Indigenous insiders and Anglo outsiders: A critical reading of Australian burial disputes

Abstract

This article explores a cascade of deathly entanglements between nations, legal systems, communities, and individuals. Its focus is the vitally important, yet under-theorised corner of Australia's private law known as burial disputes: disputes relating to the disposal of the body of a deceased person. As many as three-quarters of burial disputes in Australia involve at least one Indigenous party. The impetus for this paper is twofold: first, the need to situate these burial disputes in their nomocidal colonial context; and second, the radical reshaping of the legal doctrine employed by courts when resolving these disputes. In particular, and grounded in the capacity of the corpse to act as a site of creative necroresistance, it draws on work done by Australian Indigenous and decolonial scholars to offer a critical, yet affirmative, reading of this doctrinal development, which, it argues, has occurred primarily in response to the Indigenous insider presence in the burial dispute case law.

Introduction

This article explores a cascade of deathly entanglements – between nations, legal systems, communities, and individuals – that occur on scales both large and small. Its focus is the vitally important, yet under-studied and under-theorised, corner of Australian law that is burial disputes. As used in this article, the term ‘burial dispute’ refers to a legal dispute between private parties relating to the disposal of the body of a deceased person, be it how that body will be disposed of, where the disposal will take place, or who has the power to arrange it. ¹ An extensive review of the case law reveals that as many as three-quarters of burial disputes that come before Australian courts feature an Indigenous ² actor – either as a party to the dispute or the deceased themselves (or, in many cases, both). The impetus for this paper is twofold: first, the need to situate these burial disputes in their nomocidal colonial context; and second, the radical reshaping of the normative reasoning (and the resulting legal doctrine) employed by courts when resolving these disputes. In particular, and in line with critical legal theory's insistence on taking doctrine seriously (Hunt, 1987: 12), it draws on work done by Australian Indigenous and decolonial scholars to offer a critical, yet affirmative, reading of this doctrinal development which, it argues, has occurred primarily in response to the Indigenous insider presence in the burial dispute case law.

We begin our deathly cascade in Part II by situating Australian burial disputes in their broader, jurispathic, colonial context. Following Giannacopoulos’ (2025) conception of colonial law as nomocidal – as violently smothering all other legal systems alive in the colony – Part II considers burial disputes as a specific example of the nomocidal usurpation of Indigenous Law. Part III continues the cascade downwards. The same violent colonisation that brought death to entire Indigenous legal systems also established the conditions for individual Indigenous deaths. This Part reveals the colonial conditions that render Indigenous deaths ‘external’ – removed from Country, in public, in custody, as a result of social and political neglect – and, resultantly, leads Indigenous people to be ‘internal’ to the vast majority of Australian burial disputes. It also explores the Indigenous relationship to Country – a concept that looms large in the case law at the same time as it is inherently unknowable to the non-Indigenous outsider.

Part IV takes a doctrinal turn, setting out the radical reshaping of Australian burial law that has occurred in recent decades. It argues that this radical doctrinal reformation is primarily the result of an increasing willingness by Australian courts to hear and accept claims made based on Indigenous knowledge and Law. In line with the work done in Parts II and III, Part V then sets out a critical reading of this doctrinal development. Considering the view that this doctrinal reformation is nothing more than the ongoing management of Indigenous Law within the colonial nomopoly, it instead adopts an affirmative reading grounded in the capacity of the corpse to act as a site of creative necroresistance. Following Aston and Wilson (2023), it argues that the willingness of Australian courts deciding burial disputes to embrace the normative legitimacy of Indigenous Laws and cultural knowledge represents an alternative form of legality that leaves space for the co-existence of different legal worlds.

Colonialism, burial disputes and legal nomocide

Colonialism and legal nomocide

The landmass we today call Australia is home to the world's oldest continuous living culture. For more than 60,000 years, Australia's Indigenous people have practiced a Law that was birthed out of the land and the songs and stories that record their beginnings and birth connections to Country. ³ This Law is not made up of a series of facts written down to be rote-learned, but rather is a system of knowledge lived as a way of life – it is sung, danced, painted, eaten, and walked upon. It is a Law that goes beyond a system of governance to embrace a range of elements of Indigenous cultural, social, and political life; a substantive body of knowledge that lives in all things, physical, immaterial, relational. There is no one single body of ‘Indigenous Law’, rather the inter-dependency of language, land, and identity means that Law is fundamentally local and attached to particular people, lands, and bodies of water. Indigenous Law persists in the shadow of the absolute sovereignty claimed by the Australian settler colonial state. All people, Indigenous and non-Indigenous, first colonisers and subsequent arrivals alike, have always been and remain bound by the Indigenous Laws of place, even though they may not recognise it (Watson, 2002: 255).

