Tomas, Associate Professor Nin --- "Who decides where a deceased person will be buried - Takamore revisited" [2009] NZYbkNZJur 8; (2008-9) 11-12 Yearbook of New Zealand Jurisprudence 81

Last Updated: 25 April 2015

Who Decides where a Deceased Person will be Buried – Takamore Revisited^♣

Associate Professor Nin Tomas^*

I. IntroductIon

On 6 June 1910, the front page of the Colonist,¹ a South Island Daily ran the following story:

Quarrel over a Burial

A peculiar and interesting law case is said to be likely to eventuate shortly in connection with the recent death at Ngaruawahia of a native chief of the Tainui tribe.

... A chief named Honana died at Ngaruawahia on April 26^th last. A tangi was duly held, ... Now Ramana Nutana, the leading chief of the Tainuis, desired that the dead Honana should be buried at Raglan, where he had been born, and where his parents were interred, while ‘King’ Mahuta ordered that the remains be interred in the ‘royal’ burying ground on Taupiri Mountain.

The mana of Mahuta was upheld by the burial of the late chief at Taupiri, but Ramana Nutana was not satisfied. He is said to have telegraphed to three of his people at Raglan to join him at Taupiri. They duly responded to the call, and meeting Ramana Nutana, who meantime had armed himself with a shovel, the four repaired in a buggy, in the dead of night on the Friday, to the place of burial at Taupiri. Arrived at the graveyard the four natives dug up their late chief, and placing the coffin in the buggy proceeded to transfer it to Raglan. En route Ramana Nutana is said to have called at his own house at Ngaruawahia, at five a.m. on the Saturday, and to have told his wife to inform Mahuta that he had secured the corpse. With his three assistants he reached Raglan at 10 a.m. on the Saturday. A little later the constable at that place is stated to have received a telegram from Mahuta asking him to bring back to Ngaruawahia the living chief and the dead one. The informant states that the police officer, however, could not discover any law under the provisions of which he could hold either Ramana Nutana or his resurrected friend. The benefit of the constable’s doubt went to the credit of Ramana Nutana, who,

♣ This article is part of the Nga Tikanga Mate Research Project funded by Nga Pae o te Maramatanga, to examine the impact of Māori and Pakeha cross-cultural marriages on Māori burial practices.

* Faculty of Law, University of Auckland, NZ. Nin is grateful to Paul Meredith for providing historical information on past Tangi proceedings.

1 Volume LII, Issue 12812.

on the Sunday afternoon unobstructed by the bewildered guardian of the law, and supported by his tribesman, reburied the much-travelled body of Honana alongside his parents’ graves.

The sequel to this interesting story consists in the statement of the informant to the effect that Ramana Nutana has received word from Auckland that he and his three companions in the midnight trip to the Taupiri graveyard are to be served with summonses issued at the instance of Mahuta.

Five Tainui chiefs were duly convicted with breaching the Cemeteries Act. Loughnan SM, decided, however, that conviction was sufficient without imposing punishment or costs because ‘it was only right that he should be buried with his ancestors.’²

Over one hundred years later, in 2007, James Takamore died suddenly in Christchurch. Before burying him in Christchurch, his non-Māori partner, Denise Clarke, consented to his lying in state at Te Whare Roimata Marae, believing that he would want some link to his Māori heritage. A party which included his mother and two siblings arrived from Tuhoe to make a tono (request) for the tupapaku (deceased’s body) to be returned to the family urupa (burial ground) to lie with his tipuna (ancestors). A heated discussion ensued, after which Clarke and her son withdrew for the evening. The following day the deceased’s body was removed before she arrived, and without her consent, and taken for burial at the family urupa at Kutarere in the North Island.

On 21 August, a High Court injunction was issued ordering the burial to be restrained and the Police to take custody of the body pending a further Court order. At the same time, however, the tangi and burial were taking place at Kutarere. The Police did not intercede in the tangi proceedings, fearing that the force available was not large enough to execute the order.³ Further discussion between the parties in the following months did not resolve the dispute. Clarke then sought court orders to allow her to exhume the body for reburial in Christchurch and to restrain Takamore’s family from interfering with removal activities. The court found in her favour,⁴ stating that she had been deprived of legal possession of the body to the extent that it had not been

‘properly’ buried.⁵ His Honour did not make the orders requested, leaving room for the parties to comply voluntarily with his judgment instead. The matter

2 Ashburton Guardian, 23 July 1910, 4.

3 NZ Herald, 23 August 2007.

4 Clarke v Takamore, (unreported) HC Christchurch, 29 July 2009, Fogarty J, CIV 2007-409-

001971.

