The State of South Australia v Ken

[2021] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

THE STATE OF SOUTH AUSTRALIA v KEN & ORS

[2021] SASC 10

Judgment of the Honourable Justice Stanley  

HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES

HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS

Kunmanara Barney Randolph Shane David Waye died intestate on 4 July 2018.  There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial.  The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018.  The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased.  The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams, and the deceased’s sister Bessie Waye. 

The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella).  The deceased’s mother and sister want the deceased buried at Port Augusta.  The dispute between the parties is intractable. 

In the circumstances the dignity of the deceased and the conscience of the community require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency.

The deceased was born in Port Augusta on 6 July 1993.  Accordingly, he was 24 years of age at the time of his death.  It appears he died leaving no assets.  The evidence is he died without issue and without a wife or de facto partner.

Held:

1. After undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, Pukatja has the stronger claim to be the appropriate place of burial of the deceased.

2. The place for burial of the deceased, Kunmanara Barney Randolph Shane David Waye, who was reported to have died on 4 July 2018, is to be Pukatja.

South Australia v Smith (2014) 119 SASR 247, applied.
Minister for Families and Communities v Brown [2009] SASC 86; Jones v Dodd (1999) 73 SASR 328; Jones v Dodd [1999] SASC 458; Love v Commonwealth (2020) 375 ALR 597, discussed.

Calma v Sesar (1992) 2 NTLR 37; Darcy v Duckett [2016] NSWSC 1756; Abraham v Stone [2017] NSWSC 1684; Nayacakalou v Vincent [2020] NSWSC 24; Mabo v Queensland (1992) 175 CLR 1, considered.

THE STATE OF SOUTH AUSTRALIA v KEN & ORS
[2021] SASC 10

STANLEY J:

Introduction

1. Kunmanara Barney Randolph Shane David Waye[1] died intestate on 4 July 2018. There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial. The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018. The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased. The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams,[2] and the deceased’s sister Bessie Waye.

   [1]    I have identified the deceased’s name as best I can given the discrepancies in a number of documents as to his full and correct name.  If I am mistaken I apologise. 

   [2]    There is an inconsistency as to whether Ms Williams is the deceased’s aunt or cousin in the materials provided to the Court.  If I am mistaken I again apologise. 

2. The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella).  The deceased’s mother and sister want the deceased buried at Port Augusta.  The dispute between the parties is intractable. 

3. In the circumstances the dignity of the deceased[3] and the conscience of the community[4] require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency. 

   [3]    Burial and Cremation Act 2013 (SA) s 6; Minister for Families and Communities v Brown [2009] SASC 86 at [10].

   [4]    Calma v Sesar (1992) 2 NTLR 37 at [42].

4. There is no issue that the dispute is justiciable before this Court pursuant to its inherent jurisdiction.[5]  There is no dispute that the State has standing to bring the application.[6]

   [5]    South Australia v Smith [2014] SASC 64 at [5], (2014) 119 SASR 247 at 249.

   [6]    South Australia v Smith [2014] SASC 64 at [8], (2014) 119 SASR 247 at 249-250.

5. The deceased was born in Port Augusta on 6 July 1993.  Accordingly, he was 24 years of age at the time of his death.  It appears he died leaving no assets.  The evidence is he died without issue and without a wife or de facto partner.

   Relevant legal principles

6. At common law there is no property in a dead body, nor is the body of a deceased person capable of being owned.[7]  As a matter of general principle, where a deceased has left a will the obligation to arrange the burial of the deceased falls on the executor of his or her estate.[8]  Where a person dies intestate the position has generally been that the person eligible to apply for a grant of letters of administration has the right of burial.[9]  However, in circumstances where there has been no application for a grant of administration and none is ever likely to be made, the historical common law position to assigning a right of burial takes on “an air of unreality”.[10]  In Jones v Dodd[11] Perry J, with whom Millhouse and Nyland JJ agreed, noted that the eligibility to apply for a grant of letters of administration had been a convenient method by which to approach some cases, but was not a hard and fast rule.  He said that the approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.[12]

   [7]    Jones v Dodd [1999] SASC 125 at [27], (1999) 73 SASR 328 at 332.

   [8]    Jones v Dodd [1999] SASC 125 at [30], (1999) 73 SASR 328 at 332.