That Indigenous sovereignty – of Country and of Law – has never been ceded is vital to remember in the face of a violent settler colonial state that utilises the immense necropolitical power (Mbembe, 2003) at its disposal to ‘bury alive’ Indigenous Laws and lifeways (Watson, 2002). The colonial invasion of Australia began in force with the arrival of the First Fleet, under the captaincy of Arthur Phillip of the British Royal Navy, at Sydney Harbour on the 26^th of January 1788. ⁴ A central element of colonialism is the systematic replacement of one set of laws with another (Anderson, 2015: 770), and these 11 ships and the 1500 (or so) people they carried brought with them another law, a new law: English law. In Australia, unlike in neighbouring British colonies such as Malaya and Singapore where treaties were negotiated, local rulers retained titles, and local customs and laws were given some formal recognition, this usurpation was total (Black, 2019: 135). The international law doctrine of terra nullius (‘land belonging to no one’) was aggressively employed by the British colonists to render the island of Australia uninhabited, its people too uncivilised to constitute ‘inhabitants’ (see discussion in Black, 2019; Watson, 2015), and their law as non-sovereign (Watson, 2017: 475). As Black (2019: 135–136) notes, ‘[f]rom the moment Captain Arthur Phillip hoisted the British flag in 1788 marking the start of the penal colony in New South Wales, all land became Crown land, the sovereign was King George II, and all laws were English’.

This is a form of what Giannacopoulos (2025) has termed ‘nomocide’ – a deathly usurpation of one system of law by another. Colonial law has a death-producing function because its view of itself as singular (and singularly authoritative) requires the carrying out of a deathly power relation: the potential for ‘too much law’ (Cover, 1983: 40–44) – Indigenous and colonial – necessitates the smothering, suffocating, subjugation of the former by the latter (Giannacopoulos, 2025: 72). What results is a colonial ‘nomopoly’ – a monopoly in the creation of law that structurally forecloses the operations of the first Laws of Indigenous peoples by subjecting all to its rule (see Giannacopoulos, 2019). In its refusal to acknowledge the existence of Indigenous Law, then, the Australian state and the Anglo-Australian legal system it wields (and the nomopoly they combine to create) engage in the violent jurispathic suppression of this alternative form of legality (see Cover, 1983: 40–44) whilst at the same time obfuscating the nomopoly's death-producing function (Giannacopoulos, 2025: 73).

One could attempt the argument that this ongoing nomocide is at least lessening in intensity. The High Court formally rejected that the doctrine of terra nullius made up part of Australian law in its much-lauded decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, ⁵ and the potential for recognition of Indigenous Law within the Australian legal system (on a case-by-case basis and not as a complete, cohesive, and inherently legitimate legal system in its own right, it must be emphasised) ⁶ has been canvassed by various law reform commissions (see Australian Law Reform Commission, 1986; Law Reform Commission of Western Australia, 2006). ⁷ Elements of Indigenous Law have even been formally incorporated into the colonial legal system in some jurisdictions and in some contexts. ⁸ It is also true that the Australian legal system allows room for legal pluralism in a ‘soft’ sense – in that, if everyone is in agreement and no dispute arises (and there is no contravention of the criminal law), communities are free to act in accordance with their own laws, customs, and traditions without intervention by the state. The fact remains, however, that in the case of dispute, it is the sole, official legal system – that of English-derived Australian common law – that will formally resolve the issue (Black, 2019: 134).

Burial disputes as a specific example of colonial nomocide

We have so far discussed the nomocide perpetuated by the Australian colonial legal infrastructure on entire Indigenous legal systems. Here, we turn to consider legal nomocide in a specific, deathly context. As we have seen, Indigenous Law regulates Indigenous social, political, and cultural life. This, of course, extends to death and the relations engaged in caring for the deceased and their body. Thus, to give but one example, for the Yolŋu people of north-eastern Arnhem land, in Australia's Northern Territory, the deceased's body must be returned to their ancestral estate – their father's clan's lands – so that their spirit can return to the land from which it came. The funeral that is held for the deceased ‘is the life journey of [the deceased] person in spirit’ (Galpu and Golpa Clans of Elcho Island, 2019). It can last for several weeks and is governed by a series of complex social relations. As Joanne Garŋgulkpuy (2010: 37) explains:

[T]hose people from clans who could be called ‘sister’ to the deceased, must sit quietly and do nothing, this is what we call moda or mirriri.

