Takamore v Clarke COA CA

JurisdictionNew Zealand
JudgeGLAZEBROOK,Wild JJ,Glazebrook J
Judgment Date23 November 2011
Neutral Citation[2011] NZCA 587
CourtCourt of Appeal
Docket NumberCA525/2009
Date23 November 2011
BETWEEN
Josephine Takamore
Appellant
and
Denise Clarke
First Respondent
Nehuata Takamore and Donald Takamore
Second Respondents

[2011] NZCA 587

Court:

Glazebrook, Chambers and Wild JJ,

CA525/2009

In The Court Of Appeal Of New Zealand

Appeal against High Court's decision that the executor of a will had the right at common law to possession of the body of a man of Tuhoe descent — the deceased's whanau took his body from his home town of Christchurch against the wishes of the executor (also his partner) and his children and buried it in the marae's burial ground in Bay of Plenty according to Tuhoe burial custom — will expressed wish for burial but no further details — deceased had little contact with his whanau and never followed Maori customs or traditions — whether Tuhoe burial customs met requirements for recognition of customary law by the common law — whether the common law relating to burial could accommodate Tuhoe custom — whether there was a duty on an executor to take indigenous practices relating to burial into account.

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

  • A The appeal is dismissed. The matter is returned to the High Court to deal with the question of remedy.

  • B The appellant must pay to the first respondent the costs for a standard appeal on a band A basis and usual disbursements.

JUDGMENT OF THE COURT
REASONS

Glazebrook and Wild JJ

[1]

Chambers J

[266]

GLAZEBROOK AND Wild JJ

(Given by Glazebrook J)

Table of Contents

Para No

Introduction

[1]

Overview of this judgment

[8]

Background

[21]

The relationship between Ms Clarke and Mr Takamore

[21]

Mr Takamore's Maori 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]

Tuhoe 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]

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 Maori 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 Maori relations inter se

[192]

Should the common law on burial accommodate Tuhoe custom?

[197]

Should the common law on burial accommodate Tuhoe 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 whanau and buried in the urupa 1 at Kutarere Marae next to his father and among other whanau members.

3

Ms Clarke sought orders from the High Court authorising her to enter the urupa 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 Tuhoe 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. Tuhoe tikanga requires collective decisions.

6

Fogarty J therefore invited the Takamore whanau to return the tupapaku 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 Tuhoe 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 Tuhoe 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 Maori man of Tuhoe 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 whanau 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 whanau (from Tuhoe) and buried in the urupa at his whanau marae in the Bay of Plenty.

10

It was determined in the High Court that the members of Tuhoe 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 Maori deceased is governed by Maori tikanga (the customary practices of the Maori people) because Maori custom is part of the common law of New Zealand. She submits that the taking of Mr Takamore's body was in accordance with Tuhoe tikanga.

12

We based our view of Tuhoe tikanga on evidence given by two independent experts. In their view, according to Tuhoe tikanga, the decision as to where somebody should be buried is a collective one to be made by the deceased's whanau, which can give rise to conflict and negotiation among whanau 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 Tuhoe tikanga and enhances the mana of the deceased.

13

In this judgment, we determine the effect that Tuhoe burial custom has on the common law duties of an executor (or executrix). Maori 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 Tuhoe burial custom even if it met the requirements for recognition by the common law, as Maori custom generally applies to interactions between Maori only. The application of Tuhoe custom to a non-Tuhoe person such as Ms Clarke (who also does not wish to be subject to Tuhoe custom) is problematic. In addition, it is unclear whether a person's ethnic identity (for the purpose of establishing whether Maori custom applies to a particular person) is determined by...

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