Federal Court of Australia

Wanambi v Wanambi [2026] FCA 1591

ORDERS

THE COURT ORDERS THAT:

1. The interlocutory application filed on 7 August 2026 is dismissed.

2. The proceeding is dismissed.

3. Adam Wanambi must pay the respondents’ costs of the proceeding, to be taxed if not agreed.

4. There is liberty to any party to apply in relation to paragraph 3 by 4.00 pm ACST on 6 November 2026 by written submission of no more than three pages in length accompanied by any affidavits in support.

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

REASONS FOR JUDGMENT

JACKSON J:

1 These reasons concern three related applications by Mr Adam Wanambi:  to be substituted as the applicant in the proceeding; for an extension of time to seek leave to appeal; and for leave to appeal.

2 The applications concern what can only be described as an unhappy state of affairs, in which different members of the family of an Aboriginal person who passed away in the Northern Territory on 7 April 2025 do not agree on where and how he should be buried.  I will call the deceased person Mr B Wanambi.  As a result of this disagreement, the body of Mr B Wanambi has lain in a mortuary in the Tiwi Islands since his passing.

3 In the decision that is the subject of the proposed appeal, the primary judge granted summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth), dismissing a claim brought by the brother of Mr B Wanambi.  That brother, whom I will call Dr G Wanambi, himself passed away on 23 June 2026, the day after the primary judgment was delivered.  Nevertheless, the solicitors who are presently on the record for Dr G Wanambi purported to commence an appeal in his name.  Apart from the problem of the death of the putative appellant, in filing the purported notice of appeal those solicitors overlooked the need for leave to appeal from a summary judgment decision, which is required under s 24(1A) and s 24(1D)(b) of the Federal Court Act, and they did not comply with the time limit of 14 days for filing any application for leave to appeal, as required by r 35.13(a) of the Federal Court Rules 2011 (Cth).

4 Mr Adam Wanambi is Dr G Wanambi’s son, and so is Mr B Wanambi’s nephew (according to mainstream Australian kinship norms).  By an interlocutory application filed on 7 August 2026, Mr Adam Wanambi seeks to be made the appellant in place of the late Dr G Wanambi.  By an application for extension of time and leave to appeal, also filed on 7 August 2026 (and which names Mr Adam Wanambi as the appellant), he seeks to effectively cure the other procedural defects described above.

5 I will start, however, with the substantive issue of whether leave to appeal should be granted.  As senior counsel for Mr Adam Wanambi correctly acknowledged at the hearing, there is no point in granting an extension of time or ordering the substitution of an applicant if there is no merit in the application for leave to appeal.  For the following reasons, there is no such merit, as there is insufficient doubt about the correctness of the primary judgment to warrant leave to appeal, and no substantial injustice will follow even if the primary judgment is wrong.  It follows that it is not in the interests of the administration of justice to grant any of the other procedural applications, which will be dismissed.  Mr Adam Wanambi will be ordered to pay the respondents’ costs of the proceeding.

6 To avoid cumbersome repetition, though, I will proceed as though Mr Adam Wanambi is the applicant for leave to appeal in place of Dr G Wanambi, and will generally call Mr Adam Wanambi the applicant.

The factual background and the claim in the first instance proceeding

7 In the proceeding at first instance, a statement of claim (SOC) was filed but no defence.  The summary judgment application proceeded as though it were a demurrer, that is, it assumed that the allegations of fact in the SOC would be established at trial.  It is convenient to proceed in the same way here.  Much of what follows is therefore taken from the SOC.  If for some reason the appeal does proceed, none of what follows should be taken as final findings of fact.

The Marraŋu people and their burial rights

8 Each of Mr B Wanambi and Dr G Wanambi were members of the Marraŋu people (or Marranju or Marrangu – the first spelling will be used throughout without indicating amendment to quotes) who are a clan of the wider Yolŋu (or Yolngu) people.  They are the traditional owners of the lands of Raymangirr and Gapiwuk in East Arnhem Land.  Before his death, Mr B Wanambi was the senior elder of the Marraŋu, known as the Djimkay.  When Mr B Wanambi died, Dr G Wanambi became the Djimkay.

9 The Marraŋu people have a strong connection with their traditional land, a connection that was pleaded in the SOC in some detail.  It is not necessary to set out that detail here; I proceed on the basis that the connection is deep, ancient and fundamental to the Marraŋu people.  It was, with respect, well-summarised in the primary judgment (PJ) at [92], which I quote because the primary judge’s appreciation of these matters bears on the proposed ground of appeal:

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.

10 It was pleaded that the characteristics and incidents of that connection ‘include or create’ the following rights (SOC para 10):

(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;

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

Together these rights were defined in the SOC as burial rights.

11 It was further pleaded that if a Marraŋu person is denied any of the burial rights, various adverse consequences ensue.  Again, it is not necessary to go into detail; it may be accepted for present purposes that the consequences are serious and distressing for the Marraŋu people.

12 The SOC also pleaded certain Marraŋu inheritance rights and marriage rights, but it is not necessary to enumerate these; the burial rights alone are the subject of the present applications.  It was pleaded that the burial rights (SOC para 15):

(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 [Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)];

…

(d)     constitute human rights within the meaning of the Racial Discrimination Act [1975 (Cth)] and article 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.

(Sub-paragraph (c) has been omitted here because it concerned a case about ‘Crown protection’ that has been abandoned for the purposes of the present applications.)

