Takamore case appealed to the Supreme Court

From the Herald:

The Supreme Court will decide who has the final say on where the body of a man whose family stole his body and took it to his ancestral home should be buried. 

James Takamore was 55 when he died suddenly of an aneurism in 2007.
He was originally from Taneatua, in Bay of Plenty, but moved to Christchurch with partner Denise Clarke 20 years before his death. The couple had two children. 

Mr Takamore had specified in his will, of which Ms Clarke was executor, that he wanted to be buried but did not say where. 

Despite him returning to the North Island only twice in 20 years, his family decided he should be buried on the family marae, in accordance with Tuhoe custom.
However, Miss Clarke had intended him to be buried in Christchurch. 

In 2009 the High Court ruled that the Takamore family had taken the body unlawfully and that Miss Clarke was entitled to make the final decision on where he should be buried. 

However, Mr Takamore's sister, Josephine Takamore, went to the Court of Appeal and argued that the burial of a Maori was governed by tikanga (customary practices), and that taking Mr Takamore's body was in accordance with Tuhoe burial custom. 

After a four-year struggle, the Court of Appeal last November released its decision, siding with Miss Clarke and ordering the matter back to the high court "to deal with the question of remedy''.

I've been meaning to comment on the awful decision from the Court of Appeal, but I've never got the time. I hope to comment on the case in the next week. In short, the decision shows little judicial imagination combined with bucket loads of disrespect for tikanga Maori. Don't, however, rejoice that the appeal to the Supreme Court has succeeded. The current bench, with the exception of the Chief Justice Elias, is equally hostile to tikanaga Maori. Anyway, expect comments here some time next week.

Justice denied

As you probably know the Court of Appeal has affirmed the findings of the High Court concerning the so called Urewera 18. 15 of the accused have been denied a jury trial. This, in my opinion, can be politely termed a judicial atrocity.

Both the High Court and the Court of Appeal have suppressed their reasoning, no doubt in an attempt to deflect criticism. It is absolutely unconscionable that the Court can to decide to deny a fundamental democratic right without offering the public any justification.

One of the primary functions of a jury is to act as a safeguard against the arbitrary exercise of government power. Given that the Urewera 18 were the victims of arbitrary government in the first instance the Court should, in theory, act as a check against that arbitrary power. However, in reality the Court has, and I do not make this accusation lightly, colluded with the executive (the Police) in ensuring that the government comes out of this process having saved face.

This case, right from the original terror raids in 2007, has been a source of considerable embarrassment for the Police. It gradually became apparent that the Police acted on a fragile and misconstrued basis. Those arrested ranged from small-time rural crack-pots to people who call for the protection of snails to pohara Maori-rights activists. The Solicitor-General slapped down the possibility of charges under the Terrorism Suppression Act and the media revealed just how wild the basis for action was. The Police allowed their childish imagination to cloud their objective reasoning. The majority of the accused now face firearms charges as opposed to anything ‘terror” related.

I’ll conclude this post with a quote from I/S over at No Right Turn (he puts it far better than I could):

The blunt fact is that without a jury, there can be no public confidence in the outcome of a trial such as this. Only with the bullshit detector of 12 random people scrutinising the case can the rest of us believe that justice was done. But I guess a fair process we can have confidence in is just too risky for the police.

UPDATE: For the two best pieces of analysis see this posting from Pablo at Kiwipolitico and this piece from Fran O'Sullivan.

Williams CJ?

Apparently one or two appointments will be made to the Supreme Court within the next year. I have no idea who will be appointed but I would like to see Justice Joe Williams considered. Williams is Maori, but that is not the sole reason why he should be appointed. Appointments should be based on merit and merit alone. However, were a situation to arise where one has two equally qualified candidates, one of whom happens to be Maori, then a compelling case exists to appoint the Maori. As far as I am aware Williams is a well respected legal mind. As former Chief Judge of the Maori Land, former head of the Waitangi Tribunal, the first Maori law lecturer at Victoria and current High Court Justice, Williams is most certainly qualified.

From my quick research into William’s background I think it is fair to say he is undeniably Maori in outlook, yet conscious and accepting of the fact that Maori must operate under a Pakeha framework. He is realistic. I would classify Williams as something of a tino rangatiratanga advocate, however not in an ideological sense. He does not believe in Maori self government and all those other unrealistic expectations and desires. Rather he believes in the pragmatic notion of tino rangatiratanga – enhanced wellbeing as opposed to self rule.

Ultimately, the decision on who to appoint sits with the Attorney-General. I am fairly confident Justice Williams will not be overlooked by either Chris Finlayson or, if Labour is in power, David Parker. It is something of an anomaly that in New Zealand, in 2011 might I add, that Maori are absent in both the Court of Appeal and the Supreme Court.