5 [para 90].

remains unresolved, however, with legal counsel for the whanau stating that they were disappointed by Justice Fogarty’s ruling but had no plans to give back the body.⁶

These two examples show the difficulty New Zealand courts face when trying to resolve disputes concerning the burial of loved ones, when one or both of the parties is Māori. In the above cases the aggrieved parties sought the intervention of the law to protect the priority interests that they believed they held in determining the final resting place of the deceased. The disputes raise the central question of who has the right to decide where a deceased person is to be buried? An ancillary question is: What is the best process for decision-making in such an emotionally fraught situation? The answer to the first question depends on whether one applies principles developed within English law and history which favour granting individual entitlement to the executor, spouse, a child, a parent, or a sibling, in that descending order; or tikanga Māori (Māori custom law), where historically, death is a public matter and the whanau (extended family) and wider community are all, prima facie, entitled to be involved in the decision-making. In the Honana case, Mahuta relied on his senior status within Māori society to support his right to call with authority from within a Māori custom law framework, for the intervention of the Pakeha law to uphold his interests. Clearly, from his point of view, he was invoking the law in a subaltern capacity to carry out his wishes. In Takamore, however, Clarke is looking to the authority of the law to protect her interests as an individual against the application of tikanga Māori, whether or not it has been accurately applied in Māori custom law terms.

The case of Takamore is unremarkable in its outcome. It simply applies the standard English legal doctrine that an executor or spouse (Clarke is both) has the right to decide the manner and place of burial of her partner over anyone else. It pays respectful lip service to Tuhoe tikanga but also places it beyond the purview of New Zealand law because ‘Tuhoe tikanga is for Tuhoe to develop, or not as the case may be’ and practice amongst themselves.⁷ It was, however, for the court to decide the extent of recognition to be provided Tuhoe tikanga as part of general New Zealand law. Furthermore, individual rights rather than communal duties of a public nature is the currency of that law. As noted by Fogarty J: ‘there is a fundamental difference in starting point between the individual freedom assumed by the common law against the collective

6 NZ Herald 31, July 2009.

7 [para 79].

decision making of tribal custom.’⁸ Relying on unchallenged evidence of the deceased’s desire as an individual, to sever his traditional family links and to be buried in Christchurch,⁹ His Honour held:¹⁰

... 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. ... 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.

In consequence of this, there was ‘no legal authority for the defendants and other members of Tuhoe to dispossess Ms Denise Clarke of the body. The taking of the body was unlawful, and so it is not properly buried. Ms Denise Clarke is entitled now to possession of the body, as the executor.’¹¹

The outcome of Takamore can be contrasted with that of Otieno v Ougo,¹² a Kenyan case in which a prominent Nairobi criminal lawyer, Silvano Otieno, died intestate in 1986. A dispute arose between his only widow, Edith Otieno, a well-known Kenyan politician, and his younger brother, as to where he should be buried. The brother argued for burial in his Luo tribal home territory while the wife argued for burial in Nairobi where the couple had lived for over 20 years.

In Otieno it was held that the decision as to where and how an adult Luo will be buried rests with the clan from which he hails. Even if a man may have, in his lifetime, expressed a wish as to his place of burial, that wish would be subject to the customs and traditions of his clan. The clan sages were not, necessarily, bound to comply with those wishes if they did not conform to the customs and traditions of the clan. By custom, an adult Luo must be buried next to his father’s house at a spot determined by the elders, if he died before establishing a ‘home’, or before his father, or as a bachelor, or before he had a son.

It was argued for the plaintiff widow that the deceased had adopted and lived a western life-style consistent with Christianity, and built a family home away from the tribal territory. In opposition, the defendant’s were unanimous that in towns and cities Luo men built ‘houses’ and not ‘homes’. The establishment of

‘home’ was tied to the devolution of land and protected the intergenerational

8 [para 86].

9 [para 15].

10 [para 88].

11 [para 90].

12 (2008) 1 KLR 918.

entitlements of grandchildren. They were also adamant that Luo had to be buried in their ancestral lands, unless they migrated away from their clan and established ‘homes’ in accordance with clan customs and traditions elsewhere. The deceased had donated money to an association formed to repatriate his relations; attended three relative’s funerals at his ancestral home; contributed to paying for the fixing of the roofs of his brother’s two wives’ houses; and had not rejected his right to inherit land under custom from his father. Although he had not paid dowry for his own wife, he had paid dowry for his son’s wife. Giving up some customs did not mean giving up all tribal customs. In the circumstances, Justice Bosire held that the correct burial law to apply was Luo customary law. The wife, having chosen to marry into the tribe was also bound by Luo custom.

Kenya and Aotearoa New Zealand are both countries in which English common law is the main system of law. However, in Otieno tribal law was applied as the general law applicable to resolving the dispute, while in Aotearoa New Zealand, in similar circumstances, it was held to be ‘unreasonable’ because it conflicted with the individual rights of the deceased and his spouse under English-based law.

