No, your law is not superior

DPF blogs on the Takamore case:

There may be a clash of laws. I have no problem at all with saying a law which respect the wishes of the individual deceased and then the person that individual chose to marry should trump a customary law which robs the deceased and their chosen family of their rights to decide place of burial. Of course in a cross-cultural situation, individuals should try and compromise to agree on something palatable to all – but if agreement is not achieved, then the law should be followed and there should be penalties for body stealing.

There is a clash of laws. In New Zealand, and elsewhere, the common law position is that the executrix of the will (Miss Clarke) will prevail. Under Maori law, a majority opinion in the whanau will prevail. The wishes of the deceased and the deceased’ partner are, in most cases, subordinate to the wishes of the wider whanau.

The question then is, what law should prevail? In this particular case, I am comfortable with the common law position (or the western position) prevailing. Why? Well, because the deceased made it clear he wanted to lay in Otautahi (Christchurch) as did his children. However, in a situation where there is no explicit wish and the deceased is Maori, I think Maori law must prevail. These situations are rare and should be decided on a case by case basis.

The Takamore case is an unfortunate one. It has been characterised by bad faith on the part of Mr Takamore's extended whanau and staggering cultural ignorance from his immediate whanau.

Going back to what law should prevail, it is arrogant to suggest that a law you approve of should trump a, quote, “customary law”. As if a customary law is some sort of lesser law. Why should the western position prevail where the deceased is Maori? I doubt most New Zealanders appreciate the depth of feeling Maori attach to burial. Approaching this situation from a Maori perspective, the Takamore case was not a body snatching case. It was an example of legitimate Maori practise and, I should add, a mana-enhancing practise. People without an understanding of Maori culture see this as a body snatching case. If they cannot widen their perspective beyond the scope of what their own cultural practises and values are then that is their problem. But it’s wrong to say 'my' values and notions of what are right and wrong should prevail. That is cultural imperialism, and that’s a practise this country has seen enough of. For once, maybe just for once, New Zealanders should give appropriate respect to Maori law. 


In the end it is too late to exhume Mr Takamore. Doing so is just retributive. Restorative justice should occur and that should be the end of the matter. Ultimately, as Tuhoe and as a Maori, Mr Takamore should rest with his tupuna in his ancestral homeland.   

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.