Tuhoe burial custom not reconised by common law (Court of Appeal ruling)

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An Eastern Bay of Plenty family who took the body of a dead relative back to his ancestral home to bury – against the wishes of the deceased’s wife – had acted unlawfully, the Court of Appeal ruled today.

James Takamore died in Christchurch in 2007 of heart failure after living in Christchurch with his partner, Denise Clarke, and their two children for 20 years.

Clarke was executor of Takamore’s will and intended him to be buried in Christchurch.

Against her wishes Takamore’s body was taken by his sister and extended family back to the eastern Bay of Plenty and buried in the family urupa, or burial plot near his family marae at Kutarere.

In 2009 Justice John Fogarty in the High Court ruled the taking of Takamore’s body by his extended family was unlawful.

Takamore’s sister, Josephine, appealed the decision to the Court of Appeal.

Josephine Takamore argued the burial of deceased Maori was governed by Maori custom, which was also part of common law, and the family had taken her brothers body under Tuhoe burial custom.

The Court of Appeal dismissed the appeal and referred the case back to the High Court to seek remedy between the two families.

In his summary Justice Chambers said Tuhoe customary law, even if valid, did not apply to Takamore and did not apply to his body.

Common law should apply instead and Clarke, as executor, had the duty to dispose of Takamore’s body, he said.

Justices Wild and Glazebrook held that Tuhoe burial custom could not be recognised under common law because it authorised force to settle private disputes, and in doing so did not meet the criterion of reasonableness.

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