Takamore and Otieno highlight three major difficulties that New Zealand courts face when dealing with burial disputes: First, there is the difficulty of trying to deal fairly with disputes concerning seemingly irreconcilable cultural perspectives relating to death; second, there is the difficulty of deciding what is in essence a fundamental constitutional legal question i.e. whether and in what circumstances Māori custom law ought to apply to burial disputes under New Zealand common law; and third, is the residual difficulty of deciding the extent and manner to which individuals are, themselves, able to determine which system of law is used to decide where they are going to be buried.

A. Issue 1: Dealing with competing cultural considerations

Adjudicating competing cultural considerations poses a major difficulty for judges in English common law jurisdictions, and more particularly, in countries where indigenous peoples have established customs and protocols of their own governing burial. Both Aotearoa and Kenya are such countries, but the same dilemma is also faced in Australia, Canada and the United States, where the English common law has been introduced and operates over the top of existing indigenous law.

The loss of a loved one creates an unavoidable emotional rupture in the lives of those who are close to the deceased. Although we are powerless to prevent it happening, we must still accept it as part of life and deal with its aftermath. Reference to the fundamental, universal nature of death is made in early

English and American caselaw dealing with burial disputes. These cases all have Christianity as a fundamental starting point. As stated by Stephen J in Queen v Price:¹³

The law presumes that every one will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial. The possibility of a man’s entertaining and acting upon a different view is not considered.

Price concerned a case in which a father had burnt the body of his dead, five month old baby in a field. It was held that burning and burying were different methods of returning the body to the earth and that there was no criminal act ‘unless he does it in such a manner as to amount to a public nuisance at public law.’¹⁴

The presumption of entitlement to a Christian burial gave rise to duties being placed on near relatives and others to provide for the burial of those who died while in their care. In the earlier, 1840 case of Reg v Stewart,¹⁵ a broad rule to this effect had been laid down by the court:

We have no doubt ... that the common law casts on some one the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and interest of the living require this, and create the duty: ...

The operation of the ecclesiastical courts in England has continued to reinforce these duties. It also explains the reluctance to move human remains once they have been interred in consecrated ground. In Re Blagdon Cemetery,¹⁶ the Consistory Court of Appeal quoted with approval from a paper prepared by RR Christopher Hill, Bishop of Stafford:

The funeral itself articulates very clearly that its purpose is to remember before God the departed; to give thanks for their life; to commend them to God the merciful redeemer and judge; to commit their body to burial/cremation and finally to comfort one another.

...

The permanent burial of the physical body/the burial of cremated remains should be seen as a symbol of our entrusting the person to God for resurrection. We are commending the person to God, saying farewell to them (for their

‘journey’), entrusting them in peace for their ultimate destination, with us, the heavenly Jerusalem. This commending, entrusting, resting in peace does not

13 [1884] QB 247 at 250.

14 At pp 254-255.

15 [1840] EngR 1003; 12 A & E 773 at 779.

16 [2002] Fam 299.

sit easily with ‘portable remains’, which suggests the opposite: reclaiming, possession, and restlessness; a holding onto the ‘symbol’ of a human life rather than a giving back to God.

In Blagdon these theological principles justified the court’s reluctance to grant approval to exhume and relocate a son’s body because the parents had shifted residence and wanted to bury him where they could all be together when they died.

The imposition of a legal duty on ‘someone’ under English common law has, over time, been replaced by claims that a ‘right’ of possession for the purpose of burial exists. Most modern disputes are based on such competing claims. As explained by Justice Brownie in the Australian case of Warner v Levitt,¹⁷ concerning a dispute between foster parents and biological parents, this co- incides with a shift away from overtly recognising foundational religious beliefs and towards recognising changes in local circumstances:¹⁸

... The law as it has been developed was founded originally upon religious beliefs which not very many people would today hold, at least as faithfully as people held those beliefs in centuries gone by. It was also founded upon social conditions which have changed quite dramatically. In modern Australian conditions people look to foster parents and expect very great deeds from them.

... It may be a subject upon which the Attorney General may think that he could obtain assistance by referring the problem to the Law Reform Commission. In any event, I hold that the common law is that blood parents have the duty and therefore the right to bury their dead children.

The preference given to biological parents over foster-parents with whom the child was living, also reflects the developing hierarchy of entitlement amongst claimants as courts move toward dealing with burial disputes as purely administrative, rather than theological, matters. This latter is reinforced by the discomfort many judges feel at having to deal with highly charged and personal matters that can easily turn vitriolic. In Leeburn v Derndorfer,¹⁹ an acrimonious dispute arose amongst the deceased’s three children as to whether his ashes should remain intact for disposal or be divided equally amongst them. The frustration of Byrne J is apparent when he states:²⁰

It is a difficult case, too, as a matter of law, for it raises and touches upon issues upon which there is surprisingly little judicial guidance. Moreover, such authority as I have been referred to appears to be based upon practicalities as much as upon principle. This may be because the questions which come before

17 SC NSW, Equity Division, 1994; 1994 NSW LEXIS 13188; BC9402955 at p 5.

18 P 5 of the judgment.

19 [2004] VSC 172.