The Territory burial provisions are impugned by reference to the Racial Discrimination Act

13 The reference in sub-paragraph (d) to the Racial Discrimination Act 1975 (Cth (RDA) sets up the claim that is the subject of the proposed appeal.  It was a claim that s 10 of that Act renders certain Territory laws invalid and ineffective.  Those laws were pleaded to be a combination of provisions of the Administration and Probate Act 1969 (NT) (Administration Act) and the Burial and Cremation Act 2022 (NT) (Burial Act).  Paragraph 17 of the SOC alleged that the combination of these Territory burial provisions:

gives the spouse of a deceased the sole right to determine where the deceased is buried by:

(a)     s 9(a) of the Burial and Cremation Act making the ‘decision maker’ for a deceased person to be, firstly, the executor or administrator of that person’s estate;

(b)     s 14(a) of the Burial and Cremation Act giving the ‘decision maker’ the power to make any decision required under the Act regarding the human remains of the deceased person in accordance with the Act and to decide the outcome of any dispute regarding the human remains of the deceased person under the Act; and

(c)     s 22(1)(a) and (b) of the Administration and Probate Act not enabling the sibling of a deceased traditional Aboriginal intestate person to be their ‘decision maker’ by not [permitting] administration of an intestate person to be granted to a sibling of a traditional Aboriginal person where there is a spouse or children.

14 It was then pleaded that, by virtue of the Territory burial provisions in combination (SOC para 18):

(a)     the applicant and the Marraŋu people; and

(b)     any other Aboriginal people with similar Aboriginal tradition,

enjoy their burial rights to a more limited extent than persons of another race, colour or national or ethnic origin contrary to … s 10(1) of the Racial Discrimination Act.

The relevance of the burial laws and the Territory burial provisions to the present case

15 The applicant’s challenge to the Territory burial provisions arises in the following circumstances.

16 In 1986, Mr B Wanambi married the first respondent, Mary Wanambi.  The wedding took place according to Territory law, under the Marriage Act 1961 (Cth).  They had been married for nearly 40 years at the time of Mr B Wanambi’s death.  Mrs Wanambi is a person of the Tiwi Islands.  She and Mr B Wanambi lived in the Tiwi Islands for most of their lives together.  Mr B Wanambi did, however, return to Arnhem Land from time to time to lead ceremonies, including funerals, as the Djimkay.

17 Mr B Wanambi died intestate.  For reasons that are not entirely clear, Mrs Wanambi has not yetapplied for letters of administration of his estate.  Nevertheless, as summarised at PJ [56]:

On 14 November 2025, [Wanambi v Wanambi [2025] NTSC 77] 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.

That this is the ordinary effect and likely operation of the Territory burial provisions is common ground.

18 There is evidence that Mrs Wanambi wishes to bury Mr B Wanambi in the Tiwi Islands.  The concern underlying the applicant’s claim, then, expressed from his point of view, is that as the lawful spouse of Mr B Wanambi, under the Territory burial provisions, Mrs Wanambi will be entitled to choose where he is buried and by what rites.  If that entitlement is recognised, Mr B Wanambi will not be buried on Marraŋu land according to Marraŋu laws and customs.

The relief sought at first instance

19 After dealing with aspects of the claim that are not pursued in the proposed appeal, the SOC went on to claim, relevantly, a declaration that the Territory burial provisions ‘are invalid and ineffective by reason of … s 10 of the Racial Discrimination Act 1975 (Cth) to the extent they nullify or impair enjoyment by the applicant or the Marraŋu people of their burial rights according to their Aboriginal tradition’.  Also claimed was an order that the time, place and manner of the burial of the remains of Mr B Wanambi be determined by Dr G Wanambi.

The primary judgment

20 The primary judge dismissed the entire case. The only claim pursued in the proposed appeal is that the Territory burial provisions are invalid and ineffective due to the RDA, so I will only summarise the aspects of his Honour’s judgment that relate to that claim.

Introductory matters

21 After setting out some background that need not be repeated here, the primary judge expressly acknowledged (at PJ [8]) the allegations set out at [12] above.  His Honour also noted that while Dr G Wanambi alleged that the burial rights of the Marraŋu people were part of their native title in their traditional lands, he did not seek any relief under the Native Title Act 1993 (Cth) (NTA).  Rather, those allegations were made in support of Dr G Wanambi’s claims for relief under the RDA.

22 The primary judge also noted that the Territory had intervened in the proceeding.  It became the second respondent at first instance and is the second respondent here.  The Territory has taken the main burden of opposing the current applications.  Counsel for Mrs Wanambi did not participate, other than to adopt the Territory’s submissions and to make a few oral submissions putting forward his client’s point of view on the proposed appeal.  The Attorney-General for the Territory also intervened at first instance, and for that reason has been made the third respondent to the current proceeding, although she has taken no part in it.

The general law and Territory burial provisions

23 The primary judge commenced his substantive analysis by surveying the general law, that is the common law, as to the burial of deceased persons.  It is worth briefly restating his Honour’s unchallenged summary of principle because, as will be seen, it is relevant to whether denying leave to appeal will cause substantial injustice.  In short, the common law is:

(1) There is no property in a dead body, and it is inaccurate to say that a deceased person has a ‘right’ to burial in any given way, since a deceased person does not hold legal rights from the moment of their death onwards.

(2) Nevertheless, the common law casts on certain persons the responsibility and perhaps right (or the ‘privilege’, as it is described in one of the main authorities) of burying the deceased person’s body, with (PJ [26]) ‘due regard to the need to have a dead body disposed of without unreasonable delay but with all proper respect and decency’.

