Compliance with Burial and Cremation Act;

1. The factual background to the dispute is that Mr D Mardi, who died on 18 November 2023 has been laid to rest in a burial at Bulgul, a small community located approximately 220 km south-west of Darwin. The decision to bury him at Bulgul was made by his de facto partner of many years, Lynette Fejo, who is the respondent in the proceeding. The decision was informed by a wish to be buried at Bulgul underneath the Wombidi tree that Mr Mardi expressed prior to his death. It was also in recognition of the fact that:

"Mr Mardi's connection to Bulgul is the Wadjiginy/Kiyuk clan group which he takes under his mother [M] Moreen (Wadjigany/Kiyuk Elder deceased) and Uncle Simon Moreen (Phud) Wadjigany/Kiyuk lore man..."[1]

1. Prior to the burial, Ms Fejo consulted with Simon Moreen and was given "full permission[2]" for the burial to occur at Bulgul.

1. The applicants are Mr Mardi's sons. Their position is that the burial at Bulgul is culturally inappropriate and constitutes a significant breach of traditional cultural practices. Their wish is to have Mr Mardi's remains exhumed and for a burial to occur in Belyuen, another community south-west of Darwin.

1. The orders sought in the Initiating Application reflect the ultimate aims of the applicants.

1. It is well established that "NTCAT only has such jurisdiction as is conferred on it by the NTCAT Act or any other legislation."[3] Section 30 of the Northern Territory Civil and Administrative Tribunal Act 2014 is clear:

The Tribunal has the jurisdiction conferred on it by this or any other Act.

1. The Tribunal's jurisdiction under the Burial and Cremation Act 2022 does not extend

to many of the dispositions sought by the applicants.

1. Under section 13(1)(b) the Tribunal has jurisdiction to determine who is the senior next of kin for a deceased person. The Tribunal also has power under section 14 to make determinations in circumstances where executors of an estate cannot agree on decisions regarding human remains. Section 14 has no application to this proceeding.

1. The only other powers conferred on NTCAT under the Burial and Cremation Act 2022 are in sections 67(7)(b) and 187, neither of which have application to this proceeding. Section 67(7)(b) confers jurisdiction on NTCAT to resolve a dispute about the withholding of consent for the burial of human remains by an interest holder of land that is subject to native title. Section 187 confers review jurisdiction on NTCAT in respect of the reviewable decisions listed in Schedule 1.

(1) The decision maker for a person 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.

A decision maker, for a deceased person, means:

(a) the executor or administrator of the estate of the deceased person; or

(b) if there is no executor or administrator of the estate of the deceased person - the senior next of kin;

1. The Tribunal understands that there is no executor or administrator of Mr Mardi's estate.

1. Section 13 of the Act relevantly provides that:

(1) If there is a dispute regarding who is the senior next of kin for a deceased person, a next of kin may:

(a) ...

(b) apply to NTCAT for a determination of the senior next of kin for the deceased person.

(2) NTCAT must consider the following in determining the senior next of kin:

(a) the order of people mentioned in section 11(1);

1. For the purposes of this proceeding, NTCAT's role is confined to a determination of who is to be recognised as the senior next of kin in accordance with the Act. While a determination of that point may allow further actions to be taken under the Act, NTCAT has no part to play in making any determination about the appropriateness or otherwise of the current burial site or of an exhumation.

1. As already referred to, in making a determination of the senior next of kin under section 13(1), NTCAT must consider the order of people mentioned in section 11(1). That section creates a hierarchy in descending order of potential decision makers for a deceased person.

1. For the purposes of this dispute the relevant provisions are sections 11(1)(a) and 11(1)(d) which provide as follows:

11(1)(a) if the deceased person was an Aboriginal or Torres Strait Islander person and had strong cultural and traditional ties to a community or group - a person who, according to the customs and traditions of that community or group to which the person belonged, is appropriate to perform that role;

11(1)(d) if paragraphs (a) to (c) do not apply and the deceased person was, immediately before death, in a de facto relationship - the deceased person's de facto partner.

1. In other words, the first thing to consider is whether or not a deceased Aboriginal person such as Mr Mardi had strong cultural and traditional ties to a community or group. If so, an appropriate person according to that culture will be the senior next of kin.

1. The applicants' evidence was to the effect that Mr Mardi was "an Amiyenggal man through his father and a Kiyuk man from his mother."[4]

1. It was clarified that Mr Mardi was 'not a Kiyuk person by way of Aboriginal culture and practices and as such is bound by the customs and traditions of both his father's and mother's respective clan groups'[5].

1. It was not contested that some cultural groups "claim rights as Traditional Owners through both patrilineal and matrilineal lineages however Kiyuk, Wadjigan, Amiyenggal and other clan groups do not. The Kiyuk, Amiyenggal and other groups in the Anson Bay and wider region claim such Traditional Owner rights and follow customs and traditions through patrilineal grounds..."[6].

