|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 25 January 2018
|
For a Court ready (fee required) version please
follow this link
|
|
IN THE COURT OF APPEAL OF NEW ZEALAND
|
|
CA525/2009
[2011] NZCA 587 |
|
BETWEEN JOSEPHINE TAKAMORE
Appellant |
|
AND DENISE CLARKE
First Respondent |
|
AND NEHUATA TAKAMORE AND DONALD TAKAMORE
Second Respondents |
|
Hearing: 3 February 2011
|
|
Court: Glazebrook, Chambers and Wild JJ
|
|
Counsel: J P Ferguson and M M T Tuwhare for Appellant
G J X McCoy and P N Allan for First Respondent No appearance for Second Respondents |
|
Judgment: 23 November 2011 at 10.00 am
|
JUDGMENT OF THE COURT
REASONS
GLAZEBROOK AND WILD JJ
(Given by Glazebrook J)
Table of Contents
Para No
Introduction Error! Reference source not found.
Overview of
this judgment [8]
Background [21]
The relationship
between Ms Clarke and Mr Takamore [21]
Mr Takamore’s
Māori heritage and contact with his family [25]
Mr Takamore’s death and
ensuing events [32]
What
the Taneatua family intended [45]
Mr Takamore’s wishes as
to burial [52]
Tūhoe
custom [58]
Mr
Kruger’s evidence [59]
Professor Temara’s
evidence [74]
Summary [92]
Fogarty J’s
decision [95]
The
parties’ submissions [102]
Issues [105]
Recognition of customary law
by the common law [109]
Indigenous customary
law [112]
Presumption of
continuity [112]
Recognition in colonial
courts [114]
Principles of
recognition [121]
Longevity
and continuity [122]
Reasonableness [124]
Certainty [128]
Extinguishment [133]
Application of the test for
recognition to this case [135]
Longevity and
continuity [136]
Reasonableness [137]
(a) The
parties’ submissions [138]
(b) Possible
breaches of requirement [146]
(c) Individual autonomy [147]
(d) Fogarty
J’s factual findings [153]
(e) Right not
might and the rule of law [163]
(f) Summary:
reasonableness [166]
Certainty [167]
Has the custom been
extinguished? [168]
Must
the custom be a general Māori custom? [170]
Summary [175]
To whom does indigenous
customary law apply? [176]
The personal application of
customary law [177]
Difficulties in this
case [184]
(a)
Identifying the relevant person(s) to whom custom applies [185]
(b) Does the common law
or tikanga determine ethnic identity? [189]
(c) The
application of custom to Māori relations inter se [192]
Should the common law on
burial accommodate Tūhoe custom? [197]
The common law
position [198]
Executor’s
duties [199]
Wishes of the
deceased as to burial [207]
Relevance of the wishes of
the deceased’s family [219]
Emerging human rights
jurisprudence [226]
(a) European Convention on Human Rights [226]
(b) International
Covenants to which New Zealand is a party [230]
Summary of common law
position [236]
Other
relevant instruments [243]
The Treaty of
Waitangi [243]
The
Declaration on the Rights of Indigenous Peoples [250]
A more modern approach [254]
Conclusion on this
case [259]
Result and
costs [264]
Introduction
[1] Mr James (Jim) Takamore died on 17 August 2007 in Christchurch, where he had lived with his partner, Ms Denise Clarke, and their two children for approximately 20 years.
[2] Ms Clarke is the executrix of his will. Contrary to her wishes, Mr Takamore’s body was taken from Christchurch by his sister, Ms Josephine Takamore, and other members of his whānau and buried in the urupā[1] at Kutarere Marae next to his father and among other whānau members.
[3] Ms Clarke sought orders from the High Court authorising her to enter the urupā at Kutarere Marae, disinter the body of Mr Takamore and deal with his body “in any way she sees fit”. The orders sought were opposed by Ms Josephine Takamore and Mrs Nehuata (Nehu) Takamore, Mr Takamore’s mother, in the High Court. Mr Donald Takamore, Mr Takamore’s brother, decided not to participate actively in the High Court hearing.
[4] Fogarty J held[2] that there was no legal authority for Ms Josephine Takamore and other members of Tūhoe to dispossess Ms Clarke of Mr Takamore’s body. As the taking of the body was unlawful, he held that it is not properly buried. Therefore Ms Clarke is entitled to possession of the body as the executrix of Mr Takamore’s will.
[5] In Fogarty J’s view there was, however, an issue with the orders sought by Ms Clarke. This was because the body is buried on private land and it was not immediately apparent to the Judge that Mr Takamore’s sister and mother had control over the burial place. Tūhoe tikanga requires collective decisions.
[6] Fogarty J therefore invited the Takamore whānau to return the tūpāpaku[3] of Mr Takamore to Ms Clarke and his children. In the meantime, he adjourned the proceedings with leave for Ms Clarke to make a further application for remedies and to add additional parties.[4] We understand that there have been sincere efforts at mediation since the High Court judgment but that a resolution of the dispute has not been achieved.
[7] Ms Josephine Takamore appeals against the High Court decision.[5] The main issue in the appeal is the effect, if any, of Tūhoe custom regarding burial on the common law duties of an executor or executrix. An overview of our conclusion in relation to this issue is set out below. We then outline the background in more detail, outline Tūhoe custom relating to burial, provide a more detailed summary of Fogarty J’s decision and the parties’ submissions, and set out our reasons in more detail.
Overview of this judgment
[8] Mr Takamore, a Māori man of Tūhoe descent, died in 2007 in Christchurch, where he lived with his partner, Ms Clarke, and their children. Mr Takamore was originally from the Bay of Plenty, where his extended whānau resides, but had been living in Christchurch for the last 20 years.
[9] Ms Clarke is the executrix of Mr Takamore’s will. She was intending to bury Mr Takamore in Christchurch. Contrary to her wishes, Mr Takamore’s body was taken from Christchurch by his sister and other members of his whānau (from Tūhoe) and buried in the urupā at his whānau marae in the Bay of Plenty.
[10] It was determined in the High Court that the members of Tūhoe who had taken Mr Takamore’s body had done so unlawfully. Under the common law, Ms Clarke was entitled to possession of Mr Takamore’s body as the executrix of his will and, while expected to consider the wishes of the deceased and his family members, was ultimately entitled to make the final decision about the location of Mr Takamore’s burial.
[11] Mr Takamore’s sister appeals against the High Court decision and argues that the burial of a Māori deceased is governed by Māori tikanga (the customary practices of the Māori people) because Māori custom is part of the common law of New Zealand. She submits that the taking of Mr Takamore’s body was in accordance with Tūhoe tikanga.
[12] We based our view of Tūhoe tikanga on evidence given by two independent experts. In their view, according to Tūhoe tikanga, the decision as to where somebody should be buried is a collective one to be made by the deceased’s whānau, which can give rise to conflict and negotiation among whānau members. If there is disagreement as to where the deceased should be buried, there have been instances where the body has been taken by one party without consultation. The taking of the body accords with Tūhoe tikanga and enhances the mana of the deceased.
[13] In this judgment, we determine the effect that Tūhoe burial custom has on the common law duties of an executor (or executrix). Māori custom is recognised as part of the common law of New Zealand as long as certain criteria are met: the custom is long-standing, it has continued without interruption since its origin, it is reasonable, it is certain in its terms, and it has not been displaced by Parliament through clear statutory wording.
[14] The requirements for the recognition of customary law are not met in this case. The custom does not meet the criterion of reasonableness, as the custom authorises the use of force through the ability to take the body without agreement. Resorting to the use of physical force to settle private disputes is repugnant to a “root” principle of our legal system, the rule of law.
[15] There would also be difficulties with the application of Tūhoe burial custom even if it met the requirements for recognition by the common law, as Māori custom generally applies to interactions between Māori only. The application of Tūhoe custom to a non-Tūhoe person such as Ms Clarke (who also does not wish to be subject to Tūhoe custom) is problematic. In addition, it is unclear whether a person’s ethnic identity (for the purpose of establishing whether Māori custom applies to a particular person) is determined by the common law or by indigenous standards.
[16] However, those issues do not need to be resolved in this case. We conclude that a more modern approach to customary law is to integrate the Tūhoe custom into the common law relating to burial. The common law has developed, or at least is developing, to a point where executors should take indigenous practices relating to burial into account. This conclusion is also reinforced by the need to develop the common law, so far as is reasonably possible, consistently with the Treaty of Waitangi, the importance of recognising the collective nature of indigenous culture (as recognised in particular by the United Nations Declaration on the Rights of Indigenous Peoples) and by international human rights covenants to which New Zealand is a party.
[17] We consider that a workable compromise between the common law relating to burial and the Tūhoe custom can be achieved by requiring Tūhoe burial custom to be taken into account by the executor (or executrix) as a relevant cultural consideration when determining the method and place of burial. Where the deceased is Tūhoe and one or more of his or her family members is Tūhoe, the executor should facilitate (as far as it is practical to do so) a culturally appropriate process of discussion and negotiation among the whānau members as to the place of burial. All whānau members should have a full opportunity to participate, even if not Tūhoe. Where consensus is reached, it would normally be unreasonable for an executor to refuse to bury in accordance with that consensus. Where consensus is not reached, the common law position will prevail and the executor should make the final decision.
[18] The process of negotiation should occur even where the deceased has expressed burial wishes, as both in the common law and in Tūhoe custom the deceased’s wishes are not determinative of the burial location. However, where the wishes of the deceased’s family conflict with the wishes of the deceased, the executor would not be unreasonable if he or she buries in accordance with the deceased’s wishes.
[19] Ms Clarke, as executrix, was faced with a situation where Mr Takamore had specified in his will that he wished to be buried, but had not expressed to Ms Clarke where he wished to be buried. The wishes of Ms Clarke and of Mr Takamore’s children (they were the children also of Ms Clarke) conflicted with the wishes of Mr Takamore’s wider family. A process of discussion and negotiation among the whānau members, where all whānau members had a full opportunity to participate, did not occur. However, Ms Clarke cannot be criticised for any failures in the negotiation process. Mr Takamore’s whānau members had come to Christchurch for the express purpose of taking Mr Takamore’s body and were not open to negotiation. Further, where members of the deceased’s family are asserting cultural values, it is necessary that they explain these fully to the executor, so that the executor may take them into account, and this did not occur here.
[20] Ms Clarke is entitled now to possession of the body. There was no legal authority for Mr Takamore’s sister and other members of Tūhoe to take Mr Takamore’s body. The matter is returned to the High Court to deal with the question of remedy.
Background
The relationship between Ms Clarke and Mr Takamore
[21] Mr Takamore was born in 1952. He is of Whakatōhea and Tūhoe descent. His father’s and mother’s hapū are Ngāti Ira and Te Ūpokorehe respectively. His whānau marae is Kutarere, which is in the Bay of Plenty. It is a Te Ūpokorehe marae, governed by the tikanga of Tūhoe.
[22] Mr Takamore’s whenua[6] is buried on his whānau’s farm in Hiwarau (approximately four kilometres from Kutarere Marae). Mr Takamore was the eldest of 11 children and was given his father’s name, James.
[23] Ms Clarke was born in Christchurch in 1964 but spent part of her teenage years in Pūtāruru near Rotorua. It was there that she met Mr Takamore and they entered into a de facto relationship. In the first years of their relationship they remained in the North Island and Mr Takamore kept in close contact with his family, visiting them most weekends. Ms Clarke generally went with him. She said that she was made to feel very welcome by Mr Takamore’s family and friends.
[24] In 1985 Mr Takamore and Ms Clarke had their first child, Jamie. At this stage Ms Clarke was missing her family. She thus returned to Christchurch with Jamie and Mr Takamore followed about a month later. The couple then settled in Christchurch and had their second child, Jenna, there in 1990. They lived in Christchurch in a steady and stable relationship for over 20 years.
Mr Takamore’s Māori heritage and contact with his family
[25] While they were in the South Island, Ms Clarke said that Mr Takamore’s contact with his family in Taneatua, in the Bay of Plenty, became infrequent. She could recall only two occasions when Mr Takamore travelled up to the North Island to see them. The first was when his father died about ten years ago and then more recently when their daughter, Jenna, went to a sports tournament in Rotorua where she met some of her cousins for the first time.
[26] Family members, including Mr Takamore’s mother, did come down for the 60th birthday of Mr Takamore’s aunt, Sarah, who lived in Christchurch, and also for Mr Takamore’s 50th birthday party. Ms Clarke sensed that by returning to Christchurch with Mr Takamore, this caused a rift between them and the rest of the family. Mr Takamore was always reluctant to return to the family home in Taneatua and, when the topic arose around Christmas times, he found excuses not to go. On the two occasions Mr Takamore’s mother visited Christchurch she had stayed with her sister, Sarah, and not at Mr Takamore and Ms Clarke’s house.
[27] Ms Clarke said by coming to Christchurch Mr Takamore “did not consciously abandon his family roots, but nevertheless there was a real sense of separation”. Also, while Mr Takamore “did not consciously abandon his Māori heritage, it also had faded in significance”. Mr Takamore could still understand te reo Māori but could not speak it well. Māori culture was not part of their children’s upbringing, except as part of their school curriculum. Mr Takamore had little contact with the local marae.
[28] Even while the couple were still in the Bay of Plenty, Ms Clarke said that it seemed to her that Mr Takamore’s Māori heritage was an understood background, rather than a conscious part of his daily life. The same applied to the Takamore family generally. She said there was little Māori spoken around the Takamore family home.
[29] By contrast, Mr Takamore’s mother deposed that Mr Takamore “always stayed connected with his tūrangawaewae [home]”. She said that he “never turned his back on his taha Māori [Māori side]. His nannies when he was a child taught him his Māori side well. It was instilled in him from birth and he never forgot it”. She said that Mr Takamore kept in contact with her and rang every Saturday afternoon or Sunday to see how she was, and that he was going to renovate her house for her when he retired. But, as it turned out, he died before he could go back.
[30] Ms Clarke agreed that Mr Takamore often phoned his mother at weekends. He rarely discussed those phone calls with Ms Clarke and never mentioned any future plans to renovate his mother’s house. She said that Mr Takamore expressed the same feelings to her as he had to his work colleagues that he did not want ever to return to his family in the North Island.
[31] A work colleague said that Mr Takamore had said to her on one occasion that “he was now a South Island Māori”. Another work colleague said he had had little to do with his family in the North Island. He still had time for his mother and for a couple of his brothers but he was concerned that his mother had disowned his children and that he “didn’t like the stuff that happened” in his family. He did not want to “go up and sort out matters with his family” but it would be fine if his children ever wanted to. Yet another work colleague said that Mr Takamore was very blunt in his views that he would not return to the North Island, whatever the circumstances, and that his home was now in Christchurch.
Mr Takamore’s death and ensuing events
[32] Mr Takamore suffered an aneurism on 17 August 2007 and died that day. Ms Clarke immediately began telephoning family and friends to pass on the news of his passing. She was not able to contact Mr Takamore’s mother in Taneatua by phone, so she passed the news on through his sister, Ms Josephine Takamore. Mr Takamore’s extended family in Christchurch, including his uncle Mr John Manuel, his uncle Robert and his aunt Sarah, with various cousins, immediately came round to their home. Ms Clarke was glad of the support, although somewhat surprised, as few of them had come to the house before.
[33] Ms Clarke began making funeral arrangements, deciding on the type of casket, that the service was to be held on 21 August and that Mr Takamore was to be buried at Ruru Lawn Cemetery. Mr Manuel suggested that the service should be held at Te Whare Roimata Marae and that Mr Takamore should lie in state there. Ms Clarke reported that she approved that as she believed that “Jim would have wanted a link to his Māori heritage”.
[34] Mr Takamore’s body was taken to the Marae on 18 August but was housed in a room in a community centre a few doors away rather than at the Marae itself. Ms Clarke asked Mr Manuel how the actual service was to be conducted but did not get any clarification. Mr Manuel told her that members of Mr Takamore’s family were coming down from the Bay of Plenty.
[35] That evening, Mr Takamore’s mother, his brother Donald and his sister, Ms Josephine Takamore, arrived at the community centre. For convenience, we refer to them from now on collectively as the Taneatua family. They were accompanied by Ms Josephine Takamore’s partner, Mr Henare Heremia, and a friend, Mr John Mika. There was initially a welcome followed by food. Then Mr Takamore’s mother, brother and sister demanded that they be allowed to take Mr Takamore’s body for burial at his home marae at Kutarere. Ms Clarke did not know then that such a demand accords with Māori custom and that the immediate family is supposed in turn to defend their entitlement.
[36] In cross-examination, Ms Josephine Takamore said that she thought that Mr Manuel was going to advise Ms Clarke and her (and Mr Takamore’s) children as to what was to happen. Ms Clarke said they only had the briefest explanation from Mr Manuel and had no inkling of the impending process. Mr Jamie Takamore (Mr Takamore’s son) confirmed that Mr Manuel did not explain that the Taneatua family was intending to claim his father’s body.
[37] Ms Clarke said that the demand soon degenerated into an argument, which lasted about an hour and a half, and at one point it became so fraught that her sister was manhandled from the room by Mr Donald Takamore. Mr Jamie Takamore also said that what followed the demand was not a discussion but an argument.
[38] Ms Clarke agreed in cross-examination that, during the discussion, Mr Manuel strongly advocated on her behalf for keeping Mr Takamore in Christchurch. Mr Manuel had earlier told them that Mr Takamore’s son, Jamie, had the final say as to where Mr Takamore was to be buried. Mr Jamie Takamore made it quite clear during the discussion that his wish was for the burial to be in Christchurch.
[39] Towards the end of the discussion, however, Mr Jamie Takamore said “take him, whatever” or words to that effect. At that point Mr Manuel stepped in, pointing out that Mr Jamie Takamore’s consent had been given under duress, that nothing had been finalised and that they should go home for the night.
[40] It was pointed out to Ms Clarke that Mr Takamore’s body should not be left alone and his aunt Sarah agreed to stay with him. Ms Clarke said she would have been willing to stay with the body, except that she felt intimidated by the presence of the Taneatua family. In any event, nobody explained to Ms Clarke and her children that, as claimants to the body, they had to remain with it. Ms Clarke said that she had been assured that Mr Takamore’s body would not be moved until a resolution was reached.
[41] Mr Takamore’s mother said that the Taneatua family telephoned the next morning on 19 August to ask Ms Clarke and her children to return to resume the meeting. “[Ms Clarke] didn’t say she would come to meet with us ... so that’s why we decided to uplift James”. During cross-examination, Mr Takamore’s mother said that they did not wait for Ms Clarke to come back because “we was trying to catch up with the ferry”.[7] She, however, agreed that, if Ms Clarke had come back on 19 August, she would not have changed her mind about taking Mr Takamore’s body.
[42] Ms Clarke said that they had not agreed on a time on the morning of 19 August to go back to the Marae to continue the meeting. She accepted in cross-examination that she was aware that the Taneatua family were waiting there for them but said that she wanted support before she went back, fearing for her and her children’s safety. Ms Clarke acknowledged that she received a telephone call from Mr Takamore’s mother. She did not, however, recall that call as being a specific request to resume the meeting. She recalled having a sense that there was little left to discuss and that the Taneatua family had made up their minds.
[43] Later in the morning Ms Clarke received a telephone call from Mr Richard Price, one of Mr Takamore’s work colleagues, to report that he had visited the community centre and that Mr Takamore’s body was being taken away. Ms Clarke called the police immediately. She and her children then rushed to the community centre but found that Mr Takamore’s body and casket had already been taken by the Taneatua family to be buried at the Kutarere Marae.
[44] Ms Clarke sought and was granted an interim injunction to restrain the burial of Mr Takamore’s body but, when the sealed injunction order reached the Ōpōtiki Police Station and two police officers took it by car to Kutarere, they found the burial service was already underway and decided not to serve the injunction. There were then subsequent negotiations facilitated by the police for the return of the body but to no avail.
What the Taneatua family intended
[45] Mr Takamore’s mother deposed that, when Mr Takamore was hospitalised, Ms Clarke rang her and told her that he was having an operation. She started to make plans to travel down to be with him, but at about one o’clock in the morning her daughter, Ms Josephine Takamore, rang to say that Mr Takamore had passed away. Mr Takamore’s mother deposed that they then “decided to go and get him” and that her son, Donald, had hired a van for that purpose.
[46] Mr Takamore’s mother was concerned that Ms Clarke may remarry and that the children would grow and get married themselves and may move from Christchurch and “my son would be alone there”. Her attitude may have been different if Mr Takamore and Ms Clarke had been legally married but he would have been left “in somebody else’s cemetery in other people’s lands”.
[47] Mr Takamore’s mother deposed that all her family are buried at the urupā at Kutarere Marae. She said that it is important to bring her son home because that is where all his whānau are. She said that, when Mr Takamore went down to Christchurch, he said “if anything was to happen to him that he would come back home”. The family understood that, if he was to die in Christchurch, then he would return home as he has “no land, no people and nothing down there”. She said in her affidavit that “if the Court gave [Ms Clarke] the right to take him out of the urupā where he is and away from us I think it would kill me. I would just collapse”.
[48] Ms Josephine Takamore said they had a family meeting at Taneatua and decided they were going down to Christchurch. One of her brothers did not agree and said that Mr Takamore’s children should decide, but the rest of them believed that, as Mr Takamore was the eldest child, they should bring him home.
