FEDERAL COURT OF AUSTRALIA Wanambi for himself and on behalf of the Marraŋu People of East Arnhem Land v Wanambi

[2026] FCA 781

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Interrogate

Catchwords

1. Aboriginal and Torres Strait Islander Peoples
2. › Native title
3. › Native title rights and interests
4. › Whether rights in relation to land
5. › Whether traditional burial rights, inheritance rights and marriage rights under Aboriginal customary law constitute native title rights and interests
6. › Native Title Act 1993 (Cth), s 223
1. Aboriginal and Torres Strait Islander Peoples
2. › Traditional laws and customs
3. › Recognition by common law
4. › Whether Aboriginal traditional laws and customs are recognised as independent source of legal rights outside native title
5. › Whether burial and inheritance rights under customary law are 'true legal rights'
1. Human Rights
2. › Racial Discrimination Act 1975 (Cth)
3. › Section 10(1)
4. › Rights to equality before the law
5. › Whether facially neutral laws governing burial decisions and intestate succession impair human rights of Aboriginal people
6. › Identification of relevant human right
7. › Whether rights specific to one racial group can ground s 10(1) claim
1. Constitutional Law (Cth)
2. › Acquisition of property on just terms
3. › Northern Territory (Self-Government) Act 1978 (Cth), s 50(1)
4. › Whether laws regulating burial decisions and intestate succession constitute acquisition of property
5. › Whether spiritual detriment to traditional land constitutes acquisition
6. › Whether laws adjusting competing rights of persons in particular relationships are laws with respect to acquisition of property

Quick Take

Aboriginal burial and inheritance rights under customary law — being rights to control the body and burial of a deceased person and to determine distribution of possessions — are not native title rights and interests because they are not rights 'in relation to land', even though they are founded upon spiritual beliefs connected to land. The common law does not recognise Aboriginal traditional laws and customs as an independent source of legal rights outside the domain of native title. A claim under s 10(1) RDA requires identification of a human right capable of being enjoyed by persons of all races; rights specific to one Aboriginal group under their customary law cannot ground such a claim. No freestanding 'Crown obligation of protection' towards Aboriginal people exists at law that would render legislation invalid.