20 P 4 of the judgment.

the courts as to the right to direct the disposition of a dead body or parts of it must be determined quickly without the luxury of a full investigation of the facts and law. It may be, too, that it is because cases such as the present stand at the intersection of a number of competing principles. These may be competing prescriptions and proscriptions of a cultural, social or religious nature, personal taboos, wider concerns as to public health and decency, the attitudes of the grieving family and friends, and the wishes of the deceased. Moreover, these competing pressures may be difficult to resolve, especially where they are based on feelings which are strongly held at a time of great emotional stress and which are difficult to justify, or even explain, in any rational way. This makes decision or compromise difficult. It is an area of law where one can read in the reported decisions an anguish in the judges seeking to accommodate the concerns of those interested; and their embarrassment at having to deal, often in some haste, with bitter conflicts within families over the remains of a recently deceased relative or friend, which conflicts, although arising out of genuinely held feelings, are perceived as being unseemly.

It appears that the more difficult the circumstances become, and most cases are complex, the greater the tendency to rely on set categories of entitlement. The effect of this has been to shift the focus from the deceased and the need to respectfully provide for their spiritual comfort and to relocate it on to the claimant/s in the guise of their ‘living rights’.

The reliance on administrative principles in settling burial disputes is even more marked when the parties are indigenous. In Canada, Australia and Aotearoa New Zealand, the indigenous peoples still possess a pre-Christian worldview. Although each of these societies has been heavily impacted by Christianity, it has not destroyed those worldviews. Nevertheless, in attempting a universal approach of ‘one size fits all’ for the common law, judges have constrained indigenous claims within common law parameters and subjected them to administrative strait-jacketing.

Thus, in Canada, a Metis man killed in the line of duty while serving as a member of the Royal Canadian Mounted Police was able to be disinterred by his wife for transferral to a special cemetery exclusively for RCMP members, against the wishes of his Metis parents, and despite her earlier agreement to his burial in Metis territory. In reaching this decision Thomas J followed the order of entitlement set out in Section 11 of the Cemeteries Act General Regulations which prioritises the executor, spouse (or partner), adult child, and then parent, in that order. In upholding the right of the Director of Vital Statistics to evaluate the competing interests relating to disinterment and to conclusively decide the matter, he held:²¹

21 Johnston v Alberta, 2007 ABQB at p 10 of the judgment.

[40] In order to set aside the Director’s decision to issue the Permit, the Applicant [parents] must satisfy me that there is no line of analysis that could reasonably have led the Director, based on the factual information placed before her, to reach a decision to issue the Permit.

Effectively, the test requires the absence of any coherent line of reasoning on the Director’s part, but permits him or her to ignore completely any consideration of the Metis relationship between land and people, how it might continue on after death, and the imperative for burial within one’s own territory.

In the Australian case of Calma v Sesar,²² both parents of the deceased were aboriginal but each desired burial in a different place. The father supported his preference by asserting Christianity as well as Aboriginal custom. Martin J states:

... The father says that the deceased was baptised in the Catholic Church at Port Hedland and that he believed that it would be appropriate for him to be buried in the same parish, along side his grandmother, in the family plot. He also asserts that it is his culture that the dead should be buried in their homeland, and that that homeland for the deceased was at South Hedland near to Port Hedland. He deposed to the importance of visiting the grave site on the anniversary of death and of birthdays and for commemorative church services to be conducted. The first defendant’s father said that he was a member of the Bardi Aboriginal tribe and it was his wish that the deceased by buried in the family plot at South Hedland cemetery. He did not wish the deceased to be buried in Darwin either as he believed it to be disrespectful to him to bury him in the same vicinity as the presence of his ‘alleged killer’.

Martin J noted that there were deep divisions between the father and the mother and various members of their respective families as to the most appropriate place for burial. This posed real difficulty for the court:

... Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and wishes of the living, except in so far as they reflected a legal duty or right. The solution will not embrace the resolution of possibly competing spiritual or cultural values.

22 [1992] NTSC, 446 at 450.