[49] Ms Josephine Takamore confirmed in cross-examination that there had been a decision to go and take Mr Takamore’s body. Ms Josephine Takamore’s view is that, while Mr Takamore is alive, he belongs to Ms Clarke and their children but “on his death he comes back to us”. Mr Takamore was going to be amongst his ancestors and his father as they were all lying at Kutarere.
[50] Mr Henare Heremia, the partner of Ms Josephine Takamore, also confirmed that the whānau had met and decided to travel to Christchurch to get Mr Takamore and bring him home. He also agreed in cross-examination that there was no question about coming down to Christchurch and having a discussion. The task was to come to Christchurch and bring Mr Takamore’s body back. He agreed they did not come to ask for the body but to take it.
[51] It is clear from the above that, while the Taneatua family were willing to engage with Ms Clarke and her and Mr Takamore’s children up to a point, they were not willing to compromise. They had come to take Mr Takamore’s body, whether Ms Clarke and her and Mr Takamore’s children consented or not.
Mr Takamore’s wishes as to burial
[52] Mr Takamore did not discuss funeral arrangements with Ms Clarke, except when they made their wills at the time of purchasing their second home, some nine years previously. Mr Takamore specified in his will that he wished to be buried. Ms Clarke deposed that they did not discuss where he wanted to be buried and, although they had recently attended Mr Takamore’s father’s funeral, which was a week-long tangi, Mr Takamore did not then or afterwards express any views as to the format he wanted for his own funeral.
[53] Ms Clarke said she wanted to have Mr Takamore buried at Christchurch because she believed he would have wanted to be buried in what was now his home town. Ms Clarke also said that she wanted Mr Takamore to be buried in Christchurch because she and the children did not want to be separated from him.
[54] Ms Clarke said that she was surprised to read in the affidavits by Mr Takamore’s work colleagues that he had expressed funeral preferences to them. She was particularly surprised to read that he had chosen Ruru Lawn Cemetery. She said “in choosing that cemetery, I may have had a sense of what Jim might have liked, but I cannot say that this was a conscious factor”.
[55] Shortly before his death, Mr Takamore had been unwell for some days and had been off on sick leave. When he came back to work, he had said to a number of colleagues that, when his time came, he wanted to be buried in Christchurch and not taken back to the North Island.
[56] Another work colleague remembered Mr Takamore saying once that he had a burial site sorted out in Christchurch, by some trees. He did not remember when that was said. Mr Price, who had gone to visit Mr Takamore at the community centre and telephoned Ms Clarke to warn her that the body was being taken, deposed that, shortly before his own death, Mr Takamore was arranging to go to his cousin’s funeral at the Ruru Lawn Cemetery. Mr Takamore had said to Mr Price that “Ruru was a peaceful place with lovely trees and that is where he would want to be buried”. Mr Takamore died shortly afterwards. There was no cross-examination on the affidavits of Mr Takamore’s work colleagues.
[57] By contrast, Mr Takamore’s mother deposed that Mr Takamore often talked to her about what would happen when he died. He used to say that he had “kids over in Christchurch but that when he died he wanted to come back home”. She said that they had that conversation every now and again when he rang her and she used to say to him that he was “too young to be thinking about those things”. There was no cross-examination on this part of her affidavit.
Tūhoe custom
[58] Evidence as to Tūhoe custom was given at trial by two independent experts, Mr Tamati Kruger, a Tūhoe historian, and Professor Pou Temara, a professor of Māori language (te reo Māori) and culture (tikanga) at the University of Waikato.[8]
Mr Kruger’s evidence
[59] Mr Kruger deposed that in tikanga Māori[9] generally, the living and the dead continue to be equally important. The dead continue to be recognised in every day practices and they are constantly referred to, sung about or quoted from. Māori view their ancestors as omnipresent. The dead play an influential role in the lives of the living and give assurance to generations that there is life after death, through relocation to Hawaiki (the ancient homeland). Māori have a memory of the departing place of the dead from wherever the tangi was held and where they are buried.
[60] Another point of significance is that in the Māori world view, the beginning and the end always reach out to one another. This means that the beginning of the life of a person reaches out to the end of the life of a person to complete a circle. What is regarded as a complete life is when the beginning and the end have touched each other. Mr Kruger said that when Tūhoe people die outside of their tribe or territory there is a sincere effort to repatriate that person, even to the point where they exhume or have just part of the person brought back home.
[61] While a person is absent he or she may lose their influence over the family and hapū as regards lands and issue. They can also lose their connections to their tikanga, but can never extinguish their whakapapa.[10] Whānau at home keep up the connection. They continue to represent the absent relative at gatherings and festivals. They also continue to represent the dead from generations ago. The living have a duty of care to the deceased to make sure the whakapapa links are maintained down through the generations.[11]
[62] All of the above explains the struggle about where someone should be buried and, where there is an impasse or disagreement on the location of the burial, Māori have designed practices to help manage those predicaments.
[63] Mr Kruger acknowledged that incidences of disagreement between families about where someone is to be buried have occurred throughout history. There are a number of concepts that assist in resolving such conflicts. One question is where the person was born and where their umbilical cord was cut. That signals the beginning. The umbilical cord is buried back into the whenua, forever connecting that person to the land.[12]
[64] Another question relates to the things that sustained the person’s life and where they are. This includes not just physical sustenance but also intellectual, spiritual and emotional sustenance that informed the way the person thinks and his or her values. A further question is whether the person has children or partners or parents that they have left behind and what those who are suffering a loss and are in mourning want. These are the whānau pani. In this situation, the mother, brother and sister of Mr Takamore are part of the collective of the whānau pani and have as much right as the widow and the children to contribute to the decision.
[65] The whānau pani are left to make the final decision but they can invite other people to join in to help the decision-making process. If the whānau pani come to an impasse then a wider circle can become engaged in the process (and in particular those with cultural expertise) to provide advice and counsel. Where a decision does not arise out of the process or where the decision is not accepted by everyone, “it comes down to will power and those key concepts which I mentioned ... . Including which side has the higher moral ground”.
[66] Mr Kruger said that the tikanga of claiming bodies has never been extinguished. It is not vague and in fact is actively practised whenever the occasion arises. It does not discriminate by ethnicity, gender, age or identity. He said that in his opinion the Taneatua family who took Mr Takamore’s body to Kutarere to be buried have done so in accordance with tikanga.
[67] In Mr Kruger’s view this case is a clear struggle between two cultural norms. On the one hand there is the nuclear family unit and, on the other hand, the extended collective unit and its values. In his view, the Christchurch option devalues the Taneatua family. On the other hand, with the Kutarere option, his view was that Ms Clarke would always have unimpeded and unfettered access to the marae and urupā as she has a connection to the Taneatua family.
[68] Mr Kruger gave an example of a dispute over where a body should be buried, the case of Prince Tui Teka from Tūhoe. It was expected by the people of Tokamaru, where his body was lying, that Tūhoe would come and claim him. It came down to a battle of wills. To settle the issue Tūhoe told the Prince’s wife that she would forever be a widow and, if she ever remarried, they would come to collect the Prince and take him back.
[69] He also said that he had witnessed bodies being uplifted and that “[w]illpower and using influence, strategy and tactics have all been at play”. He said he has witnessed physical fighting and arguments and slinging of insults and threats. While this might initially seem shocking, he said that it has to be viewed as passion and an honour to the departed.
[70] In cross-examination Mr Kruger agreed that a Tūhoe man or woman can choose where they wish to be buried. If they choose somewhere other than their birth place, this will be taken into account, but will be overridden by a consideration of what the living relatives of the person are seeking. He also said that the position of the person is important. In this case the fact that Mr Takamore was the eldest son and carried his father’s name were issues that were in play. He agreed that in Tūhoe custom, a lot is expected from the oldest son.
[71] Mr Kruger agreed that it was important to ascertain the views of everyone who was closely related to the deceased and that all those factors need to be talked out and if possible resolved by way of consensus. He thought it would be fair to say that the opinion of the deceased’s eldest son would be of equal importance to that of the deceased’s mother. After that point, it comes back to a contest of will and influence as to which opinion would prevail.
[72] To Tūhoe it is always accepted that the living will make the final decisions for the deceased. He expressed the wish that Ms Clarke and Mr Takamore’s (and Ms Clarke’s) children and the Taneatua family could discover a way forward and that Mr Takamore could become “a symbol of unification rather than division for this family”.
[73] Mr Kruger would not accept the proposition that it is never appropriate for someone to come onto a marae or other burial areas and take a body without consultation. He said that, under Tūhoe tikanga, they can do that, but by doing so they open up a whole new level of argument and controversy and it becomes very intense and very political. He agreed that it would be “fair to say that that’s how wars are started”. In re-examination, however, he said that, in the modern day context with an intense conflict of that nature, “there should never be a limit placed on talking”.
Professor Temara’s evidence
[74] Professor Temara deposed that he had first hand experience of tūpāpaku[13] being taken and he has had a hand in bringing closure to such issues. His first experience of the tikanga of a body being taken was in 1995 where a kaumātua[14] of Tūhoe, who came from his hapū at Ruatahuna, died. The kaumātua had grown up in Ruatahuna, moved out as a young man and married and had children in Waikaremoana. Before he died, he had expressed a desire to lie in state at Ruatahuna where he was brought up and to be buried there.
[75] The children were divided on the issue. The eldest sibling agreed with the wishes of the children’s father and brought their father back to Ruatahuna. He lay in state at the marae for the first day and night. In the meantime the younger siblings decided that their father should have laid at Waikaremoana where they were born and where their mother was buried.
[76] On the morning of the second day, a truck arrived while it was still dark and while many of the mourners who were keeping the body company in the tent were at breakfast. Just before daylight, the body was taken along with some greenstone heirlooms and kākahu.[15]
[77] Professor Temara was in a party travelling from Wellington to Ruatahuna when they were told of the taking of the body. While they were angered and numbed by the news they nevertheless recognised it as “part of our culture for that to happen and in fact it was enhancing the mana of the deceased”.
[78] Professor Temara’s party considered, however, that the people at Waikaremoana needed to know the depth of their concern and anger. They decided, in consultation with the people of the Ruatahuna Marae, that they were not going to demand the return of the body but instead demand “utu, satisfaction, compensation”.
[79] When they arrived at Waikaremoana, the men of the marae stripped down to their trousers, grabbed their weapons and formed their ranks to challenge Professor Temara and his group. It was the middle of winter. When the group went onto the marae, those at the marae performed the different challenging haka of Tūhoe. The rest of the group had gone to their seats but Professor Temara would not sit down.
[80] According to tradition, the tangata whenua[16] had to remain standing and the group with weapons also had to remain standing. Professor Temara felt that the group with weapons wanted to retreat and go about their duties, so he pulled a greenstone mere[17] from his overcoat and started shaking it at his side. In seeing this action the group quickly re-formed and re-energised themselves with weapons at the ready and waited for Professor Temara’s next move.
[81] Some minutes passed and, when the group with weapons had started to relax, Professor Temara lifted the greenstone mere to another position, which prompted the group to re-energise themselves again. This went on for about an hour. He then indicated that he was going back to the seats provided and sat down. The fact that the group with weapons had been left without shirts or shoes in the cold for an hour brought immeasurable satisfaction. Also the kaumātua and the women on the paepae[18] had stood for the whole time he had been toying with the others and had to suffer by standing and waiting.
[82] There were then a number of carefully worded speeches and compensation in the form of a greenstone weapon was asked for. This request was accepted and compensation was paid three months later by the presentation of a greenstone patu[19] at a ceremony on the marae from which the body had been taken. Professor Temara named the taonga[20] “Te Maungārongo” or “the peacemaking” and this provided the symbol for closure.
[83] Professor Temara gave another example, where in 2002 a kaumātua had been brought up in Ruatahuna and wanted to be buried there, even though all his brothers had been buried at Waikaremoana. The people of Waikaremoana came to the marae, stripped to the waist and waved their weapons outside the gate. In accordance with the kawa[21] they could not enter while the marae was occupied by an earlier party. The party in the marae “prolonged their anxiety by surrounding the tent where the body lay and turning our backs to them for about an hour”. Once they thought the group had settled down, they indicated that they could come onto the marae. Lying on the body was the patu that had been brought over as compensation by the people of Waikaremoana in the incident described above.
[84] As the opening speaker on the marae, Professor Temara went onto the marae mate,[22] took the patu from the body and performed with that weapon while welcoming the people of Waikaremoana. The climax was to challenge them to see if they had come to re-enact the events of seven years earlier. Having said that, he placed the patu called Te Maungārongo on the ground, halfway between himself and the group, and made it clear to them that the indication that hostilities had been re-opened would be through picking up this taonga and breaking it into pieces.
[85] Within the group were some very high powered Tūhoe. There was one kaumātua who was not really part of the group but, because he was waiting at the gate, had come onto the marae with them. This provided an opportunity for Professor Temara to take advantage of the situation and direct all his verbal insults and challenges to that kaumātua, who understood the predicament and understood what he had to do.
[86] When Professor Temara laid the patu down, the kaumātua picked it up, took it in his arms, walked over and handed the patu back to Professor Temara and indicated he wanted to hongi, which they duly did. They thus managed to deter the family who had come to take the tūpāpaku on that occasion.
[87] Moving to the present case, he said that it was within the bounds of Māori tikanga and common sense, that some compensation of an appropriate order be given because it is symbolic of closure and the return to harmony. He considered that it would be culturally offensive to demand that the body go back to Christchurch because “it is at one with its pito [umbilical cord] now”. What occurred in his view was in accordance with their tikanga. It is important in Māori culture to keep the dead close to them.
[88] Further, with the body in a hapū urupā, Mr Takamore becomes the responsibility of the wider collective of the hapū. The people at Kutarere are responsible for the ongoing maintenance of the grave and of ensuring that he is looked after.
[89] In cross-examination, Professor Temara conceded that there is no absolute presumption about being buried where a person is born. This is the ideal, however. He agreed that the wishes of the eldest son and of the deceased were factors in determining a settlement of any dispute over burial. He said, however, that often the wishes of the deceased are not carried out in Māori society. In his view a person’s mana could be enhanced by a conflict over burial and their wishes not being carried out.
[90] He did concede in cross-examination that there had been cases where a body has been dug up and moved after burial. Indeed that had happened in the case of his father who had died in 1963. His grandfather had determined that his father was to be buried where they had all grown up and his will prevailed over that of the hapū. The hapū agreed on the basis that the grandfather would be buried with his father. However, that did not occur. In 1994, Professor Temara exhumed his father because he felt that the issues of 30 years previously had not been resolved. He then took his father back to his own marae to be buried.
[91] He said that the hahunga[23] ceremony is even more tapu than the tangi ceremony. It has to be carried out in the hours of darkness before the first rays of the sun. All involved are under tapu but the tohunga[24] is under so much tapu that he has to be fed with his hands behind his back until such time as the tohunga has deemed that he can come out of tapu and re-join normal life.
Summary
[92] In summary, according to Tūhoe tikanga, the right to make the decision as to where somebody is buried falls to the living. That decision is a collective one to be made by the whānau pani, the relations of the deceased who are suffering the loss and are in mourning.
[93] The choice of an appropriate burial place can be a matter giving rise to conflict and negotiation among the members of the whānau pani. Considerations which may assist to form a conclusion include where the person is born and where the person’s whānau, hapū and iwi are. When Tūhoe people die outside of their tribe or territory, there is a sincere effort to repatriate that person. Decisions on burial location seek to avoid the severing and breaking of continuity of the whakapapa. Other considerations include where the person was physically, intellectually, spiritually and emotionally sustained, whether the person has children or partners or parents that they have left behind and the views of the whānau pani. The wishes of the deceased as to burial will be taken into account, but may be overridden by what the whānau pani are seeking.
[94] Where a resolution or agreement does not arise out of the consultation process, the burial location may come down to a contest of who has the greater influence and will. There have been instances where this has occurred through one party taking the body of the deceased without consultation. The party who takes the body would be required to then provide some form of compensation to satisfy the aggrieved party from whom the body has been taken.
Fogarty J’s decision
[95] Fogarty J first considered the common law power of executors to choose where the body of the deceased is to be buried and summarised the relevant common law as follows.
[96] The executor of the deceased’s will has the right to possession of the deceased’s body against all other persons and must decide how the burial is to be arranged. He said that the executor will, as a fiduciary, take into account the wishes of the deceased, the surviving spouse or partner, children and other relatives, and where appropriate, friends or confidants of the deceased. However, the executor is not legally bound to carry out the wishes of the deceased or the wishes of his spouse, family and other persons. The executor must make the decision that he or she considers to be the best and right decision, as executor.[25]
[97] Fogarty J thus determined that Ms Clarke, as the executrix of Mr Takamore’s will, was entitled to make the final decisions as to the funeral arrangements and that in that context she was entitled to claim possession of the body at all times until its final and proper burial.[26]
[98] He then considered whether the tikanga of Tūhoe could be recognised as part of the common law of New Zealand. He held that the expert evidence adduced at trial established that the Tūhoe tikanga relating to the making of decisions as to where a member of Tūhoe would be buried was longstanding and still actively practised.[27]
[99] In Fogarty J’s view, the ultimate question of law in this case was whether or not the Tūhoe tikanga was reasonable, “taking the whole of the circumstances into consideration”.[28] Fogarty J considered that, whenever any local custom is recognised in common law, there must inevitably be a question as to whether or not the custom is consistent with other principles of common law. Because the Court is determining the extent of recognition of the custom as part of the common law, it is inevitable that the Court must take into account whether it can be accommodated with other principles of common law.[29]
[100] In Fogarty J’s view, however, it was beyond doubt that Mr Takamore chose to live outside tribal life and the customs of his tribe. Under the common law, the Judge considered that Mr Takamore was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. The collective will of Tūhoe could not be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tūhoe tikanga.[30] Because of this, Fogarty J concluded that he did not need to decide the content of the relevant Tūhoe tikanga or whether it is part of the common law of New Zealand.[31]
[101] Accordingly, Fogarty J held that there was no legal authority for the Taneatua family to dispossess Ms Clarke of Mr Takamore’s body. The taking of the body was unlawful, and Ms Clarke, as executrix, was entitled to possession of the body.[32]
The parties’ submissions
[102] On appeal, the appellant contends that a fundamental flaw in Fogarty J’s reasoning was that he considered it unnecessary to determine whether the relevant Tūhoe tikanga was a part of the common law of New Zealand. The appellant submits that the legal position in New Zealand is that the executor is prima facie responsible for exercising certain duties and rights in relation to disposal of a deceased’s body. However, where the deceased is Māori, the appellant submits that those rights are subject to the exercise of customary law and tikanga regarding burial by the whānau of the deceased. Where the whānau of the deceased determine to exercise their customary rights in respect of burial, the executor must allow those rights to be exercised. This is because, “save extinguishment, the Tūhoe tikanga exists as part of the common law of New Zealand”. The appellant also submits that there is no test of reasonableness before customary law can be recognised as part of the common law of New Zealand.
[103] The appellant further submits that consideration of how the deceased lived and his preferences as to place of burial is irrelevant, as the tikanga can be applied to any deceased of Tūhoe descent, whether or not they themselves practised the tikanga when they were alive. In any event, the appellant challenges Fogarty J’s finding that Mr Takamore chose to live outside tribal life and the customs of his tribe.
[104] The respondent supports the reasoning of Fogarty J and submits that the Tūhoe tikanga cannot be recognised as part of the common law of New Zealand, as any custom that is “anomalous and unilaterally imposed” is unreasonable. The respondent submits that the custom is unreasonable given that it can allegedly apply irrespective of the fact that the deceased has renounced any Tūhoe connections. Further, the respondent submits that any custom that is “based on violence or force or stealth” is unreasonable.
Issues
[105] The main issue in the appeal is whether Tūhoe burial custom has any effect on the common law duties of an executor or executrix. This requires consideration of two questions:
- (a) Does Tūhoe custom fulfil the common law test for the recognition of customary law, so that it is part of the common law?
- (b) If not, can and should the common law relating to burial nevertheless accommodate Tūhoe custom in some way?
[106] The first question is covered below from [109]–[196]. That section covers the tests for the recognition of customary law and whether the Tūhoe burial custom meets those tests. It also covers the extinguishment of custom and discusses to whom the custom would apply were it recognised as part of the common law. We conclude that the custom does not meet the requirements for recognition at common law.
[107] The second question is covered below from [197]–[263]. That section covers the content of the common law regarding burial and the duties of an executor to dispose of th[33]deceased’s body.33 It also covers emerging human rights jurisprudence in this area, the relevance of the Treaty of Waitangi, and the United Nations Declaration on the Rights of Indigenous Peoples. We conclude that the common law has developed, or at least is developing, to a point where executors should take indigenous practices relating to burial into account.
[108] Before dealing with these two questions we note that the Court and counsel were faced with a difficult task because there is very little New Zealand case law on customary law. Moreover, the case law that exists was mostly developed in an explicitly colonialist context. We also note that there is very little New Zealand case law on the common law duties of an executor or executrix.
Recognition of customary law by the common law
[109] As Fogarty J observed, English common law has always recognised local custom as law for a borough or other local area.[34] Recognition of customary law is not unqualified, however. In order for an English custom to be recognised it has to meet the following requirements:[35]
(a) it must have existed from time immemorial;
(b) it must have continued as of right and without interruption since its origin;
(c) it must be reasonable;
(c) it must be certain in its terms, and in respect of the locality to which it obtains and the persons it binds; and
(d) it must not have been extinguished by statute.