   [9]    Jones v Dodd [1999] SASC 125 at [35]-[48], (1999) 73 SASR 328 at 333-336.

   [10] Jones v Dodd [1999] SASC 125 at [50], (1999) 73 SASR 328 at 336.

   [11] [1999] SASC 125, (1999) 73 SASR 328.

   [12] Jones v Dodd [1999] SASC 125 at [67], (1999) 73 SASR 328 at 339.

7. In the subsequent case of Dodd v Jones[13] Doyle CJ considered that Perry J did recognise that the common law approach was the usual approach, but it was not to be applied rigidly.[14]

   [13] [1999] SASC 458.

   [14] [1999] SASC 458 at [31].

8. Subsequently in Minister for Families and Communities v Brown[15] Gray J, in deciding a dispute over burial, considered not only which party had a stronger claim at common law but also the lifestyle, relationship and practices of the deceased in reaching a conclusion as to burial rights.[16]

   [15] [2009] SASC 86.

   [16] [2009] SASC 86 at [31].

9. In South Australia v Smith[17] Nicholson J said:[18]

   The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature.  The 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.

   [17] [2014] SASC 64, (2014) 119 SASR 247.

   [18] [2014] SASC 64 at [34], (2014) 119 SASR 247 at 255.

10. Ultimately, Nicholson J identified four main considerations to be weighed in deciding disputes of this kind.  They are:[19]

    1.who might be entitled to obtain letters of administration in the event that such an application were to be made;

    2.Aboriginal cultural matters and concerns raised in the evidence;

    3.the deceased’s own wishes; and

    4.the wishes and sensitivities of the living close relatives.

    [19] [2014] SASC 64 at [47], [55], [61] and [65], (2014) 119 SASR 247 at 260-263.

11. This approach has been subsequently approved and adopted in other jurisdictions.[20]

    [20] Darcy v Duckett [2016] NSWSC 1756 at [7] and [27]; Abraham v Stone [2017] NSWSC 1684 at [50]; Nayacakalou v Vincent [2020] NSWSC 24 at [28].

    Evidence

12. The Court received evidence by way of affidavit from Stella Robinson deposed 23 October 2019, Scott McVeay deposed 26 November 2020, Ruth Morley deposed 2 December 2020,[21] the first respondent deposed 26 September 2018, the third respondent deposed 26 September 2018 and the fourth respondent deposed 26 September 2018.  None of the deponents were cross-examined on their affidavits.  However, the second and fifth respondents were self-represented and the fourth respondent was unwell and did not attend the hearing of the matter. 

    [21] Except for pages 4-10 inclusive of the exhibits to that affidavit being the affidavits of the first, third and fourth respondents.

13. Ms Robinson and Mr McVeay deposed to background and procedural facts.

14. The first respondent gave evidence that the deceased was born at Port Augusta.  After the deceased’s birth the first respondent returned to live at Pukatja.  His mother (the third respondent) and father collected the baby from Port Augusta and brought him to live at Pukatja where he attended school and subsequently worked mustering cattle and camels.   The deceased lived the first 20 years of his life on the Anangu Pitjantjatjara Yankunytjatjara Lands (APY lands), and came and went between Port Augusta and the APY lands in his last years.  This evidence is corroborated by information provided by the Nganampa Health Council which records the deceased’s attendances at the Nganampa clinic on the APY lands throughout his life.[22] 

    [22] Exhibit RLCM-2 to affidavit of Ruth Morley deposed 2 December 2020.

15. The first respondent deposes to the deceased undergoing “men’s business” with his paternal grandfathers Barney Ken, Brendan Ken, Freddy Ken and Kenneth Ken, and his aunt, the third respondent, and her husband Paul Andy.  The deceased became a fully initiated man, a wati.  The first respondent deposed to the importance of his son being buried on country with his ancestors, namely, his grandfathers and aunt, Nura Ward, at the Pukatja cemetery.  He says if the deceased is buried at Pukatja that will enable him to look after his son.  He says that this would not be possible if he was buried at Port Augusta as he does not travel to Port Augusta. 

16. The third respondent gave evidence that she and her husband brought up the deceased together with two other related children at Pukatja.  The deceased went to school locally.  He had friends.  The deceased underwent initiation at Mimili in the company of his grandfathers, and his paternal aunt and her husband Paul Andy.  He became a wati spending time at Gatji Gatji.  The deceased was a good hunter and lived a clean life at Pukatja on his country where his family lived. 

