This week, from Sunday 7th July until Sunday 14th July, marks NAIDOC Week across the country. The acronym NAIDOC stands for National Aboriginal and Islander Day Observance Committee. Attwood Marshall Lawyers joins our fellow Australians around the country in commemorating NAIDOC week to support our First Nations community to celebrate and recognise the history, culture and achievements of Aboriginal and Torres Strait Islander peoples, writes Legal Practice Director, Jeff Garrett.
As I write this from Attwood Marshall Lawyers’ office in Coolangatta, I acknowledge the legacy of people here of the Bundjalung nation; Ngandowal and Minyungbal speaking people of the Bundjalung Country, in particular the Goodjinburra, Tul-gi-gin and Moorung-Moobah clans. Source: Tweed Shire Council.
This year’s theme for NAIDOC Week honours and recognises the strength, vitality and enduring nature of First Nations culture.
To recognise such resilience in the legal sphere, we may look to recent history. It’s been more than 30 years since the Mabo case was decided in 1992, a pivotal point in Australia’s legal history where the land rights of our indigenous population was established. It was in this case that the High Court of Australia recognised a group of Torres Strait Islanders, led by Eddie Mabo, held ownership of Mer (Murray Island), in Queensland. In acknowledging the traditional rights of the Meriam people to their land, the court also acknowledged that native title existed for all Indigenous people.
This defining precedent thus voided the Proclamation of NSW Governor Richard Bourke in 1835 who implemented the legal principle of terra nullius,“ land belonging to no one,” in Australian law as the basis for British settlement. A positive legal precedent for our First Nations people. However, during this NAIDOC Week, it is important to remember the courts still have some way to go before it is culturally sensitive to our First Nations community needs.
Just last year, Attwood Marshall Lawyers supported an Aboriginal client, which highlighted the need for courts to have appropriate understanding to suitably recognise the cultural beliefs of our First Nations community.
In Brown v Weidig, the case centred on burial rights of Aboriginal people after death where the parents, an Aboriginal father and white, Anglo Saxon mother with a European background, disagreed on what should happen to their deceased son’s body.
Attwood Marshall Lawyers represented the plaintiff, Mr Brown, a proud Aboriginal man whose son had tragically died by suicide. Mr Brown wanted to bury his son in line with Aboriginal beliefs. The father argued that a burial was of great importance to his son and his branch of the deceased’s family. He fought to lay his son to rest at a cemetery in the young man’s birthplace of Taree, NSW, on or close to ancestral Aboriginal land.
The deceased died intestate (without a Will) which was at the heart of the case. The coroner released the body into the mother’s custody as next of kin who subsequently held a funeral service (to the exclusion of the father and his side of the family) and organised for the body to be cremated without the father’s knowledge nor consent.
Attwood Marshall Lawyers’ Estate Litigation Senior Associate Martin Mallon swiftly supported the father and successfully filed an urgent application in the Supreme Court of New South Wales, seeking injunctive relief to prevent the mother and funeral home from cremating or disposing of the body of his son.
The father, Mr Brown, made the following written and oral submissions in Court on this issue:
- His son, Jeremiah was born and raised in Taree;
- He identified and registered as a Biripi Aboriginal man;
- He continued to visit Taree and intended to move back to the area;
- His family and ancestors are buried in Taree;
- The father’s request was supported by an Aboriginal Elder in Taree;
- Jeremiah informed several his family members that he had a strong desire to be buried next to them, specifically his grandmother;
- cremation, whilst it has been adopted by some Aboriginal people, is not a traditional cultural practice of Aboriginal people. There is a belief that being cremated creates a disconnection and misplacement of the person’s spirit;
- The belief system is that if an Aboriginal person does not return to their ‘mother’ (i.e., mother nature), she becomes sick and the Aboriginal person’s soul/spirit becomes lost and wandering in an abyss of confusion and darkness. When an Aboriginal person is returned to ‘mother’, she recognises them, and they are reunited physically and spiritually and it is this bond that allows their spirit to “pass over” or more precisely – continue on a spiritual journey to the dreaming;
- The deceased did not have any meaningful connection with any other place, religion, or culture.
The father also filed evidence in Court from the deceased’s sister, cousin, Uncles and Aunty about their desire that he be buried on country in Taree, pursuant to his Aboriginal cultural beliefs.
The mother’s submission did not identify any cultural or religious beliefs which underpinned her desire to cremate her son. Nor did she give reasons for the cremation. Rather she counter-claimed that indigenous persons can and do use alternative means to dispose of a body, including cremation.
She also claimed that should her son be buried in Taree, she would have difficulty travelling that far from her place of residence due to economic and physical difficulties. In an attempt to alleviate this latter issue, the father offered to pay reasonable travel expenses of the mother to visit the gravesite for a period of three years.
Ergo, a clear case it would seem, to support the father’s strongly held cultural beliefs, with support from the deceased’s sibling and extended paternal family. Sadly, not strong enough for Mr Brown as the judge decided to grant the mother permission to proceed with cremation.
At Attwood Marshall Lawyers, it is our intent and purpose to help people and change their lives for the better. Our values of integrity, understanding and responsibility underpin everything that we do. It is our position that in this case, our First Nations community was let down by the court due to a lack of sensitivity and understanding of the significance of the cultural beliefs of Aboriginal and Torres Strait Islander peoples. As we commemorate this NAIDOC week, we call for all Courts and tribunals, as well as our state and federal governments, to recognise and fully understand the cultural beliefs of our Fist Nations community.
We have come a long way in the application of the predominantly English legal system and common law in so far as relates to indigenous peoples, but there seems to be much more work to be done in order to achieve some semblance of parity in our egalitarian society. Unfortunately, it appears that politics continues to play a part in this area with the mainstream parties split on their approaches, as was seen in the recent unsuccessful referendum on ‘the Voice’. It would seem that until there is a genuine bi-partisan approach to this issue, we will continue to see indigenous rights go by the wayside. The current position of the parties does not give any hope that this position will change in the near future, although the Mabo decision will always be a source of hope in the reshaping of our common law.
To learn more about Attwood Marshall Lawyers’ case of Brown v Weidig, click here.