[110] By time immemorial, the Courts require the custom to have been in existence since the first year of the reign of Richard I (1189).[36] As to continuity, interruption within legal memory defeats the custom. Merely not availing oneself of the right does not, however, destroy the right – it must be the right itself that is discontinued.[37]
[111] For a custom to be reasonable it has to be “consistent, or, at any rate, not inconsistent, with those general principles which, quite apart from particular rules or maxims, lie at the root of our legal system”.[38] The party asserting a custom does not need to prove its reasonableness. Rather, a custom will be rejected if it is unreasonable.[39] For a custom to be certain the principle or rule must be definite such that “by the application of it to each particular case it may be shown with certainty what are the rights which the custom gives in that case”.[40] Finally, customary rights cannot be set up against a positive rule contained in legislation.[41]
Indigenous customary law
Presumption of continuity
[112] By analogy with English custom, the common law also recognised customary laws of indigenous peoples in British colonies. Despite the acquisition of sovereignty and the general introduction of English law to a territory, colonial courts recognised pre-existing customary law of the indigenous inhabitants.[42] When a new territory was acquired, the laws of the indigenous inhabitants continued to apply until altered by the new sovereign through legislation.[43] The corollary of the rule is that English law is “adapted to reflect local custom” and that in the colonies English law applied “so far as applicable to the circumstances thereof”.[44]
[113] In colonial times the presumption was, however, that the continuity of customary law was a temporary state of affairs and that unification of the legal systems was viewed as an inevitability and as a goal. The new universal legal system might possibly incorporate parts of indigenous law but would be applicable to everyone.[45]
Recognition in colonial courts
[114] The presumption of continuity was applied by colonial courts, including in New Zealand.[46] In Baldick v Jackson[47] Stout CJ held that a statute of Edward II concerning the King’s revenue that treated whales as Royal fish did not apply in New Zealand. Stout CJ held that the statute could not possibly have application because it would have to be claimed against Māori and the Treaty of Waitangi assumed that their fishing was not to be interfered with.
[115] In Arani v Public Trustee, the Privy Council recognised that, despite the enactment of the Adoption of Children Act in 1895, Māori continued to be able to adopt through customary law.[48] The Privy Council explained:[49]
The right of the Maori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act.
[116] Similarly, in Nireaha Tamaki v Baker, the Privy Council expressly rejected the argument that there was no Māori customary law of which the Courts could take cognisance for the purpose of land rights.[50] The Privy Council essentially held that, given New Zealand statutes contemplated the existence of Māori customary law,[51] any argument that it was not cognisable by the common law must be wrong. Statutory contemplation of customary law went beyond customary law relating to land rights.[52]
[117] However, early colonial courts did not always recognise customary law.[53] In Wi Parata v Bishop of Wellington, Prendergast CJ denied that Māori had “any kind of civil government” or any “settled system of law”.[54] Professor Richard Boast, however, considers[55] Prendergast CJ’s approach, for New Zealand courts at least, “idiosyncratic”.[56] It was also contrary to the position later taken by the Privy Council (summarised above at [115]–[116]).
[118] Customary law has also been recognised in more recent times. In Te Weehi v Regional Fisheries Officer,[57] Williamson J, referring to the experience of British and North American courts in the nineteenth century, noted:[58]
The treatment of its indigenous peoples under English common law had confirmed that the local laws and property rights of such peoples in ceded or settled colonies were not set aside by the establishment of British sovereignty. (See Campbell v Hall [1774] EngR 5; (1774) Lofft 655.)
[119] Similarly in Huakina Development Trust v Waikato Valley Authority,[59] Chilwell J held:[60]
... it may be said that customs and practices which include spiritual elements are cognisable in a Court of law provided they are properly established, usually by evidence.
[120] The presumption of continuity has most frequently been referred to in cases dealing with aboriginal title. The exact basis of the doctrine of aboriginal title is a matter of some contention.[61] Whatever its basis, however, the continuation of customary law is inherent in the recognition of aboriginal property in cases such as Attorney-General v Ngati Apa[62] and Mabo v Queensland.[63] This is because customary law defines the content of aboriginal proprietary rights.[64] In Ngati Apa, Keith J quoted with approval Professor D P O’Connell’s view that “the survival of rights created under the previous system is inseparably connected with the survival of law”.[65] Similarly, in 1901, in Nireaha Tamaki v Baker, the Privy Council held that the Court could take cognisance of Māori customary law under which Māori claimants might have tenure of land.[66]
Principles of recognition
[121] Customary laws of indigenous peoples were recognised according to principles analogous to those used to recognise customs in England, although with some modifications. Dr P G McHugh notes that “[i]n general terms the colonial tribunals required proof of a consistent, long-standing practice not ‘repugnant to justice and morality’”.[67] We now discuss these requirements in more detail.
Longevity and continuity
[122] The requirement of practice since the time of Richard I was obviously inapplicable outside Britain.[68] Indigenous customs require proof of a “long-standing, consistent custom”[69] that demonstrates “continuity with a preceding legal system”.[70] There is, however, recognition in the New Zealand context that custom can adapt even after colonisation. The New Zealand Law Commission notes that whilst there has long been a tendency to insist that “genuine” Māori thinking must be that of tikanga Māori prior to contact with Pākehā, tikanga Māori should not be seen as fixed from time immemorial, but rather as based on a continuing review of fundamental principles in a dialogue between the past and the present.[71] Like any legal system, Māori customary law is not fixed.[72]
[123] The Law Commission’s view accords with the decision of the Privy Council in Arani v Public Trustee. In Arani v Public Trustee the Privy Council referred to the decision of the Māori Appellate Court in that case, which stated that native custom is “not a fixed thing”.[73] The Court had said that such custom is based on the old custom as it existed before the arrival of the Europeans but it can develop and become adapted to the changed circumstances of the Māori race. The Privy Council stated that it “may well be that this is a sound view of the law, and that the Maoris as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs”.[74]
Reasonableness
[124] The test of reasonableness for the establishment of a custom in the colonies was modified slightly from the English position when assessing the customs of indigenous peoples in the colonies. Professor C K Allen, writing in 1964, summarises the position by stating:[75]
... it is clear that when a dominant people is dealing with the customs of a different civilization and of different religions, the tests of reasonableness, morality, and public policy must be looked at from an angle somewhat different from that which would be appropriate in the conditions of English society. In general, British administration has endeavoured to leave indigenous customs intact, however alien they may be to Western and Christian nations; but where they are considered to violate elementary considerations of humanity and decency, they are either rejected by the courts or, more frequently, suppressed by legislation.
[125] For the custom to be unreasonable, it is not enough that it is simply “not conformable to the common law of the land, for it is of the very essence of the custom that it should vary from it”.[76] As Parker J observed in Johnson v Clark:[77]
... the words “reasonable or not unreasonable” imply an appeal to some criterion higher than the mere rules or maxims embodied in the common law, for it is no objection to a custom that it is not in accordance with these rules or maxims. ... a custom to be valid must be such that, in the opinion of a trained lawyer, it is consistent, or, at any rate, not inconsistent, with those general principles which, quite apart from particular rules or maxims, lie at the root of our legal system.
[126] Colonial courts nevertheless rejected quite a wide range of customs on the basis of incompatibility with fundamental principles of English law. Very violent customs such as those authorising torture were held to be suspended on the assumption of British sovereignty for inconsistency with fundamental principles of English law.[78] Procedural rules, such as the nemo judex[79] rule and the audi alteram partem[80] rule, were often enforced by English courts in Africa.[81]
[127] More recently, in Australia, the Courts have had to grapple with the limits of recognition of customary law for the purpose of defining native title. In Mabo v Queensland (No 2), Brennan J (delivering the principal judgment of the majority of the High Court of Australia) held that customary law as to land and title interests could be recognised so long as it was not repugnant to “skeletal” principles of the Australian legal system.[82] This is in accordance with the approach in Johnson v Clark that a custom cannot be contrary to principles at the “root” of the legal system.[83]
Certainty
[128] According to Halsbury’s Laws of England, any custom should “point out clearly and certainly the principle or rule of the custom, but that principle or rule must be one which is definite and certain, so that by the application of it to each particular case it may be shown with certainty what are the rights which the custom gives in that case”.[84]
[129] This too may need to be modified to a degree for indigenous custom. This is because the object of many customary laws (including those of Māori) was negotiation leading to compromise and reconciliation, rather than the rigid application of the law. As noted by Professor A N Allott, the “rules” of customary law often only set a standard or provided a talking point.[85] Allott says that the flexibility of customary law has sometimes been overlooked by the British courts.[86]
[130] In the New Zealand context, the Law Commission noted that Māori customary law was essentially values based rather than rules oriented.[87] Specifically, the basis of Māori customary law includes values such as whanaungatanga, mana, tapu and utu.[88] Whanaungatanga refers to the primacy of relationships, especially whakapapa or genealogy.[89] Mana refers to authority, power, prestige and leadership.[90] Tapu provides a code of social conduct: at a spiritual level it means sacredness, and at a secular level it is linked to social practices that keep people safe and avoid risk.[91] Utu loosely translates to reciprocity.[92]
[131] A brief description of some of the key values in Māori customary law illustrates their abstractness and breadth.[93] The values are likely to have varying application in any particular case. Moreover, a further degree of uncertainty is added by the fact that the application of the values varies amongst different iwi and hapū.[94] It is no surprise then that Māori customary law places a high value on mediated outcomes rather than resolving matters according to a single governing rule.[95]
[132] Given that Māori customary law has its basis in broad values, and its capacity for change and variations between iwi and hapū, the certainty criterion cannot apply with the same rigour as it does in relation to English customs.
Extinguishment
[133] Any wholesale extinguishment of customary law must occur through legislation. On the assumption of sovereignty some customary law was extinguished. We have already discussed how the common law would not recognise customs that were too unreasonable or uncertain.[96] Common law rules that were incidents of the Crown’s sovereignty also displaced local law.[97] The continuation of customary criminal law was also often inconsistent with the assertion of sovereignty and so was displaced.[98] However, as should be evident from our discussion above, outside of these exceptions, customary law (especially customary law on civil matters) was presumed to continue.
[134] The proposition that customary rights may only be extinguished by an unambiguous statutory provision has been recognised as applying to New Zealand.[99] In Arani v Public Trustee the Privy Council held that a statutory provision that stated that “[e]very person of the Māori race within the colony of New Zealand ... shall be taken and deemed to be a natural born subject of Her Majesty to all intents and purposes whatsoever” and therefore gave Māori the same rights of adoption as British settlers was not sufficient to extinguish customary adoption.[100]
Application of the test for recognition to this case
[135] We now examine whether the requirements[101] for the recognition of customary law are met in this case. We also deal in this section with some other aspects of the parties’ submissions on this issue.
Longevity and continuity
[136] Fogarty J held, on the basis of the expert evidence adduced at trial, that the custom was proved to be longstanding and still actively practised.[102] This finding is not in dispute on appeal. This means that the first and the second requirements of longevity and continuity are met.
Reasonableness
[137] We now turn to the reasonableness requirement.
(a) The parties’ submissions
[138] On appeal, Ms Takamore contends that Fogarty J erred in applying the reasonableness test to the custom. She contends that “save extinguishment, the Tuhoe tikanga exists as part of the common law of New Zealand”.
[139] This does not accurately state the legal position. Contrary to Ms Takamore’s submission that customary law applies save extinguishment, British and colonial courts have always applied a reasonableness test to custom.[103]
[140] On the other hand, Ms Clarke submits that the Tūhoe burial custom is unreasonable, being a custom that is “anomalous and unilaterally imposed”. Relying on Wolstanton Ltd v Newcastle-under-Lyme Corporation, Ms Clarke submits that any alleged custom based on usurpation and not based on voluntary consent is unreasonable.[104] Similarly, relying on Kuar Sen v Mamman,[105] Ms Clarke submits that a custom based on violence or force or stealth is per se unreasonable.
[141] Additionally Ms Clarke submits, relying on Johnson v Clark, that a custom in direct contradiction of the free will to alienate any property or custodial right or carry out any trustee obligation is unreasonable.[106] She further submits that the custom contended for in the present case is much more unreasonable than the custom that was held not to be able to be recognised by the common law in Fryer v Johnson of being allowed to bury a relative as near as possible to one’s ancestors.[107]
[142] The cases relied upon by Ms Clarke are distinguishable. The passages from Wolstanton and Kuar Sen, to the effect that customs that are imposed involuntarily or by stealth or violence cannot be upheld, were made in a different context to the present case.[108] The Courts were not stating, as Ms Clarke contends, that customs, once established, are bad because they apply even where a person does not wish the custom to apply. Indeed, given their legal nature, once established, customs will inevitably be involuntary in their operation.
[143] In Wolstanton and Kuar Sen, the Courts were stating that customs that are established through involuntariness or force are bad. The full passage relied on in Wolstanton states that a custom may be held bad where it is “of a very oppressive character and more probably founded in wrong and usurpation than in the voluntary consent of the copyholders of the manor” (emphasis added).[109] Similarly, in Kuar Sen the full context of the statement was that a custom should not be recognised unless the Court is satisfied by evidence that “the enjoyment of the right was not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise, the usage had become a customary law” (emphasis added).[110]
[144] Similarly, Johnson v Clark is distinguishable on its facts. The case concerned an alleged custom whereby a married woman’s property could be disposed of by the consent of her husband without her separate examination and acknowledgment. The custom was held to be bad because it was in conflict with the general principle of the common law that an exercise of free will was essential to alienations and contracts.[111] A custom that allows the removal of a body from the executor without the consent of the executor is not analogous to the custom in Johnson v Clark. There is a difference between the property rights in land and any rights an executor might have over a body. There is no property in a body.[112]
[145] Finally, the relevance of Fryer v Johnson is unclear. The case is very short and it is not clear from it why the custom was held to be bad. Halsbury’s Laws of England suggests that the custom of being able to bury a dead relation as “near as possible” to one’s ancestors was unable to be upheld for uncertainty rather than unreasonableness.[113] We agree with that comment.
(b) Possible breaches of requirement
[146] In our view, there are two possible general principles that might be seen to be at the “root” of our legal system that the Tūhoe custom as to burial could run against. First, there is the principle of individual autonomy which was relied on by Fogarty J. Second, there is the principle of “right not might”, or rather the idea that resorting to the use of physical force to settle private disputes is repugnant to the rule of law.
(c) Individual autonomy
[147] The approach taken in the High Court is supported by Ms Clarke. Fogarty J held that the custom was unreasonable because it was not compatible with the common law’s general presumption of individual freedom and autonomy. Fogarty J concluded:[114]
In this case it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe. Under the common law he was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. This is even more so because he chose as the executor of his will his life-long partner. He has personal rights as a New Zealand subject to the benefits of the common law of New Zealand. The collective will of the Tuhoe cannot be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tuhoe tikanga.
[148] Ms Takamore submits that the approach in the High Court is erroneous. She submits that burial wishes cannot be enforced at common law and argues that this demonstrates that in this area the common law itself does not respect autonomy. Accordingly, she submits, the custom should not be struck down for failing to respect autonomy.
[149] The counter to this may be that, even if the common law does not, as a matter of strict law, give effect to the rights of a deceased person, by allowing a person to appoint an executor it gives de facto protection to the deceased’s wishes. As a general rule, it can be expected that a person will choose an executor who will give effect to their wishes as to burial.[115]
[150] We, however, accept Ms Takamore’s submissions on this point. This is not an area where individual autonomy rules at common law. There are wider interests at stake.[116] As we will discuss below, while an executor or executrix must take into account the wishes of the deceased, so too must he or she take into account the wishes of the family.
[151] Further, as a matter of principle, given that most Māori custom is based on the collective and duty to the collective, rather than on individual rights,[117] Fogarty J’s approach would have the effect of negating Māori custom in most cases. We thus consider that Fogarty J was not correct when he held that the custom breaches the reasonableness requirement because it does not honour individual autonomy.
[152] In any event, we consider that Fogarty J was not entitled to make the factual finding about Mr Takamore’s rejection of Tūhoe customs that he did. We also do not consider that Mr Takamore had expressed a single clear view regarding his desired burial location.
(d) Fogarty J’s factual findings
[153] When considering Mr Takamore’s cultural identity, Fogarty J noted that Mr Takamore’s contact with his family in the Bay of Plenty became infrequent when he moved to Christchurch.[118] The Judge noted that Mr Takamore had told a friend that he was now a “South Island Māori”.[119] The Judge also stated that:
[15] ... [Mr Takamore] told one of his friends ... that he did not like the way his family lived in the North Island. He told another of his friends ... that his home was now in Christchurch and he intended to stay there and that he had said “I got out of all that bloody rubbish” referring vaguely, it seems to me, to the traditions of his tribe in the North Island. ...
[154] The evidence referred to above was received without challenge. This is unsurprising given Ms Takamore’s position that, according to Tūhoe tikanga, consideration of a person’s connection to their indigenous culture is irrelevant.[120] Fogarty J acknowledged that this was Ms Takamore’s position,[121] and also noted that the term “South Island Māori” could be seen as an affront to tribal Māori, as “within tribal Māori culture the identity of all Māori is, as I understand it, by whakapapa (geneology) to whānau (immediate family), hapū (family groups/sub-tribe) and iwi (the tribe), all of which are tribal groups”.[122] Fogarty J later held that “it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe”.[123]
[155] We consider that a finding that Mr Takamore intended permanently to reside in Christchurch was justified. As we have discussed above,[124] Mr Takamore’s mother deposed that Mr Takamore rang her every week to see how she was, and that he was going to renovate her house for her when he retired. Even if this evidence were accepted, in our view, that does not amount to an expression of Mr Takamore’s intention to return to the Bay of Plenty to live (particularly given that Mr Takamore’s children and partner reside in Christchurch, and there was no indication that they intended to relocate).
[156] We do not, however, consider that Fogarty J was justified (on the evidence) in making the finding that Mr Takamore had rejected Tūhoe tikanga. It is difficult to ascertain whether Mr Takamore’s remarks to his friends that he had little to do with his family in the North Island were indicative of a rejection of his Tūhoe heritage, or were merely indicative of a rejection of certain members of his family. The former interpretation, as Ms Takamore points out, may be difficult to reconcile with the fact that Ms Clarke approved the suggestion to hold Mr Takamore’s funeral service at Te Whare Roimata Marae, as she believed that “[Mr Takamore] would have wanted a link to his Māori heritage”.
[157] Further, Mr Takamore could still understand te reo Māori, although he could not speak it well. His mother deposed that Mr Takamore “always stayed connected with his tūrangawaewae [home]” and that Māori tikanga had been instilled in him since birth and that he never forgot it,[125] and there was no cross-examination of Mr Takamore’s mother on this matter.[126] Given the clear importance of whakapapa in tikanga,[127] a conclusion that Mr Takamore had retained his Māori identity but rejected his Tūhoe tikanga is one that should not have been lightly drawn. After all, by using the term “South Island Māori”, Mr Takamore could merely have been referring to the fact that he had made his permanent home in Christchurch.
[158] Finally, we make the observation that it is important not to jump to the conclusion that a Māori person has lost their connection with their indigenous culture simply because they live outside traditional tribal lands and do not practice the traditional customs and ways of their indigenous group. In New Zealand, many Māori do not live within their traditional tribal lands[128] or practice the traditional customs and ways of their indigenous group, and this may be traced back to the monocultural colonial and post colonial systems.[129]
[159] In relation to Mr Takamore’s wishes as to burial, Fogarty J stated that:
[15] [Mr Takamore] appears to have had a premonition of his death. Shortly before he died he told a number of his friends and work mates that when his time came he wanted to be buried in Christchurch, not taken back up to the North Island. ... Their evidence was received without challenge.
[16] Shortly before his own death [Mr Takamore] went to his cousin’s funeral at the Ruru Lawn Cemetery. He told his work mate, Richard Price, that Ruru Lawn Cemetery was a peaceful place with lovely trees and that is where he would want to be buried.
[160] Fogarty J appeared to treat Mr Takamore’s remarks to his friends and work colleagues as definitive, as he later held that “the deceased’s wish to be buried in Christchurch is now known”.[130] As we have discussed above,[131] Mr Takamore did not give any formal instructions in his will on what was to happen with his body, apart from that it was to be buried. He did not discuss any other arrangements with his executor and partner, Ms Clarke. Whilst he had expressed preferences to his work colleagues that he wished to be buried in Christchurch, in contrast, according to Mr Takamore’s mother, Mr Takamore had said that when he died he wanted to “come back home”. Fogarty J does not mention this statement, and there was no cross-examination of Mr Takamore’s mother in relation to this assertion.
[161] It may be that Fogarty J did not mention the alleged comment to his mother because he considered that Mr Takamore was sparing his mother’s feelings and did not mean what he said. However, it could equally be said that Mr Takamore’s remarks to his work colleagues may have been no more than casual remarks made without genuine consideration of where in fact he wished to be buried. It appears that these remarks have taken on significance simply because they were made very shortly before Mr Takamore passed away.[132]
[162] In view of the conflicting reports given by Mr Takamore’s work colleagues and his mother and the absence of any instructions as to place of burial to Ms Clarke, it cannot be said that Mr Takamore had expressed a single clear view as to the location of his burial. Our view on this is to be contrasted with Fogarty J’s finding that Mr Takamore wished to be buried in Christchurch.