17. The third respondent says that the deceased should be buried at Pukatja with his grandfathers where he can be looked after by his family.  It is her duty as the deceased’s paternal grandmother to oversee his burial.  Her inability to have done this has been a source of great anxiety and physical illness. 

18. The fourth respondent gave evidence that she and her husband accompanied the deceased when he was initiated.  The deceased was happy living on his country and he belongs to the country and is joined to it by his initiation.  She says for this reason he must be buried on the APY lands. 

19. The second respondent gave evidence on the hearing of the application.  She testified that the deceased was born at Port Augusta on 6 July 1993.  When he was two years of age her mother-in-law and father-in-law and perhaps some other family members took the deceased to Ernabella (Pukatja).  She hoped he would come back to live with her in Port Augusta but this did not occur.  Her mother‑in‑law put the deceased through law and he was initiated by his father.  In the last five years of his life he was in Ernabella and Coober Pedy and Port Augusta.  He would travel up and down regularly.  When he was in Port Augusta he lived with the second respondent.  He developed dilated cardiomyopathy.  He was admitted to hospital.  In hospital he expressed a desire to come home to Port Augusta to be cared for by his mother at her home.  The second respondent said that she wanted her children, particularly the deceased, to be buried in Port Augusta with her.  She did not want her son or daughter scattered all over Australia. 

20. The second respondent was not cross-examined. 

21. There was some suggestion from the second respondent that the deceased expressed a wish to be buried in Port Augusta.  The evidence does not support this proposition.  In my view the evidence goes no further than the deceased expressing a wish to die at the second respondent’s home at Port Augusta.  That is not the same as expressing a wish as to his place of burial.  The second respondent implicitly accepted this and she told the Court that when he was dying in hospital she could not bring herself to ask him where he wished to be buried. 

22. The fifth respondent did not give evidence. 

    Findings of fact

23. I make the following findings of fact:

    1.the deceased was born on 6 July 1993 at Port Augusta;

    2.from infancy until he was about 20 years of age he lived on the APY lands at Pukatja;

    3.he was a fully initiated wati;

    4.in about the last five years of his life he lived at various times with his mother at Port Augusta, in Coober Pedy and at Pukatja;

    5.he died at Adelaide on 4 July 2018;

    6.he died intestate and without any known assets;

    7.there has been no application for a grant of letters of administration, and in the circumstances it is unlikely any will be made;

    8.his mother and sister live at Port Augusta;

    9.his father and extended paternal family live at Pukatja;

    10.the deceased did not express any wish as to his place of burial;

    11.his mother and sister want him buried in Port Augusta;  and

    12.his father and his extended paternal family, including the third and fourth respondents, want him buried at Pukatja.

    Consideration

24. In this matter I am not assisted by consideration of who might be entitled to obtain letters of administration in the event that such an application were to be made.  Both the first and second respondents, the deceased’s father and mother, could apply for letters of administration.  However, as I have found, there has been no application for a grant of letters of administration and it is unlikely any will be made.  In these circumstances, the historical common law approach to assigning a right of burial assumes “an air of unreality”.[23]

    [23] Jones v Dodd [1999] SASC 125 at [50], (1999) 73 SASR 328 at 336.

25. In addition, there is no evidence of the deceased expressing any wish as to the location of his burial. 

26. There is a clear division of views amongst the deceased’s living close relatives concerning his place of burial.  That division can loosely be ascribed as being between the paternal and maternal branches of the deceased’s family.  The deceased’s mother and sister reside in Port Augusta.  The deceased was born in Port Augusta.  During the last five years of his life the deceased spent considerable time in Port Augusta, but also in Coober Pedy and Pukatja.  I accept that when he was dying the deceased wanted to return to his mother’s home but, for the reasons I have explained above, I cannot find that he expressed any wish as to the place of his burial.  On the other hand, the deceased’s father, grandmother and aunt want the deceased buried at Pukatja where he grew up and lived most of his life.  Like his father and grandfathers, the deceased is a fully initiated wati.  Pukatja is his country.  The paternal family assert that they have cultural authority to decide where the deceased will be buried.  They live on their traditional lands and wish to conduct the burial of the deceased according to their law and custom.

27. In Love v Commonwealth[24] Bell J said that the High Court in Mabo v Queensland[25] recognised a connection that Aboriginal Australians have with “country” that is essentially spiritual.[26]  In Love Nettle J observed that central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.[27]

    [24] [2020] HCA 3, (2020) 375 ALR 597.

