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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
Who Decides where a Deceased Person will be Buried – Takamore Revisited♣
Associate Professor Nin Tomas*
I. IntroductIon
On 6 June 1910, the front page of the Colonist,1 a South
Island Daily ran the following story:
Quarrel over a Burial
A peculiar and interesting law case is said to be likely to eventuate shortly
in connection with the recent death at Ngaruawahia of
a native chief of the
Tainui tribe.
... A chief named Honana died at Ngaruawahia on April 26th last. A
tangi was duly held, ... Now Ramana Nutana, the leading chief of the Tainuis,
desired that the dead Honana should be buried
at Raglan, where he had been born,
and where his parents were interred, while ‘King’ Mahuta ordered
that the remains
be interred in the ‘royal’ burying ground on
Taupiri Mountain.
The mana of Mahuta was upheld by the burial of the late chief at Taupiri, but
Ramana Nutana was not satisfied. He is said to have
telegraphed to three of his
people at Raglan to join him at Taupiri. They duly responded to the call, and
meeting Ramana Nutana,
who meantime had armed himself with a shovel, the four
repaired in a buggy, in the dead of night on the Friday, to the place of burial
at Taupiri. Arrived at the graveyard the four natives dug up their late chief,
and placing the coffin in the buggy proceeded to transfer
it to Raglan. En route
Ramana Nutana is said to have called at his own house at Ngaruawahia, at five
a.m. on the Saturday, and to
have told his wife to inform Mahuta that he had
secured the corpse. With his three assistants he reached Raglan at 10 a.m. on
the
Saturday. A little later the constable at that place is stated to have
received a telegram from Mahuta asking him to bring back to
Ngaruawahia the
living chief and the dead one. The informant states that the police officer,
however, could not discover any law
under the provisions of which he could hold
either Ramana Nutana or his resurrected friend. The benefit of the
constable’s
doubt went to the credit of Ramana Nutana, who,
♣ This article is part of the Nga Tikanga Mate Research Project funded by Nga Pae o te Maramatanga, to examine the impact of Māori and Pakeha cross-cultural marriages on Māori burial practices.
* Faculty of Law, University of Auckland, NZ. Nin is grateful to Paul Meredith for providing historical information on past Tangi proceedings.
1 Volume LII, Issue 12812.
on the Sunday afternoon unobstructed by the bewildered guardian of the law,
and supported by his tribesman, reburied the much-travelled
body of Honana
alongside his parents’ graves.
The sequel to this interesting story consists in the statement of the
informant to the effect that Ramana Nutana has received word
from Auckland that
he and his three companions in the midnight trip to the Taupiri graveyard are to
be served with summonses issued
at the instance of Mahuta.
Five Tainui chiefs were duly convicted with breaching the Cemeteries Act.
Loughnan SM, decided, however, that conviction was sufficient
without imposing
punishment or costs because ‘it was only right that he should be buried
with his ancestors.’2
Over one hundred years later, in 2007, James Takamore died suddenly in
Christchurch. Before burying him in Christchurch, his non-Māori
partner,
Denise Clarke, consented to his lying in state at Te Whare Roimata Marae,
believing that he would want some link to his
Māori heritage. A party which
included his mother and two siblings arrived from Tuhoe to make a tono (request)
for the tupapaku
(deceased’s body) to be returned to the family urupa
(burial ground) to lie with his tipuna (ancestors). A heated discussion
ensued,
after which Clarke and her son withdrew for the evening. The following day the
deceased’s body was removed before she
arrived, and without her consent,
and taken for burial at the family urupa at Kutarere in the North
Island.
On 21 August, a High Court injunction was issued ordering the burial to be restrained and the Police to take custody of the body pending a further Court order. At the same time, however, the tangi and burial were taking place at Kutarere. The Police did not intercede in the tangi proceedings, fearing that the force available was not large enough to execute the order.3 Further discussion between the parties in the following months did not resolve the dispute. Clarke then sought court orders to allow her to exhume the body for reburial in Christchurch and to restrain Takamore’s family from interfering with removal activities. The court found in her favour,4 stating that she had been deprived of legal possession of the body to the extent that it had not been
‘properly’ buried.5 His Honour did not make the orders
requested, leaving room for the parties to comply voluntarily with his judgment
instead. The matter
2 Ashburton Guardian, 23 July 1910, 4.
3 NZ Herald, 23 August 2007.
4 Clarke v Takamore, (unreported) HC Christchurch, 29 July 2009, Fogarty J, CIV 2007-409-
001971.