(e) Right not might and the rule of law
[163] The second basis on which Tūhoe custom regarding burial might breach the reasonableness requirement is that it is contrary to the principle of “right not might”. The custom contended for provides that, if agreement cannot be reached, then it is permissible simply to take the body. This essentially authorises the use of force and allows the stronger party to win.
[165] At the risk of falling into the same trap, we nevertheless consider that the custom of allowing the taking of a body is incompatible with the fundamental proposition in our law of “right not might”. As was acknowledged by Mr Kruger in cross-examination, the taking of a body has in the past caused wars.[136] Although in modern times the extent of this risk has lessened, the taking of a body nevertheless has the ability to escalate into violence, particularly where there is (perhaps because of a mix of cultures) no access to the type of cultural rituals set out by Professor Temara for diffusing such situations.[137]
(f) Summary: reasonableness
[166] In summary, we consider that Fogarty J was wrong to hold that the Tūhoe custom relating to burial is incompatible with the common law by reason of the denial of individual autonomy. Rather, in our view, the custom in this case of allowing the taking of a body is incompatible with the proposition in our law of “right not might”, an application of the fundamental principle of the rule of law.
Certainty
[167] We need not decide this point, because we have already held that the taking of a body fails the reasonableness test. However, we note that, even if the unreasonable aspect of the custom was severed from the custom, it could also be argued that the custom in this case fails the certainty criterion, as the custom does not allow for a clear allocation of legal rights to the body. Rather, it provides a process for debate and negotiation. If consensus cannot be reached, the custom does not provide (apart from the taking of the body) a mechanism for making a final decision. While the more fluid nature of customary law should be taken into account,[138] in our view there would arguably have to be a process for a final decision to be made (that is, ultimate certainty) if compromise and negotiation failed.
Has the custom been extinguished?
There is ... no general statutory obligation on a personal representative to dispose of the body. That obligation is imposed under the common law.
[169] The Health Act 1956 imposes an obligation on a local authority to bury a body when it is in such a state as to be dangerous to health.[141] However, this provision clearly does not unambiguously extinguish any customary right to possession of the body for the purpose of disposing of it.
Must the custom be a general Māori custom?
[170] Ms Clarke contends that, because the custom asserted by Ms Takamore is “not a general custom of Māori ... but a local and limited Tuhoe custom” it “cannot qualify as a general Māori custom and is therefore inoperative in law”. For this proposition, her counsel cites Public Trustee v Loasby where Cooper J held that for a Māori custom to be recognised by the common law it had to be proved that the custom:[142]
(a) “exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Māori race”;
(b) is not contrary to any statute law; and
(c) is reasonable, “taking the whole of the circumstances into consideration”.
[171] Ms Clarke’s argument seems to be that, because Cooper J held that he had to consider “whether such [a] custom exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Māori race”, only customs that are followed generally by all iwi may be recognised as customary law.
[172] This is not a correct interpretation of Cooper J’s statement. Whether custom had to be general rather than iwi-specific to achieve recognition at common law was not in dispute in Loasby (the judgment was really focussed on the reasonableness requirement for establishing custom). Accordingly, any implication that the custom must be common to all iwi is obiter at best.
[173] In any event, the reference to a “general custom” is not aimed at the idea that the custom must be general across iwi but that the custom must be general in the sense that it must be a custom of an identifiable group, not just a practice between individuals. This meaning of “general” accords with the requirements to establish custom in the United Kingdom, from which the law applied in colonies was derived. Halsbury’s Laws of England sets out that a custom “imports some general rule applying within the district where it operates, and cannot therefore arise from a few mere private acts of individuals”.[143]
[174] In other colonial jurisdictions such as Africa, the norm was for customary law to vary from tribe to tribe, sometimes considerably.[144] In the British East Indies, Hindu, Muslim, Parsee, Armenian and other local codes were all applied, with personal application to particular inhabitants.[145] There is no indication in the judgment that Cooper J sought to depart from the general rule applying in the United Kingdom or in other colonies. If he had done so, he would have been in error.
Summary
[175] In summary, we consider that Tūhoe custom regarding burial has not been extinguished by statute, and meets the criteria of longevity and continuity. However, in our view, the custom does not meet the criterion of reasonableness, as the custom authorises the use of force through the ability to take the body without agreement. Accordingly, the custom does not fulfil the test for recognition by the common law.
To whom does indigenous customary law apply?
[176] If Tūhoe custom regarding burial could be recognised at common law, the question of to whom the custom applies would be of crucial importance. This issue is of particular complexity where it involves a deceased person. The difficulties discussed below, however, may provide a further reason why Tūhoe custom on burial cannot be recognised under the colonial framework for the confirmation of customary law.
The personal application of customary law
[177] When the British acquired sovereignty over a “Christian territory” where a legal system recognisable to the colonists was in operation, that system continued to operate and governed colonisers and colonised alike.[146] For non-Christian colonies, the doctrine arose that the common law is the birthright of the English and therefore is carried with them into the colonies. It determines the relations of the colonists among themselves. This did not, however, displace the common law presumption of the continuity of customary law to the indigenous population.[147]
[178] By the time New Zealand was colonised it was well established that the customary law that continued to apply was personal (rather than territorial) in application.[148] Customary law applied to the relations between Māori inter se: “native laws would continue to regulate their dealings as amongst themselves but English law would apply amongst the European settlers and in the natives’ dealings with these peoples”.[149]
[179] Because customary law had personal application, as colonisation progressed, Courts in various colonial jurisdictions were frequently faced with determining whether the laws of one of several indigenous systems or the imported British system should apply to an individual. As Professor Campbell McLachlan describes it, in British or former British colonies in the nineteenth and twentieth centuries:[150]
The science of determining into which legal system a person fell became a very complex and technical branch of colonial law known as the interpersonal conflict of laws.
[180] In colonial times, racial status was the main factor in determining ethnic identity for the purpose of applying customary law. Professor McLachlan says:[151]
Racial status ... became the prime connecting factor in the application of laws. These spheres for the operation of laws were rigid in the sense that they depended upon criteria of descent which could not be modified by choice.
The continuity of the indigenous ‘civil’ law on the basis that the application of English law was unsuitable to their circumstances was implicitly a transitional arrangement. Once the natives had adopted the English practice in matters such as marriage, descent and suchlike, the English law would apply to their civil relations inter se as fully as it did their criminal. This premise was not one applied by the judicial assessment of the state of ‘civilisation’ attained by the native community at large, so much as a function of the situation of the indigenous litigants before the court.
[182] Certainly a more modern approach is to take into account wider considerations. For example, the Australian Law Reform Commission, in its report on aboriginal customary rights in 1986, adopted the threefold definition given by Deane J in Commonwealth v Tasmania: “a person of Aboriginal descent, albeit mixed, who identifies himself as such and is recogni[s]ed by the Aboriginal community as Aboriginal”.[153] It recognised that this should not be restricted to tribal traditionally oriented Aborigines but extended to Aborigines in a wide range of communities.[154]
Difficulties in this case
[184] In our view, if Tūhoe custom regarding burial could be recognised at common law, there are three main difficulties regarding the application of customary law in this case:
- (a) first, it is difficult to identify the relevant person or persons to whom customary law applies;
- (b) secondly, it is unclear whether the test for the personal application of customary law is determined by the common law or is left to indigenous standards; and
- (c) thirdly, the application of Tūhoe custom regarding burial is unclear where members of the deceased’s family come from different cultural backgrounds.
(a) Identifying the relevant person(s) to whom custom applies
[185] In the High Court, Fogarty J did not consider the common law rules relating to the personal application of indigenous customary law. Instead, Fogarty J framed his discussion in terms of whether a custom that applied notwithstanding the lifestyle of the deceased was reasonable.[159] The written submissions of the parties to this Court have a similar focus on reasonableness rather than on the personal application of the law. We have already rejected the proposition of unreasonableness framed in this manner.[160]
[186] We also express doubt as to whether consideration of Mr Takamore’s connection to his indigenous culture would have been relevant, even under an
examination of the common law rules relating to the personal application of customary law. This is because generally the application of law to a person entails a requirement for the person to do something (a legal duty) or permits a person to be able to do something (a legal right). A person who is deceased is unable to exercise any legal duties or rights. It is therefore difficult to see how the application of the custom to Mr Takamore could be the critical consideration.
[187] Ms Takamore submits that the customary rights relating to Mr Takamore’s burial were not individual rights of Mr Takamore, but rather were collective rights that his whānau and broader hapū held and, in this case, chose to act on. Consideration of how the deceased lived and his preferences as to place of burial are therefore in her submission irrelevant in fact and in law in determining whether Tūhoe customary law on burial applies, although it is accepted that, once customary law applies, the deceased’s wishes are relevant but not determinative.[161]
[188] We agree that the issue of burial does not engage the individual rights of Mr Takamore because he is deceased. In our view, the fundamental difficulty with the application of customary law here is that the living persons associated with Mr Takamore who are able to exercise legal duties or legal rights are of mixed cultural backgrounds. The Taneatua family are of Tūhoe descent, as are Mr Takamore’s (and Ms Clarke’s) children. However, Ms Clarke, Mr Takamore’s life-long partner, is not of Tūhoe descent. Given that Māori customary law generally applies to Māori relations inter se, the application of Tūhoe custom to a non-Tūhoe person like Ms Clarke is problematic.[162]
(b) Does the common law or tikanga determine ethnic identity?
[189] Even if Mr Takamore were the relevant person to whom Tūhoe custom applies, it is unclear whether the test for the personal application of customary law is determined by the common law or is left to indigenous standards.
[191] This means that there would be a tension between the common law and Tūhoe custom as to the requirements for the personal application of customary law if Mr Takamore was the relevant person to be considered and it would be necessary to decide whether the common law or tikanga determines the personal application of customary law. We do not, however, need to decide this point as we have already held that the custom does not meet the requirements for recognition and in any event have also held that Fogarty J was not correct, on the evidence before him, to hold that Mr Takamore had rejected his Tūhoe heritage.
(c) The application of custom to Māori relations inter se
[193] Ms Takamore submits that the persons with the ability to decide on the appropriate location of the burial are limited to the whakapapa-connected whānau of the deceased, namely the Tūhoe members of the deceased’s family. Ms Clarke is not Tūhoe and thus was not part of the relevant whānau pani. Therefore the issue of a conflict of laws would not arise.
[194] In our view, the evidence given at trial by Mr Kruger and Professor Temara does not go so far as to establish this proposition. Mr Kruger simply describes the “whānau pani” as “[t]hose that are suffering the loss and [are] in mourning”. This must include Ms Clarke. In any event, the common law could not countenance the exclusion of any of the close relatives from having their wishes consulted.
[195] We did discuss above[168] an approach to the application of customary law at common law that could allow custom to apply to a non-indigenous person who identifies as part of an indigenous group and is recognised by the group as an indigenous person.[169] However, even if such an approach was applied here, Ms Clarke does not wish to be subject to Tūhoe custom.
[196] We thus consider that the conflict of laws issue would arise. As we have held that Tūhoe custom does not meet the requirements for being recognised, however, we do not need to attempt to resolve the conflict.
Should the common law relating to burial accommodate Tūhoe custom?
[197] We now consider whether the common law relating to burial can nevertheless accommodate Tūhoe custom in some way. In order to determine this, we consider what factors the executor must take into account when fulfilling the duty to dispose of the deceased’s body, and in particular, whether the wishes of the deceased and/or the deceased’s family as to the disposition of the body are relevant. We also discuss the emerging human rights jurisprudence, the relevance of the Treaty of Waitangi, and the United Nations Declaration on the Rights of Indigenous Peoples. We then discuss a more modern approach to the integration of customary law.
The common law position
[198] The common law relating to burial can be understood in terms of the following factors: respect for the dead, concern for the living left behind, and public health considerations. There is also a religious overlay and, indeed, the current law concerning burial and funerals derives from a mixture of inherited ecclesiastical law and common law.
Executor’s duties
[199] At common law an executor has the duty to dispose of the body of the deceased.[170] The application of this common law duty has not been modified by statute in New Zealand. Section 24 of the Administration Act 1969 states that all of the estate of a deceased person vests in the administrator of the estate. This provision does not alter the clear common law position that the estate does not include the body of the deceased, and that the obligation to dispose of the body is an obligation imposed under the common law.[171]
[200] It is generally accepted that there is no property in the body of a deceased.[172] However, as the executor has the duty to dispose of the body of the deceased,[173] he or she therefore has the right to possession of the deceased’s body for the purpose of final disposal.[174] The right to possession of the dead body is directed towards the ancillary duty of ensuring a proper burial, providing an exception to the “no property in a dead body” rule.[175]
[201] The executor’s duty to dispose of the deceased’s body and the concomitant right of possession entitles the executor, above all persons, to make the funeral arrangements and determine the method and place of final disposal of the body of the deceased.[176] The executor must bury the deceased in a manner suitable to the estate he or she leaves behind him or her.[177]
[202] The duty to dispose of the body requires the executor to dispose of the body “without unreasonable delay”.[178] Dealing with bodies immediately after death was, first and foremost, a matter of public health expressed in legal terms as a duty to dispose of the deceased so as not to endanger the well-being of the living by the spread of disease resulting from the inevitable decay of the corpse.[179] Public health concerns are now mostly expressed through legislation. The statutory framework in New Zealand imposes a number of obligations on the person in charge of the disposal of a deceased’s body for which failure to comply is an offence.[180]
[203] The common law in relation to the disposal of dead bodies, including their swift disposal, is also based on considerations of decency and respect for the dignity of the person.[181] The duty to dispose of the body requires the executor to treat the body with “proper respect and decency”.[182] In R v Stewart, Lord Denman CJ said that to do otherwise would be an indignity to the dead as well as “a real offence to the living”.[183]
[204] It is not entirely clear whether the executor has an absolute and unfettered right of decision-making in relation to the disposal of a body. In a number of common law jurisdictions, the courts have given a considerable amount of latitude to the executor to make decisions as to burial because of the need for appropriate speed and decision in relation to the disposal of a dead body.[184] The public health concerns related to the disposal of a body may be of less importance in modern times but prompt disposal is still important in terms of respect for the deceased and sensitivity to family and friends (as well as cultural considerations in some cases).
[206] We now consider what factors the executor must take into account when fulfilling the duty to dispose of the deceased’s body, and in particular, whether the wishes of the deceased and/or the deceased’s family as to the disposition of the body are relevant. We also discuss the emerging human rights jurisprudence.
Wishes of the deceased as to burial
[207] At common law[188] a deceased’s directions (including in a will) as to the disposal of the body are regarded as merely declaratory. They are not legally binding and cannot be enforced. Williams v Williams, followed in Murdoch v Rhind,[189] is cited in support of the proposition that there is no property in a dead body and that accordingly, burial instructions given by the deceased, even as part of his will, are not legally binding and cannot be enforced.[190]
[208] Fogarty J viewed the common law as requiring the executor at least to consider the views of the deceased, although the executor would still ultimately be entitled to make the final decisions as to the funeral arrangements.[191] We consider that to be a correct statement of the law.
[209] In upholding the importance of taking into account Mr Takamore’s wishes, Fogarty J, however, relied on the “fiduciary nature” of an executor’s duties:[192]
Persons are appointed executors by the maker of a will in order that the dispositions in the will are carried out. They hold the legal estate in the character of fiduciary or trustee. None of their actions as executors can be taken for their own self-interest. All actions are justified ultimately as a fiduciary.
[210] Whilst Fogarty J does not go so far as to say that the fiduciary nature of an executor’s duties is a justification for giving greater recognition to a deceased’s wishes, it is perhaps worth noting that such a proposition may be problematic. This is because the fiduciary duty of the executor is owed to the beneficiaries of the will, not to the deceased person himself/herself.
[211] Some commentators have argued that instructions given by the deceased as to the disposal of his/her body should be upheld as an aspect of respect for the autonomy of the person.[193] It has been said that it is somewhat anomalous that the law goes to great lengths to uphold testamentary freedom yet refuses to recognise burial instructions: an individual may dispose of their financial estate according to his or her wishes, but cannot dispose of their bodily estate in the same manner.[194] Giving effect to the deceased’s burial wishes would not require any explicit recognition of property rights in a dead body, but would simply create a power to give legally enforceable directions in respect of its fate.[195]
[212] The other viewpoint is that the autonomy of an individual ceases on death, and that there should not be recognition of posthumous “rights”. It has been said that, “although [there are] serious moral duties with regard to dead and future persons ... [they] have no rights”.[196] It has further been argued that the extent of the deceased person’s autonomy is limited to choosing an executor and trusting that selected person to carry out the deceased’s wishes with respect to disposal of the body.[197] The executor’s decision about the deceased’s body is then a surrogate extension of the deceased’s own decisions.
[213] Further, giving full effect to the deceased’s wishes can adversely affect the living who also have an interest in the burial. As Professor Rosalind Croucher has said:[198]
[A] principle which accords paramountcy to the wishes of the deceased will detract from the process for the living. There is a clash, therefore, between the idea of autonomy as an aspect of individualism (in this context, respecting the deceased’s own wishes or as expressed through an agent or surrogate) and autonomy within relationships (recognising circumstances in which the individual’s wish may be overridden in circumstances considered, for example, unreasonable in the context of family).
[214] Even commentators favouring the ability to give binding directions recognise that individual autonomy may on occasion need to be restricted in order to recognise that burial “is not merely about the deceased; it is also a process for the living.”[199]
[215] We also note that, from a practical point of view, it may be difficult to discern what are in fact the deceased’s wishes regarding the disposal of his/her body where there is no direction on this matter in the will. Different things could have been said to different people at different times, either because of a change of mind or because the deceased was sparing the feelings of or pandering to the person to whom he or she was talking. Even where there is a direction in a will, there could have been a change of mind since the will was executed.
[216] There would be significant practical difficulties for an executor if he or she was required to make extensive inquiries into the wishes of the deceased. Furthermore, if an executor was required to make extensive inquiries into the wishes of the deceased, this may run counter to the requirement to resolve the matter as quickly as possible to facilitate burial of the dead. As noted above at [202], the executor is required to dispose of the body “without unreasonable delay”.
[217] Murdoch v Rhind provides an illustration of the difficulties involved in discerning the wishes of a deceased. In that case, the widow alleged that the deceased wished his body to be brought to Christchurch and cremated, whilst the brother (who was the executor) alleged that the deceased wished to be buried with his parents at Hokitika.[200]
[218] Here, as we have discussed above, Mr Takamore had not given any formal instructions in his will on where he wished to be buried and had not discussed any arrangements with Ms Clarke, his partner and executrix of his will. However, he had expressed preferences to his work colleagues that he wished to be buried in Christchurch. By contrast, according to Mr Takamore’s mother, Mr Takamore had said that when he died he wanted to “come back home”. As we have discussed above,[201] these conflicting reports meant that there were significant difficulties in ascertaining Mr Takamore’s presumed wishes regarding where he wished to be buried. In the absence of formal indications[202] made by Mr Takamore regarding his burial, his wishes were far from clear.
Relevance of the wishes of the deceased’s family
[219] The common law position in relation to the wishes of the family of the deceased as to the disposal of the body is that whoever has the duty to dispose of the deceased’s body is expected to consider the wishes of other stakeholders, although he or she is not under a legal obligation to act in accordance with those wishes, and may opt for a form of burial which is opposed by the deceased’s relatives.[203] Fogarty J held that stakeholders include the surviving spouse or partner, children and other relatives, and, where appropriate, friends or confidants of the deceased.[204] We agree. We consider that the executor has a legal obligation to consider the wishes of these stakeholders. It may be that a challenge to an executor’s decision, as suggested above at [205], would be available where the executor has refused to take those wishes into consideration.
[221] Where an executor has not been named in the deceased’s will, the common law provides a hierarchy of persons to determine who has the highest rank to take out administration with respect to the deceased’s estate.[207] Under the established hierarchy, the person entitled to a grant of letters of administration will normally be the next of kin. Professor Croucher notes the importance of the connection of kin in this regard: “it is the family which expresses the extended autonomy of the deceased with respect to his or her body”.[208]
[222] In the event of disputes as to who is entitled to take out administration, courts award custody of the deceased’s remains to the person with the strongest entitlement to possession of the body under the hierarchy. For example, as between the surviving spouse (or de facto spouse) and children, the spouse is to be preferred.[209]
[223] Where there are two persons with an equal duty to bury and joint right to possession of the remains (for example, the parents of a child), the courts will resolve the dispute on a practical basis, but with a preference for securing prompt burial “without unreasonable delay”.[210] Practicality in such situations is a way of dealing with the difficulty that “[t]he law cannot establish a hierarchy in which one sort of feeling is accorded more respect than other equally deep and sincere feelings”.[211]
[224] This hierarchy, although applied in the context of disputes as to who is entitled to take out letters of administration, could also provide a useful framework for the resolution of disagreements between family members as to the arrangements for the disposal of the deceased’s body. The hierarchy could indicate the priority an executor should give to the views of certain family members regarding the manner and place of burial.
[225] Here, the wishes of Ms Clarke and Mr Takamore’s (and Ms Clarke’s) children obviously conflicted with the wishes of Mr Takamore’s wider family. Ms Takamore submits that Ms Clarke only consulted her own wishes when she decided on Mr Takamore’s place of burial, and thus performed her role as an executor in a personal rather than fiduciary capacity. However, Ms Clarke, as the long-term partner of Mr Takamore, was entitled to consider her wishes (and her and Mr Takamore’s children’s wishes) regarding burial. Under the common law hierarchy, the wishes of Mr Takamore’s children were arguably to be accorded the highest priority. As the executor, she was also entitled to make the final decisions as to the funeral arrangements. She cannot be criticised as failing her duties as executor by deciding on what she considered to be appropriate burial arrangements.