(3) Ordinarily, where the deceased person has named an executor in a will, it is the executor who has the privilege of burying the deceased’s body.  If there is no named executor, it usually is the person entitled to administration who has that privilege.  Since burial commonly happens before the appointment of an administrator, it is the person who is most likely to get the grant of administration who will ordinarily be expected to bury the body.

24 These matters are now commonly governed by legislation, which in the Territory means the Territory burial provisions.  The primary judge traced the operation of these provisions in some detail but it is uncontroversial that, if valid and effective, they mean that Mrs Wanambi, as the person most likely to obtain letters of administration in her capacity as Mr B Wanambi’s spouse, is the ‘decision maker’ for the purposes of s 14 of the Burial Act.  Under that section, the decision maker:

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.

The summary judgment application

25 After canvassing the history of previous proceedings, including that which led to the Territory Supreme Court judgment mentioned at [17] above, the primary judge dealt with a challenge to the claim before him based on the proposition that it was seeking to relitigate that former proceeding.  The primary judge rejected that challenge, essentially because he found that the Territory Supreme Court decision was interlocutory in nature and so (for example) did not give rise to an issue estoppel.

26 His Honour then turned to the summary judgment application.  His summary of principle is not controversial in the proposed appeal, and does not need to be set out or summarised here.  His Honour proceeded on the basis, as dictated by s 31A of the Federal Court Act, that the relevant question was whether he was satisfied that Dr G Wanambi had no reasonable prospect of successfully prosecuting the proceeding.  I respectfully adopt, without repeating, the primary judge’s unchallenged summary of the well-established principles that govern the Court’s consideration of applications under that provision at PJ [72]-[81].  As has been said, his Honour proceeded as though on a demurrer, so that there were no factual issues in dispute for the purposes of the summary judgment application, although the legal characterisation of the facts was in issue.  But in the end the merits of the proposed appeal turn on whether the legal analysis that led his Honour to the view that Dr G Wanambi had no reasonable prospect of prosecuting the claim was erroneous in the ways asserted in the sole remaining ground of appeal (which is set out below).

27 The primary judge then described the facts which he assumed to be true for the purposes of the demurrer process that had been adopted.  These included the biographical facts about Mr B Wanambi and Mrs Wanambi that have been briefly summarised above, as well as the summary of the connection that Marraŋu people have with their traditional lands set out at [9] above.  It is pertinent to note, however, that his Honour did not stop with that summary, but went on to describe other aspects of the connection that Yolŋu people, and so Marraŋu people, have with the land, in some detail.

Characterising the burial rights

28 The primary judge then described, as an assumed fact, the existence of the burial rights that have already been described above and the adverse consequences that ensue when a Marraŋu person is denied those burial rights.  His Honour then made two observations, the first of which is criticised by the applicant (PJ [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).

29 The primary judge then went on to consider the proper legal characterisation of the burial rights.  At PJ [107], his Honour made it clear that he understood that Dr G Wanambi’s case was that those rights ‘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’.  But, as mentioned above, his Honour noted that Dr G Wanambi did not seek any relief under the NTA.  The primary judge also noted that it was an assumed fact that the burial rights formed part of the traditional laws and customs of the Marraŋu people, but that the Territory disputed the legal characterisation of those rights as native title rights as recognised by the common law and under the NTA.

30 The primary judge then said that the submissions of Dr G Wanambi in support of the legal characterisation and effect of the burial rights were difficult to follow, and seemed to contain two alternative submissions (PJ [110]):  ‘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’.

Burial rights not recognised by common law and not part of native title

31 The primary judge considered each of those submissions in turn.  For the first, his Honour found that it was contrary to authority to say that the common law recognised Aboriginal burial rights, even if it is accepted that they are emanations of the connection of Aboriginal people to their lands.  The common law does not recognise traditional laws and customs as an independent source of legal rights and obligations; what it recognises and protects are native title rights and interests in land and waters.  There is no challenge to this conclusion in the proposed appeal.

32 The primary judge then turned to what he understood to be the alternative argument, that the burial rights were part of the native title rights and interests of the Marraŋu people.  It is necessary to address this in a little more detail, as it engages issues raised by the proposed ground of appeal.

33 The primary judge first dismissed an argument advanced by Dr G Wanambi that burial rights form part of the ‘bundle of rights’ comprising the enforceability and protection of native title rights recognised by the common law, which was apparently based on Commonwealth v Yunupingu [2025] HCA 6; (2025) 284 CLR 1.  He then noted that Dr G Wanambi also relied on judicial statements recognising the spiritual connection that Aboriginal people have with their land that were made in Love v Commonwealth [2020] HCA 3; (2020) 270 CLR 152.  But, his Honour held, it was necessary to go beyond those statements, as important as they were, to identify the native title rights and interests that are recognised at common law and under the NTA, being (PJ [124], emphasis in original):  ‘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)’.

34 His Honour then explored the concept of the ‘bundle of rights’ used in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, as drawing attention to the fact that there may be more than one right or interest, and that (Ward at [95]): ‘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.’

35 With such principles in mind, the primary judge answered the question of whether burial rights were capable of constituting native title rights and interests in the negative.  In doing so, his Honour characterised the burial rights (PJ [128]) as ‘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’.  These, his Honour held, were the rights that were alleged to be impaired by the Territory burial provisions.

