Burial Rites Mediation between Aboriginal Clans

A scenario
The body of the deceased from a remote community is in the mortuary in under the control of the Coroner
Family members contact the Coroner separately:

1. The father of the deceased  seek release of the body to be buried according to tradition on the land of the deceased birth.
2. The spouse of the deceased (who comes from another clan group) seeks the body of the deceased to be released on their land 

The above parties end up in conflict over who has the stronger legal authority as senior next of kin as an indigenous person


The Coroners Act in the NT states:

Section 3 (Definitions)
senior next of kin, in relation to a deceased person, means:
(a) where a person was, immediately before death, married – the person's spouse;
(b) where the person was not, immediately before death, married or, if married, the spouse is not available – the person's son or daughter of or over 18 years;
(c) where a spouse, son or daughter is not available – the person's parent;
(d) where a spouse, son, daughter or parent is not available – the person's brother or sister of or over 18 years;
(e) where a person is an Aborigine – a person who, according to the customs and tradition of the community or group to which the person belongs, is an appropriate person; or
(f) where paragraphs (a) to (e) inclusive do not apply or a person who would be the senior next of kin under those paragraphs is not available – a person who immediately before the death of the deceased person had a relationship with the deceased person that, in the opinion of the coroner, is sufficient for the purpose of being the senior next of kin.

In quoting Rights to Mortuary Rites - Indigenous Law Bulletin

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

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

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

So in the above scenario ......how does 2 family clan groups resolve the situation?  which clan group  has the stronger (for the want of a better word) right under traditional laws and customs to be the more 'senior' next of kin than the other.

Enter the mediator.....
Burial Rite mediation is treated no differently in terms of confidentiality, impartiality and assisting the parties with the mediation process to reach an agreement or “one story”.

However in this case there is no win/win outcome - there is a deceased and the body can only be laid to rest in one place and the both families are often quite distraught and confused about the whole legal  situation. Unless something creative occurs few options are open apart from compromise or get a Judge to determine the outcome - it is important to note there are not too many court cases on this type of matters Calma v Sesar (1992) 106 FLR446 - not that mediators would provide such advice.

Some considerations:
Check with the Corners office on what the status is - if need be - use speaker phone so the party can understand the current situation
Empathise - do not lecture.....
Although it seems like an obvious question ... are you prepared to see this through to the very end? Mediators who are about to go on holidays in the coming weeks should not consider taking these matters on - be prepared for late night calls from distraught family members....it's one thing for people's values to be challenged but when ancient traditional values are challenged - conflict brings on a new dimension.

It imperative that a detailed family tree is created that incorporates names, skin names, clan group, deep skin name, moiety, clarify the relationship to the deceased and ask the party to highlight names who should attend mediation. Take time to ensure accuracy - no attempt should be made to set up mediation until the parties are satisfies with the family tree.

Remind all parties that the onus and responsibility remains on the parties (through their legal representatives if applicable) to contact the Coroners office or the Courts should they wish to discontinue a court proceeding when the solution is found.

Whilst there is no legal obligation for the mediator to provide reports to the Coroner or the Courts– it would be prudent for the mediators to seek consent of the parties and ask them what the "one story" would look like at the end of the mediation .

Mediators must exercise due diligence keep the parties (who have agreed to be part of the mediation) to be kept up to the minute on any progression, remind them the file is still open and keep all parties  - failure to keep parties updated may lead to heavy consequences.