Emerging human rights jurisprudence
(a) European Convention on Human Rights
[226] In England and Wales, creative arguments based on the Human Rights Act 1998 (UK) (which introduced the provisions of the European Convention on Human Rights into domestic law)[212] are beginning to influence disputes concerning the posthumous fate of remains. In particular, the right to private and family life guaranteed by art 8 of the European Convention[213] is relied upon. It was held in X v Germany that art 8 is engaged by a deceased’s wishes as regards his funeral arrangements.[214]
[227] This right was considered in Burrows v Coroner for Preston,[215] where it was stated that in the light of the European cases, the earlier English authorities as to the irrelevancy of the deceased’s wishes as regards burial arrangements were no longer good law.[216] Thus the deceased’s express wishes may in some circumstances amount to “special circumstances” justifying the court in overriding the right of the personal representatives to direct the disposal of the body.
[228] Nevertheless, there has been some reluctance to recognise and subsequently uphold the deceased’s wishes. Dicta in the House of Lords in R(Pretty) v DPP asserted that the rights guaranteed by art 8 only apply while the individual is alive. According to the House of Lords, a right to private life only exists in relation to the manner in which an individual lives his or her life.[217] The European Court of Human Rights in the subsequent decision in Pretty v United Kingdom[218] did not accept, however, the argument that art 8 had no relevance to the manner of leaving life.
[229] Article 9 of the European Convention guarantees the right to freedom of thought, conscience and religion. Some English cases have considered the impact of art 9 on the treatment of human remains, and these cases suggest that courts may be receptive to submissions from the deceased’s relatives based on religious beliefs, at least where such persons are seeking to uphold values espoused by the deceased during his or her lifetime.[219]
(b) International Covenants to which New Zealand is a party
[230] The right to privacy is contained in art 17 of the International Covenant on Civil and Political Rights (ICCPR) to which New Zealand is a party. Article 18 of the ICCPR provides the right to freedom of thought, conscience and religion. New Zealand is also a party to the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to participate in cultural life in art 15.
[231] In Jones v Dodd,[220] the Full Court of the Supreme Court of South Australia was required to resolve a dispute between two claimants to the body of the deceased (the deceased’s father and the deceased’s former de facto spouse) and placed particular reliance on art 18 of the ICCPR in concluding that spiritual and cultural values ought to be taken into account as part of the “proper respect and decency” necessary in resolving the dispute.
[232] The deceased’s father and some other family members gave evidence that the deceased wished to be buried in his Aboriginal homeland, which was consistent with Aboriginal custom. This was opposed by the deceased’s former de facto spouse. After considering the right to freedom of thought, conscience and religion in the ICCPR, Perry J (delivering the principal judgment of the Court) stated:[221]
True it is that the international instruments to which I have referred have as their primary application the protection of the rights of living persons. But it seems to me that common considerations of decency and respect for human dignity should lead those responsible for the burial of a corpse to recognise, and where possible give effect to, the cultural, spiritual and religious beliefs, practices and traditions of the deceased. Furthermore, for similar reasons, an appropriate degree of sensitivity and respect should be accorded the feelings of the surviving members of the deceased’s family.
[233] The Court concluded that in all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.[222] In that case, those factors had been emphasised by the deceased’s father and according to the evidence, which was unchallenged, the views of the head of the family (the deceased’s father) were to prevail.
[234] In Spratt v Hayden,[223] the Supreme Court of Western Australia also considered the relevance of Aboriginal customs to a burial dispute. The Court ultimately concluded that the customary values that were said to be in support of burying the deceased in a certain location could not prevail in that case because, amongst other reasons, the deceased “did not maintain a traditional Aboriginal lifestyle”.[224]
[235] These cases therefore suggest that there is capacity for the common law to take a practical approach that will be receptive to upholding the cultural values and wishes of the deceased and his or her family, at least where the deceased’s family members are seeking burial in a manner which does not conflict with what the deceased wanted.[225] The extent to which the invocation of international human rights might deal with conflicts between the presumed wishes of the deceased and the actual wishes of the deceased’s family is “at best speculative”.[226]
Summary of common law position
[236] In summary, at common law, the right to make the funeral arrangements and determine the method and place of final disposal of the body of the deceased falls to the executor. The executor is expected to consider the wishes of the deceased as to burial, but is still ultimately entitled to make the final decision.
[237] Further, the executor is expected to consider the wishes of other stakeholders, including the surviving spouse or partner, children, other relatives and, where appropriate, friends or confidants of the deceased. Again, the wishes of the deceased’s family are not binding on the executor.
[238] Emerging human rights jurisprudence does suggest, however, that the right to privacy and the right to freedom of thought, conscience and religion may allow greater effect to be given to the cultural, spiritual and religious beliefs, practices and traditions of the deceased and his or her family.
[239] The New Zealand Bill of Rights Act 1990 (Bill of Rights) affirms New Zealand’s commitment to the ICCPR on which the rights and freedoms it contains are based. The right to freedom of thought, conscience and religion, guaranteed in art 18 of the ICCPR, is contained in s 13 of the Bill of Rights. However, the Bill of Rights does not reflect all ICCPR rights: the right to privacy, guaranteed in art 17 of the ICCPR, is not contained in the Bill of Rights.
[240] The traditional position is that, unless incorporated by legislation, an international treaty or declaration cannot be enforced in domestic law.[227] However, as was demonstrated by Hosking v Runting,[228] the Courts are willing to have regard to international instruments in the development of the common law. In Hosking v Runting, the majority of this Court accepted that, although not expressly recognised in the Bill of Rights, the common law was nonetheless to be developed in accordance with privacy values.[229]
[241] This Court’s decision in Lange v Atkinson is another example of the ability of international instruments to affect the development of the common law.[230] The Court was guided by the ICCPR and the European Convention on Human Rights in determining the New Zealand test for qualified privilege.[231] Moreover, this Court has recognised a “presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations”.[232] We therefore consider that the case law relating to the right to privacy and right to freedom of thought, conscience and religion is relevant to the development of New Zealand’s common law in this area.
[242] Where the cultural beliefs, practices and traditions of the deceased or his or her family are those of indigenous peoples, the development of the common law to give greater consideration to indigenous culture is therefore supported by the international covenants to which New Zealand is a party.
Other relevant instruments
The Treaty of Waitangi
[243] The Treaty of Waitangi[233] is usually said to be relevant to customary law in one of two ways. First, it is argued that customary law is guaranteed under article two of the Treaty, which protects Māori rangatiratanga and taonga. Dr McHugh has noted that “[r]angatiratanga, the tribal basis of Māori society, arises from Māori customary law, indeed the two (tribalism and customary law) are inseparable”.[234] Dr Robert Joseph contends that Waitangi Tribunal interpretations of article two demonstrate that it extends to the protection of customary law. He argues:[235]
[I]n 1986, the Waitangi Tribunal defined taonga katoa more broadly to include ‘all [Māori] valued customs and possessions.[236] The Tribunal added that taonga in a metaphorical sense covers a variety of possibilities rather than itemised specifics consistent with the Māori language,[237] and as more than objects of tangible value that regulated daily life.[238]
Under these juristic definitions and applying a ejusdem generis approach, taonga katoa in the Treaty should be construed to include the first law, Māori customary law.
[244] The second way the Treaty is said to be relevant to customary law is the so-called “fourth article”, an oral promise made at the signing of the Treaty that “the several faiths (beliefs) of England, of the Wesleyans, of Rome, and also Māori custom shall alike be protected”.[239] Several assurances along the same lines were given as the Treaty travelled around the country for signing.[240] There has been debate as to the importance of these assurances; Dr Claudia Orange has argued that the promise at Waitangi “amounted to very little”.[241] However, in its 2001 report on Māori custom and values, the Law Commission notes that Sir Edward Durie and the Waitangi Tribunal had “come down clearly in favour of the view that Crown representations in 1840 that tikanga Māori would be respected are indeed important in Treaty jurisprudence”.[242] This was on the basis of the assurances given in the so-called fourth article.[243]
[245] In the Muriwhenua Land Report the Waitangi Tribunal found that when the Treaty was signed Māori expected that their customary law would continue because of assurances from British representatives.[244] The Tribunal found that the remarks of Tamati Waka Nene (“[y]ou must preserve our customs”) were typical of Māori opinion.[245] Such an expectation was consistent with common law principles that applied to colonies. In this sense article two may be seen as declaratory of these common law principles.[246]
[246] As is set out in article three of the Treaty, the acquisition of sovereignty by Britain over New Zealand gave Māori the status of British subjects. However, acquiring the status of British subjects did not mean that customary law no longer applied. At common law, regardless of the Treaty, the acquisition of sovereignty over a new territory made all the inhabitants of that territory British subjects.[247]
[247] In broad principle, the Treaty is consistent with the common law’s treatment of customary law. However, as Dr Joseph necessarily implies,[248] a reasonable interpretation of the Treaty’s express terms is that they contemplate positive duties on the Crown to protect customary law. That interpretation possibly goes beyond the common law’s limited tolerance of customary law. The question then arises as to whether the Treaty modifies the common law or may oblige judges to apply and develop the common law, as far as possible, consistently with its terms.
[248] The answer must depend ultimately on the legal status and force of the Treaty.[249] But, as Dr Matthew Palmer discusses in his recent work, despite the fact that recently that question has not directly confronted the courts, the courts have nonetheless enforced the Treaty indirectly in a number of ways.[250] First, the Treaty has been held to be an extrinsic aid to statutory interpretation, even where it is not itself mentioned in the text of the legislation.[251] Secondly, it may have “direct impact” in judicial review[252] – whether for example as a mandatory consideration,[253] or potentially as providing the basis for a legitimate expectation.[254] Lastly, although the scope for their judicial enforcement remains doubtful, the obligations of good faith, reasonableness, trust, openness and consultation arising from the nature of the relationship between Māori and the Crown are now accepted.[255]
[249] It requires no leap of faith therefore to suggest that in general the common law of New Zealand should as far as is reasonably possible be applied and developed consistently with the Treaty of Waitangi.[256]
The Declaration on the Rights of Indigenous Peoples
[251] Customary laws of indigenous peoples tend to have an emphasis on the collective as against the individual.[260] The difficulty that has arisen, as Professor McLachlan has pointed out, is that New Zealand’s legal system has generally been based on the notion that society is nothing more than a collection of individuals and that the law need not concern itself with the separate identity of groups as such.[261] Related to this is the notion that there should be one law for all – that it is somehow discriminatory for the law to recognise the cultural differences between groups in society, that all must be treated identically.[262]
[252] However, these notions have now been challenged.[263] The importance of protecting collective rights of indigenous peoples is specifically recognised in the Declaration. Accordingly, there is an argument that the common law relating to burial needs to give greater consideration to the collective nature of indigenous people’s rights. Article 12 of the Declaration specifically acknowledges that the “right to repatriation of human remains” is inherent to the right of indigenous peoples “to manifest [and] practice ... their religious traditions, customs and ceremonies”.
[253] Whilst the Declaration is non-binding, New Zealand announced its support of the Declaration in 2010. It is also a party to the international human rights covenants on which the Declaration is based. Professor Elsa Stamatopoulou observes that the Declaration does not in fact contain any new cultural human rights, but restates, in one systematic text, human rights contained in previously adopted international instruments and confirmed through the case law of international bodies.[264]
A more modern approach
[254] We consider that a more modern approach to customary law is to try to integrate it into the common law where possible rather than relying on the strict rules of colonial times. This conclusion is reinforced by the need to develop the common law, so far as is reasonably possible, consistently with the Treaty of Waitangi, the importance of recognising the collective nature of the culture of indigenous peoples and the value of their diversity (as recognised in particular by the United Nations Declaration on the Rights of Indigenous Peoples) and by international human rights covenants to which New Zealand is a party.[265]
[255] We consider that a workable compromise between the common law relating to burial and the Tūhoe custom would be to hold that Tūhoe custom regarding burial was a relevant cultural consideration for an executor or executrix to take into account in determining the method and place of burial. Thus he or she should, where one or more of the whānau pani is Tūhoe and the deceased is Tūhoe under Tūhoe custom,[266] facilitate (as far as it is practical to do so) a culturally appropriate process of discussion and negotiation among the members of the whānau pani as to the place of burial. All members of the whānau pani should have a full opportunity to participate, even if not Tūhoe (and this requires them to be given full information to allow them to do so).[267] Where consensus is reached, it would normally be unreasonable for an executor to refuse to bury in accordance with that consensus.[268]
[256] We consider that the process of negotiation should occur even where the deceased has expressed burial wishes as both in the common law and in Tūhoe custom the deceased’s wishes are relevant but not binding. Where the wishes of the whānau pani conflict with the wishes of the deceased, however, the executor would not be unreasonable if he or she buries in accordance with the wishes of the deceased.
[257] We note that this requires little extension of the common law relating to burial. While the cultural underpinnings of the common law relating to burial and Tūhoe custom are clearly dissimilar, several of the principles of Tūhoe tikanga are already accommodated in the common law, for example: a process of consultation[269] is expected with a range of stakeholders (primarily, the deceased’s family) and the wishes of the deceased, although a relevant consideration, ultimately do not dictate the decision as to where the deceased is buried. The essential differences are that the common law requires an executor to make the final decision as to the method and place of burial, and that Tūhoe custom permits the taking of the body without agreement.
[258] We consider that where consensus is not reached, the common law position will prevail and the executor or executrix should make the final decision.[270] We do not consider that the custom of the taking of the body should be allowed for the reasons we have already discussed.[271] We note that, while the taking of a body in Tūhoe culture increases the mana of the deceased,[272] the same is not true in Pākehā custom and, as in this case, is likely to cause great distress to non-Tūhoe relatives, as it is likely to be seen as highly disrespectful to the deceased.
Conclusion on this case
[259] We conclude that Ms Clarke, as the executrix, was entitled to possession of the body. She had a duty to dispose of the body and was entitled to make the final decision as to the method and location of the burial. However, as the executrix, Ms Clarke was required to take into account the wishes of the deceased, whether expressed in the will or otherwise known, and the wishes of the wider family. She was also required to take into account relevant cultural considerations, including in this case Tūhoe burial custom. Cultural factors, where present, need to be taken into account as part of the “proper respect and decency” involved in burial decisions, including ensuring an appropriate degree of sensitivity and respect is accorded to the feelings of the surviving members of the deceased’s family. This is in accordance with the more modern approach to the integration of customary law.
[260] Here, Ms Clarke, as the executrix of Mr Takamore’s will, was faced with a situation where Mr Takamore had not expressed a single clear view as to where he wished to be buried,[273] and the wishes of Ms Clarke (as the deceased’s life-long partner) and Mr Takamore’s (and Ms Clarke’s) children conflicted with the wishes of Mr Takamore’s wider family. As Tūhoe custom regarding burial was a relevant cultural consideration for Ms Clarke to take into account, she was required to accommodate the need for negotiation and discussion between the whānau pani.
[261] As we have said above, however, it is incumbent on members of the deceased’s family who are asserting cultural values to explain these fully to the executor, so that the executor may take them into account. It is regrettable that Ms Clarke “only had the briefest explanation” from Mr Manuel[274] about the cultural factors that were present. She cannot therefore be criticised for any failures in the negotiation process. In any event, it was obvious from inception that the Taneatua family came to Christchurch to take Mr Takamore’s body and were not open to negotiation.[275] Further, the parties’ sincere efforts at mediation since the High Court judgment have been unsuccessful. Compromise and consensus are therefore not achievable.
[262] This means that Ms Clarke, as the executrix, was entitled to make a final decision as to burial. We therefore conclude, in agreement with Fogarty J, that there was no legal authority for Ms Takamore and other members of Tūhoe to dispossess Ms Clarke of the body. We agree with Fogarty J that, as Mr Takamore’s body was wrongly taken and thus not properly buried, it may be disinterred. We note that disinterment is not contrary to Tūhoe custom per se. Tūhoe tikanga provides for rituals to be performed at the hahunga (exhumation) ceremony.[276] Ms Clarke is entitled now to possession of the body, as the executrix.
[263] Finally, we express the hope that there can be reconciliation between the Taneatua family and Ms Clarke and her and Mr Takamore’s children. (The children are, after all, of part Tūhoe descent.)
Result and costs
[264] The appeal is dismissed. The matter is returned to the High Court to deal with the question of remedy. We do not disagree with Chambers J’s discussion of remedies at [323]–[327] below. However, we prefer not to express a concluded view as we did not hear argument from the parties on this matter.
[265] The appellant must pay the costs for a standard appeal on a band A basis and usual disbursements to the first respondent.
CHAMBERS J
Introduction
[266] Although like the majority[277] I conclude that Ms Takamore’s appeal must be dismissed and the matter returned to the High Court to deal with the question of remedy, I reach that result by a different route. I do not find it necessary to pronounce upon Tūhoe custom. The validity or otherwise of the Tūhoe custom in question is best left to a day where it would affect the outcome of litigation. For reasons I develop, I consider it extremely unlikely that this Court or any Court will ever need to pronounce upon it. In my view, that is a good thing.
[267] I have to deal with only two issues. The first arises from a finding by the majority that Fogarty J was wrong to hold that “the late Mr Jim Takamore [had chosen] to live outside tribal life and the customs of his tribe”.[278] Are they right in overturning that finding of fact? I conclude they were not.
[268] The second issue is concerned with how courts determine which law to apply in circumstances where pure common law[279] points to one answer and customary law may point to another. How is that conflict of law to be resolved? On the facts of this case, there is a conflict between pure common law, which, if applicable, leads to the result that Ms Clarke, as executor, had the responsibility of disposing of Mr Takamore’s body, and the alleged Tūhoe customary law, which is said to confer that responsibility on the deceased’s whānau, who must return the body to the deceased’s traditional home for burial. For reasons I shall give, I conclude that, on the facts of this case, the pure common law must prevail.
[269] If we concluded that Tūhoe customary law did not apply, Mr Ferguson, for Ms Takamore, accepted that common law would and that under common law Ms Clarke, as executor, would have been entitled to arrange a burial, as she saw fit, in Christchurch. That was because, he submitted, “[p]utting to one side the issue of customary law ... it is the executor that has the right at common law to determine the appropriate disposal of the body of the deceased unfettered by the express desires of the deceased or the deceased’s immediate family”. In these circumstances, I choose not to express any views on the majority’s discussion of the executor’s duties set out at [204]–[258] of the majority opinion. These matters were not the subject of submissions before us. In the High Court, Mr Ferguson had submitted to Fogarty J that he “should be careful only to decide as much as had to be decided to address the iss[280] in this case”[281] Fogarty J agreed.281 So do I.
[270] I shall deal with the issues in turn.
Are the majority right to overturn Fogarty J’s finding that Mr Takamore had chosen to live outside the customs of his tribe?
[271] I begin by quoting a central passage of Fogarty J’s decision:[282]
In this case it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe. Under the common law he was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. This is even more so because he chose as the executor of his will his life-long partner. He has personal rights as a New Zealand subject to the benefits of the common law of New Zealand. The collective will of the Tuhoe cannot be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tuhoe tikanga.
[272] I agree with his Honour’s finding of fact as to how the deceased had chosen to live his life. This finding of fact was not only open to the Judge; in my view, it was the only available conclusion on the evidence presented in the High Court. Mr Takamore had made it very clear over many years before and up to his death that he no longer regarded himself as bound by Tūhoe custom and that, when his time came, he wanted to be buried in Christchurch, a wish in itself, of course, explicable only as a rejection of the asserted Tūhoe custom.
[273] The evidence on this point was overwhelming and, for the most part, completely unchallenged. Indeed, even before us, Mr Ferguson did not challenge that finding of fact. That was because under his argument it was irrelevant: Mr Takamore was born Tūhoe and Tūhoe had what Mr Ferguson described as “collective common law rights in respect of the Tūhoe tikanga concerning burial” which could not be overridden. Notwithstanding that, the majority have reached a different view on the evidence from that of the trial Judge. Because on my reasoning Mr Takamore’s choice of lifestyle is a pivotal feature, I need to traverse the evidence in some detail.
[274] First, let me take Ms Clarke’s evidence. She deposed that she and Mr Takamore moved to Christchurch in 1985. They lived there together until Mr Takamore’s death. She deposed that her partner’s contact with his family in the Bay of Plenty became infrequent. She could recall only two occasions when he travelled up to see them, once when his father died (in about 1998) and then more recently when he accompanied their daughter, Jenna, when she went to a sports tournament in Rotorua. (When there, Jenna met some of her cousins for the first time.) In all the time Ms Clarke and Mr Takamore lived in Christchurch, Mr Takamore’s mother, Nehu, visited Christchurch only twice, and then stayed with her sister, Sarah, not with her son.
[275] Ms Clarke did not in any way try to diminish Mr Takamore’s Māori heritage. As Glazebrook J has explained, she was happy to acknowledge that heritage in the funeral that she had planned for her late partner; part of the funeral was to take place at Te Whare Roimata Marae in Gloucester Street, Christchurch. She also acknowledged Mr Takamore’s roots in her evidence. She said:
He did not consciously abandon his family roots, but nevertheless there was a real sense of separation. It seemed to me that, while he did not consciously abandon his Māori heritage, it also had faded in significance.