But for the mother's and grandmother's clan, he will get up and stand in the middle and talk and exhort people, and make sure things are being done correctly according to law.

And sit with the waku clan people ([i.e., the mother's mother's mother clan people]), because their märi (ie the mother's mother clan of the deceased) are in control.

Here, there is no one, singular relationship that can take priority, but rather a complex, vibrant entanglement of roles, rights, and responsibilities. Conflict resolution is achieved by way of consensus building and peace-making – both of which have established protocols and ceremonies. There is a corresponding complete rejection of the ‘unnatural qualities of hierarchy’ that allows one person to make unilateral decisions that then must be followed by others (Yolŋu Nations Assembly, 2021).

In contrast, under the Anglo-Australian law that has formally usurped Yolŋu (and all other Indigenous) Law, conflicts over the time, place, and/or means of disposing of the bodies of the dead – that is, burial disputes – are resolved by reference to what has become known as ‘the right to possession of the body of the deceased’ (‘the right to possession’). In particular, Australian judges deciding burial disputes are tasked with determining, as between the two parties to the dispute, who has the best claim to be vested with the right to possession in relation to the particular deceased body at issue. The distinct, discrete legal incident that is the right to possession works to vest complete and exclusive decision-making authority in that one particular individual. Although the party successful in court is frequently encouraged to consult with the other parties involved, such consultation is not legally required, and courts will not mandate a search for consensus (Smith v Tamworth City Council (1997) 41 NSWLR 680, 694). Instead the party vested with the right to possession is given the right to entirely exclude all others in matters relating to the disposal of the deceased's body – from deciding where the deceased will be buried to deciding who can attend the funeral. Thus, whilst courts have said that in legal disputes over the dead body ‘there are no winners and losers’ ( Ugle v Bowra & O'Dea [2007] WASC 82 at [1]), on a doctrinal level this is simply not the case. The nature of the Australian common law's adversarial system requires there be a winner and a loser. Remembering the formal usurpation of Indigenous Law at the hands of a nomocidal regime, then, and in line with the ‘soft’ legal pluralism described above, Indigenous peoples (such as Yolŋu) are free to carry out their funerals in line with cultural imperatives. When, however, a dispute arises surrounding the funeral, and this dispute comes to court, it will be decided solely by the black letter rules of the Australian common law and a mechanism of dispute resolution entirely at odds with Indigenous Law ways – that is, by a judicial vesting of the right to possession of the body of the deceased exclusively in a single party.

Indigenous insiders in Australian burial disputes

In the previous discussion, we saw that, as a result of its jurispathic effect, Australia's colonial legal infrastructure governs which law applies to the resolution of disputes over the dead body as a general category of caselaw. Here, we explore how the nomocidal function of Australia's settlor colonial legal system has resulted in a significant over-representation of Indigenous peoples in individual burial disputes. The title of this Part refers to ‘Indigenous insiders’. It interrogates this Indigenous insider status on two, interwoven, bases: as ‘insiders’ to Australian burial disputes at a rate that far exceeds that of non-Indigenous Australians, and as ‘insiders’ to a Law and corresponding epistemology that is fundamentally unknowable to the non-Indigenous outsider.

As noted in the Introduction, as many as three-quarters of Australian burial disputes involve an Indigenous actor. As Vines (2012: 30 n 12) has pointed out, this figure is highly disproportionate to the percentage of the Australian population that identifies as Indigenous, which at the most recent census in 2021 was 3.8% (Australian Bureau of Statistics, 2024). The primary reason for this over-representation is the cultural imperative felt by many Indigenous people to return a deceased person to their ‘Country’ for burial or other disposal. We have discussed the Yolŋu Law on this issue above, for example. Similarly, the Yarralin people of the Victoria River Valley in the Northern Territory bury their dead on Country so that the deceased will continue to be ngurramarla – a caretaker for Country (Bird Rose, 1992: 73, 107). ‘Country’ in this sense refers not only to an identifiable, physical geography (be it land, water, or sky), but a plurality of cultural and spiritual meanings and relationships (be they human or more-than-human). It is a relational imperative that emphasises connection and a depth of care, rather than separation (Aston and Wilson, 2023: 58, 68; Kearney et al., 2023: 4–5). This more-than-human relation is reflexive – damage to people is damage to Country, and damage to Country is damage to people (Bird Rose, 1992: 108). In the words of Ambelin Kwaymullina, of the Bailgu and Njamal people of the Pilbara region of Western Australia (quoted in Kearney et al., 2023: 5):

For Aboriginal peoples, country is much more than a place. Rock, tree, river, hill, animal, human – all were formed of the same substance by the Ancestors who continue to live in land, water, sky. Country is filled with relations speaking language and following Law, no matter whether the shape of that relation is human, rock, crow, wattle. Country is loved, needed, and cared for, and country loves, needs, and cares for her peoples in turn. Country is family, culture, identity. Country is self.