5 [para 90].
remains unresolved, however, with legal counsel for the whanau stating that
they were disappointed by Justice Fogarty’s ruling
but had no plans to
give back the body.6
These two examples show the difficulty New Zealand courts face when trying to
resolve disputes concerning the burial of loved ones,
when one or both of the
parties is Māori. In the above cases the aggrieved parties sought the
intervention of the law to protect
the priority interests that they believed
they held in determining the final resting place of the deceased. The disputes
raise the
central question of who has the right to decide where a deceased
person is to be buried? An ancillary question is: What is the best
process for
decision-making in such an emotionally fraught situation? The answer to the
first question depends on whether one applies
principles developed within
English law and history which favour granting individual entitlement to the
executor, spouse, a child,
a parent, or a sibling, in that descending order; or
tikanga Māori (Māori custom law), where historically, death is a
public
matter and the whanau (extended family) and wider community are all,
prima facie, entitled to be involved in the decision-making. In the
Honana case, Mahuta relied on his senior status within Māori society
to support his right to call with authority from within a Māori
custom law
framework, for the intervention of the Pakeha law to uphold his interests.
Clearly, from his point of view, he was invoking
the law in a subaltern capacity
to carry out his wishes. In Takamore, however, Clarke is looking to the
authority of the law to protect her interests as an individual against the
application of tikanga
Māori, whether or not it has been accurately applied
in Māori custom law terms.
The case of Takamore is unremarkable in its outcome. It simply applies
the standard English legal doctrine that an executor or spouse (Clarke is both)
has the right to decide the manner and place of burial of her partner over
anyone else. It pays respectful lip service to Tuhoe tikanga
but also places it
beyond the purview of New Zealand law because ‘Tuhoe tikanga is for Tuhoe
to develop, or not as the case
may be’ and practice amongst
themselves.7 It was, however, for the court to decide the extent of
recognition to be provided Tuhoe tikanga as part of general New Zealand law.
Furthermore, individual rights rather than communal duties of a public nature is
the currency of that law. As noted by Fogarty J:
‘there is a fundamental
difference in starting point between the individual freedom assumed by the
common law against the collective
6 NZ Herald 31, July 2009.
7 [para 79].
decision making of tribal custom.’8 Relying on unchallenged
evidence of the deceased’s desire as an individual, to sever his
traditional family links and to be
buried in Christchurch,9 His
Honour held:10
... Mr Jim Takamore chose to live outside tribal life and the customs of his
tribe. Under the common law he was entitled to expect
the choices he made during
his life to be respected by the executor of his will when it came to the
decision as to his funeral. This
is even more so because he chose as the
executor of his will his life-long partner. ... The collective will of the Tuhoe
cannot be
imposed upon his executor and over his body, unless he made it clear
during his life that he lived in accord with Tuhoe tikanga.
In consequence of this, there was ‘no legal authority for the
defendants and other members of Tuhoe to dispossess Ms Denise
Clarke of the
body. The taking of the body was unlawful, and so it is not properly buried. Ms
Denise Clarke is entitled now to possession
of the body, as the
executor.’11
The outcome of Takamore can be contrasted with that of Otieno v
Ougo,12 a Kenyan case in which a prominent Nairobi criminal
lawyer, Silvano Otieno, died intestate in 1986. A dispute arose between his only
widow, Edith Otieno, a well-known Kenyan politician, and his younger brother, as
to where he should be buried. The brother argued
for burial in his Luo tribal
home territory while the wife argued for burial in Nairobi where the couple had
lived for over 20 years.
In Otieno it was held that the decision as to where and how an adult
Luo will be buried rests with the clan from which he hails. Even if a man
may
have, in his lifetime, expressed a wish as to his place of burial, that wish
would be subject to the customs and traditions of
his clan. The clan sages were
not, necessarily, bound to comply with those wishes if they did not conform to
the customs and traditions
of the clan. By custom, an adult Luo must be buried
next to his father’s house at a spot determined by the elders, if he died
before establishing a ‘home’, or before his father, or as a
bachelor, or before he had a son.
