Burial of James Takamore

The burial of James Takamore is bicultural family conflict and legal precedent in New Zealand, reflecting the tension between tikanga Māori and English-based common law. James Takamore was born into the Whakatohea and Tūhoe iwi in the Bay of Plenty but lived as a Pākehā in a relationship with a Pākehā in Christchurch, returning to the North Island only twice in 20 years and expressing to third parties his non-identification as Māori. A dispute arose whether he should be buried in Christchurch, as his wife intended or the traditional urupa (burial ground) of his family.

Dispute over burial

After his sudden death of an aneurysm, a dispute arose as to where he should be buried. Ngāi Tūhoe custom requires individuals bodies be returned to family urupa (burial site). Takamore had expressed a wish to be buried in Christchurch. His partner and executor of his will, Denise Clarke, also wished him to be buried in Christchurch.

The Takamore whānau travelled south to Christchurch for the tangihanga which was to be held at Te Whare Roimata marae in Christchurch. Prior to the tangi, there was a confrontation at the funeral parlour, in which the Takamore whānau expressed a wish to return Takamore to his ancestral home; after the confrontation grew heated Clarke left. The Takamore whānau took the body north to the family urupa at Kutarere, in eastern Bay of Plenty. Clarke obtained a court order barring burial, but police arriving to enforce the court order found the burial already in progress and did not enforce it. Rationale given for burying in the urupa included:

[H]is [umbilical] cord is here, we can't stretch it to the South Island.

Ms Clarke should have fought harder to keep her partner in Christchurch and not left the marae when conversation between the two sides became heated. If she wanted her husband to stay there, she should have stayed there, irrespective of what happened.

High Court

The High Court ruled that Clarke had the right to determine where Takamore was to be buried, with the Judge saying:

On the evidence I have heard, Tuhoe tikanga in its current form, has not adapted to accommodate a personal right on the part of an individual of Tuhoe descent, living outside tribal life, to make decisions for him or herself, or for their immediate family to make decisions on their own behalf, as to where his or her body is to be buried. 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.

Court of Appeal

The Takamore whānau appealed the issue. The Court of Appeal ruled for Clarke and the police were prepared to enforce an exhumation order.

Supreme Court

The Supreme Court heard the case on the grounds of:

whether the Court of Appeal was correct to hold that New Zealand law entitled the executrix to determine disposal of the body of the deceased and whether it was correct to hold that the executrix is entitled to take possession of the body of the deceased not withstanding its burial.

The judgment given on 18 December 2012 ([2012] NZSC 116) affirmed the judgment of the Court of Appeal, that the executrix was both entitled to possession of the body in the first instance, and subsequent to burial.

Elias CJ resolved (at [12]) the rights in favour of the respondent, re-asserting the supremacy of the common law in both matters in that she held (at [6]) that:

- the competing rights were judiciable by the High Court (the superior court of original jurisdiction, compare [91]) using its inherent jurisdiction, and;

- that to the extent tikanga called for the executrix to defend her rights at the time the body was taken, this was an impermissible violation of the rule of law ("right not might");

- there is no common-law right in a corpse (e.g. at [70] and [80]).

The presumed right of an executor to control burial was doubted (at [55] and [62]) on the basis that the cases from which it sprang were disputed, irreconcilable, little analysed, did not reflect modern cultural values, and were therefore not 'authoritative in the present case'. But in this instance the circumstances favoured the respondent executrix and spouse (at [107). Young J concurred (at [202])

However, the majority (Tipping, McGrath, and Blanchard JJ) while concurring in the result, were at pains to emphasize (at [110]) that a person 'having charge of a body' is determined by the common law. Furthermore, they did not agree with Elias CJ concerning restrictions on rights of executors, relating to disposal of a body (at [111]); they held that the former cases still made good law (at [114]).

The case led to new research on Māori customary burial practises, but was dismissed by the Supreme Court with a 79-page judgement which acknowledged "significant cross-cultural misunderstanding" but upheld the common law rule.

Opinion

Opinion about the case is mixed, with a number siding with the Takamore whānau citing the United Nations Declaration on the Rights of Indigenous Peoples which give indigenous people's traditional practices legal weight, the court decision explicitly considered the declaration.

Similar Cases

A previous similar case involved Ngāpuhi descendant whose whānau tried to have his body returned from Otago to the Far North. There was also tension over the burial place of comedian Billy T. James.

Disputes over the disposition of bodies is not uncommon in cases of alleged domestic violence.

Further reading

• CA 525/2009 Takamore v Clark decision from the Court of Appeal
• Takamore v Clark decision from the Supreme Court of New Zealand
• Ownership of tupapaku. Tomas, VC. New Zealand Law Journal 233-236 Jul 2008.
• Who decides where a deceased person will be buried - takamore revisited. Tomas, Nin. Yearbook of New Zealand Jurisprudence Volume 11/12 (2008-2009).
• The Treaty of Waiting and Maori Custom Law. Johnston, Kerensa. New Zealand Law Review 549 (2009).