[276] As I go on to discuss, other, completely independent, evidence would suggest that Ms Clarke’s description was accurate. Moreover, there is nothing unusual about what Ms Clarke was describing. Most middle-aged atheists in New Zealand probably had a religious upbringing of sorts. Many of them are quite happy to acknowledge those cultural roots, which may be particularly strong with some denominations, such as Roman Catholicism. The fact they acknowledge those roots does not mean, of course, they remain “Catholics”, say, or want a religious funeral.
[277] Ms Clarke also said that Māori culture had not formed part of their children’s upbringing, except as part of their school curriculum. She said that Mr Takamore had had little contact with the local marae in Christchurch. Although she and Mr Takamore had not discussed where he wanted to be buried, her assessment was that he would have wanted to be buried in Christchurch, which he now regarded as his home town. As executor, it was her intention to fulfil what she believed her partner’s wishes to be. Those wishes also conformed with what she and their children wanted. Not unnaturally, they wanted him buried in a place close to where he had lived and where they continued to live.
[278] While Ms Tuwhare, who was junior counsel for the Taneatua family[283] in the High Court as well as before us, cross-examined Ms Clarke, she did not tackle her, except peripherally, on the above matters. The cross-examination rather focused on the events leading to the taking of the body from Christchurch.
[279] Jamie Takamore, the son of Ms Clarke and Mr Takamore, gave evidence that Māori culture and tradition were not part of his and his sister’s upbringing. He said they encountered them only as part of their school curriculum. He recalled an occasion when he was doing a project and had to find out to what iwi their family belonged. He asked his father, but he did not know. Jamie Takamore said that his father was much more interested in his children and their sporting exploits than he was in traditions. Counsel did not cross-examine him on that evidence.
[280] Natalie Triggs worked with Mr Takamore at Linwood College in Christchurch. She remembered that Mr Takamore had been unwell for some days prior to his death and had been off on sick leave. When he returned to work, he said to her that, when his time came, he wanted to be buried in Christchurch, not taken up to the North Island. She remembered the conversation because it surprised her and was shortly followed by his death. She felt at the time that he had a premonition something was going to happen to him. Ms Triggs was not cross-examined. Expressing a wish to be buried in Christchurch was, of course, an express rejection of the asserted Tūhoe custom. It was equivalent to an assertion by Mr Takamore that he did not consider himself bound by Tūhoe custom.
[281] Ivy Franklin was another work colleague. She knew Mr Takamore “very well”. He was, she said, “a good talker”. Over many chats, she learned from Mr Takamore that he did not feel close to his family in the North Island. He told her he did not like the way they lived up there. He talked about his mother, that he still had contact with her, but he was hurt that she treated his children differently from her other grandchildren. On one occasion, he said to her that he now regarded himself “a South Island Māori”.
[282] She too gave evidence about his being unwell shortly before he died. In addition to his sick leave, he then had to ask her for time off work to attend his cousin’s funeral. He still seemed to Ms Franklin to be unwell. While talking about funerals, he made the comment to her that, when his time came, there was no way he wanted to be taken back up to the North Island to be buried. He would want to be buried in Christchurch. He died not long after the conversation. Ms Franklin was not cross-examined.
[283] Another workmate was Stephen Stockwell. He too said that, having worked with Mr Takamore for six years, he had got to know him “very well”. He had learned from Mr Takamore that he now had little to do with his family in the North Island. He told Mr Stockwell that, since moving to Christchurch, he had gone back to visit on only two or three occasions. He still had time for his mother and for a couple of his brothers, but he felt “that his mother had disowned his children”. He said that if his children ever wanted to go up and sort matters with his family, that would be fine, but he himself did not want to. He did not want to move back to the North Island because he liked the way of life in Christchurch.
[284] Mr Stockwell said that on one occasion they had a chat about where Mr Takamore wanted to be buried. He had told Mr Stockwell “that he had a burial site sorted out, down here in Christchurch, by some trees”. Mr Stockwell did not remember more than that, but said he certainly remembered that much of the conversation. Mr Stockwell was not cross-examined.
[285] Lindsay Harris was another workmate of Mr Takamore’s. He had been friends with Mr Takamore for seven years. Mr Harris said that, “from many discussions over a long period of time”, it became clear to him that Mr Takamore felt distant from his family in the North Island and preferred to keep it that way. Mr Harris had asked him whether he would ever return to his family in the North Island. He said that Mr Takamore was very blunt in his views that he would not return, that his home was now in Christchurch, and he intended to stay there. He said that on one occasion Mr Takamore referred to his family situation in the North Island and had said, “I got out of all that bloody rubbish.” He told Mr Harris that he had kept close contact with only one of his siblings, his brother, Willie, who was working as a farm manager.
[286] Mr Harris also recalled that, shortly before Mr Takamore’s own death, his cousin had died. He had arranged a couple of days’ leave to go to the cousin’s funeral. The question again arose as to whether Mr Takamore might ever return to his family in the North Island or expected that he might be returned there. Mr Takamore again made it very clear that he did not want to return, whatever the circumstances. Mr Harris was also not called to be cross-examined.
[287] Finally, there was evidence from Richard Price, who had worked with Mr Takamore at Linwood College for ten years. He too had a number of conversations with Mr Takamore about his family. He had told Mr Price that “his mother had never ever come down to visit him”. He remembered that on one occasion, when conversation turned to whether Mr Takamore would ever return to live with his family in the North Island, Mr Takamore had said, “No bloody fear”.
[288] Mr Price also remembered Mr Takamore going to his cousin’s funeral, shortly before Mr Takamore’s own death. Mr Takamore told Mr Price that the funeral was to be at the Ruru Lawn Cemetery. Mr Takamore said that Ruru Lawn was a peaceful place with lovely trees and that is where he would want to be buried. The comment stuck in Mr Price’s mind as, unexpectedly, Mr Takamore had himself then died shortly afterwards. Mr Price was not cross-examined.
[289] This evidence was overwhelming, and most of it was from independent witnesses and unchallenged. I do not agree with the majority that “Mr Takamore’s remarks to his work colleagues may have been no more than casual remarks made without genuine consideration of where in fact he wished to be buried”.[284] For such a submission to be advanced (and it was not), the Taneatua family’s counsel would have had to cross-examine on that basis (and they did not). I do not consider the failure to cross-examine to be an error on counsel’s part. I am sure Mr Ferguson and Ms Tuwhare were well aware of their crossexamination obligations under s 92 of the Evidence Act 2006. They did not cross-examine because, on their case, they did not need to. As I have said, their case was that Mr Takamore’s views were irrelevant. Although they did not put it this way, the defence effectively was: once Tūhoe, always Tūhoe. The Taneatua family’s defence did not involve a challenge to the propositions:
(a) that Mr Takamore had expressed a wish never to return to the North Island to live; and
(b) that he had expressed a wish to be buried in Christchurch.
[290] I am not overlooking the evidence of Mr Takamore’s mother, Nehu. It was, in brief, her view that her son had not rejected his Tūhoe roots. She asserted that he had often talked to her about what would happen when he died and that he had said that “when he died he wanted to come back home”. He also told her, she said, that “he wanted his children to follow him back”. She was crossexamined by counsel. One would have to say the cross-examination was not as effective as it might have been.[285] Nonetheless, it was put to Nehu Takamore that her evidence was wrong on a number of points and exaggerated. It may be that the cross-examination was less complete than it might have been because counsel already knew that all the plaintiff’s evidence on the matter just discussed was unchallenged.
[291] Fogarty J obviously rejected Nehu Takamore’s evidence in so far as it conflicted with the evidence called on behalf of Ms Clarke. That is inherent in his finding that it had been proved “beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe”.[286] On my assessment of the evidence, the Judge was correct in rejecting her evidence. The picture painted by Nehu Takamore seemed unlikely to be correct, given what Jamie Takamore had said his upbringing had been like and given the contrary evidence of so many independent witnesses. As well, Nehu Takamore had seen very little of her son since he left to live in Christchurch in 1985. It is possible, of course, that to some extent Mr Takamore shielded his mother from the fact that he had moved on in his life and had now disassociated himself for practical purposes from Tūhoe. It is not at all unusual for children who in adulthood have rejected beliefs held by their parents not to flaunt such rejection in their parents’ company, whether out of respect for their parents or simply in the interests of family harmony.
[292] I conclude that Fogarty J’s finding of fact was correct.
How do we decide who is entitled to possession of a body in circumstances where pure common law suggests one answer and customary law may suggest another?
[293] When a person, whether Māori or not, dies in New Zealand, just about everything concerning the deceased and his or her estate is governed by statute law. Among the relevant statutes are the Administration Act 1969, the Trustee Act 1956, the Wills Act 2007, the Property (Relationships) Act 1976, the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. It may be, of course, that Māori values may be of relevance in the exercise of some discretions under these statutes, but, if they are, they are nonetheless exercised entirely within a statutory context. Māori estates may also be subject to specific Māori legislation. Again, everything is statutory.
[294] There is, however, at least one chink in the post-death statutory armour. That relates to who has the job of organising disposal of the body. “Disposal of the body” is a rather clinical and unfeeling expression, but it is a convenient shorthand for the tasks of deciding when and where the body should be disposed of, how it is to be disposed of,[287] and the type of funeral. There is in New Zealand no statutory regime governing disposal of the body.
[295] In the absence of statute, the normal reaction would be to fall back on the common law. As the majority have said, the position at common law is clear: the executor has the duty to dispose of the body of the deceased.[288] But Mr Ferguson submits the common law does not apply in this case because it is trumped by conflicting Tūhoe customary law, which dictates that Tūhoe or some members of it have the responsibility of disposing of the body. They have that responsibility because the deceased “was of Tūhoe descent”. Mr Ferguson submits that Tūhoe “customary practice and tikanga [dictates that] a tūpāpaku (the body of the deceased) [must be] returned to the deceased’s traditional home for burial”. The traditional home of Tūhoe is the Bay of Plenty. In particular, Mr Ferguson submits the appropriate burial place is “the urupā at Taneatua Marae next to [Jim Takamore’s] father and among other whānau members”.
[296] The majority resolve the asserted conflict between the normal common law position of executor responsibility and the asserted Tūhoe custom by finding the custom to be unreasonable, with the consequence that it “does not fulfil the test for recognition by the common law”.[289] The pure common law position therefore applies.
[297] I prefer to express no opinion on the majority’s elegant exegesis on customary law, spanning [112]–[175] of their opinion. This is for four reasons. First, for reasons I am just coming to, I find for Ms Clarke on this issue, even assuming Tūhoe custom is as submitted and valid.
[298] Secondly, the majority’s analysis goes far beyond what counsel submitted to us.
[299] Thirdly, it is highly unlikely this issue will ever come before a court again. We are not therefore failing in any duty we might otherwise have had to settle this aspect of Tūhoe customary law.
[300] Fourthly, I am very conscious that the explanation of this aspect of Tūhoe custom came before the High Court from just two witnesses. With something as fluid as Māori custom, which is of its nature orally based, one should, in my view, be very careful before finding a custom to be unreasonable and therefore not worthy of recognition. The Law Commission in its study paper, Māori Custom and Values in New Zealand Law,[290] discussed at length indigenous customary law in general and Māori customary law in particular. The Commission emphasised the fluidity of customary law. For example, it said:[291]
Tikanga Māori should not be seen as fixed from time immemorial, but as based on a continuing review of fundamental principles in a dialogue between the past and the present.
(Footnotes omitted.)
[301] And:[292]
Tikanga Māori comprises a spectrum with values at one end and rules at the other, but with values informing the whole range. It includes the values themselves and does not differentiate between sanction-backed laws and advice concerning nonsanctioned customs. In tikanga Māori, the real challenge is to understand the values because it is these values which provide the primary guide to behaviour. Aspects of tikanga may be subject to a particular interpretation according to certain circumstances but then reinterpreted in the light of other circumstances. Thus tikanga Māori as a social system was traditionally pragmatic and open-ended and it remains so today. It is by understanding these underlying values that order may be discerned and tikanga may be appreciated.
(Footnotes omitted.)
[302] The fluidity of Māori customary law makes it perilous to pronounce definitively on its scope and reasonableness. The High Court heard from only two witnesses. It would be very easy for a Court to fall into error if it pronounced on an asserted custom based on such limited evidence. This is not in any way to disparage the evidence given by the experts in this case: it is simply to acknowledge the reality that other members of Tūhoe, even other kaumātua, may view the custom differently. We know, for instance, from the evidence that some members of the Taneatua family did not agree with the taking of Mr Takamore’s body. Of course, the situation may arise where a Court has no option but to pronounce on an asserted custom and, in such a case, the Court has no alternative but to rely on the evidence presented. But if the issue of pronouncing on the custom can be avoided, then in my view it makes sense to do so.
[303] I can resolve this issue without pronouncing on the validity or reasonableness of Tūhoe custom regarding the disposal of a body. That still leaves the question: does the custom apply to the disposal of Mr Takamore’s body?
[304] Mr Ferguson’s argument essentially was, as I have said: once Tūhoe, always Tūhoe. He dressed up the argument more elegantly, of course, and framed the Taneatua family’s right as a “collective right” vested in them. But, however it is put, it nonetheless amounts to an argument that nothing Mr Takamore did or said could disassociate him from his Tūhoe upbringing. He was always to be regarded as Tūhoe, whether he wanted to be or not. He was not permitted to make a transition into the Pākehā world or even to straddle the two worlds.
[305] In my opinion, that submission is wrong. Mr Ferguson’s argument essentially means bloodlines are everything. Bloodlines are important, but they are not decisive. The majority say, in my respectful view correctly, that “the personal application of customary law [is] subject to individual litigants still living by and considering themselves bound by indigenous culture”.[293] They cite cases in support of that proposition, which I do not repeat. There are many reasons, to which I shall come, as to why that is and ought to be the law for the living. Those reasons apply equally to the person on death. There can be no logic in accepting that a person may disassociate himself or herself from his or her indigenous culture and customs while alive but should somehow become subject to them again on death.
[306] While legal authority is sparse, what authority there is supports that proposition. A case directly on point is Re Noah Estate.[294] This is a case to which Dr McHugh refers in the doctoral thesis Glazebrook J cites.[295] Sissons J considered the applicability of Inuit customary law to the deceased Noah’s estate:[296]
Noah had left his father’s house and community and Eskimo society and had become part of another society and economy where different laws and customs prevailed. He accepted those laws and customs. He trained for a job, and he worked for wages and saved a fair part of his wages and deposited this money in a bank to his credit for the use of himself and his own family. He did not make this money available to his father and the Eskimo community at Broughton Island.
[307] The Judge held that general statutory law rather than customary law applied to Noah’s estate.
[308] What the courts must do is try to ascertain how the deceased viewed himself. Sometimes, where people have lived across two cultures, it may not be easy to ascertain whether they have continued to acknowledge and live in accordance with their cultural roots. Some may have adopted some Pākehā cultural norms while still remaining essentially Māori (or Tūhoe). Others by their actions or declarations will have clearly divorced themselves from their cultural roots. Thankfully, in this case, we have no fine judgments to make: where Jim Takamore stood on the spectrum is quite clear on the evidence.
[309] This approach, which confers on the individual the right to choose with whom to associate and disassociate, is consistent with the New Zealand Bill of Rights Act 1990, by which the judicial branch of the Government is bound.[297] Section 13 accords “everyone ... the right to freedom of thought ... and belief, including the right to adopt and to hold opinions without interference”. And s 17 gives everyone “the right to freedom of association” which, it has been held, includes the right to disassociate.[298] It is noteworthy that the United Nations Declaration on the Rights of Indigenous Peoples, to which New Zealand has subscribed, while recognising the rights of indigenous peoples to develop and maintain “juridical systems or customs” in art 34, also states in art 46(2) that nothing in the exercise of the rights under the Declaration undermines “fundamental freedoms”.
[310] The fundamental rights affirmed by our Bill of Rights are reflected in other jurisdictions, where Courts have recognised that people can both move into and move out of indigenous cultures. An example of the former is the Canadian case of Re Wah-Shee.[299] In that case, an adopting mother who was not an Indian by birth was held entitled to adopt in accordance with Indian custom. The mother was registered as a member of an Indian band and was accepted as a band member by it. Morrow J held that, even without the provisions of the Indian Act (according to which she was a member of the band), he would have held that the fact she had been accepted as a member of the band by its chief, its council and its people made her a full member of the band entitled to rely on customary law.
[311] The North-West Territory Supreme Court faced a similar issue in Re Tagornak Adoption Petition.[300] In that case, a Caucasian man and an Inuit woman sought validation of their customary adoption of an Inuit child. The father had accepted the customs of the Inuit people and he was accepted by them. The Court held, applying Wah-Shee, that the adoption was valid.[301]
[312] An approach that determines identity in accordance with the choice of the individual is also consistent with how United States and Canadian Courts have determined indigenous identity where this has been required by statute. In R v Powley[302] the Supreme Court of Canada considered whether provisions of the Fish and Game Act did not apply to two accused because of their identity as Métis and the protection of Aboriginal rights in s 35 of the Canadian Charter of Rights and Freedoms. The Court held in determining whether the individuals were Métis the Court would consider three “broad factors ... self-identification, ancestry, and community acceptance”.[303] Subsequent trial judgments have tended to infer community acceptance from participation in community activities.[304]
[313] In the United States, criminal jurisdiction can differ depending on whether the accused is “Indian”. The meaning of “Indian” is not defined in statute but has been left to the courts to develop through common law.[305] In determining who is “Indian” North American courts have consistently applied a two-pronged test that takes into account the degree of Indian blood on the one hand and the degree of tribal or government recognition as an Indian on the other.[306] When considering the second prong the Courts consider, in declining order of importance, evidence of:[307]
- (a) tribal enrolment;
- (b) government recognition;
- (c) enjoyment of the benefits of tribal affiliation; and
- (d) social recognition as an Indian.
[315] These overseas decisions whereby an individual’s identity is based not on bloodlines but on the individual’s actual degree of social connection with an indigenous people are in line with modern academic discourse on race and ethnicity. As the majority have correctly observed, “social scientists have moved away from defining identity simply in terms of biological ancestry to defining it in terms of the culture to which an individual subscribes”.[310] They describe the shift “as a shift from a ‘racial’ to an ‘ethnic’ or ‘constructivist’ conception of identity”. I agree. Some of the features that distinguish an ethnic from a racial conception of identity are:[311]
Second, while racial conceptions see the classificatory features as immutable, an ethnic conception acknowledges that culture is not beyond the individual’s control. In other words, one can change one’s culture; it is not innate but acquired. Third, unlike race, ethnicity does not assume the existence of discrete groups of people objectively identified by the essential elements of their culture. Rather, modern theorists of ethnicity see group formation and identity ascription as fluid processes.
[316] In New Zealand, Andrew Sharp has pointed out that modern administrative practice relating to Māori recognises that consent is often important to determining identity:[312]
It is true that in law and in much administrative and governmental practice, the sufficient as well as necessary condition of being Māori is simply having ‘Māori ancestry’. But a modern, liberal ingredient is often added to the mix, and membership is importantly also seen as a matter of choice built on that foundation of blood.
[317] If the common law is to reflect social values, then, in determining to whom customary law applies, the Courts should take into account the increased importance society places on a person’s own choices in determining his or her identity.
[318] The Waitangi Tribunal has recognised that respect for individual choice is consistent with the Treaty of Waitangi.[313] In the Muriwhenua Fishing Report the Waitangi Tribunal explained the principle in the following terms:[314]
The Principle of Options
(a) The Treaty envisaged the protection of tribal authority, culture and customs. It also conferred on individual Maori the same rights and privileges as British subjects.
(b) Neither text prevents individual Maori from pursuing a direction of personal choice. The Treaty provided an effective option to Maori to develop along customary lines and from a traditional base, or to assimilate into a new way. Inferentially it offered a third alternative, to walk in two worlds. That same option is open to all people, is currently much in vogue and may represent the ultimate in partnership. But these are options, that is to say, it was not intended that the partner’s choices could be forced.
...
(Emphasis added.)
[319] In the Ngai Tahu Sea Fisheries Report the Tribunal said:[315]
The principle of options
11.5.7 This principle was also enunciated by the Muriwhenua tribunal. In essence it is concerned with the choice open to Maori under the Treaty. Article 2 contemplates the protection of tribal authority and self-management of tribal resources according to Maori culture and customs. Article 3 in turn conferred on individual Maori the rights and privileges of British subjects. The Treaty envisages that Maori should be free to pursue either or indeed both options in appropriate circumstances. The Crown is obliged to offer reasonable protection to Maori in the exercise of the rights so guaranteed them.
(Emphasis added.)
[320] All of these authorities support the proposition that Māori have a choice. Customary law should not apply to them where the person who is said to be subject to it has made a choice to reject it.
[321] One final point. The emphasis I have placed on the deceased’s choice of cultures is not in any way to favour individual rights over collective (or iwi) rights.[316] All I am acknowledging, contrary to Mr Ferguson’s essential submission, is the right of a person to disassociate himself or herself from cultural roots. If a person remains undeniably Tūhoe, then, on the assumptions I have made, Tūhoe would have the right to determine the body disposal method. Of course, that will now not be possible as the majority have concluded, unnecessarily in my view, that this particular Tūhoe custom is unreasonable, with the consequence that the pure common law (under which the executor has the right to determine the body disposal method) will apply to everyone, including Tūhoe.