It was argued for the plaintiff widow that the deceased had adopted and lived a western life-style consistent with Christianity, and built a family home away from the tribal territory. In opposition, the defendant’s were unanimous that in towns and cities Luo men built ‘houses’ and not ‘homes’. The establishment of
‘home’ was tied to the devolution of land and protected the
intergenerational
8 [para 86].
9 [para 15].
10 [para 88].
11 [para 90].
entitlements of grandchildren. They were also adamant that Luo had to be
buried in their ancestral lands, unless they migrated away
from their clan and
established ‘homes’ in accordance with clan customs and traditions
elsewhere. The deceased had donated
money to an association formed to repatriate
his relations; attended three relative’s funerals at his ancestral home;
contributed
to paying for the fixing of the roofs of his brother’s two
wives’ houses; and had not rejected his right to inherit land
under custom
from his father. Although he had not paid dowry for his own wife, he had paid
dowry for his son’s wife. Giving
up some customs did not mean giving up
all tribal customs. In the circumstances, Justice Bosire held that the correct
burial law
to apply was Luo customary law. The wife, having chosen to marry into
the tribe was also bound by Luo custom.
Kenya and Aotearoa New Zealand are both countries in which English common law
is the main system of law. However, in Otieno tribal law was applied as
the general law applicable to resolving the dispute, while in Aotearoa New
Zealand, in similar circumstances,
it was held to be ‘unreasonable’
because it conflicted with the individual rights of the deceased and his spouse
under
English-based law.
Takamore and Otieno highlight three major difficulties that New
Zealand courts face when dealing with burial disputes: First, there is the
difficulty
of trying to deal fairly with disputes concerning seemingly
irreconcilable cultural perspectives relating to death; second, there
is the
difficulty of deciding what is in essence a fundamental constitutional legal
question i.e. whether and in what circumstances
Māori custom law ought to
apply to burial disputes under New Zealand common law; and third, is the
residual difficulty of deciding
the extent and manner to which individuals are,
themselves, able to determine which system of law is used to decide where they
are
going to be buried.
A. Issue 1: Dealing with competing cultural considerations
Adjudicating competing cultural considerations poses a major difficulty for
judges in English common law jurisdictions, and more particularly,
in countries
where indigenous peoples have established customs and protocols of their own
governing burial. Both Aotearoa and Kenya
are such countries, but the same
dilemma is also faced in Australia, Canada and the United States, where the
English common law has
been introduced and operates over the top of existing
indigenous law.
The loss of a loved one creates an unavoidable emotional rupture in the lives
of those who are close to the deceased. Although we
are powerless to prevent it
happening, we must still accept it as part of life and deal with its aftermath.
Reference to the fundamental,
universal nature of death is made in early
English and American caselaw dealing with burial disputes. These cases all
have Christianity as a fundamental starting point. As stated
by Stephen J in
Queen v Price:13
The law presumes that every one will wish that the bodies of those in whom he
was interested in their lifetime should have Christian
burial. The possibility
of a man’s entertaining and acting upon a different view is not
considered.
Price concerned a case in which a father had burnt the body of his
dead, five month old baby in a field. It was held that burning and burying
were
different methods of returning the body to the earth and that there was no
criminal act ‘unless he does it in such a manner
as to amount to a public
nuisance at public law.’14
The presumption of entitlement to a Christian burial gave rise to duties
being placed on near relatives and others to provide for
the burial of those who
died while in their care. In the earlier, 1840 case of Reg v
Stewart,15 a broad rule to this effect had been laid down by the
court:
We have no doubt ... that the common law casts on some one the duty of
carrying to the grave, decently covered, the dead body of any
person dying in
such a state of indigence as to leave no funds for that purpose. The feelings
and interest of the living require
this, and create the duty: ...