36 The primary judge then summarised again the assumed facts that the burial rights were founded on traditional laws and customs of the Marraŋu people, which are underpinned by their spiritual and metaphysical beliefs, and part of the connection that the Marraŋu people have with their traditional lands.  His Honour described again the adverse consequences that would happen, according to Marraŋu beliefs, if a Marraŋu person is denied those burial rights.  But he drew a distinction between rights founded on the traditional laws and customs that are part of the connection between Marraŋu and their traditional lands, and rights that are themselves rights in relation to land.  Not all traditional laws and customs confer rights in relation to land.  

37 At PJ [131], in a passage that is under challenge in the proposed appeal – in particular the sentence given added emphasis below – his Honour said:

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.

38 Since a deceased person cannot hold rights at common law, the primary judge further considered that, to the extent that the burial rights were alleged to be held by the late Mr B Wanambi, those rights would not be rights capable of recognition under the common law, and so not native title rights and interests within the meaning of that term in the NTA.

39 The primary judge’s overall conclusion at this point was thus that the burial rights of the Marraŋu people under their traditional laws and customs were not native title rights capable of recognition at common law or under the NTA.

The principles as to the application of the RDA

40 Then, after briefly touching on a different claim that does not feature in the proposed appeal, the primary judge turned to his central reasoning concerning the application of s 10 of the RDA.  His Honour noted that, as far as burial rights are concerned, Dr G Wanambi’s pleaded case under that section was that the effect of the Territory burial provisions was that he and the Marraŋu people enjoyed those rights to a more limited extent than persons of another race, colour of national or ethnic origin.  That was because, Dr G Wanambi claimed, the practical effect of the impugned provisions was (PJ [144(a)]):

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…

41 His Honour then set out s 10 of the RDA, which is:

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.

The Convention referred to in sub-paragraph 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.

42 The primary judge then summarised the principles that govern s 10(1) of the RDA.  Those principles were not in dispute before his Honour, and are not in dispute now.  His Honour summarised two well-established applications of s 10(1) identified in Maloney v The Queen [2013] HCA 28; (2013) 252 CLR 168, as follows (PJ [149]):

(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.

43 His Honour also summarised principles drawn from Fisher v Commonwealth [2023] FCAFC 106; (2023) 298 FCR 543, which include, relevantly to the proposed appeal (PJ [150]):

…

(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].

…

(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].

Why the RDA claim had no reasonable prospects of success

44 The primary judge then turned to whether there was any arguable case that the Territory burial provisions were such that there was a reasonable prospect of prosecuting the claim under s 10 of the RDA.  His Honour expressed his conclusion at the outset of the analysis (at PJ [151]), that:

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 ...

45 The primary judge went on to develop the analysis that led to that conclusion, as follows:

(1) Quoting from the judgment of Kiefel J in Maloney at [146], his Honour held that s 10(1) of the RDA is concerned with human rights or fundamental freedoms that ‘evoke some universal value common to all societies’ that are broader than rights or freedoms that are recognised within a particular society.  Hence proper identification of the right or freedom is important.  (PJ [152])

(2) The burial rights are not rights of the requisite kind, because they are not capable of being enjoyed by persons of another race, colour, or national or ethnic origin.  They are rights of Marraŋu people, under Marraŋu customary law, only capable of being enjoyed by Marraŋu people.  (PJ [155])

(3) After setting out Art 5 of the Convention, which lists a number of universal rights, the primary judge observed (PJ [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.

(4) At PJ [156]-[160], the primary judge then drew a contrast between the claimed burial rights and the rights that were claimed by the Meriam people in Mabo v Queensland (1988) 166 CLR 186 (Mabo No 1).  It is not possible to do justice to his Honour’s careful analysis of that case in a summary, and those paragraphs should be read in full.  A key point that emerges from them, however, is that the rights identified by the majority of the High Court as engaging s 10 of the RDA were the rights to own and inherit property and the associated right not to be arbitrarily deprived of one’s property.  The Queensland Act under challenge in Mabo No 1 purported to extinguish, without compensation, property rights sourced in traditional law, while leaving unimpaired property rights sourced in the newer laws of Queensland, including Imperial and local statutes (which Deane J defined as ‘European law’).  Thus, the universal freedom from arbitrary deprivation of property rights was impaired where the source of those rights was related to membership of a particular race (Torres Strait Islanders) and unimpaired, or impaired to a lesser extent, when based on different sources (European law).  As Deane J put it (Mabo No 1 at 231):

the operation and effect of the [Queensland] Act is …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.

46 Crucially then, for the primary judge, the significance of Mabo No 1 was that it did not concern the impairment of native title rights and interests particular to the Meriam people; it concerned the impairment of a right held by all humans, regardless of race, colour or national or ethnic origin.  (PJ [160])

47 In a passage which is also under challenge and important to the proposed appeal, the primary judge then said (PJ [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.

48 The primary judge then recorded that, in oral submissions, counsel for Dr G Wanambi described the universal right or fundamental freedom on which his client relied as ‘the right to bury “family members or group members in accordance with their laws and customs”’:  PJ [162].

49 The primary judge then held that even if the Territory burial provisions were based in predominantly European societal norms or expectations, that does not mean that the provisions are racially discriminatory.  For their practical effect was (PJ [163]-[164]):

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.

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.

50 The primary judge considered that this conclusion was reinforced by the relief that Dr G Wanambi was seeking.  As has been said, this relevantly included a declaration that the Territory burial provisions were invalid and ineffective by reason of s 10 of the RDA to the extent that they nullify or impair enjoyment of traditional Marraŋu burial rights, and an order that the place, time and manner of burial of the remains of Mr B Wanambi be determined by Dr G Wanambi.  His Honour considered that this would create rather than remove unequal enjoyment of rights, because the outcome would be that Mrs Wanambi is denied the ability to choose those matters because she is not a Marraŋu person.

