceeding. The applicant also alleges that, under the traditional laws and customs of the Marraŋu people, senior elders have the right to decide how the possessions of a deceased member of the community are to be distributed among the community. The possessions are not necessarily distributed to the wife or children of the deceased. In the statement of claim, the traditional laws and customs of the Marraŋu people relating to the inheritance of possessions are referred to as ‘inheritance rights’. The applicant further alleges that, under their traditional laws and customs, Marraŋu people are free to choose their spouse or de facto partner. The traditional laws and customs of the Marraŋu people relating to marriage are referred to as ‘marriage rights’. Each of these claimed rights are further defined below.

8    The applicant alleges that the burial rights, inheritance rights and marriage rights:

(a)    are emanations of the Marraŋu people’s connection with land recognised by the common law and giving rise to Aboriginal native title recognised by the common law;

(b)    are part of the Marraŋu people’s native title in respect of their traditional land and their rights as traditional Aboriginal owners within the meaning of the ALRA;

(c)    as a result of that emanation and recognition, are entitled to unique protection by the Crown, regardless of the provisions of the Racial Discrimination Act 1975 (Cth) (RDA); and

(d)    constitute human rights within the meaning of the RDA and Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, either:

(i)    as a combination of the rights there enumerated; or

(ii)    as part of the genus of the rights there enumerated.

9    The applicant seeks declaratory orders that s 22(1)(a) and (b) of the Administration Act and ss 9(a) and 14(a) of the Burial Act are invalid and ineffective by reason of:

(a)    s 10(1) of the RDA;

(b)    s 50 of the Northern Territory (Self-Government) Act 1978 (Cth) (NTSGA); and/or

(c)    the “Crown’s obligation of protection” towards the Marraŋu people as the original inhabitants of their traditional lands,

to the extent those provisions of the Administration Act and the Burial Act nullify or impair enjoyment by the applicant or the Marraŋu people of their traditional burial rights, inheritance rights and marriage rights. The applicant also seeks an order that the time, place, and manner of the burial of the remains of Mr B D Wanambi be as determined by the applicant.

10    It is relevant to note that, whilst the applicant alleged that the burial rights, inheritance rights and marriage rights of the Marraŋu people are part of their native title in their traditional land and their rights as traditional Aboriginal owners within the meaning of the ALRA, the applicant does not seek any relief under the Native Title Act 1993 (Cth) (NTA) or the ALRA. Those allegations are made in support of the applicant’s claims for relief under the RDA, the NTSGA and the “the Crown’s obligation of protection”.

11    The applicant also sought interlocutory relief restraining Mrs Wanambi from applying for letters of administration of the estate of Mr B D Wanambi and restraining the burial of Mr B D Wanambi or the distribution of his estate other than in accordance with the wishes, traditions and customs of the applicant and the Marraŋu people. At an earlier hearing, Mrs Wanambi gave an undertaking to the Court that she will not proceed with the burial of Mr B D Wanambi without providing at least 30 days’ notice to the applicant. With that undertaking, the applicant did not press his application for interlocutory relief.

12    On 25 November 2025, the applicant gave notice that the proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 (Cth). As noted below, the Northern Territory of Australia (Territory) subsequently intervened in the proceeding.

13    On 28 November 2025, Mrs Wanambi filed an application seeking an order that the statement of claim be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) (FCR) and s 23 Federal Court of Australia Act 1976 (Cth) (FCA Act). Mrs Wanambi contends that the matters raised by the applicant in this proceeding were the subject of final determination in Wanambi NTSC and, as such, it is an abuse of process for the applicant to seek to relitigate those matters in this proceeding.

14    It hardly needs to be said that it would be preferable if this dispute were able to be resolved by agreement between the parties, who are related through marriage. With that aim, on 8 December 2025 the Court made orders to facilitate mediation between the parties. An initial mediation was to be conducted on or before 19 December 2025 in Darwin, to be attended by each party and one or more support persons in the absence of the parties’ respective legal representatives (although each party could seek advice from their respective legal representatives as required). The orders contemplated that, at the initial mediation, the parties might seek to agree an alternative method for resolving the dispute that is in accordance with the traditional laws and customs of the parties. Unfortunately, due to illness, the mediation did not proceed. Since that time, the parties have either not been willing, or not been able, to engage in mediation. It has become necessary for the Court to resolve the dispute.

15    The Territory appeared before the Court seeking leave to be joined as a respondent and informed the Court that it intended to file an application for summary dismissal of the proceeding. On 3 February 2026, orders were made by consent for the joinder of the Territory and timetabling the filing and hearing of any application to amend brought by the applicant and any summary dismissal and strike out applications brought by the respondents.

16    On 6 February 2026, the applicant filed and served an application to amend his statement of claim. However, the Court was subsequently informed that the applicant did not wish to proceed with that application.

17    On 13 February 2026, the Territory filed an application seeking orders for the summary dismissal of the proceeding pursuant to s 31A(2) of the FCA Act and r 26.01(1) of the FCR, alternatively that the statement of claim be struck out pursuant to r 16.21(1)(e)-(f) of the FCR. The Territory contends that the statement of claim does not disclose an arguable cause of action under Australian law.

18    At the hearing, the applicant read an affidavit made by him dated 28 November 2025. Mrs Wanambi read an affidavit made by Jacqui Griffin, a solicitor at NT Rural and Remote Legal Services who is representing Mrs Wanambi, dated 28 November 2025. The Territory read two affidavits of Jared Donald Clow, a solicitor at the Solicitor for the Northern Territory, dated 13 February 2026 and 25 February 2026.

19    The applicant’s affidavit sets out the factual background of Mr B D Wanambi’s life and death, the procedural history of the NTCAT and NT Supreme Court proceedings, and provides an explanation of Marraŋu burial practices and the Yolŋu and Marraŋu connection with their land. Ms Griffin’s affidavit addresses the procedural history of the NTCAT and NT Supreme Court proceedings. Mr Clow’s first affidavit was filed in support of the Northern Territory’s interlocutory application. His second affidavit provided evidence that the applicant had abandoned his application to amend his statement of claim.

20    It is an understatement to describe this as an unfortunate case. There is no reason to doubt that both the applicant, as the deceased’s brother, and Mrs Wanambi, as the deceased’s widow, are acting out of love and affection for, and feelings of obligation towards, the deceased. I infer that each sincerely believes that they should exercise control over the burial of the deceased and the distribution of his estate.

21    Although this is an unfortunate case, the human and personal circumstances are not novel. Courts in England and Australia have often been required to resolve disputes with respect to decisions concerning the burial of a deceased and the distribution of estates. For example, Brown v Tullock (1992) 7 BPR 15,101 was a dispute between a de facto wife and a brother of the deceased which was resolved in favour of the de facto wife.

22    This case does raise, however, novel legal arguments. At the heart of the dispute is a conflict between two systems of law concerning rights and obligations with respect to burial and inheritance. Mrs Wanambi is proceeding in accordance with the law of Australia (and specifically the Northern Territory) having its origins in the assertion of British sovereignty over the Northern Territory – from 1825 in part of the Northern Territory, including Gapuwiyak, and 1863 for the balance of the Northern Territory: see Margarula v Northern Territory of Australia (2016) 257 FCR 226 (Margarula) at [3]; Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) at 38 (Brennan J, Mason CJ and McHugh J agreeing). The applicant is proceeding in accordance with an older law, being the traditional law of the Marraŋu people, which has applied to the Marraŋu people and in the lands of the Marraŋu people within the Northern Territory from time immemorial.

23    For the reasons that follow, the dispute must be resolved by this Court in favour of Mrs Wanambi. On the authorities binding upon me as a single judge of this Court, the proceeding does not disclose an arguable cause of action. The provisions of the Administration Act and the Burial Act that are impugned by the applicant do not offend s 10(1) of the RDA, and do not constitute an acquisition of property for the purposes of s 50(1) of the NTSGA. The applicant’s claim that the Crown has an obligation of protection owed to Aboriginal people which has been breached by the impugned provisions of the Burial Act and the Administration Act is not a claim recognised at law. In circumstances where there is urgency to resolve this dispute because it is preventing the burial of Mr B D Wanambi, and where I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding as no reasonable cause of action is disclosed by the applicant’s pleading or submissions, it is appropriate to make orders dismissing the proceeding under s 31A(2) of the FCA Act and r 26.01(1) of the FCR. The dismissal of the proceeding will bring to an end the undertaking given by the respondent, Mrs Wanambi, to the Court as recorded in the orders made on 1 December 2025.

B.    THE LAWS OF THE NORTHERN TERRITORY CONCERNING BURIAL AND THE ADMINISTRATION OF DECEASED ESTATES

B.1    Legislative history

24    In the course of argument, reference was made to the applicable common law principles that governed disputes over burial rights, prior to the enactment of legislation governing those matters. As noted above, by reason of the assertion of British sovereignty, the common law applied in the area surrounding Mr B D Wanambi’s homelands in 1825, and in 1863 for the balance of the Northern Territory: Margarula at [3]; Mabo No 2 at 38 (Brennan J, Mason CJ and McHugh J agreeing).

25    A fundamental principle of the common law is that there is no property in a dead body, and it may not be owned by anyone (though in certain circumstances, the law may protect the possession of a corpse or body parts): Doodeward v Spence (1908) 6 CLR 406 (Doodeward) at 414 (Griffith CJ with whom Barton J agreed, Higgins J dissenting). However, the common law recognises that certain persons have responsibilities, and perhaps rights, with respect to the burial of deceased person. In R v Stewart (1840) 12 Ad & E 773 at 778; 113 ER 1007 (R v Stewart) at 1009, Lord Denman CJ, giving the judgment of the court, said: “Every person dying in this country … has a right to Christian burial; and that implies the right to be carried from the place where his body lies to the parish cemetery.” The statement that the deceased person possesses a “right” must be understood in context. Lord Denman CJ went on to explain that what was described as a right of the deceased was in fact a duty imposed on the living, stating: “We have no doubt, therefore, that the common law casts on someone the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and the interests of the living require this, and create the duty …”. Similarly, in R v Price (1884) 12 QBD 247, Stephen J observed (at 253) that, although in R v Stewart the Court spoke of the “rights” of a dead body, this was not an accurate expression because a deceased person does not hold rights. At common law, a deceased person is denied legal existence in the form of holding legal rights, interests, or duties from the moment of their death onwards: see for example Vosnakis v Arfaras [2015] NSWSC 625 at [97] (Robb J). Indeed, at common law, a provision of a deceased’s will that purports to control the disposition of the deceased’s body is legally ineffective, as there is no property in the body capable of being transmitted or controlled by will: Williams v Williams (1882) 20 Ch D 659 at 665 (Kay J).

26    The conscience of the community requires that courts resolve disputes over the disposal of human remains 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: Calma v Sesar (1992) 2 NTLR 37 at 42, cited with approval in Marschall v Elson [2023] SASCA 1 (Marschall) at [59] (Livesey P and Lovell JA). In Smith v Tamworth City Council (1997) 41 NSWLR 680 (Smith), Young J considered the question of who, at general law, holds the right to determine where and how a deceased person is buried. After an exhaustive review of the authorities, Young J concluded at 691:

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, In the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116, the person with the largest interest will normally be the person who is the one expected to bury the body.

27    This passage from Smith has been cited with approval by courts in Western Australia, Queensland, South Australia and, relevantly, the Northern Territory: Jones v Dodd (1999) 73 SASR 328 at [45] (Perry J, Millhouse and Nyland JJ agreeing); Marschall at [43]-[44] and [59] (Livesey P and Lovell JA); Britt v Coroner [2022] WASCA 75 at [54] (Mitchell JA); Warner v Hungerford [2026] QSC 29 at [12]-[13] (Bowskill CJ); Baird v Coroner of the Northern Territory [2020] NTSC 67; 357 FLR 109 at [34] (Barr J). The position at general law in the Northern Territory has now been displaced by the relevant provisions of the Burial Act, as set out below.

28    Burial and inheritance rights in the Northern Territory have been governed by legislative enactments since 1891. It is unnecessary to trace the entire history of those enactments. Some of the key milestones are as follows:

(a)    In 1891, the Parliament of South Australia (which at that time included the Northern Territory) enacted the Administration and Probate Act 1891 (SA), which regulated the grant of probate and letters of administration in the Northern Territory.

(b)    In 1911, the Northern Territory was surrendered by South Australia to the Commonwealth: see Margarula at [6]; Northern Territory Acceptance Act 1910 (Cth), s 7(1)).

(c)    In 1952, the Cemeteries Ordinance 1952 (Cth) (Cemeteries Ordinance) was passed, which regulated the burial of deceased persons in the Northern Territory.

(d)    In 1969, the Administration and Probate Ordinance 1969 (Cth) (Administration and Probate Ordinance) was passed. That Ordinance repealed the Administration and Probate Act 1891 (SA) and earlier Administration and Probate Ordinances which applied in the Northern Territory.

(e)    In 1978, the Northern Territory was granted self-government with all existing laws in force in the Northern Territory continuing to apply: NTSGA s 57.

(f)    In 1980, the Administration and Probate Ordinance was renamed the Administration and Probate Act: Statute Law Revision Act 1980 (NT), s 4.

(g)    In 2022, the Northern Territory Parliament enacted the Burial Act, which repealed the Cemeteries Ordinance.

B.2    Administration Act

29    In this proceeding, the applicant seeks declaratory orders that s 22(1)(a) and (b) of the Administration Act are invalid and ineffective.

30    Part III of the Administration Act is titled “Grant of representation” and concerns the grant of probate of the will or administration of the estate of a deceased person and the consequences of the grant.

31    Division 1 of Part III concerns the jurisdiction of the Court with respect to probate and administration. Section 14 provides as follows:

14    Probate or administration may be granted

(1)    The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the Territory.

…

32    Section 22(1) specifies the persons to whom the Court may grant administration of the estate of a person who dies intestate, and s 22(2) requires the Court to give priority to the spouse or de facto partner of the deceased:

22    To whom administration may be granted

(1)    Subject to this section, the Court may grant administration of the estate of an intestate person to:

(a)    the spouse or de facto partner of the deceased person;

(b)    one or more of the next of kin;

(c)    the spouse or de facto partner conjointly with one or more of the next of kin; or

(d)    such person, whether a creditor or not of the deceased person, as the Court thinks fit.

(2)    The Court shall not grant administration to a person who is not the spouse or de facto partner or one of the next of kin of the deceased unless:

(a)    there is no such spouse or de facto partner or next of kin;

(b)    there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the Court, fit to be trusted; or

(c)    there is no such spouse or de facto partner or next of kin who, when duly cited, appears and prays for administration.

(2A)    References in subsections (1) and (2) to a spouse or de facto partner of a deceased person are references only to a spouse or de facto partner who is entitled to an interest in the deceased person's intestate estate.

(3)    The Court shall not grant administration to an infant.

33    At the time that the NT Supreme Court proceeding was heard, Mrs Wanambi had not been able to make an application for letters of administration as she was undergoing medical treatment in Darwin, and was unable to return to the Tiwi Islands to retrieve the required documents. However, in Wanambi NTSC, after reviewing s 22 of the Administration Act, the Court said that it was highly probable that Mrs Wanambi will become the administrator of the deceased’s estate: Wanambi NTSC at [29]. That is common ground in this proceeding.