Because the parents were equally entitled to decide for the deceased, His Honour adopted the most expedient solution. As the body was in Darwin and proper burial arrangements had already been made, he held that there was no good reason in law why that should not continue and no good reason in law why the removal of the body from the Territory and burial in Western Australia was to be preferred.²³

In Meier v Bell,²⁴ Ashley J, in giving priority to the custodial parent of a deceased aboriginal child, reinforced the hierarchical order of common law entitlement while ousting completely Aboriginal custom law:

In the context of persons who have died intestate, the approach has been to identify as best as is possible the person who is a potential administrator, and to treat that person in the same way as if he or she had been appointed executor; that is, so that the decision of that person as to place of burial prevails. [p7]

In the event, I should direct that the plaintiff bears the responsibility for the disposing of the body of the deceased and to that end for making funeral and burial arrangements in her sole discretion. In so resolving the matter I emphasise that its resolution involves no rejection of the aboriginal cultural values asserted and relied upon by the defendant. The existence, or otherwise of those values, as would be the case with any other religious or cultural considerations, has simply been beside the point. [p11-12]

The harshness of this holding was modified somewhat in Dow v Hoskins & Ors,²⁵ an unreported burial dispute between an estranged defacto partner and the sister of the deceased. The defacto partner wanted to bury the deceased near Warragul, Victoria, with his mother and her relatives. The sister wanted him buried at Wallaga Lake in New South Wales. After hearing evidence of aboriginal custom, Cummins J, once again reaffirmed the universal application of English-based legal principle over Aboriginal custom:²⁶

... I accept Ms Hoskins’ affidavit that Sydney had a strong connection with his late father and I accept the evidence of Ms Hoskins and also the two affidavits of Mr Edward Foster, the uncle of the deceased, that that was and is a powerful cultural imperative in relation to the resting place of the deceased, a son with a strong connection with his father. ....

[26] Ms Hoskins deposed that although the deceased left the Wallaga Lake area after the death of his father, he returned there twice yearly for men’s business. The defendant deponents also swore that the deceased wished to be buried

23 Ibid at 452.

24 Unreported but frequently cited decision of Ashley J in the Supreme Court of Victoria, 3

March 1997.

25 [2003] VSC p 7.

26 Ibid at 7.

at Wallaga Lake, although as I will come to, the law is that the wishes of the deceased are not the determining factor. However cold that may sound, that is the law applicable to this and every other case.

After identifying the ‘administrator test’ as being the proper prima facie test (but not to the exclusion of cultural or other factors which might arise in evidence), His Honour stated the relevant law as being:²⁷

[46] ... there is no property in a dead body; if a person is named an executor that person has the right of burial; a person does not have the right to dictate what will happen with his or her body; a person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so; where no executor is named, the person with the highest right to take out administration will have the same privilege as an executor; the right of the surviving domestic partner will be preferred to the right of children; and where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

In consequence, Cummins J, held that priority should be given to the estranged defacto spouse because she was the mother of the two younger children and she and the deceased had been working together to reunite their family.²⁸

Bearing these cases in mind, and if one only takes account of the common law position as it has grounded itself in England, Canada, Australia and Aotearoa New Zealand, Takamore is unremarkable in its finding that the deceased’s partner, who was also his executor, took precedence over his relatives in determining where he was to be buried. However, that is only one half of the story.

B. Issue 2 - In what circumstances is Māori custom law the correct

law to apply?

In the above analysis, indigenous law falls into the basket of emotional, religious and cultural concerns that must be wrestled into submission under English-based common law and administrative law rules. However, for Māori (and the same will likely be true of other Aboriginals and First Nations peoples whose worldviews provide set protocols for dealing with death and burial), the English common law is deficient in its approach, processes, forum and the outcomes it produces for the following reasons:

27 Ibid at 14.

28 [para 47].

1. Death is a public event for Māori

Death and burial for Māori are public and not private events. They are inclusive occasions that are shared by the community to which the deceased is linked by whakapapa (genealogy) and his or her friends and associates. Public mourning generally, but not always, takes place at the local Marae (meeting house), where set protocols determine the processes by which steady streams of people are welcomed, permitted to speak, provided with food, invited to join the other mourners attending the body until it is buried, and able to assist in receiving any new arrivals. An important part of the tangi process is the

‘tono’ for the body, ie. where those who are related by whakapapa, or who have other close connections, make a claim to have the deceased buried in their home territory or, if they are already in the group’s territory, at a specific place. The intensity of these claims can range from requests that appear to be made only out of politeness and respect, to heated disputes between those who were close to the deceased at different stages of his or her life. In the end, the final decision is generally one that is ‘owned’ by all those who are present. It is a collective and not an individual decision, with whakapapa and spousal wishes being major determining factors. For this reason, it is arguable that in Takamore, the tikanga process was not properly concluded because the parties did not reach through their tears and grieving to find a consensus decision. It is also not clear whether there were elders present on all sides to provide the guidance necessary to assist Clarke and facilitate the reaching of a consensus. Outcomes cannot be pre-determined. In the Honana case at the beginning of this article, for example, the undoubted territorial authority of King Mahuta, backed up by the law, still had to give way to the authority of the personal whakapapa links exerted by his close relatives.