The applicant’s case on appeal

51 As mentioned, the solicitors purporting to act for Dr G Wanambi filed a notice of appeal commencing this proceeding on 10 July 2026.  While Mr Adam Wanambi now pursues an application for leave to appeal and an application for an extension of time, the proposed grounds of appeal are still those that appear in the putative notice of appeal save that, as mentioned, ground 2 has been abandoned.  The remaining proposed ground is:

The primary judge erred in holding that s 9(a) and 14(a) of the Burial and Cremation Act 2022 (NT) and s 22(1)(a) and (b) of the Administration and Probate Act 1969 (NT) do not engage s 10(1) of the Racial Discrimination Act 1975 (Cth).  In doing so, the primary judge erred in:

(a)     holding that the appellant had not alleged that the relevant right was the right to conduct traditional Aboriginal burials on traditional Aboriginal land, contrary to the appellant's pleaded case;

(b)     concluding that the burial rights pleaded by the appellant were not rights in relation to Aboriginal land;

(c)     identifying the relevant right as a right as between Marraŋu people and the surviving spouse to determine where and how a deceased Marraŋu person should be buried, rather than the right to conduct, or determine the conduct of, a burial according to traditional Aboriginal law and custom;

(d)     concluding that recognition of the pleaded right would create inequality for the purposes of s 10(1) of the Racial Discrimination Act 1975 (Cth).

52 The first and second of the four sub-grounds here concern the italicised sentence from the primary judgment that is found at [37] above.  The applicant contrasts that sentence with the pleaded burial rights, which are found at [10] above, and the pleaded (and assumed) facts that those rights emanate from the Marraŋu people’s relationship with the land (see [12] above).  That contrast, the applicant submits, shows that the primary judge’s statement – that Dr G Wanambi had not alleged that the relevant right was to conduct traditional Aboriginal burials on traditional Aboriginal land – was incorrect.  The applicant contends that in making that statement, his Honour reduced rights that were connected to the land to a ‘relational priority to control a body’.

53 In reply submissions, the applicant amplifies this criticism of the primary judgment by saying that:

The right is one directly in relation to land because its origins and purpose are to reunite the deceased with the land, with his ancestors residing in the land and with those born from the land; and to protect the applicant and Marraŋu people on the land from the deceased’s restless spirit as a result of his not being reunited [with Marraŋu land.]

54 The applicant further submits that this error was material, because the primary judge carried it into his analysis of the application of the RDA, where his Honour held that the burial rights were not rights or interests in relation to land.  In reply submissions, the applicant says that this informed that analysis because treating it as a right allocating authority between Marraŋu persons is what made it incapable of universal enjoyment.

55 In oral submissions, senior counsel for the applicant also said that the first sentence of PJ [102] makes the same error.  That sentence is found at [28] but to repeat it here for convenience, it was:  ‘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.’  The error, according to senior counsel for the applicant, is that the pleaded burial rights are rights ‘to bury the body on Marraŋu land, which is a far deeper and more important right to the people than mere control of the body’.

56 The applicant makes two further submissions that do not appear to be specifically reflected in the proposed grounds of appeal.

57 The first is that the primary judge characterised the effect of the Territory burial provisions as merely identifying a decision maker, but not also dictating the manner or location of burial.  The applicant challenges this on the basis that the ‘practical effect’ of giving decision making power to the spouse of the deceased (as is the case here) is that the spouse has the power to determine the place and manner of burial, contrary to Marraŋu law.  He submits that whether this impairs equal enjoyment of the right is at least arguable.  In reply submissions, he puts it this way:  ‘The right is impaired by giving a non-Marraŋu person priority in deciding where to bury the deceased, according to European traditions and customs’ and:

On the assumed facts, the statutory choice of decision maker determines finally and conclusively whether the deceased is buried on Marraŋu Country or on the Tiwi Islands, with no regard needing to be had to the customs and traditions of the community with whom the deceased person identifies or the deceased’s own wishes.

58 The second further submission is that, while the primary judge correctly noted that s 10(1) of the RDA can apply to laws that are racially neutral on their face, his Honour placed too much weight ‘on the facial neutrality of the provisions and the use of spousal status rather than race   as the express criterion’.  The applicant submits in reply submissions that the primary judge ‘treated the absence of an express racial criterion or proxy, and the use of spousal status, as substantially dispositive’.  There is a real question, he says, as to ‘whether that approach gave sufficient effect to the pleaded practical and culturally specific burden’.

59 In oral submissions, senior counsel confirmed that the ‘culturally specific burden’ referred to here was the impairment of the ability of Marraŋu people to practise their beliefs, which falls within the universal right to practise religion.  He variously characterised it as ‘a right to practise religion, a right to use their land and the right to be united with ancestors and descendants and the land’.  However senior counsel confirmed that he was not suggesting that this was any different to the way the right was put it to the primary judge, that is, as the right to bury deceased persons in accordance with traditional laws and customs (see [48] above).  That was the appropriate level of generality, consistent with Mabo No 1, but, senior counsel submitted, the primary judge characterised it at too specific a level, so that it wrongly fell out of the scope of s 10 of the RDA.