34    Division 4 of Part III of the Administration Act concerns the distribution of an intestate estate. Section 66 relevantly stipulates that:

(a)    by s 66(1), the persons entitled to inherit the estate are ascertained by reference to Schedule 6 of the Act; and

(b)    by s 66(2), where an intestate is survived by his or her spouse or a de facto partner, his or her intestate estate is taken, for the purposes of Schedule 6, not to include any personal chattels of the intestate.

35    In broad terms, Schedule 6 of the Administration Act gives priority in the distribution of an intestate estate to a surviving spouse or de facto partner and the children of the deceased.

36    It is noted for completeness that Pt III, Div 4A is titled “Intestate Aboriginals”. The Division applies in respect of the intestate estate of a deceased Aboriginal person who has not entered into a marriage that is a valid marriage under the Marriage Act. If the Division applies, s 71B(1) provides as follows:

A person who claims to be entitled to take an interest in an intestate estate of an intestate Aboriginal under the customs and traditions of the community or group to which the intestate Aboriginal belonged or a professional personal representative may apply to the Court for an order under this Division in relation to the intestate estate.

37    It is common ground that Pt III, Div 4A has no application in the present case because Mr B D Wanambi was married to Mrs Wanambi under the Marriage Act.

B.3    Burial Act

38    In this proceeding, the applicant also seeks declaratory orders that ss 9(a) and 14(a) of the Burial Act are invalid and ineffective to the extent those provisions nullify or impair enjoyment by the applicant or the Marraŋu people of their traditional burial rights, inheritance rights and marriage rights.

39    The Burial Act provides that a “decision maker” has the power to make decisions under the Burial Act regarding the human remains of a deceased person:

14    Decision-making powers concerning human remains     

(1)    The decision maker for a deceased person has the power to:

(a)    make any decision required under this Act regarding the human remains of the deceased person in accordance with this Act; and

(b)    decide the outcome of any dispute regarding the human remains of the deceased person under this Act.

…

40    ‘Decision maker’ is defined by s 9:

9    Meaning of decision maker

A decision maker, for a deceased person, means:

(a)    the executor or administrator of the estate of the deceased person; or

(b)    if there is no executor or administrator of the estate of the deceased person – the senior next of kin; or

(c)    in any other case – the Public Trustee.

41    Section 10 of the Burial Act defines ‘next of kin’:

10    Meaning of next of kin

A next of kin, in relation to a deceased person, means any of the following people:

(a)    for a deceased person who was an Aboriginal or Torres Strait Islander person and who had strong cultural and traditional ties to a community or group – a person who, according to the customs and traditions of the community or group to which the person belonged, is appropriate to perform that role;

(b)    a spouse;

(c)    a de facto partner;

(d)    a child of or above 18 years of age;

(e)    a parent;

(f)    a sibling of or above 18 years of age;

(g)    a person who, immediately before the death of the deceased person, had a relationship with the deceased person.

42    Section 11 of the Burial Act defines ‘senior next of kin’. For present purposes, it is sufficient to note that the senior next of kin is defined as a single person and that the following definition applies where the deceased is Aboriginal or Torres Strait Islander:

11    Meaning of senior next of kin

(1)    A senior next of kin, in relation to a deceased person, means one of the following people in descending order:

(a)    if the deceased person was an Aboriginal or Torres Strait Islander person and had strong cultural and traditional ties to a community or group – a person who, according to the customs and traditions of that community or group to which the person belonged, is appropriate to perform that role;

…

43    As can be seen from the foregoing provisions, the administrator of the estate of a deceased person will be the decision maker for the purposes of the Burial Act and will have the power to make decisions regarding the human remains of the deceased person. If no administrator is appointed, the decision maker will be the senior next of kin. Where a deceased person was an Aboriginal or Torres Strait Islander person and had strong cultural and traditional ties to a community or group, the senior next of kin is a person who, according to the customs and traditions of that community or group to which the person belonged, is appropriate to perform that role.

44    As noted above, the applicant initiated proceedings in NTCAT seeking an order that he be the senior next of kin for the purposes of the Burial Act. Mrs Wanambi was a respondent to that proceeding. The proceeding was permanently stayed by the NT Supreme Court in Wanambi NTSC on the basis that Mrs Wanambi had taken steps towards being appointed as administrator of her deceased husband’s estate.

C.    NTCAT AND NT SUPREME COURT PROCEEDINGS

45    On 19 June 2025, the applicant lodged a caveat against the making of a grant of administration for Mr B D Wanambi’s estate.

46    On 27 June 2025, the applicant commenced the NTCAT proceedings seeking an order that he be recognised as the “senior next of kin” for the purposes of s 13(1)(b) of the Burial Act.

47    On 25 July 2025, Mrs Wanambi caused a Notice of Intended Application for Administration to be published on the NT Supreme Court website.

48    On 9 August 2025, Mrs Wanambi filed a response to the applicant’s application to NTCAT, requesting the Tribunal to dismiss the application, or stay the application pending the grant of letters of administration.

49    On 11 August 2025, the applicant also caused a Notice of Intended Application for Letters of Administration to be published on the Supreme Court website.

50    On 12 September 2025, NTCAT declined Mrs Wanambi’s application to dismiss or stay the applicant’s application to NTCAT and, on 19 September 2025, NTCAT listed the application for hearing on 3, 4 and 5 December 2025.

51    On 26 September 2025, Mrs Wanambi filed an originating motion and summons in the NT Supreme Court, seeking the following orders:

1.    The caveat lodged on 19 June 2025 by the Defendant against the making of a grant of administration in the estate of the deceased cease to be in force in respect of the intended application by the Plaintiff for a grant of Letters of Administration.

2.    The proceeding in NTCAT, File No. 2025-01916-CT, be stayed pending the determination of the application for a grant of Letters of Administration.

52    On 7 October 2025, the applicant filed a summons seeking the following order:

A declaration that any order appointing a person to be the administrator of the estate of the deceased be limited such that the matter of determining the senior next of kin and therefore decision maker in respect of his funeral arrangements be determined pursuant to ss 9-14 of the Burial and Cremation Act 2022 (NT) by NTCAT in proceeding 2025-01916-CT.

53    Mrs Wanambi subsequently filed a summons seeking an order that the applicant’s summons dated 7 October 2025 be struck out on the ground that it disclosed no reasonable cause of action.

54    The matter was heard on 23 October 2025 before Southwood J. At the end of the hearing, the matter was adjourned for decision on 31 October 2025.

55    On 28 October 2025, the applicant filed an application seeking an order that the hearing be reopened on the basis that the applicant wanted to lead further evidence and argue that s 22(l) and (2) of the Administration Act and ss 8 and 9 of the Burial Act were inconsistent with s 10(1) of the RDA (the reopening application). The matter came before the Court again on 31 October 2025 and 11 November 2025.

56    On 14 November 2025, Wanambi NTSC was handed down. Justice Southwood relevantly made the following findings:

(a)    Mrs Wanambi is the widow of the deceased. There is no evidence she is in any way unsuited to be the administrator of the deceased’s estate. The estate is a small estate and Mrs Wanambi is likely to be the sole beneficiary of the estate.

(b)    As Mrs Wanambi was the spouse of the deceased, under s 22(1) of the Administration Act she would ordinarily be granted administration of the deceased’s estate.

(c)    Under s 9 of the Burial Act, the administrator of a deceased’s estate is the decision maker for a deceased person and has the right to conduct the funeral. It is only if there is no administrator of the estate that the senior next of kin becomes the decision maker.

(d)    If Mrs Wanambi is appointed administrator, she would have priority under the Burial Act for making the burial arrangements for the deceased.

(e)    It is highly probable that Mrs Wanambi will become the administrator of the deceased’s estate.

57    In relation to the reopening application, Southwood J reached the following conclusions:

(a)    The applicant had no answer to the ordinary operation of the Administration Act and the Burial Act.

(b)    Save for Div 4A of the Administration Act, the provisions of the Administration Act and the Burial Act are of general application. They apply equally to all people of all racial and ethnic descent groups in the community.

(c)    Aboriginal people who are married under the Marriage Act enjoy equally all rights and responsibilities in the Administration Act and the Burial Act that are enjoyed by all persons of other races, colour or national or ethnic origin who are also married under the Marriage Act.

(d)    Neither the Administration Act nor the Burial Act breach the provisions of s 10(1) of the RDA.

58    On 14 November 2025, Southwood J made orders dismissing the applicant’s application to reopen his case, removing the caveat that had been lodged by the applicant against the grant of administration in favour of Mrs Wanambi, and permanently staying the NTCAT proceeding.

59    A few days later, on 19 November 2025, the applicant commenced this proceeding in the Federal Court.

D.    FIRST RESPONDENT’S STRIKE OUT APPLICATION

60    On 27 November 2025, Mrs Wanambi filed an interlocutory application seeking an order that the applicant’s statement of claim be struck out pursuant to r 16.21 of the FCR and s 23 of the FCA Act. Mrs Wanambi’s principal contention is that this proceeding is an attempt to relitigate issues determined in Wanambi NTSC. Counsel for Mrs Wanambi submitted that the proceeding in the NT Supreme Court was between the same parties, raised the same causes of action and was the subject of a final judgment on its merits. Although not stated expressly, I understood that counsel for Mrs Wanambi relied on the principles of issue estoppel, Anshun estoppel and abuse of process. Each of those principles is considered in turn.

D.1    Issue estoppel

61    The principles with respect to issue estoppel are well-established. An issue estoppel operates to preclude the raising in a subsequent proceeding of an issue of fact or law that was necessarily resolved as a step in reaching the determination made in the judgment: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (Tomlinson) at [22] (French CJ, Bell, Gageler and Keane JJ), citing Blair v Curran (1939) 62 CLR 464 (Blair v Curran) at 510 (Starke J), 531-3 (Dixon J); Jackson v Goldsmith (1950) 81 CLR 446 at 466-7. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”: Tomlinson at [22], citing Blair v Curran at 531 and Kuligowski v Metrobus (2004) 220 CLR 363 (Kuligowski) at [21]. In Kuligowski at [21], the High Court cited the following requirements of the estoppel that were given by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935:

(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

62    Mrs Wanambi submitted that the judgment in Wanambi NTSC involved a final judicial determination of the question whether the relevant provisions of the Administration and Burial Act are contrary to s 10(1) of the RDA and thereby invalid. Mrs Wanambi relied principally upon the concluding statement of Southwood J at [53]:

There has been no infringement of s 10(1) of the Racial Discrimination Act.

63    Mrs Wanambi further submitted that the applicant is attempting, in this proceeding, to relitigate the same question that was determined adversely to him in Wanambi NTSC and is estopped from doing so.

64    I do not accept Mrs Wanambi’s submission because I do not consider that the NT Supreme Court resolved the RDA question on a final basis. Rather, I consider that the court’s judgment on the RDA question was interlocutory only. Relevantly, the application that was made to the court by the applicant was an application “to reopen his case to lead evidence and argue that the provisions of the Administration and Probate Act 1969 and the Burial and Cremation Act are contrary to s 10(1) of the Racial Discrimination Act 1975 (Cth) to the extent that they prevent [the applicant] from burying the deceased on their country in accordance with what is said to be the relevant Aboriginal traditions and customs” (Wanambi NTSC at [31]). The court recorded the applicant’s submission that, in order to develop the argument, it would be necessary to call evidence about the relevant traditional Aboriginal burial customs and law (at [32]). Although the court considered and rejected the argument based on s 10(1) of the RDA, the court did not give the applicant leave to reopen his case. The court ultimately dismissed the application to reopen. A decision refusing leave to reopen a case is interlocutory in character. It is a discretionary decision, involving a question of practice and procedure, and does not finally determine the rights of the parties. The court’s rejection of the applicant’s argument based on s 10(1) of the RDA must be understood in that context. It follows from that conclusion that an issue estoppel does not arise.

D.2    Anshun estoppel

65    In the alternative, Mrs Wanambi relies on the principles of estoppel as stated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun). Anshun estoppel operates to preclude the making of a claim, or the raising of an issue of fact or law, in a subsequent proceeding if the claim or issue was so connected with the subject of an earlier proceeding that it would have been unreasonable, in the context of the earlier proceeding, for the claim not to have been made or the issue not to have been raised in that proceeding: see Anshun at 598, 602-3 (Gibbs CJ, Mason and Aickin JJ); Tomlinson at [22] (French CJ, Bell, Gageler and Keane JJ). As observed by Ormiston JA in Gibbs v Kinna (1999) 2 VR 19 at [1], the double negative present in the formulation of the test for Anshun estoppel is significant. The relevant question is not whether it would have been reasonable to rely on a particular defence or cause of action, or to have raised an issue, in the earlier proceeding; rather, the question is whether it was unreasonable to defer doing so. The assessment of unreasonableness depends not so much on legalities, as on practicalities.

66    Mrs Wanambi submitted that the applicant’s claims in this proceeding ought reasonably have been raised in the NT Supreme Court proceeding – the applicant had a real opportunity to raise them but chose not to.

67    I do not accept Mrs Wanambi’s submission that the applicant’s failure to bring his present claims as part of the NT Supreme Court proceeding was unreasonable in all of the circumstances. The applicant sought leave to reopen his case in the NT Supreme Court proceeding to raise the RDA claim, but leave was refused. In my view, the applicant’s delay in seeking to raise the RDA claim should not be characterised as unreasonable for two reasons. First, the NT Supreme Court proceeding was brought by Mrs Wanambi for the purpose of affirming her right to apply for administration and to prevent the NTCAT proceeding from being heard before she had had the opportunity to apply for administration. The applicant was a defendant in that proceeding. The proceeding came to a hearing in a relatively short timeframe. In my view, the applicant’s delay in raising the RDA claim in that context is excusable. In respect of the other limbs of the applicant’s claims in this proceeding, the applicant frankly conceded that the arguments were conceived in the lead up to the commencement of this proceeding. All of the timeframes were short.

D.3    Abuse of process

68    Mrs Wanambi also contends that the applicant’s claims represent a collateral attack on the Court’s decision in Wanambi NTSC and thereby amount to an abuse of process.

69    The power of this Court to stay proceedings for an abuse of process is reflected in r 16.21(1)(f) of the FCR. Abuse of process is insusceptible of a formulation which comprises closed categories: Tomlinson at [25] (French CJ, Bell, Gageler and Keane JJ). Accordingly, whether the use of the Court’s processes amounts to an abuse requires a “broad, merits-based judgment” which takes into account the public and private interests involved and all of the facts of the case. There can be no “hard and fast rule” to determine whether, on given facts, an abuse arises or not: UBS AG v Tyne (2018) 265 CLR 77 (UBS) at [7] (Kiefel CJ, Bell and Keane JJ) citing Johnson v Gore Wood & Co [2022] 2 AC 1 at 31 (Lord Bingham); see also UBS at [69] (Gageler J). The High Court in Tomlinson recognised that considerations similar to those which underpin Anshun estoppel may support a preclusive abuse of process argument: Tomlinson at [25] (French CJ, Bell, Gageler and Keane JJ).

