Opinion nā Tom Bennion
Takamore v Clarke
The Court of Appeal has given a strong signal that where it finds a Māori custom is still in existence, it will and indeed is required by the Treaty and UN documents to go out of its way to find ways to accommodate it within NZ law as far as it reasonably can.
The Court of Appeal has recently ruled on whether Ngāi Tūhoe customs that allow for the forceful taking of tūpāpaku can be upheld by the courts as part of New Zealand law. The majority decided that they cannot. But Ngāi Tūhoe preferences about where a burial should occur should be discussed and taken into account by anyone in charge of tūpāpaku. The decision is important because it deals with the principles under which any Māori custom will be recognised and upheld by the courts.
The Takamore v Clarke case has received a lot of media attention over the past four years, so the facts are by now quite well known. Mr Takamore died in Christchurch in 2007. He had lived in that city for 20 years with his non-Ngāi Tūhoe partner (Ms Clarke) and children. He had appointed Ms Clarke to organise his affairs under a will, which stated that he should be buried, but did not specify where. Ms Clarke decided that should be in Christchurch. Before his funeral, against the wishes of his partner and children, the sister of Mr Takamore and other members of his whānau took his body from Christchurch, and subsequently buried him at Kutarere Marae in the Bay of Plenty.
The Court of Appeal heard evidence from two independent experts that, under Ngāi Tūhoe tikanga, “the decision as to where somebody should be buried is a collective one to be made by the deceased’s whānau”. That can sometimes give rise to conflict. Sometimes a body may be taken by one side of the whānau without consultation, that is forcefully. Nevertheless, “the taking of the body accords with Tūhoe tikanga and enhances the mana of the deceased”.
Three judges heard the case. Two of them decided the Ngāi Tūhoe custom could not be recognised as part of the common law of NZ because, although it was obviously of long standing, and Parliament had never passed any law clearly ending it, it was “unreasonable” since it allowed people to use force to settle a private dispute. That went against a central idea of the common law of “right not might”. That is, private disputes are decided by arguing who has better rights, not by who is stronger.
However, the Court went on to develop what it called a “workable compromise” between Ngāi Tūhoe burial custom and the common law. Any person whose task it is to arrange a burial who is aware the deceased had Ngāi Tūhoe links must think about calling a meeting with the wider family to discuss the burial arrangements. However, in the event of disagreement that cannot be resolved, the wishes of the person managing the deceased’s estate must prevail.
This case suggests that the courts cannot uphold any Māori customs that might allow private individuals to use force to settle a matter – even in situations where both are Māori and the custom might be very well known and occasionally practised.
The two majority judges also made some comments that mean that NZ courts are unlikely to uphold customs between Māori and non-Māori – as in this case. It said it was too uncertain whether the Ngāi Tūhoe custom was meant to apply where non-Māori were involved.
The reasons the court gave for developing its “workable compromise” were also important. It said that the Treaty of Waitangi, the United Nations Declaration on the Rights of Indigenous Peoples and international human rights covenants all uphold indigenous rights, and the common law in NZ should be as consistent with those documents as it reasonably can be.
So what does this mean for the future? Whether or not the decision is appealed to the Supreme Court, the Court of Appeal has given a strong signal that where it finds a Māori custom is still in existence, it will and indeed is required by the Treaty and UN documents to go out of its way to find ways to accommodate it within NZ law as far as it reasonably can.
In his minority judgment Judge Chambers argued that would have been better not to decide the Ngāi Tūhoe custom for burial of bodies was unenforceable. He preferred to decide the issue on the basis that
the actions of Mr Takamore while he was alive showed that he had decided that Ngāi Tūhoe custom should no longer apply to him. Bloodlines, Judge Chambers said, are not everything. He also pointed out the majority had also said that individual preferences were important.
Of course, such an approach also raises fundamental questions. If a person can “opt out” of a customary law regime at any time, what worth is that regime as law?