60 The applicant’s written reply submissions similarly seek to characterise the universal right said to have been impaired as ‘the right to bury a family or community member according to traditional law and custom where the traditional law and custom is sufficiently strong to warrant that recognition’.  The applicant submits that this follows Mabo No 1, in which, he says, the majority recognised that traditional rights may be unique to a racial group but still ‘their impairment by municipal law produces unequal enjoyment of a human right capable of universal enjoyment’.

61 The final submission made by the applicant corresponds to sub-ground (d) of the proposed ground of appeal.  But that submission rises no higher than pointing out that relief can always be amended, so that any overreach in the orders claimed does not mean that the underlying claim has no reasonable prospect of success.

Principles on leave to appeal

62 It is well-established that in determining whether to grant leave to appeal from an interlocutory decision, the Court’s focus is on whether the primary judgment is attended with sufficient doubt to warrant its reconsideration by a Full Court, and on whether, supposing the primary judgment is wrong, a substantial injustice would occur if leave was refused.  These enquiries are interrelated:  Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

There is no real doubt about the correctness of the primary judgment

63 In my respectful view, there is no real doubt that the primary judgment was correct.  That is so even acknowledging that, on a summary judgment application, the primary judge was required to apply the stringent standard of whether Dr G Wanambi had any reasonable prospect of successfully prosecuting the proceeding.  For, with respect, the case that Dr G Wanambi put under the RDA fails at two points (at least), both of which are conceptual and fundamental.

Two fundamental points of failure

64 Section 10 of the RDA is set out at [41] above.  It can be assumed that the Marraŋu people are ‘persons of a particular race, colour or national or ethnic origin’.  What the section requires, in terms, is the identification of either a right that is not enjoyed by the Marraŋu people but ‘is enjoyed by persons of another race, colour or national or ethnic origin’, or a right that is enjoyed by the Marraŋu people ‘to a more limited extent than persons of another race, colour or national or ethnic origin’.

65 The first point at which the case fails is that the right on which Dr G Wanambi principally relied was not a right of either of these kinds.  The pleaded right that was the principal basis of the claim was the right to bury deceased Marraŋu people on Marraŋu land in accordance with Marraŋu laws and customs.  Self-evidently, that is neither a right that any persons of another race, colour or national or ethnic origin enjoyed, nor is it a right that Marraŋu people enjoyed to a more limited extent than such persons.  To the contrary, it is a right that (on the assumed facts) Marraŋu and only Marraŋu people enjoy, to any extent.

66 There is an echo of this point in proposed appeal ground 1(c), which implicitly identifies the ‘relevant right’ (that is, the right that has been abrogated or limited by the Territory burial provisions) as ‘the right to conduct, or determine the conduct of, a burial according to traditional Aboriginal law and custom’.  Stated that way the right falls foul of the same problem; it is a right that can only be enjoyed by one racial group, Aboriginal people, and so it is not susceptible of the kind of analysis reflected in the second aspect of s 10 of the RDA identified in Maloney (summarised at PJ [149] and set out at [42] above).

67 Hence, I do not accept that it was the primary judge’s characterisation of the impaired right as a relational right between persons, or as allocating rights between Marraŋu people, that made it incapable of universal enjoyment.  Conceiving it as a right in relation to land would make no difference for, however conceived, it is a right pleaded and defined to be a right that could only by exercised by Marraŋu people.

68 The second point at which the case fails arose when, seemingly to meet that problem, senior counsel for Dr G Wanambi put the right in a different way, so that it was capable of being a right enjoyed by all.  As senior counsel for the applicant correctly submitted, the level of generality at which the relevant right is characterised is key.  The relevant right, as it was ultimately put to the primary judge, was a right to bury deceased persons in accordance with traditional laws, customs or beliefs.  Senior counsel confirmed that his client had no intention to depart from that characterisation on the proposed appeal.  I accept that it is arguable (at least) that this is a characterisation at the right level of generality, comparable to that of the property rights that were the subject of Mabo No 1.

69 Put in that way, this was not a right that Dr G Wanambi and/or other Marraŋu people do not enjoy while being a right that people of another race, colour or national or ethnic origin do enjoy (the first application of s 10 taken from Maloney).  Rather, the right was put as one of the second kind described in s 10 of the RDA, a right that was enjoyed by all persons, but enjoyed to a more limited extent by Marraŋu people.

70 What Dr G Wanambi would have needed to establish at trial, then, to put it in broad terms, is that the effect of the Territory burial provisions is that the Marraŋu people enjoy that right to a lesser extent than members of other racial, national or ethnic groups, because they are members of the Marraŋu people (or, for completeness, because they are Aboriginal people, or because they fall into any other racial, national or ethnic classification).

71 The failure in the case at this second point is that, on no view can the Territory burial provisions be said to operate in a different way on persons of different racial, national or ethnic groups.  There can be no suggestion that they draw a distinction that is expressly based on membership of such groups.  And, as the primary judge reasoned, they do not operate in a different way based on any characteristics of persons that serve as a proxy for race, colour or national or ethnic origin.

72 That is because the agreed effect of the Territory burial provisions, in so far as they are relevant to the present situation, is that where a person dies intestate, the decisions about where and how that person will be buried (or their remains are otherwise dealt with) are made by the person likely to receive letters of administration. If the deceased is survived by a spouse, the decision maker will likely be that spouse.