This relationship to Country, and the ways in which it is understood and manifested, is fundamentally unknowable to the non-Indigenous outsider. As with all Indigenous knowledge, it defies definition in Anglo-Australian terms at the same time as it lies at the very heart of Indigenous societies (Howden, 2001: 60). It is at odds with Anglo-Australian conceptions of land and property rights and Anglo-Australian understandings of recognised and ‘acceptable’ social, political, and community relationships. And it resists the nature-culture and person-thing dichotomies that have pervaded European conceptions of law, politics, economics, and philosophy since time immemorial (Esposito, 2016: 27–28).

However, because burial disputes occur against a background of historical and ongoing violent colonial dispossession, many Indigenous peoples have been forcibly removed from their Country. This has the dual implications of detaching people from their traditional lands and requiring them to create new, meaningful connections elsewhere. With access to Country at times restricted by pastoral leases (see, e.g., Marshall and Bieundurry, 2025), or the only available cemetery on Country being closed to new burials (see, e.g., Toomey and Naunton, 2022), or new, often non-Indigenous families and friends opposing the removal of the deceased's body to Country (as in Sullivan v Public Trustee for the Northern Territory of Australia (Unreported, Supreme Court of the Northern Territory, 24 July 2002)), to list but a few situations by way of example, the potential for legal conflict is clear. The same disruption of traditional Law and lifeways and forced removal from traditional homelands that renders many native title claims invalid (exemplified in Olney J's (in)famous reference to the ‘tide of history’ having ‘washed away’ native title in Members of the Yorta Yorta Community v Victoria [1998] FCR 1606 at [3]) also means that Indigenous people can experience uncertainty, or have conflicting views, as to where in fact their Country (or the Country of their deceased loved one) lies. These cultural complexities mean that Indigenous families are particularly vulnerable to the occurrence of burial disputes (Victorian Law Reform Commission, 2016: 19–21).

Beyond its tangled interweavings with Country, ongoing settler colonialism's role in the Indigenous over-representation in Australian burial disputes is evident elsewhere. The colonial nomopoly has imposed a system of private law and then largely ignored the private law needs of Indigenous Australians (see Vines, 2023: 44–49). In the succession context in particular, disturbingly high poverty rates in Indigenous communities combined with misconceptions regarding the existence of property-ownership requirements to make a will means that Indigenous Australians are far more likely to die intestate than their settler Australian counterparts (Vines, 2017: 363). As the next Part explores, and in contrast to disputes over the bodies of testate deceased people, there is no bright line rule for the resolution of burial disputes in intestacy. Whilst, and again as the next Part sets out, this has allowed Australian courts to develop Australian burial law with an eye to flexibility, it also leaves room for complex and emotionally laden litigation in the intestacy context – after all, ‘[f]lexibility and unpredictability are natural bedfellows’ (Conway, 2018: 160). And on a broader level, the over-representation of Indigenous persons in burial disputes is largely rooted in the systematic disadvantage wrought by nearly 250 years of invasive settler colonialism. In contrast to settler Australians, whose deaths are largely private and interior, the Indigenous experience of death is exterior: in custody, ⁹ as a result of violence, poverty, isolation, and social and political neglect (Kellehear and Anderson, 1997: 12). Indigenous Australians are far more likely than non-Indigenous Australians to die young ¹⁰ and by suicide, ¹¹ both categories of traumatic and contentious deaths that appear recurrently in the burial dispute case law. ¹² For many Indigenous Australians, then, death is an external marker of chronic disadvantage (Kellehear and Anderson, 1997: 12), marking them as outsiders in their own country at the same time as they are repeatedly required to appear as insiders in deeply tragic legal disputes.