70    I do not accept Mrs Wanambi’s submission that the applicant’s claims represent a collateral attack on the Court’s decision in Wanambi NTSC for the reasons given with respect to the arguments based on issue estoppel. The decision in Wanambi NTSC did not finally determine the applicant’s claims. Therefore, this proceeding cannot be regarded as a collateral attack on that decision. For that reason, I do not accept that the claims are an abuse of process.

D.4    Reasonable cause of action

71    In a supplementary submission dated 13 February 2026, Mrs Wanambi advanced a further contention that the applicant’s statement of claim does not disclose a reasonable cause of action. That contention is subsumed within the Territory’s application for summary dismissal of the proceeding. Mrs Wanambi formally adopted the Territory’s arguments in that respect, which are considered below.

E.    SECOND RESPONDENT’S APPLICATION FOR SUMMARY DISMISSAL OF THE PROCEEDING

E.1     Applicable principles

72    On 13 February 2026, the Territory filed an application seeking summary dismissal of the proceeding pursuant to s 31A(2) of the FCA Act, r 26.01(1) of the FCR, or in the Court’s implied jurisdiction.

73    Section 31A of the FCA Act relevantly provides:

31A     Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

74    Rule 26.01(1) of the FCR relevantly provides:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

75    The Territory’s submissions were framed in the terms of r 26.01(1)(a), that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01(1)(a) replicates the provisions in s 31A of the FCA Act: Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560 at [30] (Flick J).

76    In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Jefferson) at [124] , Gordon J noted that s 31A of the FCA Act was introduced in order to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”.

77    The moving party on an application for summary dismissal bears the onus of persuading the Court of the criteria under s 31A: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J). The critical question is whether the applicant has “reasonable” prospects of successfully pursuing his application. That determination “does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”: Cassimatis at [46].

78    In Spencer v The Commonwealth (2010) 241 CLR 118, the plurality (Hayne, Crennan, Kiefel and Bell JJ) emphasised that full weight should be given to whole of the expression “no reasonable prospect” and that other expressions should not be adopted as substitutes for the statutory language (at 141). In the same case, French CJ and Gummow J observed (at [25]):

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

79    In the present case, the Territory contends that the applicant’s claims are untenable as a matter of law.

80    In Jefferson, Finkelstein J observed at [23]:

On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313 at 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.

81    Similarly, in Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567; 72 ACSR 264, Besanko J stated (at [47]):

… where a plaintiff’s cause of action depends on a triable issue of fact then summary judgment will not be entered. Where the plaintiff’s cause of action depends on an arguable question of law then summary judgment may not be entered. However, in the latter case where the court has had the benefit of submissions on the question of law and is able to decide the question then the court may proceed to do so on an application for summary judgment. Of course, the court must be alert to the possibility that, in truth, the determination of the question of law depends on a triable issue of fact. Furthermore, there may be other reasons why, in the particular circumstances of the case, the court will not decide an arguable question of law on an application for summary judgment.

82    The Territory invited the Court to determine the questions of law raised by the applicant’s claims as on a demurrer; that is, to assume the correctness of all of the facts alleged by the applicant in support of his claims. For the purposes of its summary dismissal application, the Territory does not contest any of the pleaded facts nor the facts deposed to in the applicant’s affidavit filed in opposition to Mrs Wanambi’s strike out application. Therefore, for the purposes of the summary dismissal application, I will assume the correctness of all of the facts pleaded and deposed to by the applicant. Those facts are summarised below.

83    In the alternative, the Territory sought an order that the statement of claim be struck out pursuant to r 16.21(1)(e) of the FCR, as failing to disclose a reasonable cause of action, and/or 16.21(1)(f) of the FCR, as being an abuse of process. Ultimately, the Territory did not advance separate submissions on its strike out application. The gravamen of the Territory’s submissions was that the applicant’s claims were untenable at law and, as such, the defects could not be cured by repleading. It is therefore unnecessary to consider separately the strike out application.

84    The remaining sections of this judgment address the Territory’s summary dismissal application under the following topics:

(a)    the facts assumed to be correct for the purposes of the strike out application;

(b)    the applicant’s claims under s 10(1) of the RDA;

(c)    the applicant’s claim under s 50 of the NTSGA; and

(d)    the applicant’s claim based on the asserted “obligation of protection” owed by the Crown to Aboriginal people.

E.2    Assumed Facts

85    As stated above, in determining the Territory’s application for summary dismissal, the Court will assume the correctness of all of the facts alleged by the applicant in its statement of claim and deposed to in the applicant’s affidavit. Those facts can be summarised as follows.

Biographical facts

86    The applicant is, and the applicant’s deceased brother, Mr B D Wanambi, was, a member of the Marraŋu clan of the Yolŋu people of East Arnhem Land. Their father was the senior elder, or Djimkay, of the Marraŋu clan. On their father’s death, Mr B D Wanambi became the Djimkay. On his death, the role was passed to the applicant.

87    The Marraŋu people are the traditional Aboriginal owners, within the meaning of ALRA, of the land encompassing their traditional lands of Raymangirr and Gapuwiyak in East Arnhem Land. The applicant is, and the deceased and their father were, acknowledged as being among the traditional Aboriginal owners of their traditional land. As Djimkay, the applicant represents his clan and is able to speak for those traditional Aboriginal owners and the Marraŋu clan more generally.

88    Mr B D Wanambi married Mary Wanambi, a Tiwi Islands woman, in 1986 under the Marriage Act. He lived most of his adult life on the Tiwi Islands. He returned to Arnhem Land from time to time to lead ceremonies, including funerals, as the most senior traditional elder of the Marraŋu clan. In his latter years, Mr B D Wanambi spoke about returning to his traditional country to live his final years, being Raymangirr in Arnhem Land. He also expressed a wish to die and be buried back in his homelands in Arnhem Land.

89    Mr B D Wanambi made arrangements to build a house on his home country at Raymangirr where he would live out his days. In 2024, he moved back to Arnhem Land, living in a house at Gapuwiyak (located near Raymangirr) while he waited for his house to be built. Mr B D Wanambi became ill in early 2025 and went to Darwin for treatment. At this time, Mrs Wanambi was living in Darwin due to her medical needs.

90    In about March 2025, Mr B D Wanambi was diagnosed with a terminal illness and was transferred to palliative care. Before he passed away, Mrs Wanambi’s family arranged for him to be transferred from palliative care in Darwin to Wurrumiyanga on the Tiwi Islands. He passed away there on 7 April 2025 and his body remains in a mortuary there.

Traditional laws and customs of the Marraŋu people

91    The Marraŋu are one of several clans that make up the Yolŋu people in northeastern Arnhem Land. Yolŋu people share the same traditional customs in many areas of life, including initiations, dreamings, songlines and ceremonies. Evidence on Yolŋu connection to land (as it was expressed in the applicant’s affidavit) applies equally to the Marraŋu connection to land.

92    The traditional laws and customs of the Marraŋu people are part of the connection that the Marraŋu people have with their traditional lands. The connection is powerful, unique, essentially spiritual, metaphysical, religious and cultural. It includes but also transcends ‘rights and interests’, ‘ownership or possession’ and ‘property’ known to the common law. The connection is founded on a fundamental belief that the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole. The connection is a two-way connection by which the land ‘owns’ the people and the people are responsible for the land. It includes a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.

93    In this respect, the applicant gave evidence that Yolŋu people have a belief that their body and spirit will return to and become part of their country when they pass away, if they are buried properly under their laws and customs. The Dhäpi ceremony (boy’s initiation ceremony) occurs when a boy is around 10 years old, and is the law that tells the story that a Yolŋu person is the property of the land. The applicant’s evidence was that “the land owns us”. During the Dhäpi ceremony it is taught that Yolŋu people return to their land and this is marked by the paintings of the law on their skin.

94    The Marraŋu connection to land is sacredly recognised from one generation to another and that gives them a degree of security and pleasure which they can find nowhere else. It is inextricably interwoven with and connected to everything about Aboriginal society and if taken away, takes away their reason for existence and removes them from themselves. Marraŋu people hold the belief that their traditional land is not merely land according to the Western concept but is their ancestor, law and identity.

95    It is an integral part of Yolŋu culture that the people and the land are one and the same, and the people who pass away are returned to the land on country and become part of it. When a Yolŋu person is born, Yolŋu people believe they are born from the earth and so their ancestors who have passed away and become part of the earth, become part of them. In this way, Yolŋu people are made up of the land and their ancestors. It causes distress where this cycle is broken by an elder not being buried on country. The failure to bury a Yolŋu elder on their land affects not only the deceased, but all the living people who know that his spirit cannot return to the earth and that he will not become part of the earth and so part of people who are born later.

96    For Marraŋu people, Raymangirr is an important place. It is the centre of the Marraŋu people’s tradition lands. The applicant’s evidence in relation to Raymangirr was as follows:

Raymangirr is known as Ŋurru Garawaṉ, and it holds the rom (law) for Marraŋu us. It is where our sacred is happening and standing, where the tip of the fire-spear touched the ground and remained. It is the spiritual centre of our world.

97    For Yolŋu people, the connection with the land is the strongest force in their lives. The connection with the land is stronger than the bond of marriage where a Yolŋu person has married someone who is not Yolŋu. Though that person might be loved, they are not part of the Yolŋu and their land. The first obligation for Yolŋu people is to the land.

98    Yolŋu people see the land as being like a living thing. The applicant’s evidence in this respect was as follows (emphasis in original):

The land births us and is us; it is the rom and gives us the rom. When I speak of the land I am including all of the things on and from the land – plants, animals, land features, waters and the sky. I bodily see, hear, and feel Marraŋgu rom and ‘philosophy’ in my body, in the land, in the clouds, and in the leafy branches.

Burial, inheritance and marriage rights

99    It is an assumed fact that one of the traditional laws and customs of the Marraŋu people, including the applicant and the deceased, is that they be buried in their traditional lands at a time, in a place and according to burial rites and ceremonies determined and conducted by the Djimkay and other senior elders. The applicant described that traditional law and custom as creating the following “rights” (referred to as burial rights):

(a)    to bury Marraŋu people on the traditional land according to their traditional laws and customs;

(b)    for Marraŋu people to be buried on the traditional land according to their traditional laws and customs;

(c)    for the Djimkay and senior elders to determine when, where and how a Marraŋu person is to be buried; and

(d)    for the Djimkay and senior elders to conduct burial rights and ceremonies of Marraŋu people.

100    It is also an assumed fact that Marrunju people hold the belief that where a Marraŋu person is denied their burial rights, that person’s body and spirit is not returned to and reunited with their traditional land by their songlines. The spirit can become restless, wandering, or unable to find peace and it may become dangerous or disturb the living through bad luck, sickness, or misfortune. The spirit may be unable to join the ancestors. The spirit and burial place are unable to be cared for by ancestors and there is a disruption of kinship obligations in the spiritual realm.

101    Two observations can be made about the claimed burial rights relied upon by the applicant.

102    First, in so far as the rights are alleged to be held by living members of the Marraŋu people, the burial rights are rights to exercise control over the body of the deceased member of the Marraŋu people and over the burial of, or other funerary arrangements for, the body. It is that right that is alleged to be impaired by the provisions of the Administration Act and the Burial Act (which, in the circumstances of this case, confer such control on Mrs Wanambi as the widow of the deceased).

103    Second, the burial rights are also alleged to be held by deceased members of the Marraŋu people. This implicitly follows from the claim that the burial rights include the right for Marraŋu people to be buried on their traditional land according to their traditional laws and customs. As discussed earlier, no equivalent right exists at common law and, indeed, any such right is inconsistent with the common law. At common law, a deceased person is denied legal existence in the form of holding legal rights, interests, or duties from the moment of their death onwards. In respect of decisions concerning the burial of a deceased person, the common law confer rights and obligations on the deceased’s executors, administrators and next of kin.

104    It is an assumed fact that another of the traditional laws and customs of the Marraŋu people is that senior elders have the right to decide how the possessions of a deceased are to be distributed among the community (which are referred to as inheritance rights). The possessions are not necessarily distributed to the wife or children of the deceased.

105    It is relevant to note in this regard that the inheritance rights alleged by the applicant concern the possessions of the deceased; that is, personal property. There is no suggestion in the statement of claim or evidence that the inheritance rights of the Marraŋu people concern their traditional lands, in the sense that individual Marraŋu people have rights and interests in separate parcels of land that are alienable and able to be distributed among the community upon their death. It is implicit in the allegations made in the statement of claim, and the evidence of the applicant, that the Marraŋu people have communal and collective ownership of their traditional land. Native title rights and interests in that land are acquired by persons by reason of their membership of the Marraŋu people, typically by biological descent from a Marraŋu person and mutual recognition of the person’s membership by that person and by the elders or other persons enjoying traditional authority among those people (see Mabo No 2 at 70). It follows that the claimed inheritance rights do not relate to the rights and interests held by the deceased in the traditional lands of the Marraŋu people before he died, as those rights and interests were not held personally by the deceased and are not separately transferred to any person upon his death.

106    It is also an assumed fact that another of the traditional laws and customs of the Marraŋu people is that they are free to choose their spouse or de facto partner (referred to as marriage rights).

E.3     Legal characterisation and effect of the burial, inheritance and marriage rights

107    As noted earlier, the applicant alleges that the burial rights, inheritance rights and marriage rights of the Marraŋu people:

(a)    are emanations of the Marraŋu people’s connection with land recognised by the common law and giving rise to Aboriginal native title recognised by the common law; and

(b)    are part of the Marraŋu people’s native title in respect of their traditional land and their rights as traditional Aboriginal owners within the meaning of the ALRA.

108    However, the applicant does not seek any relief under the NTA or the ALRA. The allegations with respect to the legal characterisation and effect of the burial rights, inheritance rights and marriage rights of the Marraŋu people are made in support of the applicant’s claims for relief under the RDA, the NTSGA and the “Crown’s obligation of protection”. In determining the summary dismissal application, it is convenient to address the issue of the legal characterisation and effect of the burial rights, inheritance rights and marriage rights of the Marraŋu people at the outset.

109    On the summary dismissal application, it is an assumed fact that the Marraŋu people are the traditional Aboriginal owners of the land encompassing their traditional lands of Raymangirr and Gapuwiyak in East Arnhem Land, within the meaning of the ALRA. It is also an assumed fact that the burial rights, inheritance rights and marriage rights of the Marraŋu people, as defined in the statement of claim, form part of the traditional laws and customs of the Marraŋu people. The Territory disputes, however, the legal characterisation of those rights as native title rights as understood at common law and under the NTA.

110    The applicant’s submissions in support of the legal characterisation and effect of those rights are difficult to follow. Indeed, the applicant’s written submissions advanced two, seemingly alternative submissions: first, that the burial and inheritance rights of the Marraŋu people are recognised by the common law in the same manner as native title rights and interests; and second, that the burial and inheritance rights of the Marraŋu people are part of their native title rights and interests. Each of those submissions is considered in turn. The applicant did not advance any submissions in respect of marriage rights.