73 If the outcome is that the person is not buried in accordance with laws and customs that are specific to a racial, national or ethnic group, that is not because the Territory burial provisions operate differently on members of that group when compared to any other persons.  It is because the spouse chooses not to bury the deceased in accordance with those laws and customs.  A different spouse in different circumstances could well have chosen to observe those laws and customs.  That is simply the outcome of the decision made by the relevant decision maker.  No basis has been articulated, or could be articulated, to suggest that the identity of the decision maker, as dictated by the Territory burial provisions, has anything to do with the person’s race, colour or national or ethnic origin.  The implication in the applicant’s submission that the Territory burial provisions give ‘a non-Marraŋu person priority’ – that the racial characteristics of the person are relevant to the application of the provisions – is incorrect.

74 With respect, and as summarised above, the primary judge’s reasoning identified both of those points of failure, and the proposed ground of appeal and submissions put by the applicant give no cause to doubt his Honour’s reasoning.

The proposed ground of appeal

75 Turning to the proposed ground of appeal, there is no real basis to think that the primary judge misdescribed the nature of the rights claimed, as the applicant contends.  The applicant criticises the statement made at PJ [102], reproduced at [28] above.  But he does not say why the statement is incorrect, or why it manifested any misunderstanding of the asserted dimension of the laws and customs on which it was based as inextricably bound up with the connection of the deceased and living members of the Marraŋu people to Marraŋu country.  At PJ [102] his Honour was simply describing what was said to have been impaired by the Territory burial provisions.  That description was surely correct, since it follows from the conferral on Mrs Wanambi of the power to decide where and how Mr B Wanambi is to be buried that this power is what is denied to Dr G Wanambi and all other Marraŋu people.

76 Senior counsel for the applicant submitted that his Honour’s description does not encompass the claimed ‘right to bury the body on Marraŋu land’.  But it does encompass that, because his Honour uses the term ‘burial rights’ where, two paragraphs previously he set out the definition of that term given in the SOC, which expressly included the right to bury Marraŋu people on the traditional land (see [10] above).  It is pleaded to follow, from giving control over the burial arrangements to the spouse of the deceased, that the effect of statutory priority enables the spouse to determine the place and manner of burial ‘contrary to Marraŋu law’.  The applicant therefore submits that it is ‘at least arguable’ that the right of Dr G Wanambi or other surviving Marraŋu people to bury Mr B Wanambi on Marraŋu land will be impaired.  But PJ [102] gives no reason to think that the primary judge misunderstood the relationship between that right and the connection to country which, senior counsel acknowledged, his Honour had accurately described in preceding parts of the primary judgment (including that set out at [9] above).

77 The same goes for the other passage from the primary judgment that is criticised this way, namely the sentence in PJ [131] which is italicised at [37] above.  The focus of that sentence, considered in context, is not on the rights that Dr G Wanambi or other Marraŋu people were pleaded to have.  His Honour clearly understood that these rights were alleged to have a direct relation to the land; the question of whether they were capable of being recognised as native title rights was the very issue he was considering at this point in the primary judgment.  But once again, the focus was on the nature of the impairment alleged.  As pleaded, and as set out at [13] above, the impairment did indeed concern who had control over the burial of the body, not whether Marraŋu people were able to bury deceased persons on their land, in accordance with their laws and customs.  The Territory burial provisions were not pleaded to regulate or confine the place at which any persons were to be buried.  That this is the point his Honour was making at PJ [131] is confirmed by the sentence that follows the one that is specifically challenged: ‘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.’

78 In any event, even if either or both of these passages did reflect error, I do not accept that it was material to the orders the primary judge made.  His Honour’s path of reasoning as described above shows that the phrase in PJ [161] (set out at [47] above) ‘Even if the burial rights … could be characterised as native title rights and interests in land…’ was not mere verbiage.  The reasoning that followed that statement truly did not depend on whether the burial rights were, or were not, native title rights and interests.  His Honour ruled out any analogy with Mabo No 1, not because the rights said to be impaired were not native title rights, but because the Territory burial provisions are racially neutral, both on their face and in their substance.  Once again, the focus is on the effect of the Territory burial provisions that Dr G Wanambi sought to impugn, not on the nature of the rights held by Marraŋu people that were said to be differentially affected.  So, whether or not the latter rights were rights in relation to Aboriginal land was immaterial to his Honour’s dispositive analysis.

79 For completeness, I also do not accept the submission that it was the primary judge’s treatment of the burial rights as rights allocating authority between Marraŋu persons that made them incapable of universal enjoyment.  Whether the burial rights were interpersonal in that sense, or whether they were rights to dictate the manner in which land was used, they were self-evidently only rights that Marraŋu people could enjoy.  That alone made them incapable of universal enjoyment, requiring resort to the broader alternative characterisation described above.

80 It follows that sub-grounds 1(a) and 1(b) of the proposed appeal do not provide good reason to doubt the correctness of the primary judgment.  I have already dealt with sub-ground 1(c).  In light of the lack of doubt concerning the core reasoning in the primary judgment, sub-ground 1(d) cannot be material; since the applicant has no reasonable prospect of establishing that s 10 of the RDA operates in relation to the Territory burial provisions, the question of relief simply does not arise.

Two further submissions made by the applicant

81 I turn finally to the two further submissions mentioned above that are not clearly related to the proposed grounds.

82 The first of these is that the primary judge erred in characterising the Territory burial provisions as merely identifying a decision maker and not dictating the manner or location of burial.  The short answer to this is that this was precisely how the SOC characterised them; paragraph 17, quoted at [13] above, focused entirely on who is the decision maker under those provisions.  Hence, as senior counsel for the applicant properly accepted in oral submissions, a case that the relevant right was a right to use land in order for Marraŋu persons to be buried on it in a certain way would be different to the case that was put to the primary judge.