Indigenous law and the radical re-shaping of Australian burial dispute doctrine

The previous Parts introduced burial disputes, and Indigenous over-representation in these disputes, in their violent colonial context. This Part takes a doctrinal turn, exploring the radical reshaping of the doctrines used by Australian courts to resolve burial disputes – that is, the right to possession of the body of the deceased and the rules that govern its vesting – in recent decades. Its central argument is that the burial dispute case law clearly reveals the primary reason behind this radical doctrinal reshaping of Australian burial law to be the growing acceptance by Australian courts of claims made by Indigenous parties based on Indigenous knowledge and Law. As indicated in the previous Part, these claims frequently stem from a desire (indeed a cultural imperative) to see the deceased buried on Country. ¹³

The Anglo-Australian common law has established a clear hierarchy that determines who is entitled to bear the right to possession in any given case. Importantly, and in a state of affairs that many would find surprising, the common law is clear: except in cases where legislation has intervened (such as cremation – as to which, see, e.g., Cremations Act 2003 (Qld) s 7), this hierarchy does not include the deceased. That is to say, and despite recommendations from various Law Reform Commissions to the contrary (see, e.g., Victorian Law Reform Commission, 2016: ch 6; Queensland Law Reform Commission, 2011: ch 5), the deceased themselves has no legal ability to make their wishes regarding the disposal of their body binding on those they leave behind. Instead, if the deceased left a will, the executor named in that will occupies the highest rung of this hierarchy (see Smith v Tamworth City Council (1997) 41 NSWLR 680, 693–4). The executor's claim to be vested with the right to possession of the body of their deceased testator is nearly entirely unassailable, regardless of who that executor is or what they intend to do with the body.

In the intestacy context, an equivalent formal, intransigent, bright line rule can be found in the early burial dispute case law. This rule saw the person with the greatest entitlement to administer the deceased's estate being vested with the right to possession of the deceased's body (the ‘presumptive administrator rule’). However, cases soon emerged involving two parties equally entitled to be granted administration. In these instances, the position initially adopted by Australian courts was that the sole, legitimate ‘tie-break’ mechanism to which recourse could be had was the practicalities of the dispute: the distance of the disposal sites proposed by the competing parties in relation to the current physical location of the deceased's body, for example, along with the costs of arranging for the disposal and which of the two parties was best placed to defray them. This approach left no room for the consideration of any claims made based on Indigenous knowledge or Law by the parties. This is not to say that these claims were discounted or considered unimportant or unjustifiable, they were simply outside the relevant legal calculus relied on by the court. In short, to borrow the words of Martin J in Calma v Sesar (1992) 2 NTLR 37 (one of the earliest Australian burial disputes and which itself involved an Indigenous deceased person and a dispute between his two Indigenous parents): ‘[a] legal solution must be found; … [t]hat solution will not embrace the resolution of possibly competing spiritual or cultural values’ (at 42).

This position was directly rejected by the South Australian Supreme Court in its decision in Jones v Dodd (1999) 73 SASR 328 in the first step of what would become a radical reshaping of Australian burial dispute doctrine. This case concerned a dispute as to the place of burial of a deceased Indigenous man. The plaintiff was the deceased's father, who wanted to bury his son in his (the deceased's) home Country of Oodnadatta. Central to his case, and the dispute as a whole, was the requirement under his Indigenous Law that a deceased person be buried on the Country in which they were born so that their spirit is able to return to the area. Affidavits sworn for the defendant (the deceased's former de facto partner), on the other hand, stressed that the deceased was a practising Christian to whom Indigenous custom was not of great importance, and that it was his desire, and that of his children, that he be buried in Port Augusta (some 740 kilometres away from Oodnadatta) where the family had lived prior to the dissolution of the de facto relationship, and where the defendant and the deceased's two children continued to reside.

Writing for the Court, and in a sharp break from earlier case law, Perry J held that it was not the correct approach to refuse to consider emotional, spiritual, and cultural factors when these factors were present in the dispute. Instead, and as a general doctrinal matter, courts faced with burial disputes should continue to look first to the person with the greatest entitlement to a grant of letters of administration, however should then consider whether the case at hand represented an appropriate situation within which this basic rule could be overruled or disregarded. As well as in cases where the presumptive administrator rule gave rise to an equal claimants issue, courts could engage in this secondary analysis even when the presumptive administrator rule clearly identified one single claimant to administration (and therefore to the right to possession of the body of the deceased). This allowed the presumptive administrator rule to be disregarded even when there was no competition between equal claimants to administration.

The presumptive administrator rule (coupled with a practicalities tie-break mechanism where necessary) as the standard means of resolving intestate burial disputes was thus untenable on the facts of Jones v Dodd, where strong cultural factors were at play. Instead, Perry J held that

the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question. ((1999) 73 SASR 328, 336 at [51], emphasis added)

The end result was that the rights and wishes of the deceased's two minor children had to be balanced against other considerations – in particular, relevant Indigenous Law and cultural values. In balancing these factors, Perry J focused on the unchallenged evidence given by the plaintiff that in his Indigenous Law the head of the family should prevail in relation to burial matters. On this basis, the defendant's case was dismissed and the deceased's father retained the right to possession of the body of the deceased and the authority to make the necessary funeral arrangements.

