Northern Territory forced to back down on plan to criminalise Aboriginal burial rites

Galpu and Golpa clan elders from Elcho Island
Galpu and Golpa clan elders from Elcho Island

[Update October 25: The Northern Territory government has been forced to withdraw its Burial and Cremation Bill due to community outcry and concerns raised by Yolngu clans and Aboriginal organisations.]

Aboriginal peoples are no strangers to having governments pass laws telling them how to live their lives and with little to no consultation. Since the federal Coalition government launched the NT Intervention in 2007, the layers of bureaucracy and control smothering individual autonomy and community self-determination have only increased further.

But a new Burial and Cremation Bill — the first comprehensive review of cremation and burial regulations in 40 years — introduced by the NT Labor government threatened to cut to the very core of practises Yolngu people in north-eastern Arnhem Land have adhered to for millenia: funeral and burial rites.

Yolngu clans and Aboriginal organisations raised concerns that, if passed, the bill would criminalise an essential aspect of Yolngu society.

When a Yolngu person passes away, their body becomes sacred. Their clan must care for and guide them back to their ancestral home.

As access to traditional lands has become harder, many families are instead choosing to bury their kin close to home, in or beside yards where they live across north-eastern Arnhem Land. 

The funeral process can take many weeks of planning, negotiating and ceremony, involving various clans.

But the proposed bill would have require people seeking to bury their kin outside of a declared cemetery to seek prior approval from the NT Department of Local Government and Community Development. Burying somebody without a permit would have been considered an offence and could result in fines of up to $31,000 or two years in prison.

The process would have require presenting the necessary documentation to obtain a permit and then further post-burial documentation, such as GPS coordinates and depth of the grave, information about how the body was buried and a description of the memorial.

While for some people filling out such paperwork may not seem too onerous, it is worth considering the heavy burdens of death and funerals on Aboriginal people who may be organising and participating in funeral rites that can take days, if not weeks, to complete for numerous family members at a time. 

The proposed changes, and subsequent community outcry, should be understood in the context of a people whose very identity and culture is constantly under threat, controlled by an ever increasing number of laws and micro-managed by never-ending levels of bureaucracy.

In a submission to NT parliament regarding the bill, leaders of the Galpu and Golpa clans from Elcho Island, of the coast of Arnhem Land, wrote: “It is not just that Yolngu people have kinship, the land has kinship too, and when we decide where to bury that person it is according to kinship lines and links.

“The funeral is the life journey of that person in spirit. It is a long journey and it is a sacred subject for our people.”

According to the ABC on October 16, a spokesperson for NT community development minister Gerry McCarthy said the bill had “been widely consulted over six years and took into account feedback from various organisations including the land councils right through to consultation on the draft bill and including submissions to the Scrutiny Committee.

“Concerns raised during the Scrutiny Committee process have been addressed," the spokesperson added.

But independent member for Nhulunbuy Yingiya Mark Guyula dismissed the idea that proper consultation had taken place, saying: “[The government] say that the Council Local Authority Groups were consulted on this bill. But there is not one elder in community that has known about the detail of this bill when I have discussed it.

“This government is introducing a law that disrespects our culture and our authority and criminalises our elders and leaders.”

Guyula is not alone in his concerns. The Northern Land Council (NLC), Central Land Council and North Australian Aboriginal Justice Agency all made submissions raising concerns with the bill.

The NLC’s Marion Scrymgour said: “The provisions in the bill risk further criminalising a population that is already drastically over-represented in the prison system.” Aboriginal people make up 84% of the NT’s prison population.

Galpu and Golpa clans called for the bill to be amended so that it does not apply on homelands and other lands covered by the Aboriginal Land Rights (Northern Territory) Act 1976.  However, the Scrutiny Committee recommended the legislation be tabled without amendments.