Indigenous Insiders and Anglo Outsiders: A Critical Reading of Australian Burial Disputes

This article explores a cascade of deathly entanglements between nations, legal systems, communities, and individuals. Its focus is the vitally important, yet under-theorised corner of Australia's private law known as burial disputes: disputes relating to the disposal of the body of a deceased person. As many as three-quarters of burial disputes in Australia involve at least one Indigenous party. The impetus for this paper is twofold: first, the need to situate these burial disputes in their nomocidal colonial context; and second, the radical reshaping of the legal doctrine employed by courts when resolving these disputes. In particular, and grounded in the capacity of the corpse to act as a site of creative necroresistance, it draws on work done by Australian Indigenous and decolonial scholars to offer a critical, yet affirmative, reading of this doctrinal development, which, it argues, has occurred primarily in response to the Indigenous insider presence in the burial dispute case law.