1. As to who specifically is the appropriate person to perform the role of senior next of kin in respect of Mr Mardi, the applicants' evidence is as follows.

1. The Unattested Declaration of James Sing states: '..the Kiyuk as a group feels that the decision maker... should be determined by his children (Aaron and Keiffen[7] Mardi) or the surviving elders of [Mr Mardi's] father's surviving family members. His Aunt's in Rosie Gordon (nee Bigfoot-Mardi) and Shirley Bigfoot-Mardi... [Aaron and Keiffen Mardi must be declared as senior next of kin] due to their initiated rites as men, their father's initiation rites and status and the customs and traditions of the Kiyuk and Amiyenggal clan groups'[8].

1. In her Unattested Declaration, Shirley Bigfoot describes herself as Aunt of Mr Mardi and a Senior Elder of the Mardi-Bigfoot Amiyenggal clan group. Ms Bigfoot's evidence is that Mr Mardi 'went through men's business and only his sons can decide for him as they have been through men's business as well. In Aboriginal culture only sons and brothers can decide for a man burial and ceremony. If no son's or brother's alive then Aunts, sisters daughters or wife decide'.

1. Natalie Harwood provided an Unattested Declaration on behalf of her mother Gracie Moreen, who is described as the oldest living member of the Kiyuk tribal clan group, the oldest member of the Moreen family, and the Aunt of Mr Mardi. This evidence includes the following:

As my brother went through Aboriginal men's initiation, he must follow the culture and practices of his people, Amiyenggal and his mother's people Kiyuk. As his sons themselves having gone through men's initiation, this gives them rights under traditional lore, rights and responsibilities such as the burial date, location and arrangement for other traditional ceremonial practices.

We are not disputing that this may have been his (my cousin's) wish to be buried on his mother's country, but aboriginal lore and culture must be followed, so [not] to cause any potential long-term anger and distress between Kiyuk and Amiyenggal families or towards Ms Fejo.

The decision of where my cousin is to be buried must follow our culture

and must made by my nephews and my cousin's Amiyenggal group the

Bigfoot-Mardi family. The acknowledgement of my nephews as the rightful Senior Next of Kin would allow them to follow Aboriginal culture and practices and remove all anger, frustration and distress caused by the burial[9].

1. In his Unattested Declaration dated 17 March 2025, Conway Wirrapanda-Blanasi states:

[6] Under customary law, which follows the father's line, David's eldest surviving son, Aaron, is his Senior Next of Kin...

[9] The correct person to speak for [an exhumation and reburial] to happen is [Mr Mardi's] eldest son, Aaron, as the Senior Next of Kin, together with Keifen.

[10] Please let me know if you need any further information from me to confirm that, under Aboriginal customary law, Aaron is his father's appropriate Senior Next of Kin.

1. Further information provided by the applicants was from Brian Young, which was in the form of a Form 3 application dated 10 March 2025, rather than as an Unattested Declaration. In that document Mr Young, who describes himself as a senior cultural Arrernte Leader of the Central Arrernte men of Alice Springs, seeks to 'verify the claims' of Keiffen Mardi. He states: '...under Aboriginal customary practices when traditional Owners Passes, the rights related to a father passes to his sons. Especially if they have themselves undertaken men's related ceremonies as Keiffen and Aaron have. I can verify that Keiffen has undertaken the traditional rituals required of our culture and earned the status of Senior Next of Kin under Aboriginal Culture'.

1. The status of the information from Mr Young was raised during the hearing, given that the proceeding concerns the culture and traditions of the Amiyenggal and Kiyuk groups, rather than Central Arrernte. It was submitted by Janet Turner, the mother of Keiffen Mardi, that Mr Young also possesses knowledge of the culture and traditions of groups in the Top End due to family ties in the region.

1. Ms Fejo's claim to be recognised as senior next of kin is outlined in her Response. She asserts that:

"I am appointed by the late Mr Mardi as his Next of Kin and have all the relevant legal documents to prove this."

1. In support of that position she has provided the Tribunal with a copy of a letter from

a "Medico Legal Officer" at Royal Darwin Hospital dated 11 December 2023 which includes the following statement:

"Medical Records indicate the nominated next of kin as Lynette Fejo (Wife)."

1. The death certificate identifies Lynette Fejo as Mr Mardi's partner and describes that they were in a defacto relationship. The death certificate also identifies the applicants as the only surviving children of Mr Mardi.

1. Ms Fejo has also provided a copy of correspondence apparently from the Coroner's office to the funeral arrangers. That correspondence includes a paraphrasing of the Act as follows:

"...a certificate 'Coroners Release' has been issued releasing the body of Mr Mardi to your organisation.

In relation to NOK below is the definition as stated in the

Choose the situation that best fits the relationship status of the deceased person immediately before their death.

• Both married and in a de facto relationship, the senior next of kin may be the spouse.