2. Significance of ancestral status

Death for Māori and other indigenous peoples, marks a transition in the status of the deceased from that of a living being into that of ‘ancestor’. This is not a transition from life to death but from one state of acknowledged existence into another. It was this type of thinking that led to the assertion on behalf of the native Hawaiians in Hui Malama v Dalton,²⁹ a case concerning ancestral remains that had been disinterred from Mokapu Penninsula and were being held in a museum for categorisation, that:³⁰

29 US District Court of Hawaii, 25 July 1995, unreported decision of Judge David Ezra.

30 Ibid at 5.

... according to Hawaiian custom, human remains are spiritual beings that possess all of the traits of a living person. The Federal Defendant’s physical examination of the remains was, they contend, a violation and desecration of the remains. As a result, the remains have allegedly suffered an injury to their spiritual well-being and have standing to bring suit.

Several cases were cited in which federal courts had discussed the advantages of granting standing to non-human entities such as animals and natural habitats. Analogy was drawn between these entities and human remains. However, Judge Ezra did not find the parallel convincing:³¹

The court finds no sound legal basis for granting standing to human remains. Even the cases cited by Hui Malama refer to living organisms of dynamic ecosystems that are generally recognised as capable of suffering real injury in terms of physical or demonstrable detriment. Objects or entities without any attributes of life in the observable or provable sense are generally not afforded a legally-protected interest for standing purposes.

The court notes that inanimate entities such as ships and corporations are accorded standing in their own right, but these forms of standing are legal fictions created for the benefit of living members of society. Allowing these entities to act as parties to lawsuits facilitates business and commerce, which in turn furthers societal interests and benefits individual persons. Hui Malama has not shown that a comparable identifiable benefit to living members of society would result from affording human remains standing.

It could be argued that granting standing to ancestral remains is for the benefit of the descendants of the deceased. In Aotearoa New Zealand, standing would not only recognise that ancestor status underpins whakapapa, it would also further the interests of Māori society and benefit its members by upholding Māori custom law and maintaining the integrity of customary practices and protocols. It is clear, however, that the indigenous perception of death and the significance of ancestry to the living is not something that the culture of English-based New Zealand common law finds easy to embrace.

3. The cultural imperative to preserve and reinforce the relationship between people and their lands

In each of the indigenous cases cited above it is the relationship between the deceased, his biological family (living and dead) and the land that is considered to be paramount. In comparison, the interest of the spouse is viewed as being more in the nature of a ‘life interest’. Although it is not unusual for people to be buried out of territory, that is generally for economic reasons, or because the person has become estranged from their home territory, by for example,

31 Ibid at 6.

marrying an outsider and moving away permanently. This is what, it was argued, had occurred in Takamore’s case. However it is not the norm. Most Māori still respect tikanga to some degree, even though they are living away from home or overseas, and pursuing western lifestyles.

As the dispute between King Mahuta and Ramana Nutana illustrates, Māori society is not immune from such disputes. It is not something that only arises in cross-cultural contexts: every Māori has multiple whakapapa lines, at least some of which will activate claims of burial entitlement after death. For this reason, the fact that Takamore is buried in his ancestral territory, whether he wanted to be there or not, will be considered by his whanau as final. Just as ecclesiastical courts placed great store on burial in consecrated land, Māori place an equal value on burial in one’s ancestral territory. This is more than just an emotional attachment, it is maintaining the ahi kaa (ancestral fire) which is the basis of past, present and future claims to land and territory. It is the fundamental norm by which intergenerational links are maintained. While the explanation may be in spiritual terms that can be viewed as being peculiar to Māori, the temporal dimension is nevertheless still evident in the attendant funereal protocols and burial practices.

4. A Constitutional question: Can Tikanga Māori ever be the law of Aotearoa

New Zealand?

The tangi is probably the most long-standing customary practice that Māori society possesses. It has maintained its internal consistency despite the impact of English common law and the integration of Christianity into its processes. Discredited in early colonial days as not conforming to the requisites of cognisable law, it was argued by the appellant in Public Trustee v Loasby,³² that:

... It is unreasonable, for it tends to impoverish and to lower the morals of the Maoris, and is contrary to their own interests. The Court ought not to encourage or recognise a custom which is against the best interests of the Maoris themselves. ...

The respondent, on the other hand, argued that:³³

... The Court should recognise and give effect to the custom, for it is founded in the religious beliefs of the Maoris: Mullick v Mullick 1 Knapp 245. It fulfils all the requisites of a valid custom, and therefore has the force of law. It is general; it is not unreasonable; it is considered morally binding by the Maoris themselves it is not contrary to any statute; and it is of immemorial antiquity:

32 SC Vol 27, 801 at 802.

33 Ibid at 803.

Cooper J concluded that:³⁴

... the Court ought to recognise what I hold to be the well-established Maori custom. That in connection with Maori rights to Native Land Maori custom must be followed is recognised by ‘The Native Rights Act, 1865’. See also Tamaki v Baker [1901] UKLawRpAC 18; [1901] A.C. 561. There is no legislation or any decided case in reference to personal property. It is argued by Mr. Blair that such a custom as I have to consider in the present case is unknown to English law: by this I assume is meant, to English common law. But it is no objection to a custom founded, as this is, on immemorial usage that it is not conformable to the common law of the land, for that is the very essence of the custom that it should vary from it: Per Lord Kenyon, in Horton v Meckman [1796] EngR 2439; 6 T.R. 760, 764.