Fifteen years after Jones v Dodd, the South Australian Supreme Court decided South Australia v Smith (2014) 119 SASR 247. This case, and the doctrinal development it represents, saw the abandonment of the presumptive administrator rule as the first, and occasionally sole, reference point for many courts resolving burial disputes, even in cases in which one party to the dispute had a clear and unchallenged entitlement to administer the deceased's estate. Significantly, it also reiterated the need to take cultural issues into account as it continued to reshape the doctrinal approach to the vesting of the right to possession in the context of intestate burial disputes from the bright line presumptive administrator rule to a multi-factorial balancing exercise.

South Australia v Smith concerned an application for various declarations brought by the South Australian Department for Communities and Social Inclusion to resolve a burial dispute that had arisen between competing factions of the deceased's family. The Department ran a funeral assistance program to which two separate applications had been made in respect of the deceased's funeral: the first by the deceased's purported domestic partner (the first defendant), who wanted the burial to take place in Coober Pedy; and the second by a 17-year-old son of the deceased by a previous relationship (the second defendant), who wanted to bury his father in Port Augusta. Briefly, the first defendant's case was that she had been in a continuing relationship with the deceased up until his death; the deceased's mother, to whom he had been close, was buried in Coober Pedy and a burial there would ensure his spirit was safe; and it was in fact the deceased's wish that he be buried in Coober Pedy. The second defendant's case was that the deceased identified as a Dieri man and under Dieri culture the dead should be buried with their fathers; the deceased's father intended to be buried at Port Augusta when he died; and the deceased had wished to be buried at Port Augusta next to his infant son.

In resolving the dispute, Nicholson J found that ‘no standard approach or hard and fast rule can be formulated and applied’ in burial dispute cases (South Australia v Smith (2014) 119 SASR 247, 255 at [34]). His Honour concluded (at [34], emphasis added) that:

[t]he proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded.

Applying this to the facts of the case, Nicholson J found that there were four main considerations involved in deciding the dispute before him: entitlement to letters of administration (held to be neutral on the facts of the case), Indigenous cultural matters (which provided some limited support for a Coober Pedy burial), the deceased's own wishes regarding his place of burial (a neutral consideration), and ‘the wishes and sensitivities of the living close relatives’ (which significantly supported a burial in Port Augusta). This fourth factor assumed the greatest significance for Nicholson J, and based on this reasoning his Honour found that the wishes of the second defendant should be preferred over those of the first defendant and the deceased's extended Coober Pedy family. Nicholson J thus made orders that the deceased be buried in Port Augusta.

The many-factored approach set out in South Australia v Smith has been repeatedly adopted and applied by courts across Australia in the more than a decade since it was handed down, and it now represents the dominant legal position in the context of intestate burial disputes. With this ascendent legal position in mind, and before we move on, then, it warrants reiteration that claims made by Indigenous parties based on Indigenous Law have played a vital normative role in the radical reshaping of Australian burial law. The next Part offers a critical reading of this reshaping.

Anglo outsiders: An affirmative reading of a radical doctrinal development

We begin our critical reading of this doctrinal development with the spectre of the nomocidal colonial state. One possible view of the reshaping of Australian burial law set out in the previous Part sees it as nothing more than an acknowledgement of claims made based on Indigenous Law in the burial dispute context when doing so in no way risks ‘[fracturing] the skeleton of principle which gives [this] body of … law its shape and internal consistency’ (to borrow Brennan J's famous formulation in Mabo v Queensland (No 2) (1992) 175 CLR 1 at [29]). In the context of burial disputes in the Anglo-Australian legal system, this skeleton of principle is rooted in Christian-dominated understandings of how a society should deal with its dead. In particular, the overarching imperative at the core of the right to possession is to see the body disposed of swiftly with the aim of ensuring neither the deceased's dignity nor the health of the public is offended by way of a decomposing corpse. This overarching imperative exists both as a matter of legal history (see Falconer, 2021) and modern doctrine (see Conway, 2024: 205). The burial dispute case law is replete with judicial statements regarding the ultimate need to resolve the case in a timely manner so as to allow for the speedy disposal of the deceased's body – Meek J's insistence that ‘there is a strong imperative for the Court, … to have the deceased's body disposed of with respect and without undue delay’ in Dayman v Dayman [2024] NSWSC 838 (at [89]) provides just one recent example. In this reading, then, Indigenous Law and the claims to which it gives rise are seen to be important considerations in judicial deliberations, however they remain subject to the overriding norm of Australian burial law that requires the body be disposed of quickly. To state the position more broadly, Indigenous Law is accommodated in Australian burial disputes, but only so far as it can be managed by and within the colonial nomopoly (Aston and Wilson, 2023: 55, 73).