The burial and inheritance rights are recognised by the common law in the same manner as native title rights and interests

111    The applicant submitted in writing that:

(a)    Aboriginal burial and inheritance rights are an emanation of Aboriginal laws and customs recognised by the common law, just as Aboriginal land rights are an emanation of those laws and customs, citing Love v Commonwealth (2020) 270 CLR 152 (Love) at [37] (Kiefel CJ), [269] (Nettle J) and [339], [357] (Gordon J); and

(b)    Aboriginal burial and inheritance rights are true legal rights which are recognised and protected by the law, just as are rights under common law native title because both are an emanation of the connection with land and traditional laws and customs recognised by the common law, citing Mabo No 2 at 110-111 (Deane and Gaudron JJ) and Commonwealth v Yunupingu [2025] HCA 6; 99 ALJR 519 (Yunupingu) at [46].

112    The submission that Aboriginal burial and inheritance rights are “recognised by the common law” and are “true legal rights”, stated in such broad terms, is not supported by the authorities cited by the applicant and is contrary to binding authority. Neither the common law nor the NTA “recognise” the traditional laws and customs of Aboriginal people as an independent source of legal rights and obligations in Australia that survived the assertion of sovereignty by the Crown. Australian courts recognise the single sovereignty of the Crown: Mabo No 2 at 31, 37-8 (Brennan J, with whom Mason CJ and McHugh J agreed); Coe v The Commonwealth (1993) 68 ALJR 110 at 115 (Mason CJ); Walker v New South Wales (1994) 182 CLR 45 (Walker) at 48-9 (Mason CJ). What is recognised, and protected, by the common law and the NTA are native title rights and interests in land and waters. As explained by the plurality in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) at [37] (Gleeson CJ, Gummow and Hayne JJ, citations omitted):

First, it follows from Mabo [No 2] that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown’s acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. …

113    Mabo No 2 concerned an application by the Meriam people for a declaration that, at common law, they are the owners of, and the holders of usufructuary rights with respect to, their traditional lands. The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants (Brennan J at 57). Native title has its origin in and is given its content by the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of a territory (Brennan J at 58). The common law recognises native title rights and interests in land provided the rights and interests are consistent with the common law (Brennan J at 59).

114    As already noted, the content of native title rights and interests in land are defined by the traditional laws and customs of the traditional inhabitants of the land. As Brennan J observed at 61:

The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.

115    Justices Deane and Gaudron concluded to similar effect at 110:

Since the title preserves entitlement to use or enjoyment under the traditional law or custom of the relevant territory or locality, the content of the rights and the identity of those entitled to enjoy them must be ascertained by reference to that traditional law or custom.

116    In that manner, the traditional laws and customs of the indigenous inhabitants of land will define the content of the native title rights and interests. However, what the common law recognises and is able to enforce are the native title rights and interests in land held by the traditional indigenous inhabitants of that land; the common law does not recognise the traditional laws and customs as an independent source of legal rights and obligations. This was explained by the majority in Yunupingu as follows (emphasis in original, citations omitted):

60     Whilst the underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, the underlying existence of those traditional laws and customs is not “a sufficient basis for recognising native title”. “Recognition” of native title at common law is by force of the common law itself:

The theory accepted by this Court in Mabo (No 2) was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law in Australia said so.

61     Native title is “recognised” at common law in the sense that the common law “will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them”. Thus, to say that native title rights and interests are “recognised” at common law is to mean that “[t]hose rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights [and interests]”. In other words, the concept of “recognition” “translates” native title rights and interests existing under traditional laws and customs into “a set of rights and interests existing at common law”.

117    Native title rights and interests are now recognised and protected in accordance with the NTA: NTA, s 10. The native title rights and interests recognised and protected by the NTA are those which were held to have survived the acquisition of sovereignty in Mabo No 2: see Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 (Native Title Act Case) at 452-3 (Mason CJ, Brenan, Deane, Toohey, Gaudron and McHugh JJ); and Commonwealth v Yarmirr (2001) 208 CLR 1 at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). As further explained by the plurality in Yorta Yorta at [75] (Gleeson CJ, Gummow and Hayne JJ, citations omitted):

Native title, for present purposes, is what is defined and described in s 223(1) of the Native Title Act. Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title in Australia. It was this native title that was then “recognised, and protected” in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act (s 11(1)).

118    The plurality in Yorta Yorta further stated (at [77]):

… recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.

119    Contrary to the applicant’s submissions, none of the foregoing principles were questioned or altered by the decisions of the High Court in Love or Yunupingu. Love concerned the question whether Aboriginal people (being persons who satisfy the tripartite test stated by Brennan J in in Mabo No 2 at 70) are within the reach of the aliens power conferred by s 51(xix) of the Constitution. Yunupingu principally concerned the questions: (a) whether the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory extends to making a law with respect to the acquisition of property otherwise than on just terms, or whether the sole source of the Commonwealth Parliament’s power to make laws with respect to acquisitions of property is found in s 51(xxxi) of the Constitution and is therefore conditioned on the requirement that the power be exercised only on just terms; and (b) whether an extinguishment, by or under a law of the Commonwealth, of native title as recognised at common law before the commencement of NTA constitutes an acquisition of property within the meaning of s 51(xxxi).

120    Arguments to the effect that Aboriginal traditional laws and customs are recognised and enforced by the common law, outside of the domain of native title, have been rejected in a number of appellate decisions. Reference has been earlier made to the decision in Walker. Other appellate decisions referred to in argument include the following:

(a)    In Jones v Public Trustee of Queensland (2004) 209 ALR 106, a question arose concerning the standing of the plaintiff, as the most senior elder of the Dalungdalee people of Fraser Island, to initiate proceedings against the Public Trustee to recover monies allegedly owing to a deceased member of the Dalungdalee people (being monies earned by the deceased but paid to the Director of Native Affairs and not accounted for upon the deceased’s death). In support of his claim to standing, the plaintiff contended that he was entitled to bring the claim on behalf of the Dalungdalee community (and specifically those members of the community who the beneficiaries of the deceased’s estate) under the traditional laws and customs of the Dalungdalee community. The Queensland Court of Appeal concluded that there was no evidence of such a traditional law and custom among the Dalungdalee people. McPherson JA also observed at [14] (Williams and Jerrard JJA agreeing):

… It may, in any event, be added that it appears to be based on a misconception of what was decided by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1, and the subsequent Commonwealth legislation which gave statutory effect to it. What Mabo (No 2) decided was not that Aboriginal customary law prevailed over introduced common and statute law of Queensland; but rather that the act of state of acquiring territorial sovereignty or “radical title” does not, without more, itself extinguish traditional Aboriginal or native rights or title in or to land and waters, which, on the contrary, continue to be recognised by the common law until effectively extinguished. See Mabo v Queensland (No 2) at CLR 52, 69; ALR 37, 50–1; Western Australia v Commonwealth (1995) 183 CLR 373 at 422–3; 128 ALR 1 at 11–13. The right or duty of Mr Jones to represent his people or some of them is not shown to be related to customary Aboriginal rights in land or title to waters either at all or in any way that is recognised by the common law in Australia or in any of the other jurisdictions in which the common law has been adopted or received.

(b)    In Eatts v Gundy [2015] 2 Qd R 559 (Eatts), a question arose concerning the meaning of the words “issue” and “child” the Succession Act 1981 (Qld) (the Succession Act) and whether the words are capable of including a biological nephew of an intestate on the basis that, in accordance with an Aboriginal tradition, the nephew is treated as a child of the deceased. That case was a succession dispute in which both of the parties were Indigenous Australians. The Queensland Court of Appeal concluded that, in the context of the Succession Act, the words “child” and “issue” have their natural meaning and the terms were not open to a construction that comprehends a biological nephew of an intestate person. Fraser JA (with whom Muir JA and Martin J agreed) observed (at [36]) that the Aboriginal tradition of treating a nephew as a child:

… is not recognised by the common law of Australia because it does not concern a traditional Aboriginal right in relation to land or water of a kind which the High Court held in Mabo v Queensland (No 2) was recognised. For the same reason, the tradition is not recognised or protected by s 10 of the Native Title Act 1993 (Cth).

121    For those reasons, the applicant’s submissions that Aboriginal burial and inheritance rights are “recognised by the common law” and are “true legal rights”, independently of the question whether they constitute native title rights, are rejected.

The burial and inheritance rights of the Marraŋu people are part of their native title rights and interests

122    Seemingly in the alternative, the applicant submitted in writing that traditional Aboriginal burial and inheritance rights are part of the ‘bundle of rights’ comprising the enforceability and protection of native title rights and interests recognised by the common law, citing Yunupingu at [74] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

123    The applicant’s reliance on Yunupingu at [74] is misplaced. That passage concerned the question whether the extinguishment (or cessation of recognition) of native title rights and interests by a legislative appropriation or grant of an interest in land inconsistent with the native title should be characterised as having constituted an acquisition of property within the meaning of s 51(xxxi) of the Constitution. The passage does not address the question whether rights in the nature of burial or inheritance rights, as described by the applicant, are rights or interests in land that are capable of recognition as native title rights and interests.

124    In support of the submission that the burial and inheritance rights of the Marraŋu people are part of their native title rights and interests, the applicant referred to judicial statements that have recognised the spiritual connection that Aboriginal people have with their land, including statements to that effect in Love (at [29] (Kiefel CJ); [70]-[71] (Bell J); [276]-[278] (Nettle J); [336], [339], [341], [363], [373] (Gordon J); [391], [396], [450], [451] (Edelman J)). Those judicial statements are vital to an understanding of the traditional laws and customs of Aboriginal people and the spiritual and metaphysical beliefs that underpin those laws and customs. However, to identify native title rights and interests recognised at common law and under the NTA, it is necessary to go beyond the judicial statements recognising the spiritual connection that Aboriginal people have with their land. It is necessary to identify the rights and interests possessed by Aboriginal people under their traditional laws and customs that can properly be described as being in relation to land and waters (being the language of the statutory definition in s 223(1) of the NTA). Not all rights and interests possessed under traditional laws and customs have that character. The necessary legal task was described by the High Court majority in Western Australia v Ward (2002) 213 CLR 1 (Ward) in the following terms (at [14], citations omitted):

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. …

125    The majority emphasised that, while the right to speak for country (the right to be asked permission about how and by whom country may be used) is a core concept in traditional law and custom (at [90]), there are other rights and interests which must be considered, including rights and interests in the use of the land (at [92]). The majority endorsed the metaphor of a ‘bundle of rights’, explaining (at [95]) that the metaphor:

… is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

126    However, the majority concluded that, in so far as claims to a right to maintain, protect and prevent the misuse of cultural knowledge went beyond a right to deny or control access to land or waters, they were not rights protected by the NTA: Ward at [59]-[60] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), Callinan J similarly concluding at [644]. Rights to control or prevent the disclosure of spiritual beliefs or practices relating to land or waters have likewise been rejected as incapable of constituting native title rights: see Neowarra v Western Australia [2003] FCA 1402 at [487] (Sundberg J); Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [161]–[164]; Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1 at [826]–[827]; Croft on behalf of the Barngarla Native Title Claim Group v South Australia [2015] FCA 9 at [733].

127    With those principles in mind, it is necessary to consider whether the claimed burial rights and inheritance rights of the Marraŋu people are capable of constituting native title rights and interests in relation to land. For the following reasons, that question must be answered in the negative.

128    As discussed earlier, the claimed burial rights are rights to exercise control over the body of the deceased member of the Marraŋu people and over the burial of, or other funerary arrangements for, the body. It is that right that is alleged to be impaired by the provisions of the Administration Act and the Burial Act (which, in the circumstances of this case, confer such control on Mrs Wanambi as the widow of the deceased).

129    It is an assumed fact that the claimed burial rights are founded upon the traditional laws and customs of the Marraŋu people which, in turn, are underpinned by the spiritual and metaphysical beliefs of the Marraŋu people. The traditional laws and customs of the Marraŋu people, and the spiritual and metaphysical beliefs that underpin them, are part of the connection that the Marraŋu people have with their traditional lands. Those beliefs include the beliefs that: first, the body and spirit of a Marraŋu person will return to and become part of their country when they pass away if they are buried properly under their laws and customs; and second, where a Marraŋu person is denied their burial rights, that person’s body and spirit is not returned to and reunited with their traditional land by their songlines. In the latter case, the spirit can become restless, wandering, or unable to find peace and it may become dangerous or disturb the living through bad luck, sickness, or misfortune; the spirit may be unable to join the ancestors; and the spirit and burial place are unable to be cared for by ancestors and there is a disruption of kinship obligations in the spiritual realm.

130    However, the fact that the claimed burial rights are founded upon the traditional laws and customs of the Marraŋu people, which are part of the connection that the Marraŋu people have with their traditional lands, does not support the conclusion that the burial rights are rights in relation to land. The traditional laws and customs of an Aboriginal society regulate all aspects of the communal life of the society, but not all laws and customs concern rights and obligations in relation to land. For example, traditional laws and customs regulating rights and obligations concerning marriage, respect for elders, avoidance of certain relationships or other interpersonal dealings are not rights and obligations in relation to land, notwithstanding that the laws and customs may be underpinned by spiritual beliefs that are part of the connection that the relevant society has with their traditional lands.

131    The claimed burial rights are the right to control the body of the deceased member of the Marraŋu people and the burial of the deceased’s body. That is not a right in relation to land, even though the source or foundation of the right is a spiritual and metaphysical belief that the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole. The right to choose where a community member is buried and the ceremonial practices that surround that burial are a relational right that exists between persons to deal with the body of a deceased person. The essence of the right is that the holder has priority over other people in making burial decisions. In that regard, the claimed burial rights can be contrasted with the right of Marraŋu people to conduct traditional burials on their traditional land. A right so defined is a right in relation to land and satisfies that requirement of the common law and statutory definition of native title. It is a right to use the land in a particular way and for a particular purpose. However, it is not alleged that the impugned provisions of the Burial Act and the Administration Act impairs the right of the Marraŋu people to conduct traditional burials on their traditional land. What is alleged by the applicant is that the impugned provisions impair the right of the Marraŋu people to exercise control over the burial of the deceased’s body. In my view, that right cannot be characterised as a right in relation to land and, as a consequence, cannot be characterised as a native title right or interest.

132    For completeness, in so far as the claimed burial right is alleged to be a right held by the deceased to be buried on the traditional lands of the Marraŋu people, I consider that any such right is incapable of constituting a native title right and interest because it conflicts with the common law and remedies available at common law. A necessary requirement of the recognition of native title rights and interests, at common law and under the NTA, is that the native title right or interest be capable of being recognised by the common law. In Mabo No 2, Brennan J observed (at 59) that the common law is able to recognise native title rights and interests in land provided the rights and interests are consistent with the common law. Those observations are reflected in s 223(1)(c) of the NTA which stipulates that a condition of native title is that the rights or interests are recognised by the common law of Australia. In Yorta Yorta, the plurality explained the effect of s 223(1)(c) as follows (at [77], citations omitted):

The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.

133    As noted earlier, at common law, a deceased person is denied legal existence in the form of holding legal rights, interests, or duties from the moment of their death onwards. It follows, in my view, that the common law cannot recognise a native title right held by a deceased person in the form alleged because the common law could not give a remedy to enforce such a right.