In considering a question of this nature, dealing with the ancient customs still followed by a race like the Maori people, no decisions in the English Courts can be directly in point. One has to consider, I think, three things, - 1. The question of fact whether such custom exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Maori race; and I this I find to be proved. 2. Is the custom contrary to any statute law of the Dominion? The answer is, No statute has forbidden it. 3. Is it reasonable, taking the whole of the circumstances into consideration? In this connection the judgment of the Privy Council in Mullick v Mullick (1 Knapp, 245) is of some assistance. The Maori people have for as long as records of history can show been accustomed to hold upon the death of their important chiefs these tangis as a part of the funeral ceremonies, and the time has not yet arrived when these ceremonies can be omitted without seriously wounding the feelings not only of the relatives of the deceased chief, but of, at any rate, a considerable proportion of the race. Now, Lord Wynford, in delivering the judgment of the Privy Council in Mullick v. Mullick, made some observations very pertinent to the present question. He said ‘The interest of sovereigns, as well as their duty, will ever incline them to secure, as far as it is in their power, the happiness of those who live under their government; and no person can be happy whose religious feelings are not respected.

Section 71 of the New Zealand Constitution Act 1852 reinforces the view taken by Cooper J in Loasby. Section 71 states:

And whereas it may be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves, in all their relations to and dealings with each other, and that particular districts should be set apart within which such laws, customs, or usages should be so observed ...

34 Ibid at 806-807.

At first glance, neither this section nor Loasby refers directly to cross-cultural interactions between Māori and Pakeha. It is too much to presume however, that by simply acting in unison with others outside the tribal territory, Māori must lose their own customary entitlements. For this reason, the reliance in Takamore on uncontested evidence to establish that the deceased had given up his Tuhoe status, will be far from satisfactory to his relations. That the law focused on Clarke’s rights as an individual rather than the duties owed by her to her deceased partner as a tribal member, will also grate. Statements made by Cooper J in Loasby, to the effect that the ‘very essence’ of custom is that it differs from common law while being reasonable in its own terms, challenge the finding by Fogarty J that custom law must be consistent with the common law and ‘individual’ must trump ‘collective’ rights. Furthermore, if the sovereign has a duty to secure the happiness of its subjects by respecting

‘religious feelings’ this case is unlikely to achieve that.

Robert Joseph, in ‘Recreating Legal Space for the first law of Aotearoa New Zealand’³⁵ argues that ‘local circumstances’ include Māori customs and usages that are part of the history and traditions of Aotearoa. He points to two statutory provisions as supporting this:

Oaths and Declarations Act 1957, section 18, which states:

18 Judicial oath

... and I will do right to all manner of people after the laws and usages of New

Zealand without fear or favour, affection or ill will. So help me God. Supreme Court Act 2003 which states:

3 Purpose

...

(1) The purpose of this Act is –

...

(i) to recognise that New Zealand is an independent nation with its own history and traditions; and (ii) to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions; ...

35 R Joseph, ‘Re-Creating Legal Space for the First Law of Aotearoa-New Zealand’ in Waikato

Law Review Taumauri (Vol 17, 2009) at 74-97.

Reading the two sections together with Chief Justice Elias’s comments in

Ngati Apa:³⁶

Any prerogative of the Crown as to property in the foreshore or seabed as a matter of English common law in 1840 cannot apply in New Zealand if displaced by local circumstances. Maori custom and usage recognising property in the foreshore and seabed lands displaces any English Crown Prerogative and is effective as a matter of New Zealand law unless such property interests have been lawfully extinguished. The existence and extent of any such property interest is determined by application of tikanga.

Joseph argues that the three combine to provide legal authority that Māori customary laws and usages, as the first law of the country, are part of the local circumstances that give Aotearoa New Zealand its distinctive nature.³⁷

If we extend this rationale to include the processes of tangi as binding Māori by virtue of birth and whakapapa, then unless an individual provides substantial proof that they want to excommunicate themselves, and to be governed by another system of law in its entirety, they could be bound by tribal custom. Certainly this was the case in Otieno. Following such a precedent would mean that the onus is shifted in inter-cultural burial disputes, away from the biological family having to prove that the tribal link still exists, to a presumption that a Māori person should be buried in their tribal territory unless the executor, spouse, or other administrator, proves that that link has been satisfactorily and completely severed and the deceased has intentionally abandoned their birthright. In Otieno moving away from the tribal homeland, choosing not to uphold tribal practices and adopting a western, Christian lifestyle were not sufficient to break with tribal burial practices. Burial was viewed by the court as a discrete and important part of tribal existence that extended beyond the deceased to include his biological family and kin group. His wife, on the other hand, because she had freely chosen to marry into the tribal group, was also bound by tribal custom. This effectively, is the reverse of the situation found in Takamore.