• In a continuous de facto relationship for at least 2 years immediately before death, and didn't during those 2 years live with the deceased person's spouse - the senior next of kin is the de facto partner."

1. Unfortunately, that summary of the Act does not consider section 11(1)(a).

1. Ms Fejo has also provided a statutory declaration of Simon Moreen dated 15 January 2025 which states:

...I am a Wadjigany/Kiyuk elder, lore man and Senior Traditional Owner. My nephew told me if he ever passed away he wanted to be taken back home to Bulgul and buried under the Wombidi tree. I gave my full permission to his wife Lynette Fejo to do this. [Mr] Mardi is my nephew through my deceased sister, [M] Moreen. I have never objected to [Mr] Mardi being buried at Bulgul.

1. At the hearing it was submitted by Mr Sing that Mr Moreen was under emotional strain at the time of his involvement in arrangements for Mr Mardi's burial, which affected his capacity to engage fully in collective decision-making. Mr Sing submitted that Mr

Moreen has since formed the view that Mr Mardi should not remain where he has

1. At the hearing, Ms Fejo explained that she had been Mr Mardi's de facto partner for over twenty years. She said that she had been living a cultural life with Mr Mardi, which involved travelling throughout Arnhem Land with Mr Mardi and Simon Moreen for cultural business in their capacity as senior lore men.

1. Ms Fejo has described Mr Mardi's connection to Bulgul as through the Wadjiginy/Kiyuk clan group of his mother. Her evidence was that Mr Mardi remained connected to his cultural heritage and regularly took part in ceremonies and cultural business at Bulgul.

1. At the hearing Ms Fejo handed up photos of Mr Mardi at Bulgul, and explained that the Wombidi tree at Bulgul was significant to Mr Mardi as he was known as 'Wumbidi', as is recorded on his death certificate. Her evidence was that she had sought and gained permission from senior lore men Simon Moreen and Freddy Scrubby to bury Mr Mardi at Bulgul, and had sought to honour his wishes by burying him there.

1. In determining who is the senior next of kin for the purposes of the Act, NTCAT must consider the descending order of people in section 11(1).

1. It is clear that, in circumstances where a deceased person was Aboriginal and had strong cultural and traditional ties to a community or group, the senior next of kin will be someone who is appropriate according to the customs and traditions of that community or group.

1. The list in section 11(1) does not give priority to a person who is designated as 'next of kin' in the medical records of the deceased person. While 'de facto partner' is in the list, a de facto partner is lower in the list where the deceased was an Aboriginal or Torres Strait Islander person who had strong cultural and traditional ties to a community or group.

1. There is no dispute that Mr Mardi was an Aboriginal man with strong ties to tradition and culture.

2. The evidence is that Mr Mardi had a close connection to both the Amiyenggal and Kiyuk groups. Mr Mardi may have felt a closer connection to the Kiyuk group towards the end of his life, indicated in his preference to be buried at Bulgul.

1. The evidence is that both Amiyenggal and Kiyuk groups are patrilineal, and that since Mr Mardi has sons, they are the appropriate persons to perform the role of senior next of kin according to the customs and traditions of both groups.

1. Both of Mr Mardi's sons have sought to be declared as Mr Mardi's senior next of kin, however the Act requires one person to be nominated as the senior next of kin. Section 13(2)(b) provides that if two or more people have equal status as the senior next of

kin, consideration is to be given to who will organise and pay for the cost for the burial and disposal of the deceased person. This consideration is not relevant here, because Mr Mardi has already been buried.

2. In any case, the evidence indicates that the status of Aaron Mardi and Keiffen Mardi is not equal. At [6] of his Unattested Declaration dated 17 March 2025, Conway Wirrapanda-Blanasi stated that Aaron is Mr Mardi's senior next of kin, as his eldest surviving son.

1. Taking all of the evidence into account we determine that, for the purposes of s 13 of the Act, the senior next of kin for Mr Mardi is Aaron Mardi. We make the following order:

1. Pursuant to section 13 of the Burial and Cremation Act 2022, the senior next of kin for Mr Mardi is Aaron Mardi.

[1] NTCAT Response filed by Lynette Fejo on 20 January 2025.

[2] Statutory Declaration of Simon Moreen dated 15 January 2025.

[3] Rex v Broadspectrum Limited [2016] NTCAT 436 at [16].

[4] Unattested Declaration of Conway Wirrapanda-Blanasi dated 17 March 2025 at [4].

[5] Unattested Declaration of James William Sing dated 16 March 2025 at p 2.

[6] Unattested Declaration of James William Sing dated 16 March 2025 at p 2.

[7] Although the death certificate of Mr Mardi contains the spelling 'Keiffan', these reasons use the spelling 'Keiffen' as that is the spelling used in the documents filed by the applicants.

[8] Unattested Declaration of James William Sing dated 16 March 2025 at p 3.

[9] 10 Unattested Declaration of Natalie Harwood dated 17 March 2025 at p1.