134    In relation to the claimed inheritance rights, the rights concern the transmission of the possessions of the deceased; that is, personal property. As discussed earlier, the claimed inheritance rights do not relate to the rights and interests held by the deceased in the traditional lands of the Marraŋu people before he died, as those rights and interests were not held personally by the deceased and are not separately transferred to any person upon his death. It follows that the inheritance rights are not rights in relation to land and, as a result, cannot constitute native title rights and interests.

135    As noted earlier, the applicant did not advance any submissions supporting a contention that the claimed marriage rights of the Marraŋu people are native title rights. I consider that there is no basis for any such contention.

136    I therefore conclude that the burial, inheritance and marriage rights of the Marraŋu people under their traditional laws and customs are not native title rights capable of recognition at common law or under the NTA.

The native title rights and interests of the Marraŋu people

137    It is necessary to say something more about the applicant’s claim that Marraŋu people hold native title rights and interests in their traditional land, and how that claim intersects with the applicant’s claims for relief in this proceeding.

138    As noted above, the statement of claim alleges that the Marraŋu people are the traditional Aboriginal owners within the meaning of the ALRA of the land encompassing their traditional lands of Raymangirr and Gapuwiyak in East Arnhem Land, by virtue of two deeds of grant executed by the Governor-General granting an estate in fee simple of that and surrounding land to the Arnhem Land Aboriginal Land Trust on 30 May 1980 in pursuance of sections 10(1) and 12(1)(a) of the ALRA. Elsewhere in the statement of claim it is alleged that the Marraŋu people hold native title rights and interests in their traditional land. However, the nature and extent of the claimed native title rights and interests are not alleged with any specificity, beyond the allegation, discussed above, that the claimed burial rights, inheritance rights and marriage rights are part of the native tile rights and interests of the Marraŋu people.

139    The applicant’s generalised claim that Marraŋu people hold native title rights and interests in their traditional land is relevant to the applicant’s claim under s 50(1) of the NTSGA. In that regard, the applicant alleges in its statement of claim that the impugned provisions of the Burial Act and the Administration Act impair not only the burial rights, inheritance rights and marriage rights of the Marraŋu people, but also the native title rights and interests of the Marraŋu people.

140    Having regard to that allegation, for the purposes of this summary dismissal application it is necessary to assume that the Marraŋu people hold native title rights and interests in their traditional land which is recognised by the common law (there being no allegation that a determination of native title in favour of the Marraŋu people has been made under the NTA). The content of that native title is not defined by the statement of claim, but I will proceed on the assumption that it is informed by the traditional laws, customs and beliefs that are the subject of evidence given by the applicant for the purposes of the summary dismissal application. Principally, I will assume that the native title held by the Marraŋu people include rights to occupy and use their traditional lands for the purposes of everyday life including for cultural, spiritual and ceremonial purposes, and the right to conduct burials on their land.

141    As discussed below, the applicant’s written submissions in support of his claim under s 50(1) of the NTSGA include claims that the effect of the impugned provisions of the Burial Act and the Administration Act is to depriving the Marraŋu people of their ability to bury their brother in their land and that this is a significant detriment to the land, their brother’s ‘spirit’, and to the living Marraŋu people and those yet to be born. The submissions contain a contention that this interest in their traditional land – to be able to be one with it again, to have it made whole, and through it to inhabit new members – is ‘property’ within the meaning of s 50(1) of the NTSGA because it is native title. The question whether the spiritual imbuement of the land is a native title rights and interest and ‘property’ within the meaning of s 50(1) of the NTSGA is discussed below in the context of the applicant’s claim under s 50(1).

E.4    Claim made under s 10(1) of the Racial Discrimination Act

The applicant’s claim

142    There is a disconformity between the applicant’s originating application and statement of claim. By the originating application, the applicant seeks declaratory orders that s 22(1)(a) and (b) of the Administration Act and ss 9(a) and 14(a) of the Burial Act are invalid and ineffective by reason of s 10 of the RDA to the extent they nullify or impair enjoyment by the applicant or the Marraŋu people of their burial rights, inheritance rights and marriage rights according to their Aboriginal tradition. However, the applicant’s statement of claim also alleges that Pt III, Div 4 of the Administration Act (which relevantly includes s 66) and Schedule 6 of the Administration Act infringes s 10 of the RDA. I will proceed on the basis that the applicant challenges all of those provisions (referred to herein as the impugned provisions), which have been reproduced earlier in these reasons.

143    There is no dispute with respect to the meaning and effect of the impugned provisions. In short, those provisions:

(a)    specify the persons to whom the Court may grant administration of the estate of a person who dies intestate, giving priority to the spouse or de facto partner of the deceased;

(b)    govern the distribution of an intestate estate, giving priority in the distribution to a surviving spouse or de facto partner and the children of the deceased; and

(c)    specify the person who has the power to make decisions under the Burial Act regarding the human remains of a deceased person (the “decision maker”), giving priority to the executor or administrator of the estate of the deceased person.

144    The applicant’s pleaded case under s 10(1) of the RDA claim is that the practical operation and effect of the impugned provisions is that the applicant and the Marraŋu people, and any other Aboriginal people with similar Aboriginal traditions, enjoy their burial rights, inheritance rights and marriage rights to a more limited extent than persons of another race, colour or national or ethnic origin. This is because the practical operation and effect of those provisions is:

(a)    in respect of burial rights, to give the spouse of a deceased the sole right to determine where the deceased is buried – whereas under Marraŋu customary law, decisions concerning the burial of a Marraŋu person are made by the senior elders of the Marraŋu community and Marraŋu customary law requires a Marraŋu person be buried on their traditional lands;

(b)    in respect of inheritance rights, to distribute the estate of an intestate to the spouse or children to the exclusion of a sibling of the deceased – whereas under Marraŋu customary law, decisions concerning the distribution of the possessions of a Marraŋu person are made by the senior elders of the Marraŋu community, and the possessions are not necessarily distribute to the deceased’s spouse or children; and

(c)    in respect of marriage rights, to impose a choice on the applicant and the Marraŋu people, and any other Aboriginal people with similar Aboriginal traditions, between marriage and enjoyment and observance of the Aboriginal traditions.

145    In written and oral submissions on the summary dismissal application, the applicant did not advance any argument based upon an alleged impairment of marriage rights. That part of the applicant’s claim appeared to have been abandoned. The focus of argument was the claimed burial and inheritance rights.

Applicable principles

146    Section 10 of the RDA relevantly provides as follows:

10    Rights to equality before the law

(1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)     A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

147    The ‘Convention’, referred to in s 10(2), is the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969. A copy of the English text of the Convention is set out in the Schedule to the RDA.

148    There was no material dispute between the parties with respect to the applicable principles governing s 10(1) of the RDA. The dispute concerns the application of those principles in the circumstances of this case.

149    As observed by French CJ in Maloney v The Queen (2013) 252 CLR 168 (Maloney) at [10], the purpose of s 10(1) may be described as overcoming inequality before the law based on race, colour or national or ethnic origin. As identified in Maloney at [10] (French CJ), [66] (Hayne J, Crennan J agreeing) and [149] (Kiefel J), there are two well-established applications of s 10(1):

(a)    First, if a State or Territory law creates a right which is not universal because it is not conferred on people of a particular race, s 10(1) will supply the right to the people of that race.

(b)    Second, if a State or Territory law prohibits persons of a particular race from enjoying a human right or fundamental freedom enjoyed by persons of another race, or deprives persons of a particular race of a human right or fundamental freedom otherwise enjoyed by all regardless of race, s 10 will confer that right upon the persons the subject of the prohibition or deprivation.

150    The applicable principles governing s 10(1) of the RDA were stated relatively recently by the Full Court in Fisher v Commonwealth (2023) 298 FCR 543 (Fisher). The principles stated in Fisher that are relevant to the present case include the following:

(a)    First, s 10(1) is a remedial statute directed, at a fundamental level, to the protection of human dignity. It is therefore “not to be given a legalistic or narrow interpretation” (Mabo No 1 at 230 (Deane J); Native Title Act Case at 437 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ)). Issues concerning the effect of laws and the equal or unequal enjoyment of relevant rights should therefore be approached as matters of substance rather than form (Maloney at [38] (French CJ), [65], [84] (Hayne J (Crennan J agreeing at [112])), [148] (Kiefel J), [204] (Bell J), [343(a)] (Gageler J)): see Fisher at [22].

(b)    Second, the “rights” of which s 10(1) speaks are fundamental human rights. Section 10(2) directs attention to the rights listed in Art 5 of the Convention. The list of rights in Art 5 is introduced by the word “notably” and is therefore itself non-exhaustive. The field of operation of the Convention is identified by Art 1(1), which refers to the enjoyment or exercise on an equal footing of “human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”: see Fisher at [23].

(c)    Third, the “rights” to which s 10 relates have been understood to comprise human rights of the kind referred to in the Convention (eg Mabo No 1 at 216-217 (Brennan, Toohey and Gaudron JJ); Maloney at [9] (French CJ), [63] (Hayne J), [145] (Kiefel J), [300] (Gageler J)). The constitutional underpinning of the RDA and its adherence to the task of implementing the Convention indicate that the expression “right” should be taken to refer to the human rights with which the Convention is concerned, not to particular legal rights existing from time to time under domestic law: see Fisher at [23].

(d)    Fourth, s 10(1) is not confined to laws that turn on an expressly race-based criterion or that are deliberately aimed at people of a particular race. The section may function to strike down laws that are facially neutral but discriminatory in their application: see Fisher at [32] and [98].

(e)    Fifth, there is a danger in expressing reasoning on s 10(1) in terms suggesting that lesser enjoyment of a human right arises from a person’s “personal circumstances” or “personal characteristics”. A person’s personal circumstances or characteristics include their racial background, so that, without some further explanation, the terminology does not help to explain why s 10(1) has not been engaged: see Fisher at [93].

(f)    Sixth, s 10(1) applies by reference to groups rather than individuals. What must be shown is that a law has an unequal application (either in its terms or in its practical effect) as between members of a race (or a subset of them), taken as a group, and members of another race. That involves unequal application or effect either directly by reference to membership of that race or by reference to some attribute linked with or shared by members of that race and not others (eg possession of native title rights): see Fisher at [96].

(g)    Seventh, identification of the relevant human right, and identification of how the impugned law is said to result in the unequal enjoyment of that right, are important. There must be some interaction between the operation of the law and membership of a race, or a characteristic or attribute associated with membership of a race, that leads to unequal enjoyment of the right: see Fisher at [101].

Does the applicant have an arguable case?

151    In my view, the applicant’s claim under s 10(1) of the RDA is fundamentally flawed, with the result that the applicant has no reasonable prospect of successfully prosecuting that claim. The flaw concerns the human rights claimed by the applicant in support of his case, being the claimed burial rights and inheritance rights. As noted earlier, the applicant did not advance any argument based upon the claimed marriage rights, and did not develop any argument about how the claimed marriage rights of the Marraŋu people are impaired by the impugned provisions of the Burial Act and Administration Act. The claimed marriage rights can be put aside.

152    Section 10(1) of the RDA is concerned with the unequal enjoyment of a human right or fundamental freedom between members of different races by reason of a law of the Commonwealth or of a State or Territory. The proper identification of the human right or fundamental freedom is central to the operation of the statutory protection. The following observation of Kiefel J in Maloney (at [146], citations omitted) is applicable to the present case:

Decisions of this Court confirm that the rights to which s 10 refers are human rights or fundamental freedoms. The concept of human rights and fundamental freedoms is much broader than rights or freedoms which are recognised within a particular society. The term “human rights” evokes some universal value common to all societies, even though there may not be agreement between the States Parties to the Convention as to the content of those rights. In Western Australia v Ward, it was said that some care is required in identifying the respective “rights” involved in the comparison which s 10 requires. The proper identification of the right or freedom here contended for and the question which follows, whether that right or freedom amounts to a human right or a fundamental freedom, are matters which assume particular importance in this case.

153    The burial rights and inheritance rights claimed by the applicant are not rights of the kind referred to in Art 5 of the Convention. The burial rights and the inheritance rights comprise the specific rules under Marraŋu customary law regulating, as between Marraŋu people, the manner of burial of deceased Marraŋu people and the distribution of the possessions of deceased Marraŋu people. Those rules determine who has the authority, as between Marraŋu people, to make decisions about burial and inheritance. So defined, the claimed burial rights and inheritance rights are incapable of being enjoyed by persons of another race, colour or national or ethnic origin, because the claimed rights are those of the Marraŋu people under Marraŋu customary law.

154    The fundamental flaw in the applicant’s claim under s 10(1) of the RDA is apparent when consideration is given to the nature and categories of human rights described in Art 5 of the Convention. Article 5 provides as follows:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)     The right to equal treatment before the tribunals and all other organs administering justice;

(b)     The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;

(c)     Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d)     Other civil rights, in particular:

(i)     The right to freedom of movement and residence within the border of the State;

(ii)     The right to leave any country, including one’s own, and to return to one’s country;

(iii)     The right to nationality;

(iv)     The right to marriage and choice of spouse;

(v)     The right to own property alone as well as in association with others;

(vi)     The right to inherit;

(vii)     The right to freedom of thought, conscience and religion;

(viii)     The right to freedom of opinion and expression;

(ix)     The right to freedom of peaceful assembly and association;

(e)     Economic, social and cultural rights, in particular:

(i)     The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii)     The right to form and join trade unions;

(iii)     The right to housing;

(iv)     The right to public health, medical care, social security and social services;

(v)     The right to education and training;

(vi)     The right to equal participation in cultural activities;

(f)     The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

155    The rights described in Art 5 of the Convention are capable of being enjoyed by all people regardless of race. In contrast, the burial rights and inheritance rights of the Marraŋu people are rights that are only capable of being enjoyed by Marraŋu people. As an illustration, one of the human rights listed in Art 5 is the right to inherit. The inheritance right relied upon by the applicant is not the right to inherit in the sense of a human right capable of being enjoyed by people of all races; rather it is the right of the senior elders of the Marraŋu people to determine the distribution of the possessions of a deceased Marraŋu person.

156    The human rights claimed by the applicant in support of his case, being the claimed burial rights and inheritance rights, can be contrasted with the human rights claimed by the Murray Islanders and members of the Miriam people in Mabo v Queensland (1988) 166 CLR 186 (Mabo No 1). In 1982, persons claiming to be Murray Islanders and members of the Miriam people brought proceedings against the State of Queensland and the Commonwealth claiming that the Miriam people had, since time immemorial, inhabited and exclusively possessed the Torres Strait Islands of Mer, Dawar and Waier (also referred to as the Murray Islands) and that they held rights of ownership and exclusive possession in the land of the islands. They alleged that, upon the annexation of the islands by the Crown, the islands became part of the Colony of Queensland from 1 August 1879 but that the Crown’s sovereignty was subject to the land rights of the Miriam people based upon local custom and traditional native title. In 1985, the Queensland Parliament passed the Queensland Coast Islands Declaratory Act 1985 (Qld) (1985 Act) which applied to the Murray Islands. Section 3 declared that upon the islands being annexed to and becoming part of Queensland and subject to the laws in force in Queensland, the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever. By s 5 of the 1985 Act, no compensation was to be payable to any person by reason of the annexation or in respect of any right, interest or claim alleged to have existed prior to the annexation.