    [25] (1992) 175 CLR 1.

    [26] [2020] HCA 3 at [70], (2020) 375 ALR 597 at 613-614.

    [27] [2020] HCA 3 at [276], (2020) 375 ALR 597 at 666.

28. I received evidence of academic research and writing on Pitjantjatjara burial practices.[28]  I accept that it is important for Anangu to be buried back on country, the land of their totemic ancestors, the country of their Tjukurpa.  The Anangu attribute the beginning of human and other life forms and the shaping of the environment to the activities of spirit beings, kurunpa tjuta, during the creative period known as Tjukurpa, usually glossed as the Dreaming.[29]  In Pitjantjatjara customary lore, before the Dreaming there existed a formless substance, under the surface of which the various spirit beings lay dormant.  Tjurkurpa refers to the occasions when these beings became animated and emerged on the surface of the earth, sharing identities of both humans and the animal and plants species of the localities.  I accept that for Anangu men the primary Tjurkurpa connection is the relationship to their father’s and grandfathers’ country confirmed through initiation ceremonies into manhood.  On death their spirit returns to the country of their Tjurkurpa totemic ancestor of their spirit.  In this case, that is Pukatja.

    [28] Edwards, “Changes in Pitjantjatjara Mourning and Burial Practices” (2013), Vol. 1, Journal of Australian Aboriginal Studies 31.

    [29] Edwards, “Changes in Pitjantjatjara Mourning and Burial Practices” (2013), Vol. 1, Journal of Australian Aboriginal Studies 31 at 32.

29. Undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, I consider Pukatja has the stronger claim to be the appropriate place of burial of the deceased.

30. In my view, the wishes of the deceased’s father and the paternal family should be preferred over those of the deceased’s mother and sister.  This is not an easy decision but I have come to this conclusion having weighed in the balance, as best I can, all of the evidence before me and considered that evidence in light of the authorities I have identified above.  It is not possible to find that greater weight should be given to the wishes and sensitivities of one side of the deceased’s family over the other.  Instead, I am persuaded that the deceased should be buried in Pukatja, having weighed the Aboriginal cultural matters and concerns established by the evidence.

31. I acknowledge that this decision will be a source of great pain to the second and fifth respondents.  I can only echo the lament of Doyle CJ in Dodd v Jones[30] who said:

    Sadly the problem before me is really insoluble in one sense.  It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment.  I understand and respect the wishes and beliefs of [the parties].  There is no solution or compromise available to me that will satisfy each side.  I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.

    [30] [1999] SASC 458 at [36].

    Conclusion

1. In the circumstances I make the following orders:

   1)The place for burial of the deceased, Kunmanara Barney Randolph Shane David Waye, who was reported to have died on 4 July 2018, is to be Pukatja.

   2)Subject to any contractual rights and obligations enjoyed and to be observed by the undertaker, Fulham Funerals SA Pty Ltd and the Department of Human Services, the Department is to request the undertaker to bury the deceased in a manner that observes, insofar as it is practicable, the wishes of the first respondent.

   3)I declare that the undertaker is, subject to orders (1) and (2) above, entitled to receive and to act upon the directions of the Department with respect to a burial of the deceased.

   4)At least three days’ notice of the funeral is to be given in the “Advertiser”; a local paper servicing Port Augusta; a local paper or other means of news service servicing the Anangu Pitjantjatjara Yankunytjatjara lands; and to the solicitors for the first, third and fourth respondents and to the second and fifth respondents, providing sufficient detail of the funeral arrangements so that family members might be able to attend.

   5)Orders (1) and (4) are stayed until 4.30 p.m. on 12 March 2021.

   6)If, prior to 4.30 p.m. on that same date, a notice of appeal to the Full Court against this decision is filed by the second or fifth respondents, the stay in order (5) is to continue until further order of the Court of Appeal.

   7)Any filing fees otherwise payable by the second and fifth respondents in the event of filing a notice of appeal are waived.

   8)I grant liberty to the parties to apply.  If any decision is made earlier than 4.30 p.m. on the 12 March 2021 that an appeal is not to be pursued, notice can be given to my Chambers and I will make an order lifting the stay and will communicate that order to all the parties.

   9)There is no order as to the costs of these proceedings.