Tuhoe relatives of James Takamore took his body without his wife Denise Clarke’s permission in 2007 and buried it at Kutarere Marae, near Opotiki, in the Bay of Plenty.
Ms Clark has been fighting this month in the High Court at Christchurch to get his body back.
She said her husband had lived with her in Christchurch for 20 years. He had wanted to be buried there and had little contact with his North Island family.
Justice John Fogarty’s reserved decision released today ruled in her favour, but did not order a disinterment of the body.
He instead asked both parties to try again to resolve the dispute.
Tuhoe tikanga (tradition) had not adapted to accommodate a personal right for an individual of Tuhoe descent living outside tribal life and their immediate family to make decisions about where their body would be buried, Justice Fogarty said.
This is not to say that Tuhoe tikanga may not adapt in that direction in the future. That, however, is a matter for Tuhoe and not a matter for this court.”
Maori protocol expert Dr Walker said Mr Takamore’s widow had legal rights to the body.
It has been described in the press as body snatching and I think that’s a pretty accurate description.”
However, Mr Takamore’s Tuhoe relatives probably did not even know they were offending the law, he said.
Our country cousins are a bit different from the urban people… So rural Maori really need to understand there are two people in this country: Maori, Pakeha… Maori have their customs, Pakeha too have customs and according to Pakeha custom it’s the wife, the next of kin, who has the say over the deceased.”
It was possible for Maori custom to accept this, Dr Walker said.
Maori custom is dynamic, it does change. I talked with a very learned colleague who comes from Tuhoe and he holds the same views that I do, and he’s much more learned than those people who hijacked that body.”
The relatives had been able to take the body because Mr Takamore’s immediate family did not know Maori custom and “there wasn’t an adequate defence put up”, Dr Walker said.
Proper custom dictated that if a husband and wife belonged to two different tribes and the husband was living in the wife’s tribal area and then died, he could be buried in either place.
What usually happens is his. . . own family would go to the wife’s family and put a request. And it’s done according to protocol on the marae and discussion and a mutual agreement arrived at and it depends on the arguments that the husband’s people put up to have the body returned to them. But it’s not just snatched, otherwise it’s a cause for fighting.”
The local marae should have supported Mr Takamore’s immediate family.
They should have stood by the widow, found out what her wishes were and supported her in the expression of her wishes to the visitors who had come to take the body. That would have been the proper way to do it by discussion, but that never happened. All Maori living in towns and cities needed to make a will expressing their wishes for the disposal of their body, That’s the only way to do it now to avoid future, Dr Walker said.