157    The High Court was asked to determine two questions on the assumption that the Miriam people held the claimed native title rights and interests in the Murray Islands as claimed: whether the 1985 Act had the effect of extinguishing all native title rights and interests held by the Miriam people in the Murray Islands; and, if it did, whether the 1985 Act breached s 10(1) of the RDA. A majority of the Court (Mason CJ, Wilson, Brennan, Dawson, Toohey and Gaudron JJ) concluded that the 1985 Act had the effect of extinguishing all native title rights and interests held by the Miriam people in the Murray Islands. A different majority (Brennan, Deane, Toohey and Gaudron JJ) concluded that the 1985 Act was inconsistent with s 10(1) of the RDA and invalid.

158    In their joint judgment, Brennan, Toohey and Gaudron JJ identified the relevant human rights as the rights to own and inherit property, listed in Art 5 of the Convention, and the associated right not to be arbitrarily deprived of one’s property expressly recognised by Art 17(2) of the Universal Declaration of Human Rights 1948 (at 216-7). In explaining why the 1985 Act was inconsistent with s 10(1) of the RDA, their Honours stated (at 217-9):

Although the human right to own and inherit property (including a human right to be immune from arbitrary deprivation of property) is not itself necessarily a legal right, it is a human right the enjoyment of which is peculiarly dependent upon the provisions and administration of municipal law. Inequality in the enjoyment of that human right may occur by discrimination in the provisions of the municipal law or by discrimination in the administration of the municipal law or by both. When inequality in enjoyment of a human right exists between persons of different races, colours or national or ethnic origins under Australian law, s. 10 operates by enhancing the enjoyment of the human right by the disadvantaged persons to the extent necessary to eliminate the inequality. As the inequality with which s. 10 is concerned exists “by reason of” a municipal law, the operation of the municipal law is nullified by s. 10 to the extent necessary to eliminate the inequality.

The question which s. 10 poses in the present case is whether, under our municipal law, the Miriam people enjoy the human right to own and inherit property – a right which includes an immunity from arbitrary deprivation of property – to a more limited extent than other members of the community. (“Property” in this context must embrace rights of any kind in or over the Murray Islands.) …

… the 1985 Act destroys the traditional legal rights in and over the Murray Islands possessed by the Miriam people (and particularly by the plaintiffs) and, by an arbitrary deprivation of that property, limits their enjoyment of the human right to own and inherit it. If the assumption be made that traditional rights survived the annexation of the islands and were thereafter recognized by the common law, and if the effect of the 1985 Act be left aside, the general law of Queensland would now recognize two categories of legal rights to be enjoyed under the Crown in and over the Murray Islands: traditional rights and rights granted in pursuance of Crown lands legislation. Traditional rights are characteristically vested in members of the Miriam people; rights under Crown lands legislation are vested in grantees who may be of any race, colour or national or ethnic origin. However, it is not the source or history of legal rights which is material but their existence. It is the arbitrary deprivation of an existing legal right which constitutes an impairment of the human rights of a person in whom the existing legal right is vested. Leaving aside the 1985 Act, the general law leaves unimpaired the immunity of each person in whom any legal right in or over the Murray Islands is vested from arbitrary deprivation of that person’s legal right. The relevant human right is immunity from arbitrary deprivation of legal rights in or over the Murray Islands. The 1985 Act operates in this context.

By extinguishing the traditional legal rights characteristically vested in the Miriam people, the 1985 Act abrogated the immunity of the Miriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Miriam people. If we accord to the traditional rights of the Miriam people the status of recognized legal rights under Queensland law (as we must in conformity with the assumption earlier made), the 1985 Act has the effect of precluding the Miriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands. Accordingly, the Miriam people enjoy their human right of the ownership and inheritance of property to a “more limited” extent than others who enjoy the same human right.

In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s. 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s. 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam people therefore fails.

159    The reasons of Deane J are to the same effect (at 230-1):

On the assumption that must be made for the purpose of determining the demurrer, namely, that traditional communal and personal proprietary rights and interests of Murray Islanders (and, presumably, other Torres Strait Islanders) in and to the land, seas, seabeds and reefs of their islands survived annexation to Queensland in 1879, the subsequent law of Queensland applicable to the islands recognized two distinct categories of proprietary rights or interests. The first such category, on that assumption, involved proprietary rights and interests which were ultimately founded on traditional claims to ancestral lands which predated the application of the new imposed law (including Imperial and local statutes) of Queensland, that is to say, proprietary rights and interests whose ultimate source lay in native law or custom. The second category consisted of proprietary rights and interests whose foundation lay solely in that new law (“European law”).

The traditional rights and interests which the Act purports to extinguish are confined to rights and interests falling within the first category. … In other words, on the postulated assumption, the practical operation and effect of the Act would be to extinguish only traditional proprietary rights and interests whose ultimate source predated annexation while leaving intact rights and interests whose ultimate source lay in the European law which became applicable upon annexation and which included the common law rules and statutory provisions relating to waste lands of the Crown. In that sense, it is accurate to say that the purpose, operation and effect of the Act would, on the confined construction which I would give it, be to extinguish traditional proprietary rights and interests of the Torres Strait Islanders which survived annexation to the extent that their existence would invalidate or render ineffective subsequent dealings or acts “purporting to be in pursuance of Crown lands legislation”: the Act, s. 4. On the broader construction which the State of Queensland would give s. 3 of the Act, the purpose, operation and effect of the Act would be to extinguish any such traditional proprietary rights and interests completely. And it would do that in a context where other proprietary rights and interests claimed under the European law, including Crown lands legislation, which became applicable to the islands upon annexation (and subsequently) would not be adversely affected but would be enhanced to the extent that their validity or efficacy would otherwise be impugned by surviving traditional proprietary rights and interests. On the assumption that traditional proprietary rights and interests survived annexation, the operation and effect of the Act is, on either construction, to distinguish between proprietary rights and interests to and in the islands according to whether they are ultimately founded in pre-annexation traditional law and custom or post-annexation European law. It discriminates against the former by singling them out for impairment or extinction while leaving the latter unaffected or enhanced. The question therefore arises whether the practical effect of the Act would, upon the assumption made for the purposes of the demurrer, be to produce a situation where the Torres Strait Islanders or the Miriam people (being “persons of a particular race, colour or national or ethnic origin”) “do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than” such other persons within the meaning of those words as used in s. 10 of the Commonwealth Act. In the light of what has been said above, the answer to that question must, in my view, be in the affirmative. …

160    The significance of Mabo No 1 to the present case lies in the identification of the human rights impaired by the 1985 Act. The identified human rights were not the native title rights and interests assumed to be held by the Miriam people (and which were subsequently recognised in Mabo No 2). The native title rights and interests of the Miriam people were incapable of being enjoyed by persons of another race, colour or national or ethnic origin. Those rights were exclusive to the Miriam people. As the foregoing passages demonstrate, the human rights of the Miriam people that were impaired by the 1985 Act were the rights to own and inherit property. Those rights are capable of being enjoyed by persons of all races, colours or national or ethnic origins. The 1985 Act had the effect of precluding the Miriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands (being rights to own and inherit property) while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands.

161    Although the applicant contended that the burial rights and inheritance rights of the Marraŋu people are part of their native title rights and interests, I have earlier concluded that that contention cannot be accepted as the rights are not rights and interests in relation to land. Even if the burial rights and inheritance rights could be characterised as native title rights and interests in land, the practical effect of the impugned provisions of the Burial Act and the Administration Act is not analogous to the effect of the 1985 Act considered in Mabo No 1. First, it cannot be suggested that the impugned provisions create a right which is not universal because it is not conferred on people of a particular race. The impugned provisions are not directed to persons of a particular race; they are facially neutral as to race and apply to Aboriginal and non-Aboriginal people equally. The applicant and Mrs Wanambi enjoy the benefits and the burdens of the impugned provisions equally. The laws also apply without regard to any other criteria that could be described as a proxy for race, such as geographic limitations: Maloney at [2] (French CJ), [362] (Gageler J). The reason that Mrs Wanambi is given priority to become the decision maker for the burial of Mr B D Wanambi, and is given priority with respect to the distribution of his estate, is because she meets substantive and intelligible criteria that are unrelated to race. Mrs Wanambi holds a higher priority to obtain letters of administration and be the decision maker under the Burial Act by reason of her spousal relationship with Mr B D Wanambi, rather than her race. Second, and for the same reasons, it cannot be suggested that the impugned provisions prohibit persons of a particular race from enjoying a human right or fundamental freedom enjoyed by persons of another race, or deprives persons of a particular race of a human right or fundamental freedom otherwise enjoyed by all regardless of race.

162    In the course of oral argument, senior counsel for the applicant proffered that the human right or fundamental freedom relied upon by the applicant is the right to bury “family members or group members in accordance with their laws and customs”. Senior counsel continued:

For the Aboriginal people, that’s burial on their ancestral lands. So, they don’t enjoy the right to bury in accordance with their laws and customs to the same effect, or to the same degree, if they are prevented from burying on their ancestral lands. The Act doesn’t prevent European people from burying their loved ones in accordance with their laws and traditions, because their laws and traditions weren’t burying on ancestral lands in the same way, and celebrating their life, and so on. So the general right is burying in accordance with laws and customs, traditions and customs, whichever way one likes to phrase it.

163    It may be that the rules governing decision making with respect to burial of a deceased person and the distribution of their estate under Territory law, which give priority to a deceased’s spouse over other familial relations, are based in societal norms or expectations predominately found in European cultures. However, even if that is correct, it does not mean that the laws are racially discriminatory. It is necessary to consider the practical effect of the laws, not the religious or philosophical origin of the law. The effect of the impugned provisions is not that one race enjoys rights to a more limited extent than another race. The qualifying factor of being a spouse does not amount to a ‘proxy’ for race. The applicant’s argument that the impugned provisions deny Aboriginal people the right to conduct burials in accordance with their traditions and customs, but do not deny European people the right to conduct burials in accordance with their traditions and customs, cannot be accepted. The impugned provisions do not have that effect. They merely determine which person or persons will have the authority to make decisions about burial; they do not dictate the manner in which, or the location in which, the burial will be conducted. Further, and as previously stated, the rules governing the determination of the decision maker for burials are based on familial relationships with the deceased; they are wholly unrelated to race.

164    Reduced to its essence, the applicant’s complaint concerns a conflict between the rules governing burial and inheritance under Territory laws and under Marraŋu customary law. However, the existence of such a conflict on its own does not support a conclusion that the Territory laws infringe s 10(1) of the RDA. Section 10(1) requires the identification of a human right or fundamental freedom, some universal value common to all races or societies, the enjoyment of which is unequal on the basis of race, colour or national or ethnic origin, by reason of a law of the Commonwealth or of a State or Territory. The applicant’s case fails to establish any such human right or fundamental freedom that is impaired by the impugned provisions of the Burial Act and the Administration Act.

165    The conclusion that the impugned provisions do not engage s 10(1) is reinforced when considering what remedy would be available to resolve the alleged unequal enjoyment of right. The remedies sought by the applicant are, relevantly:

(a)    a declaration that the impugned provisions are invalid and ineffective by reason of s 10 of the RDA to the extent they nullify or impair enjoyment by the applicant or the Marraŋu people of their burial, inheritance and marriage rights according to their Aboriginal tradition; and

(b)    an order that the time, place and manner of the burial of the remains of the deceased be as determined by the applicant.

166    A remedy in the terms sought by the applicant would not resolve the alleged unequal enjoyment of the burial right and inheritance right, but rather would create an unequal enjoyment of the rights. The practical effect of the proposed declaration would be that the impugned provisions would not apply in the case of a deceased Marraŋu person, and the rules governing burial and inheritance would be governed by Marraŋu customary law. In cases such as the present, where the spouse of the deceased is not a Marraŋu person, the remedy sought by the applicant would create inequality before the law rather than equality.

E.5    Claim made under s 50(1) of the NTSGA

The applicant’s claim

167    The second of the claims made by the applicant concerns s 50(1) of the NTSGA. Section 50 provides as follows:

50    Acquisition of property to be on just terms

(1)    The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.

(2)     Subject to section 70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms.

168    By his statement of claim, the applicant alleges that:

(a)    the burial rights, inheritance rights, marriage rights “and/or native title rights and traditional Aboriginal owner rights” are each property of the applicant and the Marraŋu people within the meaning of s 50(1) of the NTSGA; and

(b)    the impugned provisions of the Burial Act and the Administration Act constitute an acquisition of that property otherwise than on just terms, contrary to s 50(1) of the NTSGA.

169    By his originating application, the applicant sought compensation for the alleged acquisition of the applicant’s and Marraŋu people’s burial rights, inheritance rights, marriage rights “and/or native title rights and their rights as traditional Aboriginal owners”. However, in his written submissions, the applicant acknowledged that the effect of a breach of s 50(1) of the NTSGA is the invalidity of the impugned provisions, not compensation (see Health Insurance Commission v Peverill (1994) 179 CLR 226 (HIC v Peverill) at 254 (Toohey J)). This is a flaw in the applicant’s originating application, but one which can be rectified by amendment. I will proceed on the basis that such an amendment has been made.

170    The applicant’s written submissions in support of his claim under s 50(1) of the NTSGA were as follows:

Depriving the Marraŋu people of their ability to bury their brother in their land is a significant detriment to the land, their brother’s ‘spirit’, and to the living Marraŋu people and those yet to be born.

That interest in their land – to be able to be one with it again, to have it made whole, and through it to inhabit new members – is ‘property’ within the meaning of s 50: Wurridjal v Commonwealth of Australia (2009) 237 CLR 309, [87]-[89] (French CJ); [270] (Kirby J). Native title recognised at common law is ‘property’: Yunupingu [50] (plurality).

171    Four aspects of those submissions can be noted.

172    First, the submissions commence with a contention that the impugned provisions of the Burial Act and the Administration Act deprive “the Marraŋu people of their ability to bury their brother in their land”. Stated in such absolute terms, the contention is inaccurate. Certainly the impugned provisions contain rules with respect to the designation of a decision maker for the burial of a deceased which differ from the customary laws of the Marraŋu people. However, it will not always be the case that the impugned provisions prevent Marraŋu people from burying deceased members of their community in their land. Depending on the factual circumstances, the impugned provisions may provide for decisions to be exercised by a senior member of the Marraŋu people (as senior next of kin); and even when that does not occur, the relevant decision maker may in any event elect to have the deceased buried on Marraŋu traditional lands. Thus, and as discussed earlier, the principal effect of the impugned provisions is to impair the claimed burial rights of the Marraŋu people. I have earlier concluded that those rights are not native title rights and interests.

173    Second, the applicant’s submissions in respect of s 50(1) do not concern the claimed inheritance rights or marriage rights of the Marraŋu people, despite what is alleged in the statement of claim. The submissions concern the power of decision making with respect to the burial of deceased Marraŋu people, and the alleged consequences of a Marraŋu person not being buried on Marraŋu traditional land.