Māori still believe that they have authority to dictate burial matters concerning members of their whanau. That authority is not drawn from the English common law – it arises from pre-existing custom law that is sourced from within the community. It still operates within Māori communities and dictates what happens in many inter-cultural marriages. It remains an open question, however, whether it should continue to operate as it currently does, in a defacto manner within the community, or whether it should be formally adopted as part of the law of Aotearoa New Zealand.

36 [2003] 3 NZLR 577, [para 49].

37 Ibid at 10.

C. Issue 3: Dealing with the realities of burial disputes

There are only three real choices of decision-maker as far as burial is concerned when one spouse is Pakeha and the other Māori; (1) the deceased may decide before he or she dies, and that decision may be considered binding after death; (2) the whanau as a collective may decide in a public forum after death, using tikanga which presumes burial in the tribal territory, unless otherwise decided in the circumstances; or (3) the common law administrative hierarchy that privileges the executor, spouse, child, parent, or sibling before others, and marginalises Māori and other indigenous peoples’ concerns, may continue to operate as it presently does. Each of these options is problematic.

Allowing the deceased to make decisions concerning his disposal while he is still alive, falls foul of the common law rule that there is no property in a human body. Driven in part by the fear that individuals might begin selling parts of themselves for economic reasons and that this could lead to the poor becoming a reservoir from which the wealthy purchase various body parts under enforceable agreements – treating oneself as property has long been resisted by the law. Even though inroads have been made into that attitude by various statutes which allow for organ donation, the issue is still clouded. Currently, some courts will hold that the executor has the right to decide issues of burial, while others will hold that the executor’s role is limited to distributing property and as the deceased is not property, burial is not the responsibility of the executor but of the family. There is however, a strong argument that the autonomy of the individual ought to be recognised, so that he or she is able to make decisions about burial, but that they should only come into effect at death. If that is so, then there must be some public way of recording such intentions and making them enforceable.

On the other hand, permitting the whanau, as a collective, to decide in a public forum, has the advantage of allowing for the sharing of grief and inclusive decision-making. This is already common practice within the Māori community, and perhaps it is time that it was recognised as law, rather than as cultural idiosyncrasy. The refusal of the family to disinter Takamore, for instance, is more than simple Māori belligerence. It is a principled stand based on tikanga reasoning that has prevailed since before English common law arrived in Aotearoa.

However, a tikanga approach is not without its shortfalls. The values by which decisions are made are not always apparent to those unfamiliar with tikanga processes. Whakapapa is not always espoused as the central tenet of decision-making even though it always is; and neither is the link between land, ancestry and burial always spelt out but rather taken for granted.

English-based New Zealand society perceives the showing of respect as something quiet, subdued and controlled. The highly charged, emotional venting that sometimes takes place at tangi can be frightening, and appear to be disrespectful, particularly if accusations are being flung at the deceased for various misdemeanors committed during his lifetime.

The statement in Takamore, that Tuhoe tikanga has not developed into a more flexible shape capable of accommodating inter-cultural and inter-tribal marriage, does not reflect the reality of what takes place when tikanga is actually being applied at a tangi. When Māori entertainer, Prince Tui Teka died in 1985, his wife Missy, who was from Ngati Porou, made a successful tono to have him buried in her tribal territory. Although she had support from his mother and Aunty Moi, the hui and discussion were not easy experiences for her, and there were some onerous conditions imposed by Tuhoe.³⁸ When she died, suddenly, in 2008, she was buried near him as was his wish, and the conditions were fulfilled and the matter satisfactorily completed.

Finally, the present administrative approach taken by New Zealand common law is problematic for Māori because it marginalises the long term interests of whanau, while elevating the interests of those who have a current emotional involvement with the deceased which can be passionate but short-term. Providing executors and spouses with priority of interest in determining place of burial could eventually undermine the cohesive, whakapapa relationships that are at the heart of Māori social organisation.

II. concluSIon

Much more research and thoughtful discussion than is provided here is needed in order to find a solution to the difficulties outlined in this article. While collating shared values and principles relating to tangi and burial throughout Aotearoa New Zealand is undoubtedly a first step, there is likely to be resistance from many Māori to any attempt at establishing a common Māori custom law. The suspicion that the ‘quantifying’ technique evident in the administrative approach to burial taken by the English common law will be applied to tikanga is one concern. The handing over of tikanga to Pakeha courts for deliberation is another. Takamore has highlighted the problems, but not the solution.

38 Personal interview, 22 November 2007.