Jul 17, 2012

No, your law is not superior

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.   


  1. You comfortable then with female genital mutilation happening in NZ? After all, to ban it would be "cultural imperialism".

    1. What a strange thing to say. As far as I am aware the indigenous peoples of NZ do not practice genital mutilation so banning it is not cultural imperialism in this country.

    2. Comparing female genital mutilation and Maori burial practise/law is a false comparison.

  2. Comparisons between female genital mutilation and person's final resting place are rarely helpful Anon at 12.30pm.

    With respect Morgan, I think your analysis is incorrect. There is no clash between customary law and common law because customary law is part of the common law, meaning law derived from judicial decisions rather than statute. Statutes are what trump common and customary law.

    Customary law existed in England. For example, the inhabitants of a particular district might be able to show they had grazing rights for their cattle on a plot of land, because that's what they'd always done.

    The English common law as it applies in Aotearoa already recognises that Maori may well be able to assert customary rights, for example in respect of fisheries or forests. Only statutes can trump the common law. This is why it took an egregious act of Parliament to remove the right of certain iwi to claim customary rights over the foreshore and seabed.

    Where I agree with you is that it is quite wrong to say that Western cultural practice should trump Maori cultural practice (subject to the deceased's wishes of course). What concerns me even more is the constant media reference to "body-snatching". Unfortunately, I haven't come to expect better from the likes of the NZ Herald, as sensationalist stories about Maori charging for beach access or a cup of water sell far more papers than a reasoned and inclusive debate about the issues.

    1. This comment has been removed by the author.

    2. Kia ora anon,

      You're right. Customary law, or Maori law, is assumed to be part of the New Zealand common law. However, not when the Maori law in question is, among other criteria, repugnant to the common law. The Court of Appeal and the High Court both found Tuhoe burial laws were 'repugnant' to the common law. Basically this meant Maori burial practise was inconsistent with the values of the common law, read western values.

      That is just one way the law relegates Maori law. Western law is taken to be superior and any laws that do not conform with are considered invalid.

      I agree too that the way the case is framed is worrying. Tim Selwyn at Tumeke has written some lucid stuff on that aspect of the case

    3. Tim Selwyn at Tumeke also said that Mr Takamore only said he wanted to be buried, he didn't specify where.

  3. Have any MPs introduced private members bills to give Maori law precedence in burial plans?

  4. Morgan, I think there's a contradiction in what you say, 'though it could be that I'm misreading somehting, or putting the emphasis in the wrong place. Towards the start of the post, you say:

    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.

    But at the end of your post you say:

    Ultimately, as Tuhoe and as a Maori, Mr Takamore should rest with his tupuna in his ancestral homeland.

    My intuition is that Mr Takamore's wishes should be respected, but I *would* say that, given that I tend to operate from a Western individualistic perspective. and as you say in the post, it's not at all clear that Western common law ought to prevail.

    1. My fault, I should have made that clearer. I'm comfortable with a finding that Takamore's partner had the authority to carry out his wishes. However, should the Court find this and it seems likely, I hope that there is not an order for the body to be exhumed. Such an order would be a grave cutlrual offence. Now that he's resting in his whanau urupa, I see no reason to move him even if it is found that his partner had the authority to decide the place of burial.

    2. @Deborah: Yeah, I was just about to ask that. I'm glad I wasn't the only one who picked up on it.

    3. (Replying to Morgan directly in case this doesn't nest properly)

      So Morgan essentially what you're saying is that, while Mr Takamore's body should have been buried in Christchurch, there is no way to correct this wrong without creating an even greater wrong (eg exhumation)?

      I can see what you're saying but isn't it possible that Mr Takamore would have been OK with this? It seems the wrong of exhumation should be based on his wishes, not general cultural practices. And there seems at least a prima faciae argument that Mr Takamore would have been OK with this, since he was obviously comfortable with rejecting one other cultural norm around burial.

    4. Yeah, in a nutshell. Two wrongs don't make a right.

      Possibly. I wouldn't, from a Maori perspective, be comfortable with that. However, there are ways around the taboos of exhumation and you could, I suppose, justify exhuming the body on the grounds that that is what Mr Takamore wanted.

  5. Responding to your 5.26pm comment Morgan, having read the COA's judgment, it appears that the judges took different approaches to reach the same decision.

    Glazebrook and Wild JJ said that to recognise Maori custom as part of the common law of Aotearoa, the custom must be long-standing, it must have continued without interruption since its origin, it must be reasonable, it must be certain in its terms and not displaced by Parliament through clear statutory wording. This is how I understood customary law. It is part of the common law and not something that is subsumed or overridden by it.

    Glazebrook and Wild JJ found that expert evidence established that Tuhoe burial practice may involve removing the deceased's body by force if agreement could not be reached. They said this aspect of Tuhoe burial practice was not "reasonable" because it involved the use of physical force to resolve disputes. So really, it wasn't that the custom was repugnant to the common law, it was just it was held not to be "reasonable". I guess your point is by whose cultural norms is it to be judged reasonable or not?