[322] In summary therefore, I would have found as follows. On all the evidence, it is clear to me, as it was to Fogarty J, that Mr Takamore had chosen to live outside tribal life and the customs of his tribe. He had made a will. He had appointed his Pākehā partner as his executor. He had expressed a clear view that he no longer considered himself Tūhoe or bound by its customs. He had expressed a clear view that, when his time came, he did not want to be buried at Taneatua but rather wanted his resting place to be in Christchurch. In those circumstances, his disassociation from Tūhoe custom should be respected. Tūhoe customary law, even if valid, did not apply to him and does not apply to his body. In these circumstances, the pure common law should apply. This means his executor was the person entrusted with the duty to dispose of his body.
Remedies
[323] All the judges who have heard this case have concluded that those responsible for taking Mr Takamore’s body committed the tort of conversion. Ms Clarke, as executor, had the right of possession of the body and the right to dictate the body disposal method. Taking the body against her wishes was wrongful.
[324] There is no doubt that a court can order the specific restitution of a thing or body converted.[317]
[325] A potential difficulty in this case is that the current parties to the litigation may no longer have control of the place where the body has been buried. In those circumstances, an order for specific restitution may not be possible against them. Other remedies would, however, be available.
[326] If the current parties do not have control of the land where Mr Takamore has been buried, then Ms Clarke will need to make demand on the current owners of that land. It is to be hoped that, in light of this Court’s judgment, those owners will readily comply with the demand. If they do not, they will commit the tort of detinue. In detinue, the normal remedy is specific restitution.[318]
[327] There will, of course, be costs involved in disinterring the body and returning it to Christchurch. In my view, those costs should clearly fall on those responsible for taking the body from Christchurch.
[328] These comments are simply intended to assist the parties to resolve this dispute without incurring further legal costs and without troubling the High Court again. I agree, however, that if the matter cannot be resolved amicably, then the question of remedy will have to be resolved in the High Court.
Solicitors:
Kahui Legal, Wellington for Appellant
G C
Knight, Christchurch for First Respondent
[1] Burial
ground.
[2] Clarke v Takamore
[2009] NZHC 901; [2010] 2 NZLR 525 (HC) [“The High Court
Judgment”].
[3] Body of the
deceased.
[4] In the High Court, and
originally in this Court, Mr Puti Brown and Ms Edna Maui, as the owners of the
urupā at Kutarere Marae,
were named as parties. They were,
however, deceased at the time of the High Court hearing. They have been removed
as respondents on this appeal.
[5]
Neither Mr Takamore’s brother nor his mother participated in the appeal
hearing.
[6]
Placenta.
[7] Ms Josephine
Takamore, however, said that was not really a factor as “ferries run all
the time”.
[8] There was also evidence on tikanga given by the family witnesses but we have based our summary on the evidence given by the independent experts.
[9] As defined by Mr Kruger,
tikanga is the customary practices, attitude and regulation of behaviour of
people. Tikanga is applicable
and is accountable in terms of its general
practice of the particular marae and the particular hapū. It is the
connection between
the cultural identity and the language of the people and
their cultural practices. Tikanga, as the New Zealand Law Commission notes,
is
the closest Māori equivalent to concepts of law and custom, although the
terms “Māori custom law” and “tikanga
Māori”
are not entirely interchangeable. Refer Law Commission Māori Custom and
Values in New Zealand Law (NZLC SP9, 2001) at 1–2
[“Māori Custom and Values”]. In the present appeal, however,
the parties agreed (and
we accept) that Tūhoe burial custom could properly
be seen as customary law.
[10]
Genealogy.
[11] “[W]hakapapa is the heart and core of all Māori institutions”: Apirana Mahuika “Whakapapa is the Heart” in Ken Coates and P G McHugh (eds) Living Relationships: The Treaty of Waitangi in the New Millenium (Victoria University Press, Wellington, 1998) 214 at 219. In addition, Professor Andrew Sharp in “Blood, Custom, and Consent: Three Kinds of Māori Groups and the Challenges they Present to Governments” (2002) 52 U Toronto LJ 9 at 19–21, refers to evidence from affidavits adduced in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [1999] NZCA 232; [2000] 1 NZLR 285 (HC), which emphasise the fundamental importance of whakapapa in Māori society.
[12] In an affidavit of
Professor Hirini Moko Mead (referred to in Sharp, ibid, at 21),
Professor Mead notes that “[t]he act of
whakawhānau (giving
birth) produces a newborn child, a whenua (placenta) and eventually a pito
(umbilical cord). The whenua
and the pito are buried or placed within the land
of the whānau and that establishes a spiritual link between the land and
the
child”.
[13] Body of
the deceased.
[14]
Elder.
[15] Cloaks.
[16] In this context, this
refers to the hosts of the
marae.
[17] A short, flat
weapon.
[18] The threshold of the
marae.
[19]
Club.
[20]
Treasure.
[21] Marae
protocol.
[22] The tent where
the body lay in state.
[23]
Exhumation.
[24]
Expert.
[25] The High Court
Judgment, above n 2, at
[47].
[26] Ibid, at
[48].
[27] Ibid, at
[56].
[28] Public Trustee v
Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC) at
806.
[29] The High Court
Judgment, above n 2, at
[83].
[30] Ibid, at
[88].
[31] Ibid, at
[89].
[32] Ibid, at
[90].
[33] We use the term
burial in the generic sense to cover both burial and cremation.
[34] The High Court Judgment, above n 2, at [62]. See generally Halsbury’s Laws of England (online ed) vol 12 Custom and Usage [“Halsbury’s Laws of England”].
[35] “Halsbury’s Laws of England”, ibid, at [606]. The foundation case for these requirements is The Case of Tanistry (1608) Dav Ir 28 at 32. In Wolstanton Ltd v Newcastle-under-Lyme Corporation [1940] AC 860 (HL) at 876, Viscount Maugham stated that for a custom to be recognised it must be “certain, reasonable in itself, and of immemorial origin”.
[36] Wolstanton, ibid,
at 876. However, the rule of immemorial antiquity does not apply to trade
usages and local usages which are termed ‘customs
of the country’;
any long-established user, supported by notoriety, is sufficient. Refer C K
Allen Law in the Making (7th ed, Oxford University Press, Oxford, 1964)
at 135.
[37] Allen, ibid, at
136.
[38] Johnson v Clark
[1908] 1 Ch 303 at 311. See generally “Halsbury’s Laws of
England”, above n 34, at
[609].
[39]
“Halsbury’s Laws of England”, ibid.
[40] Ibid, at [615], citing
Champneys v Buchan [1857] EngR 374; (1857) 4 Drew 104 at
116.
[41] Allen, above n 36, at 131.
[42] P G McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (PhD thesis, University of Cambridge, 1987) at 149–150 and 184 [“Aboriginal Rights”].
[43] The presumption of continuity has its roots in Roman and medieval precedents. However, it is generally attributed to Campbell v Hall [1774] EngR 5; (1774) 1 COWP 204, 98 Eng Rep 1045 at 1047, where Lord Mansfield reviewed these precedents and concluded that “the laws of a conquered country continue in force, until they are altered by the conqueror”. Although Lord Mansfield referred to conquered territories, the presumption of continuity has also applied to ceded and settled colonies: P G McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Oxford, 1991) at 83–87 [“The Māori Magna Carta”]. Dr Mark Walters states that the presumption of continuity was applied to the status of Saxon rights after the Norman conquest. He also suggests that the justification for the presumption of continuity was the constitutional separation of powers: local law was presumed to continue because the decision to abrogate or amend local law was a matter for the legislative branches of the State, not the courts. Mark D Walters “The “Golden Thread” of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982” (1999) 44 McGill L J 711 at 722–724 [“The Golden Thread”].
[44] Baldick v Jackson (1910) 30 NZLR 343 (SC); Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [17] per Elias CJ and [134] per Keith and Anderson JJ. It is also implicit in Tipping J’s judgment that he accepted that the common law was modified by New Zealand’s circumstances. Tipping J held, at [212], that when the common law came to New Zealand, Māori customary title was integrated into the common law, forming a “common law of New Zealand” that contained an “ingredient involving Maori customary title or land”. Gault P made no comment as to whether the common law was modified by local circumstances.
[45] Campbell McLachlan “The Recognition of Aboriginal Customary Law: Pluralism Beyond the Colonial Paradigm – A Review Article” (1988) 37 Int’l and Comp LQ 368 at 382 [“Recognition of Aboriginal Customary Law”]. Refer also Law Commission “Māori Custom and Values”, above n 9, at 21–22 and McHugh “Aboriginal Rights”, above n 42, at 167.
[46] See the discussion and the
cases cited in McHugh “Aboriginal Rights”, ibid, at 148–150;
Walters “The Golden
Thread”, above n 43; Noel Cox “The Extension of the
Common Law to Settled, Ceded and Conquered Territories, and the Survival of
Indigenous Laws,
with Particular Reference to New Zealand” in Wayne
Rumbles and Paul Havemann (eds) Prospects and Retrospects: Law in History:
Proceedings of the 20th Annual Conference of the Australia and New Zealand Law
and History
Society (Centre for New Zealand Jurisprudence, Hamilton, 2001)
165.
[47] Baldick v
Jackson, above n 44.
[48] Arani v Public Trustee [1919] UKPC 71; [1920] AC 198 (PC). In this case, the Privy Council decided that a European child adopted by a Māori family under the statute then in force and therefore having acquired the legal status of a child born in wedlock was, according to Māori custom, entitled to succeed to the adopting parents’ estate in common with any other children. (We note, however, that the Courts below had held that the adoption would not have been valued under Māori customary law as it was of a European child. Arani is therefore not an apt authority for the recognition of customary adoption law.)
[49] Arani, ibid, at 203. Refer also Public Trustee v Loasby, above n 28, at 806–807, where Cooper J relied on Māori customary law to decide that it was reasonable for the costs of a tangi to be paid out of the personal estate of a Māori deceased.
[50] Nireaha Tamaki v Baker
[1901] AC 561 (PC) at 577.
[51] The Privy Council referred
to the statutory words of ss 3–4 of the Native Rights Act 1865.
[52] The Native Exemption Ordinance 1844, the Resident Magistrates Court Ordinance 1846, the Resident Magistrates Act 1867, and s 71 of the Constitution Act 1852 afforded at least temporary recognition to Māori customary law in the first few decades after the signing of the Treaty of Waitangi. However, later judicial decisions that refused to recognise customary law, combined with executive and legislative policies of suppression led to the eclipse of most customary law. For discussion refer Law Commission “Māori Custom and Values”, above n 9, at [80]–[115].
[53] In Australia and Canada, some decisions refused to recognise the customary laws of the indigenous inhabitants. Refer for example Doe dem Sheldon v Ramsay (1852) 9 UCQB 105, Cooper v Stuart (1889) 14 AC 286 (PC) at 291–294, R v Cobby (1883) 4 NSWLR 355 at 356, R v Murrell [1836] 1 Legge 72 and the discussion in Walters “The Golden Thread”, above n 43, at 721.
[54] Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur NS 72 (SC) at 77–79 per Prendergast CJ. Prendergast CJ took a similar approach in Rira Peti v Ngaraihi Te Paku (1888) 7 NZLR 235 (SC) at 239, to deny the validity of customary marriage. Refer also Rangi Kerehoma v Public Trustee [1918] GLR 483 (SC) at 485 and In re Wi Tamahau Mahupuku (Deceased), Thompson v Mahupuku [1932] NZGazLawRp 167; [1932] NZLR 1397 (SC) at 1399.
[55] Perhaps charitably given the influence of that case on subsequent jurisprudence. An extensive analysis of Wi Parata, ibid, and its significance is contained in David Williams A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011).
[56] Richard Boast and others (eds) Māori Land Law (2nd ed, LexisNexis, Wellington, 2004) at 2.2.4.
[57] Te Weehi v Regional
Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC). The case concerned s 88(2)
of the Fisheries Act 1983, which provided that nothing in the Act would affect
any “Maori fishing
rights”. The appellant had been charged with
taking undersized paua. However, Williamson J found that in taking the paua
the
appellant was exercising a customary right to do so and was therefore exempt
from the size requirement. Accordingly, Williamson
J quashed the
appellant’s
conviction.
[58] Ibid, at
687.
[59] Huakina Development
Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC). The case concerned
the interpretation of s 21 of the Water and Soil Conservation Act 1967,
which gave local authorities the discretion
to grant proprietors the right to
discharge water from their properties. Chilwell J held that in exercising the
discretion Māori
cultural and spiritual values concerning water were a
relevant consideration.
[60]
Huakina, ibid, at 215.
[61] See Brian Slattery
“Understanding Aboriginal Rights” (1987) 66 Canadian Bar Rev 727;
Mark Walters “British Imperial
Constitutional Law and Aboriginal Rights: A
Comment on Delgamuukw v British Columbia” (1992) 17
Queen’s LJ 350.
[62]
Ngati Apa, above n 44.
[63]
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15.
[64] Ngati Apa, above n
44, at [47] per Elias CJ and
[184] per Tipping J; Mabo, ibid, at 15 per Mason CJ and McHugh J, at
58 per Brennan J and at 110 per Deane and Gaudron
JJ.
[65] Ngati Apa, ibid,
at [138].
[66] Nireaha Tamaki
v Baker, above n 50, at
577.
[67] McHugh “Aboriginal Rights”, above n 42, at 182.
[68] Law Commission
“Māori Custom and Values”, above n 9, at 9; McHugh “Aboriginal
Rights”, ibid, at 183; A N Allott “The Judicial Ascertainment of
Customary Law in British
Africa” (1957) 20 MLR 244 at
246.
[69] McHugh
“Aboriginal Rights”, ibid, at
182.
[70] Walters “The
Golden Thread”, above n 43, at
719.
[71] Law Commission
“Māori Custom and Values”, above n 9, at 2–3, referring to Michael
Belgrave Māori Customary Law: From Extinguishment to Enduring
Recognition (unpublished paper for the Law Commission, Massey University,
Albany, 1996) at 51.
[72] Law
Commission “Māori Custom and Values”, ibid, at
3.
[73] Arani, above n 48, at
204.
[74] Ibid, at
204–205.
[75] Allen, above
n 36, at
158.
[76] Public Trustee v
Loasby, above n 28, at 806.
[77] Johnson v Clark,
above n 38, at 311.
[78] H A Amankwah
“Post-Mabo: The Prospect of the Recognition of a Regime of
Customary (Indigenous) Law in Australia” (1994) 18 Uni Queensland LJ 15 at
26–28. Refer also to the examples collected in McHugh “Aboriginal
Rights”, above n 42, at 183.
[79] “No one may be a
Judge in their own cause”.
[80] “Hear the other
side”.
[81] Amankwah, above n 78, at
27.
[82] Mabo, above n 63, at
43.
[83] Johnson v Clark,
above n 38, at
311.
[84]
“Halsbury’s Laws of England”, above n 34, at [615].
[85] Allott, above n 68, at
244–245.
[86] Ibid, at
245.
[87] Law Commission
“Māori Custom and Values”, above n 9, at 7. Refer also E T Durie
“Will the Settlers Settle? Cultural Conciliation and Law” [1996] OtaLawRw 1; (1996) 8
Otago L Rev 449 at
454–455.
[88] Law
Commission “Māori Custom and Values”, ibid, at 28.
[89] Ibid, at
30.
[90] Ibid, at
32.
[91] Ibid, at 37.
[92] Ibid, at 38. Further discussion of the values underpinning Māori customary law can be found in Durie, above n 87, at 454–455 and Robert Joseph “Re-creating Legal Space for the First Law of Aotearoa-New Zealand” (2009) 17 Waikato Law Review 75 at 87–89 [“Re-creating Legal Space”].
[93] The Law Commission in
“Māori Custom and Values”, above n 9, at 4, also notes that a problem that
non-Māori judges face is that, “through no fault of their own, [they]
are being
called upon to assess the mores of a society still largely foreign to
them”.
[94] Law
Commission “Māori Custom and Values”, ibid, at 4.
[95] Joseph “Re-creating
Legal Space”, above n 92, at
91.
[96] Refer to discussion at
[124]–[132] above.
[97] Ruding v Smith
[1821] EngR 511; (1821) 2 Hag Con 371, 161 ER 774 at 778; Kodeeswaran v Attorney-General
of Ceylon [1970] AC 1111 (HL) at 1118 and refer to the cases collected in
McHugh “Aboriginal Rights”, above n 42, at
149.
[98] McHugh
“Aboriginal Rights”, ibid, at 170 and 184–185.
[99] Ngati Apa, above n
44, especially at [147]–[149]
per Keith and Anderson JJ and [185] per Tipping J (in relation to
property rights in the foreshore and seabed); Te Weehi,
above n 57, at 691–692
(in relation to customary fishing
rights).
[100] Arani,
above n 48, at 203. Refer
quotation at [115]
above.
[101] As set out at [109]
above.
[102] The High Court
Judgment, above n 2, at
[56].
[103] Refer to
discussion above at [124]–[127].
[104]
Wolstanton, above n 35,
at 878.
[105] Kuar Sen
v Mamman (1895) IRL 17 All
381.
[106] Johnson v
Clark, above n 38, at
318.
[107] Fryer v Johnson
[1755] EngR 10; (1755) 2 Wils KB 28, 95 Eng Rep 667.
[108] Wolstanton, above
n 35, at 878; Kuar Sen, above n
105, at
384.
[109] Wolstanton,
ibid, at 878.
[110] Kuar Sen, above n
105, at 384. Refer also to Allen,
above n 36, at 136–137, where
Professor Allen notes that a ‘custom’ which has only been wrested
from the public by the “strong
hand” is not a custom at all, but
that the necessary implication of a custom, where it exists, is that it has
obligatory force.
[111]
Johnson v Clark, above n 38, at
318.
[112] Refer to discussion
at [200] below.
[113] “Halsbury’s
Laws of England”, above n 34, at
[615] fn 3 and accompanying
text.
[114] The High Court
Judgment, above n 2, at
[88].
[115] We discuss this
point further below at [211] and
following.
[116] Refer to
discussion below at [197] and
following.
[117] Refer to Durie, above n
87, at 453–455 and Joseph
“Re-creating Legal Space”, above n 92, and discussion in fn 260
below.
[118] The High Court
Judgment, above n 2, at
[14].
[119] Ibid, at [15].
[120] Refer to [103] above and discussion at [190]–[191]
below.
[121] The High Court
Judgment, above n 2, at
[72].
[122] Ibid, at [78].
Refer also to [190] and fn 164 below.
[123] Ibid, at
[88].
[124] Refer to [29]
above.
[125] Refer to [29] above.
[126] Mr Takamore’s
knowledge of Māori tikanga was not challenged during cross-examination of
Mr Takamore’s mother, however,
Mr Takamore’s ability to speak
te reo Māori was raised. Mr Takamore’s mother accepted that Mr
Takamore could only
understand te reo
Māori.
[127] Refer to [61] and [130] above and fns 11 and 87 above.
[128] According to Professor Temara, 86 per cent of Tūhoe live outside the traditional tribal lands. The greatest concentration is around the Bay of Plenty, followed by Auckland, Wellington and Hamilton. Professor Temara also noted that while for the first and second generations “Tūhoe is home”, the same cannot be said for the next generation, and there is an “emerging Tūhoe urbanite” growing up in the cities. To try and remedy this, a Tūhoe Festival has been held since 1971, “to inculcate our Tūhoeness into those of our grandchildren and the generations who have been born outside of Tūhoe.”
[129] The New Zealand Law
Commission, in “Māori Custom and Values”, above n 9, at 22–26, notes that a
“process of denial, suppression, assimilation and co-option put Māori
customs, values and
practices under great stress”. For example, during
the first quarter of the nineteenth century, Māori children were forbidden
to speak te reo Māori in schools. In 1986, the Waitangi Tribunal noted
that, for many years, European New Zealanders believed
that the Māori
people of New Zealand would be assimilated into the European population as the
decades went by. During the second quarter of the century, the move to
monolingualism in education was compounded by the movement of the majority of
Māori people from their rural bases to urban areas, and reinforced by an
official policy of “pepper-potting” homes
throughout the suburbs so
that Māori families were scattered. By the 1960s, the second generation
grew to adult life speaking
English much more than they spoke Māori. The
Tribunal stated that “[t]he result was that a whole generation has been
reared who know no Māori or who knowing so little of it are unable to use
it effectively and with dignity”. Refer Waitangi
Tribunal Report
Findings of the Waitangi Tribunal, Relating to Te Reo Māori (Wai 11,
1986) at [3.2.8]–[3.2.11] [“Wai
11”].
[130] The High
Court Judgment, above n 2, at
[53].
[131] Refer to
discussion at [52]–[57] above.
[132] We discuss the practical
difficulties in ascertaining the presumed wishes of the deceased at [215]–[218]
below.
[133] Allen, above n 36, at 144.
[134] Refer to the
description of the case in McHugh “Aboriginal Rights”, above n 42, at 151.
[136] Refer to
[73]
above.
[137] Refer to [74]–[86]
above.
[138] Refer to the
discussion at [128]–[132] above.
[140] Public
Trustee v Kapiti Coast Funeral Home Ltd [2004] 3 NZLR 560 (HC) at
[12].
[141] Section
86.
[142] Public Trustee v
Loasby, above n 28, at 806.
[143] “Halsbury’s
Laws of England”, above n 34, at
[601].
[144] Allott, above n 68, at 244.