Ultimately, however, this paper prefers an alternative, affirmative reading of the radical reshaping of Australian burial law it has set out. Perhaps counterintuitively, it begins this affirmative reading in what cultural historian Thomas Laqueur (2015: 102) has identified as the ‘destructive power’ of the corpse. In particular, the dead body that is improperly disposed of, or not disposed of at all – as is the case with those bodies at the centre of the burial disputes under analysis here – engage in ‘the work of unmaking’ (Laqueur, 2015: 103) otherwise established social, religious, and, importantly, legal norms. Martel (2018) takes this point further, arguing for the anarchic power of the undisposed-of body – and particularly the undisposed-of body of colour – to threaten the very racialised sovereign system that has rendered it vulnerable. For Martel, the (counter)authority of the dead in the face of a legal system that claims to be all-powerful lies in the fact that the law (as with all forms of archism) cannot survive in the absence of a sense of control and domination. In particular, ‘it cannot survive a loss of its own sense that it controls and holds off death’ (2018: 9–10). In this way, the corpse represents a state beyond the ultimate power of law.

The undisposed-of bodies at the centre of Australian burial disputes thus become sites of necroresistance that refuse the ‘totalizing domination’ (Bargu, 2014: 27) of Australia's nomocidal, settler colonial legal system. These bodies are imbued with the power to work on and in the minds of judges deciding burial disputes – to incite them to particular ways of expression and forms of legal action (Falconer, 2024: 247–249). In its ability to incite action, we can identify this power as containing not only the negative potential to destabilise existing legal norms, but the affirmative and creative authority to ground new ones. It is in the creative authority of the corpse to shape legal norms that this paper bases its affirmative, alternative reading of the doctrinal changes underway in the judicial resolution of Australian burial disputes. In particular, following Aston and Wilson (2023: 55–56), it argues that the judicial acceptance of Indigenous Law claims can be read as the acknowledgement of alternative forms of legality that maintain space for the (co-)existence of multiple legal worlds. Thus, for example, the doctrinal development set out in Part IV has been described by courts as ‘a shift away from rights-based jurisprudence towards the management of problems in the absence of consensus within a deceased person's community’ (Brown v Weidig [2023] NSWSC 281 at [56]). This shift has been necessitated by ‘a realisation by judges of what is required of them in serving communities with increasingly divergent cultural traditions’ (Brown v Weidig [2023] NSWSC 281 at [50]). Importantly, these divergent cultural traditions – and, in particular for our purposes, Indigenous cultural traditions – are seen as having an inherent normative legitimacy. As Doyle CJ of the Supreme Court of South Australia emphasised in Dodd v Jones [1999] SASC 458:

the claim which the defendant makes [regarding the appropriate burial location for his son] is not one based simply on emotion or even simply on family wishes. It is a claim derived from an organised system of beliefs and cultural practices, and a system which the law and our society should respect as far as possible. (at [19], emphasis added)

This integration of Indigenous knowledge and Law as a central reason for decision-making by courts resolving burial disputes in Australia moves this knowledge and Law beyond ‘an esoteric argument restricted to the rarefied domain of a few intellectual property lawyers or academics’ (Lofgren, 1995: 12). Whereas other courts in other contexts have demonstrated a ‘systematic reluctance to understand and respect Indigenous ontologies and legal worlds’ (Aston and Wilson, 2023: 78), judges deciding burial disputes not only acknowledge the existence of Indigenous Law, but take this Law seriously as a legitimate normative reason for resolving the case in one way or the other. There is no thought to conspiracy or recent invention when considering claims made based on Indigenous Law (as there has been in other dispute types: see Hancock, 1995: 8; Watson, 1997: 49–54). These claims are simply accepted on their own terms. It is clear from the case law, for example, that courts do not require definitive proof of the Indigenous Law that underpins claims made in burial disputes before taking those claims into account when deciding in whom to vest the right to possession. The emphasis is not on identifying a ‘culture threshold’ that serves as a minimum evidentiary standard before claims based on Indigenous Law will be considered. In fact, burial disputes are often decided ex tempore, with little chance for either party to the dispute to gather and present extensive evidence. What evidence is given is largely in affidavit form, and cross-examination on those affidavits is rarely allowed. And yet the claims made still stand.