174    Third, the applicant’s submissions conclude with a contention that, if Mr B D Wanambi is not buried on Marraŋu land, this will result in a significant detriment to the land, to Mr B D Wanambi’s spirit, and to the living Marraŋu people and those yet to be born. The claimed detriment can be characterised as a spiritual detriment felt or perceived by Marraŋu people. For the purposes of this summary dismissal application, it can be assumed that the detriment is real and of substance to the Marraŋu people. As stated earlier, the facts assumed on this application include that, under their traditional laws and customs, the Marraŋu people have a connection with their traditional lands that is powerful, unique, essentially spiritual, metaphysical, religious and cultural. It includes but also transcends ‘rights and interests’, ‘ownership or possession’ and ‘property’ known to the common law. The connection is founded on a fundamental belief that the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole. The connection is a two-way connection by which the land ‘owns’ the people and the people are responsible for the land. It includes a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations. The Marraŋu people have a belief that their body and spirit will return to and become part of their country when they pass away, if they are buried properly under their laws and customs.

175    Fourth, for the purposes of the summary dismissal application, it is assumed that the Marraŋu people hold native title rights and interests in their traditional land, and that those native title rights and interests are underpinned by the traditional laws and customs of the Marraŋu people that include the spiritual beliefs stated in the preceding paragraph.

176    The question that arises for determination is whether the impugned provisions of the Burial Act and the Administration Act are to be characterised as laws relating to the acquisition of property for the purposes of s 50(1) of the NTSGA by reason of the fact that the operation of the laws have the potential to cause, in the perception of Aboriginal traditional owners of land, spiritual detriment to their traditional land.

Applicable principles

177    It is apparent that s 50(1) of the NTSGA reflects the terms of s 51(xxxi) of the Constitution and creates an analogous guarantee: see Attorney General for the Northern Territory v Emmerson (2014) 253 CLR 393 at [76] (French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ). Section 51(xxxi) of the Constitution stipulates:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…

(xxxi)     The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

…

178    The guarantee in s 50(1) relates to a law of the Territory “with respect to the acquisition of property”. The guarantee has no application to a law which is not with respect to the acquisition of property. As stated by the learned authors of Hanks, Gordon and Hill’s Constitutional Law in Australia, 4th ed at [10.22], in respect of s 51(xxxi) of the Constitution, a law will not be subject to the just terms requirement unless the law:

(a)    takes property away from someone;

(b)    has the effect that someone else acquires an interest in the property; and

(c)    is properly characterised as a law with respect to the acquisition of property.

The concept of property

179    The concept of ‘property’ in s 51(xxxi) of the Constitution has been interpreted broadly. In Minister of State for the Army v Dalziel (1944) 68 CLR 261, Starke J described the term ‘property’ as extending to “every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and choses in action” (at 290). Similarly, McTiernan J described the term as meaning “any tangible or intangible thing which the law protects under the name of property” (at 295). In Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210, the High Court stated (at [43]-[44], citations omitted):

43    It is well established that s 51(xxxi) of the Constitution is concerned with matters of substance rather than form and that “acquisition” and “property” are to be construed liberally. Moreover, “acquisition” is to be understood in the “compound conception, namely, ‘acquisition-on-just-terms’”.

44    In the present case it is also useful to recognise the different senses in which the word “property” may be used in legal discourse. Some of those different uses of the word were identified in Yanner v Eaton. In many cases, including at least some cases concerning s 51(xxxi), it may be helpful to speak of property as a “bundle of rights”. At other times it may be more useful to identify property as “a legally endorsed concentration of power over things and resources”. Seldom will it be useful to use the word “property” as referring only to the subject matter of that legally endorsed concentration of power.

180    In Yunupingu, the High Court confirmed that native title rights and interests recognised at common law constitute ‘property’ for the purposes s 51(xxxi) of the Constitution: at [50] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ); [130], [143] (Gordon J).

The concept of acquisition

181    In relation to the concept of acquisition, Mason J stated in The Commonwealth v Tasmania (1983) 158 CLR 1 at 145:

The emphasis in s. 51 (xxxi) is not on a “taking” of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be.

182    In Yunupingu, the High Court also confirmed that the extinguishment of a native title right or interest in land which occurred upon an appropriation by the Commonwealth or grant of an inconsistent right or interest in the land to a third person by or pursuant to Commonwealth legislation is an acquisition of property within the meaning of s 51(xxxi) of the Constitution: at [2], [53], [81], [84] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ); [113], [173]-[174] (Gordon J); [321] (Edelman J).

183    Laws which merely diminish or are detrimental to rights held by a person, and which do not involve the Commonwealth or another person acquiring an interest in the rights, are not laws relating to the acquisition of property. As stated by Deane and Gaudron JJ in Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 185 (citations omitted):

Nonetheless, the fact remains that s 51(xxxi) is directed to ‘acquisition’ as distinct from deprivation. The extinguishment, modification or deprivation of rights in relation to property does not of itself constitute an acquisition of property. For there to be an ‘acquisition of property’, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property. On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result.

184    The foregoing principle has been applied in numerous cases: see Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480; Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175; Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140; JT International SA v The Commonwealth (2012) 250 CLR 1.

Characterisation as a law with respect to an acquisition of property

185    The cases have also recognised a range of circumstances in which a law that involves an acquisition of property is not characterised as a law relating to the acquisition of property within the meaning of the constitutional guarantee. One such circumstance is a law relating to the seizure of an asset as a penalty for illegal conduct: see for example Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270. Another such circumstance are cases involving a genuine adjustment of rights. HIC v Peverill concerned Commonwealth legislation reducing the amount of Medicare benefits payable to a medical practitioner for medical services. The High Court concluded that the legislation was not inconsistent with s 51(xxxi) for a number of reasons, including because “the extinguishment of the earlier right to receive payment of a larger amount has been effected not only by way of genuine adjustment of competing claims, rights and obligations in the common interests between parties who stand in a particular relationship but also as an element in a regulatory scheme for the provision of welfare benefits from public funds” (at 236 per Mason CJ, Deane and Gaudron JJ). Similarly, in Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 (Nintendo), the High Court concluded that the Circuits Layout Act 1989 (Cth), which created a right in the designer of an electronic circuit to restrain the use of the circuit by others, was not a law for the acquisition of property of the person restrained. The plurality (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) stated (at 161, citations omitted):

The cases also establish that a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterization as a law with respect to the acquisition of property for the purposes of s. 51 of the Constitution. The Act is a law of that nature. It cannot properly, either in whole or in part, be characterized as a law with respect to the acquisition of property for the purposes of that section. Its relevant character is that of a law for the adjustment and regulation of the competing claims, rights and liabilities of the designers or first makers of original circuit layouts and those who take advantage of, or benefit from, their work. Consequently, it is beyond the reach of s. 51(xxxi)’s guarantee of just terms.

Does the applicant have an arguable case?

What is the property allegedly acquired by the impugned provisions?

186    For the purposes of this application, and for the reasons explained below, it is unnecessary to determine whether the rights or interests of the applicant, which are alleged to be adversely affected by the impugned provisions of the Burial Act and the Administration Act, are rights and interest in the nature of ‘property’ within the meaning of s 50(1) of the NTSGA. Whether or not the rights and interests are property, the impugned provisions do not involve any acquisition of property and are not laws with respect to the acquisition of property. Nevertheless, some brief consideration of the question of property is warranted, because the alleged ‘acquisition’ must relate to identified property.

187    The applicant alleges that the burial rights of the Marraŋu people are impaired by the impugned provisions. However, I have concluded that the burial rights, as defined by the applicant, are not native title rights and interests. Further, it is difficult to conceive of how such rights can be characterised as ‘property’. They are decision making rights arising under Marraŋu customary law which are acknowledged and observed amongst Marraŋu people. Not being native title rights and interests, they are not legal rights recognised by Australian law.

188    The applicant also alleges that the impugned provisions, in so far as they give control over the burial of a Marraŋu people to a person other than the senior elder of the Marraŋu people and, as a consequence, result in a Marraŋu person not being buried on their traditional lands, cause spiritual detriment to their traditional lands. It is assumed for the purposes of this application that the traditional laws and customs of the Marraŋu people include beliefs with respect to the spiritual connection of the Marraŋu people with their traditional lands, and a belief that their body and spirit will return to and become part of their country when they pass away, if they are buried properly under their laws and customs. It is also assumed that those beliefs are part of the traditional laws and customs of the Marraŋu people under which the Marraŋu people hold native title rights and interests in the land recognised at common law. However, it is a different question whether those beliefs constitute native title rights and interests recognised by the common law and are ‘property’ for the purposes of s 50(1) of the NTSGA. As explained by Edelman J in Yunupingu (at [286]), the expression ‘native title’ can blur the distinction between the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, which create rights and interests in relation to land and waters, on the one hand and the content of rights and interest in land and waters capable of recognition by the common law on the other:

“Native title” is also a loose description. It is loose in two respects. The first respect in which “native title” is a loose description is that it conflates two different dimensions: the source of the common law rights and interests and the legal recognition of those rights and interests. In one sense, “native title” can describe the norms that underlie the traditional laws and customs of Aboriginal and Torres Strait Islander peoples, which create rights and interests in relation to land, waters, and chattels. This was the sense in which Brennan J used “native title” in Mabo (No 2) when his Honour spoke of native title being ascertained “as a matter of fact by reference to [traditional] laws and customs” and of native title being recognised by the common law but not being an “institution of the common law”. But “native title” can also be used to describe the rights and interests existing at common law after recognition at common law of those norms. That was the sense in which Deane and Gaudron JJ used the expression “common law native title” in Mabo (No 2) and that is the sense in which the expression is used, interchangeably with “native title rights and interests”, in the Native Title Act.

189    The same distinction is implicit in the statements of the plurality (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) in Yunupingu that the nature and incidents of native title are ascertained as a matter of fact by reference to traditional laws and customs (at [59]), but recognition of native title at common law is by force of the common law itself (at [60]) and that (at [61], citations omitted):

Native title is “recognised” at common law in the sense that the common law “will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them”. Thus, to say that native title rights and interests are “recognised” at common law is to mean that “[t]hose rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights [and interests]”. In other words, the concept of “recognition” “translates” native title rights and interests existing under traditional laws and customs into “a set of rights and interests existing at common law”.

190    Steward J also expressed caution in Yunupingu about the need to distinguish between the traditional laws and customs of Aboriginal and Torres Strait Islander peoples and the spiritual beliefs that are the foundation for those laws and customs on the one hand, and the native title rights and interests in land possessed under those laws and customs and capable of recognition by the common law. His Honour said (at [374]):

Something first should be said about language and native title. This is a property law case. The “property” in issue is that identified in s 51(xxxi) of the Constitution. That “property” is not those traditional and various laws and customs acknowledged and observed by Indigenous Australians which are the source of native title. Rather, it is the common law’s recognition of native title. That recognition manifests itself by the enforcement of rights and interests over land and water by the common law. There will often be nothing “metaphysical” about the exercise of those rights by Indigenous Australians. In contrast, underlying native title rights and interests, as classes of foreign laws, reflect religious or spiritual connections to land. How they do, and the extent to which they might do, would depend upon the particular Indigenous group in question, and would be a matter for evidence, including anthropological expert evidence. But the recognition by the common law, endlessly practical in its unique genius, that is achieved by enforcement of native title is not concerned with those underlying connections, save for the purposes of proving the continued existence of native title. Those connections are otherwise a matter for each Indigenous group and person.

191    Nevertheless, it is well-accepted that native title rights and interests recognised by the common law may involve features that are unfamiliar to common law conceptions of property rights. This was reiterated by Gordon J in Yunupingu (at [134], citations omitted):

134    … Native title rights and interests, as recognised by the common law, are rights and interests exercisable with respect to land (and waters). They are rights and interests which have “some or all of the features which a common lawyer might recognise as a species of property”. They are rights and interests to do things in relation to land and waters. As was stated in Wik Peoples v Queensland they “may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein”.

135    While it may be useful to compare native title with other rights and interests afforded protection by s 51(xxxi) for the purposes of determining whether native title is protected by s 51(xxxi), this should not obscure the fact that native title rights and interests are sui generis and have no precise analogy with other common law property rights.

136    Native title is not “created by” and does not derive from the common law. In Mabo v Queensland (No 2), it was held that, at sovereignty, the common law accepted that “the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty” and “[t]hose antecedent rights and interests thus constitute[d] a burden on the radical title of the Crown”. What we call “native title” takes its content from the traditional laws acknowledged, and the traditional customs observed, by Indigenous Australians. “Native title” is neither an institution of the common law, nor a form of common law tenure, but it is recognised by the common law. Native title involves an intersection of two systems: the common law recognising the traditional laws and customs of Indigenous Australians.

137    As counsel for the Gumatj Clan put it “[w]e are dealing with a form of title that reflects the social, cultural, economic, and religious framework of the society of Indigenous Australians, who occupied the country tens of thousands of years before the arrival of the sovereign Crown”. Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country. It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution.

138     Native title is different from what common lawyers identify as property rights. While native title may be characterised as rights and interests with respect to land and waters, equating native title with proprietary rights in relation to land and waters is “artificial and capable of misleading”.

192    Her Honour identified (at [142]) that one of the differences between conceptions of property under Australian common law and native title rights and interests is that:

… native title has a cultural, spiritual or metaphysical aspect that has no analogue in European law: it is “something over and above and separate from ‘enjoyment’ in the sense of the ability to engage in activity or use”; it “refers to a defining element in a view of life and living”. It is a connection with land where the land “owns” the people and the people are responsible for the land. It is a two-way connectedness the law has tried to capture by speaking of spiritual connection. It is a “religious relationship … the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”.

193    The observations of Gordon J provide some support for a conclusion that the spiritual beliefs of the Marraŋu people – that they have a spiritual connection with their traditional land and that their body and spirit will return to and become part of their country when they pass away – are not merely the basis of their rights and interests in the land recognised by the common law as native title, but are part of their native title rights and interests.

194    The above discussion illustrates that the contentions advanced by the applicant with respect to the ‘property’ that is allegedly ‘acquired’ by the impugned provisions of the Burial Act and the Administration Act may not be sound. However, for reasons that will now be explained, it is unnecessary to reach a definitive conclusion on that question for the purposes of this application. What is significant is the identification of the ‘property’ of the applicant and Marraŋu people allegedly acquired by the impugned provisions, being the spiritual imbuement of the land which the Marraŋu people believe will be diminished if Mr B D Wanambi is not buried on the traditional lands of the Marraŋu people. Whether or not those rights and beliefs constitute ‘property’, the impugned provisions do not involve any acquisition of property and are not laws with respect to the acquisition of property.

Do the impugned provisions effect an acquisition of property?

195    As explained earlier, to engage s 50(1), it is not sufficient that legislation adversely affects a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby, relevantly, the Territory or another person acquires an interest in the property. In that respect, laws which merely diminish or are detrimental to rights held by a person, and which do not involve the Territory or another person acquiring an interest in the rights, are not laws relating to the acquisition of property.

196    The impugned provisions of the Burial Act and the Administration Act do not have the effect of expanding the Territory’s title or rights in the lands of the Marraŋu people, or of granting an interest in that land to a third person. The applicant’s submissions rise no higher than a contention that the effect of the impugned provisions may be to cause spiritual detriment to the land. This will occur when a person other than the senior elders of the Marraŋu people is appointed as the decision maker for the purposes of the Burial Act and that person elects to bury a deceased Marraŋu person other than in accordance with the traditional laws and customs of the Marraŋu people. The applicant does not contend that, as a result of such spiritual detriment, the Territory’s title or rights in the lands of the Marraŋu people is expanded, or that any third person acquires rights in the lands of the Marraŋu people. Furthermore, no such contention is open on the assumed facts. As submitted by the Territory, the impugned provisions merely confer and regulate jurisdiction to grant letters of administration, to make decisions about the body of a deceased person, and to regulate the order of priority for intestate estates.