[145] McHugh “The Māori Magna Carta”, above n 43, at 85.
[146] McLachlan
“Recognition of Aboriginal Customary Law”, above n 45, at 379; Walters “The Golden
Thread”, above n 43, at
717–718; Campbell v Hall, above n 43.
[147]
McHugh “Aboriginal Rights”, above n 42, at
157.
[148] McHugh “The
Māori Magna Carta”, above n 43, at 85.
[149] P G McHugh “Aboriginal Title in New Zealand Courts” (1984) 2 Cant L Rev 235 at 236 [“Aboriginal Title in New Zealand Courts”].
[150] McLachlan
“Recognition of Aboriginal Customary Law”, above n 45, at 381. Refer also Campbell
McLachlan State Recognition of Customary Law in the South Pacific (PhD
thesis, University College London, 1988) at 44 and
80–81.
[151] McLachlan
“Recognition of Aboriginal Customary Law”, ibid, at 381.
[153] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (HCA) at 274 per Deane J (in one of four separate majority judgments); Australian Law Reform Commission “Aboriginal Customary Laws”, above n 135, at [92].
[154] Australian Law Reform Commission “Aboriginal Customary Laws”, ibid, at [95].
[155] Refer Norman K Zlotkin “Judicial Recognition of Aboriginal Customary Law in Canada: Selected Marriage and Adoption Cases” [1984] 4 CNLR 1 and Sébastien Grammond “Disentangling “Race” and Indigenous Status: The Role of Ethnicity” (2008) 33 Queen’s LJ 487 at 511. Refer also Re Wah-Shee (1975) 57 DLR (3d) 743 (NWTSC) and R v Powley 2003 SCC 43, (2003) 230 DLR (4th) 1 at [30].
[156] Refer to the United States approach in the criminal field: United States v Bruce [2005] USCA9 29; 394 F 3d 1215 (9th Cir 2005) at 1224. For a comprehensive discussion of the application and development of the test, refer Weston Meyring “‘I’m an Indian Outlaw, Half Cherokee and Choctaw’: Criminal Jurisdiction and the Question of Indian Status” (2006) 67 Mont L Rev 177.
[159]
The High Court Judgment, above n 2,
at [80]–[90]. See discussion at [147]
above.
[160] Refer to [150]–[151]
above.
[161] Refer to
Mr Kruger’s evidence at [70]
above.
[162] We discuss this
further at [192]–[196]
below.
[163] At [182]–[183] above.
[165] McHugh “Aboriginal Title in New Zealand Courts”, above n 149, at 235–236. Dr McHugh also discusses the right to the use of Māori customary laws inter se (except in respect of dealings with European peoples and serious crimes) as distinct from “the natives’ right to the continued use and occupation of their traditional lands” (namely “aboriginal title”). The consequence of recognition of aboriginal title is that aboriginal proprietary rights are not simply enforceable between Māori themselves. Refer also to discussion at [120] above.
[166] Who the whānau pani are is explained at [64] above. The decision as to the appropriate place of burial is made by the whānau pani.
[168] At [183]
above.
[169] Refer also
Arani, above n 48, discussed at
[115] above.
[170] Williams v Williams (1882) 20 Ch D 659; Smith v Tamworth City Council (1997) 41 NSWLR 80; Murdoch v Rhind [1945] NZGazLawRp 61; [1945] NZLR 425 (SC).
[171] Public Trustee v Kapiti, above n 140, at 563.
[172] Williams v Williams, above n 170; Dobson v North Tyneside HA [1996] EWCA Civ 1301; [1997] 1 WLR 596; Murdoch v Rhind, above n 170.
[173] At common law, if there were no executor, the duty to bury would fall upon the near relatives (in order of priority: surviving spouse, children, parents, brothers and sisters, and then more distant kin), and, where there was no identifiable relative, the responsibility of attending to the burial would fall upon the householder in whose house the person died. Failing this, the obligation would fall on the local authority with control over the city, town or district in which the body is found. Refer Smith v Tamworth, above n 170, at 691–693.
[174] Williams v Williams, above n 170; Smith v Tamworth, ibid.
[175] It has been described as a kind of “quasi-property right” in the sense that the executor has a legally recognised right of custody, control and disposition (the essential attributes of ownership), but the property is subject to a trust and limited in its rights to exercising it in accordance with the duty out of which the rights arose: Pierce v Proprietors of Swan Point Cemetery 14 Am Rep 667 (SC 1872) at 676–677, adopted by Heath J in Re JSB (A Child) [2009] NZHC 2054; [2010] 2 NZLR 236 (HC) at 252.
[176] Williams v
Williams, above n 170; Murdoch
v Rhind, above n 170.
[177]
Williams v Williams, ibid, at 664.
[178] Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446 (NTSC) at 452; Hartshorne v Gardner [2008] EWHC B3 (Ch) at [9].
[179] R v Stewart [1840] EngR 1003; (1840) 12 Ad & E 773 at 778 per Lord Denman CJ.
[180] For example the Burial and Cremation Act 1964 and the Health Act 1956. Refer also s 150 of the Crimes Act 1961 which states that it is an offence to neglect to perform any duty imposed by law with reference to the burial or cremation of any dead human body or human remains; or to improperly or indecently interfere with, or offer any indignity to any dead human body or human remains whether buried or not. There are also offences under Part 8 of the Burial and Cremation Act.
[181] R v Stewart, above n 179, at 778.
[182] Calma v Sesar,
above n 178, at 452; Re
JSB, above n 175, at
[60]–[61]; Hartshorne v Gardner, above n 178, at [9]; Re Blagdon Cemetery
[2002] 3 WLR 603 at
[18].
[183] R v
Stewart, above n 179, at
778.
[184] For example, Saleh v Reichert (1993) 104 DLR (4th) 384; Buchanan v Milton [1999] 2 FLR 844 (Fam).
[186] Rosalind Croucher “Disposing of the Dead: Objectivity, Subjectivity and Identity” in Ian Freckelton and Kerry Peterson (eds) Disputes and Dilemmas in Health Law (Federation Press, Sydney, 2004) 324 at 335.
[187] The court also has the power to interfere where questions of expense are involved (for example, where it is alleged that unnecessary expense has been incurred in the arrangement of the deceased’s burial): Grandison v Nembhard, above n 185, at 143–144.
[188] As it applies in England and Wales, Scotland, New Zealand and Australia at least. In the United States, the subjective wishes of a deceased as expressed in his or her will govern the executor’s actions unless they are unable to be fulfilled or are unreasonable. Where the wishes are deemed unreasonable the claim of the next of kin may take precedence. Where there are no wishes of the deceased, the wishes of the family must be taken into account. Croucher, above n 186, at 331–332.
[189] In Murdoch v Rhind, above n 170, the Court confirmed, at 427, that the executor has the duty of disposing of the body of the testator and that it is for him to say how and where the body shall be disposed.
[190] John Martyn and others (eds) Theobald on Wills (Sweet and Maxwell, London, 2010) at [10-025].
[191] The High Court Judgment,
above n 2, at [47]. Refer also John
Martyn and Nicholas Caddick (eds) Williams, Mortimer and Sunnucks
on Executors, Administrators and Probate (19th ed, Sweet and
Maxwell, London, 2008) at [6-01] and Hartshorne v Gardner, above
n 178, at [7]. Similarly,
in Grandison v Nembhard, above n 185, at 144 it was accepted that
“the most important factor” was the expressed wish of the deceased
as to the place of the
burial. Further, in Manktelow v Public Trustee
[2001] WASC 290 at [30] the Court acknowledged that a deceased’s
directions as to burial were not binding, but that they had a bearing on the way
in
which the executor performs his or her
duties.
[192] The High Court
Judgment, ibid, at [46].
[193] Heather Conway “Dead, but not Buried: Bodies, Burial and Family Conflicts” (2003) 23 Legal Studies 423 at 432–433 and 438 [“Dead, but not Buried”]; Peter Skegg “Human Corpses, Medical Specimens and the Law of Property” (1975) Anglo-American Law Rev 412 at 416.
[194] Conway “Dead, but not Buried”, ibid, at 432.
[195] Skegg, above n 193, at 416; Conway “Dead, but not Buried”, ibid, at 432.
[196] Hillel Steiner An Essay on Rights (Blackwell Publishers, Oxford, 1994) at 250. Refer also J Harris “Law and Regulation of Retained Organs: The Ethical Issues” (2002) 22 Legal Studies 527 at 532–534.
[197] Croucher, above
n 186, at 330–331.
[198] Ibid, at
332.
[199] Conway “Dead,
but not Buried”, above n 193, at
434.
[200] Murdoch v
Rhind, above n 170, at
425–426.
[201] Refer to
discussion at [159]–[162]
above.
[202] For example in
his will or a clear deathbed
request.
[203] Smith v
Tamworth, above n 170, at
694.
[204] The High Court
Judgment, above n 2, at
[47].
[205] Tapora v Tapora
CA 206/96, 28 August 1996.
[207]
Smith v Tamworth, above n 170, at 694. Refer above to fn 173 for a discussion of the common law
hierarchy.
[208] Croucher,
above n 186, at 337.
[209] Smith v Tamworth, above n 170, at 694. A criticism that has been made of legal entitlement arising from the hierarchy is that it may not be representative of the actual relationships which the deceased enjoyed while alive. Refer Heather Conway “Whose Funeral? Corpses and the Duty to Bury” (2003) 54 Northern Ireland Legal Quarterly 183 at 188.
[210] Calma v Sesar,
above n 178, at 452;
Manktelow, above n 191,
at [31]; Smith v Tamworth, ibid, at
694.
[211] Buchanan v
Milton, above n 184, at 855
per Hale J.
[212] This Act came into force in England and Wales on 2 October 2000.
[213] Which provides a right to respect for one’s “private and family life, his home and his correspondence”.
[214] X v Germany (1981) 24 DR 137. There, the Commission suggested that the applicant’s request to have his ashes scattered on his own land was a means of expressing his personality and as such was so closely related to his private life that it fell within the sphere of art 8.
[215] Burrows v Coroner for Preston [2008] EWHC 1387 (QB).
[216] Ibid, at [17] and [20]. Cranston J utilised the existing jurisdiction of s 116 of the Senior Courts Act 1981 (UK), which gives the court power to pass over those with priority to a grant “in special circumstances”, stating that the deceased’s wishes could constitute such special circumstances. The court would then be required to find that it was also “necessary and expedient” to exercise the discretion. Cranston J indicated that it would be a relatively rare case in which those with priority would be so passed over in this manner.
[217] R(Pretty) v Director
of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 at 835. This comment
was made in the context of assisted suicide: the House of Lords held that a
right to private life could not
exist in relation to the manner in which a
person departs from their
life.
[218] Pretty v United
Kingdom [2002] ECHR 427; (2002) 35 EHRR 1 at [67].
[219] Re Durrington
Cemetery [2000] 3 WLR 1322; Re Crawley Green Road Cemetery [2001] 2
WLR 1175.
[220] Jones v
Dodd [1999] SASC 125 .
[221] Ibid, at
[60].
[222] Ibid, at
[68].
[223] Spratt v Hayden
[2010] WASC 340.
[224]
Ibid, at [21].
[225] We note, however, that
these cases concerned disputes as to who was entitled to take out letters of
administration where there was
no executor of the deceased’s estate. They
are thus in a different
context.
[226] Conway
“Dead, but not Buried”, above n 193, at 446.
[227] Hoani Te Heuheu
Tukino v Aotea District Maori Land Board [1941] NZLR 590
(PC).
[228] Hosking v
Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).
[229] Ibid, at [92] per Gault
and Blanchard JJ and [224]–[226] per Tipping J. Refer also to s 28
of the New Zealand Bill of Rights
Act 1990, which states that “[a]n
existing right or freedom shall not be held to be abrogated or restricted by
reason only
that the right or freedom is not included in this Bill of
Rights”.
[230] Lange
v Atkinson [1998] 3 NZLR 424
(CA).
[231] Ibid, at
457–459 and 465–466.
[232] New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289 per Keith J. In the immigration context, refer Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA); Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) and Zaoui v Attorney-General [2005] NZSC 38, [2006] 1 NZLR 289.
[233] Tūhoe did not sign the Treaty but the evidence from Professor Temara at trial was that they nevertheless abide by the Treaty.
[234] P G McHugh “Constitutional Theory and Māori Claims” in Waitangi Maori and Pakeha Perspectives on the Treaty of Waitangi (Oxford University Press, Oxford, 1989) 25 at 25.
[235] Joseph “Re-creating Legal Space”, above n 92, at 76. A similar argument is made in Robert Joseph “The Government of Themselves” Case Law, Policy and Section 71 of the New Zealand Constitution Act 1852 (Te Mātāhauariki Institute, Hamilton, 2002) at 18–19 [“The Government of Themselves”].
[236] Waitangi Tribunal “Wai 11”, above n 129, at [4.2.4]–[4.2.8].
[237] Waitangi Tribunal Report Findings and Recommendations of the Waitangi Tribunal on an Application for and on behalf of Te Atiawa Tribe in Relation to Fishing Grounds in the Waitara District (Wai 6, 1983) at [10.2(a)].
[238] Waitangi Tribunal “Wai 11”, above n 129, at [4.2.4]–[4.2.8].
[239] Law Commission
“Māori Custom and Values”, above n 9, at 73.
[240]
Ibid.
[241] Claudia Orange
The Treaty of Waitangi (Bridget Williams Books, Wellington, 1987) at
53.
[242] Law Commission “Māori Custom and Values”, above n 9, at 78 and refer to the discussion at 72–74. Dr Robert Joseph also argues that the Treaty protects Māori customary law on the basis of oral assurances given by British officials. Refer Joseph “The Government of Themselves”, above n 235, at 19.
[243] Durie, above n 87, at 460–461. We note, however,
that the Waitangi Tribunal has also held that a “principle of
options” applies under
the Treaty and that Māori could choose to
pursue their right to “walk in two worlds”. See Waitangi Tribunal
Muriwhenua Fishing Report (Wai 22, 1998) at [10.5.4] and Waitangi
Tribunal Ngai Tahu Sea Fisheries Report (Wai 27, 1992) at
[11.5.7].
[244] Waitangi
Tribunal Muriwhenua Land Report (Wai 45, 1997) at 110–115.
[245] Ibid, at 113.
[246] McHugh “The
Māori Magna Carta”, above n 43, at 146 and see generally ch 3 and ch
4.
[247] McHugh
“Aboriginal Rights”, above n 42, at 150.
[248] Joseph “Re-creating Legal Space”, above n 92, at 76; Joseph “The Government of Themselves”, above n 235, at 18–19.
[249] The settled judicial approach being that it is a treaty of cession at international law and does not confer directly enforceable rights at domestic law except to the extent that it is incorporated into law by statute: Te Heuheu, above n 227.
[250] Matthew S R Palmer The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008) at 199–215.
[251] Huakina, above n 59, at 223; Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184.
[252] New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318 (CA) [New Zealand Maori Council v Attorney-General].
[253] As it was, albeit indirectly via a report of the Waitangi Tribunal, in Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA).
[254] For example, Thomas J’s dissent in a full Court of seven in New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA).
[255] New Zealand Maori Council v Attorney-General, above n 252, at [81].
[256] There is an analogy in the approach the courts have taken to the relationship between the Bill of Rights and common law. This is exemplified by the acceptance of qualified privilege as a defence to defamation in Lange v Atkinson, above n 230, and by the majority’s recognition in Hosking v Runting, above n 228, that a right to privacy must be a justified limit on freedom of expression in terms of s 5 of the Bill of Rights. This is discussed above at [240]–[241]. The point is discussed further in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [5.6.6]–[5.6.10] and Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 99–108.
[257] Refer to discussion at [226]–[235] above.
[260] For example,
Sir Edward Durie, in the context of describing Māori land tenure, states
that it was “central to the Māori
way that wealth should not be
individually aggregated but distributed through the community” and that
“[f]or Māori
the benefits of the lands, seas and waterways accrued to
all of the associated community, and an individual holding extensive rights
of
use, carried a commensurately large obligation to the community”. Refer
Durie, above n 87, at 454. Similarly,
Dr Joseph, in “Re-creating Legal Space”, above n 92, at 88, notes that Māori custom
“puts group rights ahead of those of the
individual”.
[261]
McLachlan “Recognition of Aboriginal Customary Law”, above n 45, at
368.
[262] Ibid.
[263] Professor McLachlan, ibid, applauds the approach taken in the Australian Law Reform Commission’s report, “Aboriginal Customary Laws”, above n 135, which postulates the recognition of indigenous customary law as an enduring reflection of legitimate cultural distinctions.
[264] Elsa Stamatopoulou “Taking Cultural Rights Seriously” in Stephen Allen and Alexandra Xanthaki (eds) Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oregon, 2011) 387 at 395.
[265] There may be an issue in either contexts of a clash between collective custom and human rights. The New Zealand Law Commission, in “Māori Custom and Values”, above n 9, at 5–6, suggests that a compromise may be achieved by working within the underlying value system of each culture.
[266] We refer to Tūhoe
custom as that is the case before us but the reasoning would apply to all
custom.
[267] This did not
occur in this case, as we discuss at [261] below and at [32]–[42]
above.
[268] Except where the
deceased has expressed contrary wishes.
[269] We reiterate that the
obligation is to take into account the views of relevant stakeholders, but that
an executor is not bound to
act in accordance with those wishes particularly
where they conflict. Refer to discussion at [219]–[225] above.
[270] Given the need for a
final decision to be
made.
[271] Refer to [163]–[165] above.
[272] Refer to [77]
above.
[273] Discussed at [159]–[162]
above.
[274] Refer to [36]
above.
[275] Refer to [51]
above.
[276] Refer to [90]–[91] above.
[277] Even though I am not
dissenting, I refer to the opinion of Glazebrook and Wild JJ as the opinion of
the majority.
[278] The High
Court Judgment, above n 2, at
[88].
[279] By “pure common
law”, I mean common law in circumstances where there are no considerations
of indigenous customary law
to be taken into account. Common law itself
recognises in appropriate circumstances indigenous customary law and in that
way indigenous
customary law can become part of the common law. See
Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [13] per Elias
CJ.
[280] The High Court
Judgment, above n 2, at [84].
[281] At
[84].
[282] At [88].
[283] I adopt the same
shorthand expressions the majority have used.
[284] At [161] above.
[285] Dr McCoy, Ms
Clarke’s counsel on appeal, was not trial counsel.
[286] The High Court
Judgment, above n 2, at
[88].
[287] Commonly a choice
between burial and cremation.
[288] At [199]–[203] above. Where in this opinion I
agree with the majority’s opinion, I shall simply refer to the relevant
paragraphs in their
opinion and adopt them and the authorities to which they
refer.
[289] At [175]
above.
[290] Law Commission
Māori Custom and Values in New Zealand Law (NZLC SP9,
2001).
[291] Ibid, at 3.
[292] Ibid, at 17.
[293] At [181].
[294]
Re Noah Estate (1961) 32 DLR (2d) 185 (NWTTC).
[295] P G McHugh The
Aboriginal Rights of the New Zealand Maori at Common Law (PhD thesis,
University of Cambridge, 1987) at
167.
[296] At
206.
[297] Section 3(a).
[298] Lavigne v Ontario
Public Service Employees Union (1991) 81 DLR (4th) 545 (SCC). See
also Andrew Butler and Petra Butler The New Zealand Bill of Rights: A
Commentary (LexisNexis, Wellington, 2005) at
[15.7.10].
[299] Re
Wah-Shee (1975) 57 DLR (3d) 743
(NWTSC).
[300] Re Tagornak
Adoption Petition [1984] 1 CNLR 185 (NWTSC).
[301] These cases, as well as
other cases concerning customary family law in Canada, are discussed in Norman K
Zlotkin “Judicial
Recognition of Aboriginal Customary Law in Canada:
Selected Marriage and Adoption Cases” [1984] 4 CNLR
1.
[302] R v Powley
2003 SCC 43, (2003) 230 DLR (4th)
1.
[303] At [30].
[304] Sébastien
Grammond “Disentangling “Race” and Indigenous Status: The Role
of Ethnicity” (2008) 33
Queen’s LJ 487 at
511.
[305] United States v
Bruce [2005] USCA9 29; 394 F 3d 1215 (9th Cir 2005) at
1223.
[306] Ibid. See
generally Corpus Juris Secundum Indians (online ed, Westlaw) at
[1].
[307] Ibid. United
States v Bruce, above n 305, at
1224.
[309] State v LaPier 790 P2d 983 (Mont 1990) at 988.
[310] At fn 157
above.
[311] See Grammond,
above n 304, at
492–497.
[312] Andrew Sharp “Blood, Custom, and Consent: Three Kinds of Māori Groups and the Challenges they Present to Governments” (2002) 52 U Toronto LJ 9 at 16.
[313] Mr Ferguson based part
of his argument on the Treaty. I refer to the Treaty without deciding whether
it is relevant to this dispute
between individuals. Instead, I make an
assumption in favour of the interests Mr Ferguson represents that the Treaty
might be relevant.
[314]
Waitangi Tribunal Muriwhenua Fishing Report (Wai 22, 1988) at
195.
[315] Waitangi Tribunal
Ngai Tahu Sea Fisheries Report (Wai 27, 1992).
[316] Contrast the
majority’s view at [151]
above.
[317] Stephen Todd (ed) The
Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at
[12.3.04(2)].
[318] At
[12.4.03(1)].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2011/587.html