To be clear, however, the judicial acceptance of Indigenous knowledge in Australian burial disputes does not result in an unquestioned priority being given to that knowledge (and the claims for which it provides a basis). As Doyle CJ, considering a claim made based on Indigenous Law, held in Dodd v Jones [1999] SASC 458 (at [20]), ‘I do not agree that the origin of the claim … automatically gives it priority’. That is to say, the existence of an Indigenous cultural claim in the context of a burial dispute does not mean the person making that claim will automatically be vested with the right to possession in relation to the dead body at the centre of the dispute. Rather, the noncynical judicial acceptance of Indigenous knowledge and Law merely means that claims made based on this Law are treated as valid in-and-of themselves, and, importantly, without need for further validation from those Anglo outsiders the colonial legal infrastructure recognises as ‘experts’.

This stands in stark contrast to the treatment of Indigenous knowledge and Law in other types of legal dispute. In native title claims (legal attempts to establish Indigenous land rights over a particular geographic area), for example, ‘ongoing concerns and complaints demonstrate the unnatural ‘fit’ between an Anglophone fact-finding process and an Indigenous claim to truth’ (Biber, 2010: 208). To succeed in a native title claim, the Indigenous applicants must prove the content and continued observance of their Law as it stood prior to the landing of the First Fleet in 1788 in accordance with the rules of evidence and to the civil standard of proof. This invariably requires the use of so-called ‘cultural experts’ to overcome ‘the inherent forensic difficulties’ in meeting this persuasive burden (Black, 2019: 136). These ‘cultural experts’ are often anthropologists, but may also include historians, ethnomusicologists, archaeologists, and linguists (Black, 2019: 136). They are, as a rule, non-Indigenous (Biber, 2010: 211). The native title approach to Indigenous Law, then, sees this Law as nothing more than an historical fact to be proved, with this proof offered by outsiders to the very Law they are speaking to, rather than as a distinct and legitimate normative system (Aston and Wilson, 2023: 64).

To reiterate, and by way of concluding this Part, then, Indigenous parties to burial disputes are not required to have recourse to external, non-Indigenous experts in order to bring internal Indigenous knowledge ‘up to standard’ according to a particular evidentiary threshold. Instead, in these disputes, claims made based on Indigenous Law are acknowledged as being of a nature that is incapable of proof according to the outsider's legal standards. Indigenous knowledge and Indigenous Law, in the form of particular claims made in relation to the body of the deceased, simply is – simply is itself, simply is an unknowable alternative legal world – and it is accepted as enough.

Conclusion

At the heart of this paper is Giannacopoulos’ (2025: 78) contention that ‘[t]he relation between law and death is a live question and cannot be consigned either to history or theory. This relation is a route through which law in conditions of colonialism can be more fully seen and reckoned with.’ This paper has explored some of the many deathly entanglements that emerge from this relation – from the nomocidal usurpation of entire Indigenous systems of Law by an invasive colonial legal infrastructure, to the settler colonial conditions that have led to the painful over-representation of Indigenous peoples in Australian burial disputes.

In the particular context of these burial disputes, however, this paper has argued that claims made by Indigenous parties based on Indigenous Law are responsible for a radical reshaping of Australian burial law. The affirmative reading of this doctrinal development put forward in this paper, grounded in the (counter)authority of the corpse to reshape legal norms, is that the acceptance of these claims by Australian courts – an acceptance that is not predicated on factual certainty or evidential proof – represents the acceptance by non-Indigenous outsiders of the alternative, normatively legitimate legal world of Indigenous insiders.

This is not to overlook the devastation caused by individual deaths, Indigenous or otherwise, in the communities of those left behind, nor the devastation caused by Indigenous deaths – speaking generally – at the hands of the colonial state in the Indigenous community as a whole. The affirmative reading of Australian burial law and its reshaping in the face of Indigenous knowledge and Law put forward in this paper is not a celebration of those burial disputes, or the deaths at their centre. Nor does this paper see the acceptance, even an acceptance that is proactive, affirmative, and largely unrestricted, of Indigenous Law and knowledge by non-Indigenous courts as indicating a move towards reconciliation. To do so is to absolve the colonial state of its nomocidal responsibility. All this paper hopes to offer is one small reckoning with the deathly conditions of settler colonialism.