197    For that reason, the applicant’s claim under s 50(1) of the NTSGA has no reasonable prospect of success.

Can the impugned provisions be characterised as a law with respect to the acquisition of property?

198    For completeness, I also conclude that the impugned provisions of the Burial Act and the Administration Act cannot be characterised as a law with respect to the acquisition of property.

199    As observed by the plurality in Nintendo (at 161) cited above, a law which is not directed towards the acquisition of property as such but which is concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity is unlikely to be susceptible of legitimate characterisation as a law with respect to the acquisition of property for the purposes of s. 51 of the Constitution. The impugned provisions are laws of that nature. They are laws for the adjustment and regulation of the competing claims, rights and liabilities of persons who have a legally recognised relationship with a deceased person, either by legal instrument (being appointed as an executor under a will duly made by the deceased) or by familial or kinship relations. As such, the impugned provisions are beyond the reach of s 50(1) of the NTSGA.

200    For that additional reason, the applicant’s claim under s 50(1) of the NTSGA has no reasonable prospect of success.

E.6    Claim concerning the Crown’s obligation of protection

The applicant’s claim

201    The third of the claims made by the applicant is based on an alleged obligation of protection owed by the Crown to Aboriginal societies and their members. The applicant alleges that the burial rights, inheritance rights and marriage rights of the Marraŋu people “are entitled to unique protection by the Crown”. This “right to Crown protection” is said to be a result of the burial, inheritance and marriage rights emanating from the Marraŋu people’s connection to land which is recognised in the common law as native title. The applicant alleges that, by reason of the effect of the impugned provisions of the Burial Act and the Administration Act, the applicant and the Marraŋu people enjoy their burial rights, inheritance rights and marriage rights to a more limited extent than persons of another race, colour or national or ethnic origin contrary to the Crown’s obligation of protection.

202    The applicant seeks declaratory relief that the impugned provisions are invalid and ineffective by reason of the Crown’s obligation of protection to the extent they nullify or impair enjoyment by the applicant or the Marraŋu people of their burial rights, inheritance rights and marriage rights according to their Aboriginal tradition.

203    As the claim made by the applicant in respect of the Crown’s obligation of protection towards Aboriginal people is novel, it is appropriate to reproduce the written submissions advanced by the applicant on this topic in full:

10    A majority of the High Court has neither accepted nor rejected the existence of the Crown’s obligation of protection towards indigenous people. Submissions were sought on that issue in Love, with Keifel CJ [sic], Gageler J and Keane J being against a judicially imposed fiduciary obligation, and Bell J, Nettle J, Gordon J and Edelman J being in favour of an obligation of various descriptions. See Keifel CJ [sic] at [9], [22], [30], [42]–[45]; Gageler J at [86]–[92], [127]–[130], [138]–[139]; Keane J at [161]–[166], [192], [194], [196]–[198], [207]–[208], [212]; Bell J at [52], [67], [71], [73]–[74]; Nettle J at [268]–[277], [289]; Gordon J at [335], [338]–[350], [356]–[365], [374]; Edelman J at [437], [447]–[455].

11    Support for an obligation can also be found in Mabo No 2 at 200-205 (Toohey J); 85, 87, 93, 113 (Deane and Gaudron JJ); 163.8–167.1 (Dawson J).

12    The proposition is now put that where statutory or executive power is exercised in a manner affecting Aboriginal societies whose rights are recognised at common law, the law proceeds on the presumption that such power must be exercised with particular care for their interests unless Parliament clearly indicates otherwise.

13    This presumption reflects established doctrines of Australian law including the principle of legality, administrative law constraints on the exercise of statutory power, the constitutional commitment to the rule of law, the recognition of Indigenous rights at common law, the historical vulnerability of Aboriginal societies to governmental power, and international law obligations.

14    Synthesising multiple strands of law in this way was the means by which the High Court developed the doctrine of native title in Mabo No 2. The Court drew upon imperial jurisprudence, property law principles, constitutional structure, and international legal norms. Rather than relying upon a single doctrinal source, the Court articulated a principle emerging from the convergence of those authorities.

15     The principle proposed at [12] above adopts the same method by drawing on the following:

(a)    The fundamental consideration which impelled the formulation of the common law rule of recognition explained in Mabo (No 2) was to bring the common law into conformity with “the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system”: Yunupingu [79] (plurality);

(b)    The principle of legality provides that statutes will not be interpreted as abrogating fundamental common law rights unless Parliament expresses that intention with unmistakable clarity: Coco v The Queen (1994) 179 CLR 427;

(c)    Administrative law requires that statutory powers be exercised responsibly toward those whose rights or interests are affected: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kioa v West (1985) 159 CLR 550;

(d)    The Australian constitutional system assumes that executive power remains subject to legal constraint and judicial supervision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kirk v Industrial Court (NSW) (2010) 239 CLR 531;

(e)    Imperial jurisprudence historically recognised Indigenous peoples as standing under the protection of the Crown: Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399;

(f)    Aboriginal societies represent one of the oldest continuing cultural traditions in the world, deserving of preservation and care;

(g)    The unique symbiotic relationship between Aboriginal people and their land created by their traditional laws and customs by which they ‘belong’ to the land as much – or more than – the land ‘belongs’ to them: Love [117] (Gageler J); [289]-[290], [297]-[298], [362]-[364] (Gordon J); [396], [450]-[451] (Edelman J).

(h)    International instruments to which Australia is a party reinforce the importance of careful treatment of Indigenous communities. Article 27 of the International Covenant on Civil and Political Rights recognises the right of minorities to enjoy their culture. Article 2(2) of the International Convention on the Elimination of All Forms of Racial Discrimination recognises the legitimacy of special measures designed to protect vulnerable racial groups;

(i)    Highway authorities are not obliged to take action but, when they do, are required to do so non-negligently: Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512;

(j)    A public authority is not necessarily obliged to exercise a statutory power but a duty may arise if [it] chooses to do so: Pyrenees Shire Council v Day (1998) 192 CLR 330.

16    A principle developed and expressed in this way would accommodate the concerns of those members of the High Court who have not embraced a fiduciary or similar obligation of protection such as Gageler J that historical maltreatment justifies special protection but that it is for Parliament to implement: Love [133].

17    A consequence of acting legislatively or executively in defiance of this principle is invalidity of action – in a similar way to action done in breach of administrative law constraints or the Kable principle – or the action being limited so it is compliant – as by the application of the principle of legality.

204    In the course of argument, the applicant acknowledged that an “obligation of protection” owed by the Crown to Aboriginal people, as propounded by the applicant, has not previously been recognised by Australian courts. The applicant argued that the duty does not arise from a single doctrinal source, but from a synthesis of authorities.

Does the applicant have an arguable case?

205    In my view, the applicant’s claim that the Crown has an obligation of protection owed to Aboriginal people which has been breached by the impugned provisions of the Burial Act and the Administration Act is not a claim recognised at law. Accordingly, the applicant has no reasonable prospect of successfully prosecuting that claim.

206    In his written submissions (reproduced above), the applicant rephrased the asserted legal obligation as follows: where statutory or executive power is exercised in a manner affecting Aboriginal societies whose rights are recognised at common law, the law proceeds on the presumption that such power must be exercised with particular care for their interests unless Parliament clearly indicates otherwise. So stated, the claimed obligation is inherently uncertain in nature and scope. The applicant was unable to cite any authority in support of the existence of such an obligation. Nor was the applicant able to articulate the jurisprudential basis for such an obligation. Nor did the applicant attempt to explain the content of the obligation to exercise statutory or executive power “with particular care” for the interests of Aboriginal people.

207    As can be seen from the applicant’s written submissions reproduced above, the applicant argued that support for the asserted obligation can be found in Mabo No 2 and in Love. In my view, the passages from those decisions relied upon by the applicant provide no support for the existence of the asserted obligation.

208    The passages from Mabo No 2 relied upon by the applicant were views expressed by the minority which were inconsistent with the majority decision. Justices Deane and Gaudron concluded that, where the Crown has alienated land by granting an interest that is wholly or partially inconsistent with native title, the alienation would be wrongful and would entitle the owners to compensation (see at 110-113). Justice Toohey concluded that native title could be extinguished by clear and plain legislation or by an executive act authorized by such legislation, but that the extinguishment would involve a breach of a fiduciary obligation owed by the Crown to the native title holders for which the Crown would be liable to pay compensation or damages (see at 200-5). It can be observed that even the foregoing minority opinions did not suggest that legislation or an executive act that had the effect of extinguishing native title would be invalid or ineffective. In any event, the minority opinions were inconsistent with the majority opinions of the Court. The joint judgment of Mason CJ and McHugh summarised the differing opinions in the Court as follows (at 15):

In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown. We are authorized to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case.

209    The majority opinions have never been doubted (see for example Northern Territory v Griffiths (2019) 269 CLR 1 at [129]-[130] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) in relation to the existence of a fiduciary obligation upon the Crown), although a statutory right to compensation for the extinguishment of native title in certain circumstances was created by the NTA.

210    In relation to Love, the applicant submitted that a majority of the High Court has neither accepted nor rejected the existence of the Crown’s obligation of protection towards indigenous people and that Kiefel CJ, Gageler J and Keane J expressed views against a judicially imposed fiduciary obligation, and Bell J, Nettle J, Gordon J and Edelman J expressed views “in favour of an obligation of various descriptions”. The submission is grossly inaccurate. None of the judgments of the High Court suggest, or even address, the existence of the Crown’s obligation of protection towards indigenous people as propounded by the applicant.

211    The decision in Love concerned the limits of the power conferred by s 51(xix) of the Constitution to make laws with respect to ‘aliens’, and specifically whether that power applies to Aboriginal persons who are not Australian citizens, were born overseas and are citizens of a foreign country (those being the characteristics of the plaintiffs in that case): Kiefel CJ at [1] and [4], Bell J at [49], Gageler J (as his Honour then was) at [112] and [126], Keane J at [142]-[145], Nettle J at [241], Gordon J at [294] and [331] and Edelman J at [391]. The majority (Bell, Nettle, Gordon and Edelman JJ) found, in four separate judgments with differing reasons, that Aboriginal people, understood according to the tripartite test stated in Mabo No 2, are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution: see Bell J at [81], speaking on behalf of the majority. The tripartite test stated in Mabo No 2 is a reference to that part of the judgment of Brennan J (at 70) in which his Honour summarised the common law of Australia with respect to native title, including the identification of persons entitled to native title.

212    Many of the judgments in Love refer to the obligation of loyalty or allegiance owed to the Crown by its citizens or ‘subjects’ and the reciprocal obligation of protection given by the Crown to its citizens or ‘subjects’ (see for example Kiefel CJ at [13], Gageler J at [106]-[109], Keane J at [162], Nettle J at [248]-[261], Edelman J at [428]). The word ‘subject’ is used in this context, in preference to the statutory concept of citizenship, to describe persons who, by reason of reciprocal obligations of allegiance and protection with the Crown, are not aliens within the meaning of the Constitution (while recognising that there is some disagreement about the use of the word in that manner: see Gordon J at [295]). None of the judgments in Love suggest that the obligation of protection owed by the Crown to its subjects differs in nature between categories of people (ie, it is owed equally to Aboriginal and non-Aboriginal Australians). The ‘protection of the Crown’ in that context is a concept borrowed from international law, which is descriptive of a person’s relationship with the sovereign and therefore their alienage. An alien may be described as a person to whom the Crown does not owe permanent protection. Even in this context, the duty or obligation of protection owed by the Crown to a subject has been described as an “abstract term” with uncertain content: see Singh v The Commonwealth (2004) 222 CLR 322 at [166] (Gummow, Hayne and Heydon JJ).

213    The argument advanced by the plaintiffs in Love, which was accepted by the majority, was that Aboriginal people, understood according to the tripartite test stated in Mabo No 2, are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution because of their unique connection with their traditional land and waters in Australia under their traditional laws and customs. Following the hearing of the special cases, the High Court wrote to the parties inviting submissions on whether members of an Aboriginal society have such a strong claim to the protection of the Crown that they may be said to owe permanent allegiance to the Crown (and, as a consequence, cannot be aliens): see at [67] (Bell J). The applicant appears to rely on the High Court’s consideration of those submissions. However, as is apparent from the question asked by the High Court, the submissions are unrelated to the contention advanced by the applicant in this proceeding. The ‘protection of the Crown’ that was addressed in the submissions and the decision of the Court is a constitutional concept, being a metaphorical description of a person’s relationship with the sovereign and therefore their alienage. None of the majority judgments, on which the applicant relies, uses the expression ‘protection of the Crown’ in any other sense. The underlying principle applied by the majority was explained by Nettle J at [252]:

… once it is accepted, as it must be, that the aliens power is not entirely untrammelled, it necessarily follows that some individuals would not be aliens even if denied Australian citizenship by statute. Given the conception explained above, that must be because they have so strong a claim to the permanent protection of – and thus so plainly owe permanent allegiance to – the Crown in right of Australia that their classification as aliens lies beyond the ambit of the ordinary understanding of the word.

214    The majority judgments found that Aboriginal peoples, understood according to the tripartite test stated in Mabo No 2, have a special, perhaps unique, connection with their traditional land and waters in Australia such that they cannot be considered to be aliens within the meaning of the Constitution. The juridical concept of the Crown’s obligation of protection did not feature strongly in the majority judgments. Although Nettle J referred to the “unique obligation of protection owed by the Crown” to Aboriginal societies (at [272] and [276]), there is nothing in his Honour’s reasons that suggest his Honour envisaged that the Crown’s obligation of protection differed as between subjects, or had in contemplation an obligation of protection as propounded by the applicant. The phrase “unique obligation of protection” must be understood as a reference to the unique or distinctive circumstances in which the obligation of protection (and therefore non-alienage) arises, being a member of an Aboriginal society with a deep spiritual, and historical, connection with Australian land and waters.

215    The applicant’s submissions (reproduced above) also refer to a range of accepted legal principles, such as the principle of legality, principles of natural justice, the constitutional requirement of judicial review and, for reasons that are not apparent, make reference to the obligations of highway authorities and other public authorities. The ‘grab bag’ assortment of principles does not advance the applicant’s claim.

216    For those reasons, the applicant’s claim concerning the Crown’s obligation of protection has no reasonable prospect of success.

F.    CONCLUSION

217    In conclusion, and for the reasons given above, the applicant has no reasonable prospect of successfully prosecuting the proceeding as no reasonable cause of action is disclosed by the applicant’s pleading or submissions.

218    I will make an order that the proceeding be dismissed under s 31A(2) of the FCA Act and r 26.01(1) of the FCR. The dismissal of the proceeding will bring to an end the undertaking given by the respondent, Mrs Wanambi, to the Court as recorded in the orders made on 1 December 2025.

219    I will give the parties an opportunity to file brief submissions on the question of costs.

Associate:

Dated:    22 June 2026