83 A more substantive answer may be given as well, namely that there is little reason to doubt the correctness of the characterisation.  For there is no reason to think that the Territory burial provisions do dictate the manner or location of burial.  Those matters are within the power of the decision maker, and no party points to any relevant provision of Territory laws that regulates where or how a person is to be buried.  As has been explained, if, in a particular case, the decision maker in relation to a deceased person chooses to bury that person in a manner inconsistent with the traditional laws, customs or beliefs of another interested group, that is the effect of the choice made by that decision maker, and not a necessary result of anything inherent to the Territory burial laws, let alone anything that operates differently according to the different race of any relevant persons.

84 The second further submission is that the primary judge placed too much weight on the fact that the Territory burial provisions are racially neutral on their face.  This submission oversimplifies and distorts his Honour’s actual reasoning.  As the above summary of that reasoning shows, his Honour was keenly aware that the lack of any express racial criterion was not the end of the inquiry.  His Honour’s careful exposition of the reasoning of the majority in Mabo No 1 confirms that he understood that it was also necessary to consider whether the laws operated differently by reference to some other characteristic that functioned as a proxy for race.  He did not identify any, and nor has the applicant in this application for leave to appeal.

85 Contrary to the applicant’s submission, Mabo No 1 does not stand for any broad proposition that the impairment of a right that is unique to a particular racial group produces unequal enjoyment of a human right capable of universal enjoyment.  At one level, it is difficult to make sense of how that could be so, for s 10 of the RDA operates to supply a right to a group of persons if it would otherwise be supplied to others, or if it is enjoyed by everyone but is enjoyed by the group to a more limited extent.  In other words, case by case, s 10 operates in respect of a given human right.  The applicant does not explain how the same right can be both unique to a racial group and capable of universal enjoyment.

86 Presumably what the applicant means is that rights, say the traditional rights to possession of the Murray Islands possessed only by the Meriam people, can fall under the broader rubric of property rights which, conceived under that rubric, are capable of enjoyment by all people.  But if that is his point then, as the summary above shows, the primary judge proceeded on that very basis, after first dealing with what appeared to be Dr G Wanambi’s claim that it was the impairment of Marraŋu burial rights alone that made s 10 applicable.  For the reasons given, there is no real reason to doubt the correctness of the primary judge’s treatment of either of those arguments.

There is insufficient doubt about the correctness of the primary judgment

87 For all these reasons, I consider that there is insufficient doubt about the correctness of the primary judgment to warrant reconsideration by a Full Court.

No substantial injustice, supposing the primary judgment to be wrong

88 The foregoing conclusion means that there is no need to address all the parties’ arguments about the other matter that is commonly given consideration in exercising the discretion to grant leave to appeal, namely whether substantial injustice will occur supposing the judgment to be wrong.  I will confine myself to two brief observations.

89 The first is that, on the face of things, this is a case where substantial injustice is likely to follow if the primary judgment is incorrect.  For there is a finality about the orders dismissing the first instance proceeding that is likely to make it difficult for the applicant to pursue his claim under s 10 of the RDA in any other way.  And it may be accepted that this would cause distress or have other adverse consequences, if it means that the body of Mr B Wanambi is laid to rest in a manner that is inconsistent with the beliefs of the applicant and other Marraŋu people.

90 The second observation, however, displaces the first.  For while substantial injustice may appear on the face of the matter, it will be recalled that:

(a) the order affecting the operation of the Territory burial provisions that Dr G Wanambi sought was a declaration that those provisions are invalid and ineffective by reason of s 10 of the RDA to the extent that they nullify or impair enjoyment by the applicant or the Marraŋu people of their burial rights according to their Aboriginal tradition; and

(b) the primary judge’s unchallenged account of the common law was that the person who is most likely to get letters of administration is the person who has the privilege of attending to the burial of the body.

91 So, even if all the legislative burial provisions were held to be ineffective to the extent sought by the applicant, the common law would step in to lead to the same result:  that Mrs Wanambi is responsible for laying Mr B Wanambi’s body to rest.  No case addressing the effect of the common law was proposed to be advanced on appeal.  For that reason, I do not consider that substantial injustice will ensue, even supposing the primary judgment to be incorrect.

Outcome

92 As said at the outset, and as the applicant accepts, the fate of the proposed application for leave to appeal determines all the applications.  There is no point in ordering that Mr Adam Wanambi become the applicant in the proceeding, and there is no point in extending time, because any resulting procedurally regular application for leave to appeal is bound to fail.  The interlocutory application filed on 7 August 2026 will be dismissed, as will the proceeding as a whole.

93 As the person who has, in substance, unsuccessfully prosecuted the proceeding, Mr Adam Wanambi will be ordered to pay the respondents’ costs of the proceeding, to be taxed if not agreed.  There will, however, be liberty to apply within two weeks in relation to the costs order, in case any party wishes to draw to the Court’s attention some reason to make a different costs order, of which the Court is not aware.  If that liberty is exercised by any party, suitable orders programming the determination of the issues that arise will be made administratively.

94 Finally, I note that the Territory has provided an undertaking to the Court not to release the body of the late Mr B Wanambi without first giving the parties at least seven days’ notice of its intention to do so.  There has been no application to discharge that undertaking, and despite the outcome of the proceeding I see no need to do so now; it is a matter for the Territory as to whether it wishes to bring the undertaking to an end by giving the requisite notice.

Associate:

Dated:    23 October 2026