    However, these judges found that NZ common law has developed to a point where indigenous burial practices must be taken into account by executors and that NZ common law should, so far as reasonably practicable, be developed in line with the Treaty, UNDRIP and international human rights instruments to which NZ is a party. So, a fairly enlightened approach in my view confirming the importance of Maori customary law in our legal fabric.

    Chambers J just said that Mr Takamore had rejected his tribal roots, consistent with his rights to do so under the NZBORA, so Tuhoe custom couldn't apply to him.

    I think the real issue you have is with the "reasonableness" test, in that what might be reasonable to Maori or Tuhoe more specifically may be viewed as unreasonable to Pakeha and the difficulties in whether "reasonableness", which is supposed to be objective, is nonetheless coloured by the decision-maker's subjective cultural background. John Rawls deals with this issue in his theory of justice and claims judges should judge from the "original position", unfettered by their cultural background, although I think Glazebrook and Wild JJ took an open-minded and sensitive approach.

    Of course, behind all of this legal argument there's likely to be a good old-fashioned family feud - I think every culture experiences those!

    1. The "reasonable" criteria seems to be where cultural bias could slip in. On the one hand, reasonableness has a pretty hefty body of interpretation and precedent attached to it, so it's not as if this criteria is likely to be interpreted casually. On the other hand, it is specifically a western interpretation.

      The point about using force to resolve disputes is an interesting one. I think that would be considered 'Unreasonable' by most Maori people too. On the other hand, if this was a Tuhoe tradition I don't see where violences comes into it - surely everybody involved would defer to the custom and therefore violence wouldn't be needed?

    2. "Staggering cultural ignorance from his immediate whanau" Excuse me....we have a grief stricken widow, trying to cope with the sudden death of her husband, when the whanau from up North, who Mr Takamore has only seen twice in the last 20 years, arrive, take the body against her wishes, load it into a van (how culturally appropriate is that?), drive north and bury the body against the wishes of his widow. I would have thought the lack of compassion shown to the widow, lack of respect shown to the widow and Mr Takamore (who trusted his wife enough to make her executor of his will) was abhorrant and offensive in any culture. I think that if the Supreme Court does rule in favour of the wife and an exhumation takes place, it would be far less culturally offensive than what the whanau have already committed againt Mr Takamore, his widow and the immediate family still living. One side of this dreadful situation has shown great mana and dignity, and its not the whanau from Tuhoe.

    3. You’re right. My issue is with the interpretation of what is ‘reasonable’.

      I know Maori law is taken to be part of the common law, but where there is a clash, the Maori law will be defeated. Inevitably reasonableness is viewed through western values. When making an evaluation of reasonableness, the Court will almost always be informed by western values and norms and that, I think, is inadequate. Rawls makes an interesting point, I’d quite like to read that.

    4. Watched an excellent interview with James Takamore's mother on Maori TV's Te Kaea. She said the whanau would not have become involved if they were married. E ai ki te kōrero, "Hoki ki ō maunga kia purea koe e ngā hau a Tāwhirimātea". One day either Takamore's children and grandchildren will want to make a connection to their Tūhoe heritage. It's important for our deceased and the living to return home.

    5. or.....having seen the way members of Tuhoe treated their mother following the sudden death of their father, they will want to have nothing to do with Tuhoe ever again. After all, actions speak louder than words.

  6. Rawls was a famous American moral philosopher. Theory of Justice (1971) is his most famous publication where he argues for a "veil of ignorance" where people decide what is right and wrong ignorant of their own personal characteristics and therefore what is advantageous or disadvantagous to them. It doesn't just apply to ethnicity but gender, sexuality, intelligence, class, social status or any other personal characteristic. He also talks about the "difference principle" where inequalities are permitted where they advantage the worst-off in society, perhaps providing some moral arguments for affirmative action and the like.

    Hugh - that's a very good point. Physical force would be unnecessary where people deffered to the custom. Taking your point further, what if the physical force was used in furtherance of a lawful object, being one accepted by Tuhoe. Does that then make it reasonable? Surely it would be reasonable for me to use physical force to do something lawful, such as if someone unlawfully retained my dog and I entered their property to remove it. The physical force I use there would not be unreasonable.

  7. "I know Maori law is taken to be part of the common law, but where there is a clash, the Maori law will be defeated."

    Thank you Morgan for an interesting post. My question, rooted in ignorance, is how does customary law get changed, and by whom?

    To me, this seems that Maori customary law needs to be updated, rather than assuming that English common law will/should override it.

  8. This is s super late, but Morgan, I think it's a bit culturally ignorant to say that non-Maori don't appreciate the importance of burial. Burial is one of the most important rites in Western culture, and the importance attached to the proper treatment of bodies is a constant, all the way from Priam begging Achilles for the return of Hector to the huge importance of burial in sacred ground in the Christian era, to the importance placed on the bodies in the Pike River Mine.

    (Or even something like the Commonwealth War Graves Commission, which also points to an aspect of Western culture you seem to be underrating, which is that people should be buried properly no matter how long it takes.)

    So, there, several months after anyone's reading this!

  9. Common law must be paramount. The laws of our country cannot be contingent upon race. In signing their treaty, Maoris agreed to abide by, and live under the protection of, crown law.



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