The operation of the ecclesiastical courts in England has continued to
reinforce these duties. It also explains the reluctance to
move human remains
once they have been interred in consecrated ground. In Re Blagdon
Cemetery,16 the Consistory Court of Appeal quoted with approval
from a paper prepared by RR Christopher Hill, Bishop of Stafford:
The funeral itself articulates very clearly that its purpose is to remember
before God the departed; to give thanks for their life;
to commend them to God
the merciful redeemer and judge; to commit their body to burial/cremation and
finally to comfort one another.
...
The permanent burial of the physical body/the burial of cremated remains should be seen as a symbol of our entrusting the person to God for resurrection. We are commending the person to God, saying farewell to them (for their
‘journey’), entrusting them in peace for their ultimate
destination, with us, the heavenly Jerusalem. This commending,
entrusting,
resting in peace does not
13 [1884] QB 247 at 250.
14 At pp 254-255.
15 [1840] EngR 1003; 12 A & E 773 at 779.
sit easily with ‘portable remains’, which suggests the opposite:
reclaiming, possession, and restlessness; a holding onto
the
‘symbol’ of a human life rather than a giving back to God.
In Blagdon these theological principles justified the court’s
reluctance to grant approval to exhume and relocate a son’s body because
the parents had shifted residence and wanted to bury him where they could all be
together when they died.
The imposition of a legal duty on ‘someone’ under English common
law has, over time, been replaced by claims that a ‘right’
of
possession for the purpose of burial exists. Most modern disputes are based on
such competing claims. As explained by Justice
Brownie in the Australian case of
Warner v Levitt,17 concerning a dispute between foster parents
and biological parents, this co- incides with a shift away from overtly
recognising foundational
religious beliefs and towards recognising changes in
local circumstances:18
... The law as it has been developed was founded originally upon religious beliefs which not very many people would today hold, at least as faithfully as people held those beliefs in centuries gone by. It was also founded upon social conditions which have changed quite dramatically. In modern Australian conditions people look to foster parents and expect very great deeds from them.
... It may be a subject upon which the Attorney General may think that he
could obtain assistance by referring the problem to the
Law Reform Commission.
In any event, I hold that the common law is that blood parents have the duty and
therefore the right to bury
their dead children.
The preference given to biological parents over foster-parents with whom the
child was living, also reflects the developing hierarchy
of entitlement amongst
claimants as courts move toward dealing with burial disputes as purely
administrative, rather than theological,
matters. This latter is reinforced by
the discomfort many judges feel at having to deal with highly charged and
personal matters
that can easily turn vitriolic. In Leeburn v
Derndorfer,19 an acrimonious dispute arose amongst the
deceased’s three children as to whether his ashes should remain intact for
disposal
or be divided equally amongst them. The frustration of Byrne J is
apparent when he states:20
It is a difficult case, too, as a matter of law, for it raises and touches
upon issues upon which there is surprisingly little judicial
guidance. Moreover,
such authority as I have been referred to appears to be based upon
practicalities as much as upon principle.
This may be because the questions
which come before
17 SC NSW, Equity Division, 1994; 1994 NSW LEXIS 13188; BC9402955 at p 5.
18 P 5 of the judgment.
20 P 4 of the judgment.
the courts as to the right to direct the disposition of a dead body or parts
of it must be determined quickly without the luxury of
a full investigation of
the facts and law. It may be, too, that it is because cases such as the present
stand at the intersection
of a number of competing principles. These may be
competing prescriptions and proscriptions of a cultural, social or religious
nature,
personal taboos, wider concerns as to public health and decency, the
attitudes of the grieving family and friends, and the wishes
of the deceased.
Moreover, these competing pressures may be difficult to resolve, especially
where they are based on feelings which
are strongly held at a time of great
emotional stress and which are difficult to justify, or even explain, in any
rational way. This
makes decision or compromise difficult. It is an area of law
where one can read in the reported decisions an anguish in the judges
seeking to
accommodate the concerns of those interested; and their embarrassment at having
to deal, often in some haste, with bitter
conflicts within families over the
remains of a recently deceased relative or friend, which conflicts, although
arising out of genuinely
held feelings, are perceived as being unseemly.
It appears that the more difficult the circumstances become, and most cases
are complex, the greater the tendency to rely on set categories
of entitlement.
The effect of this has been to shift the focus from the deceased and the need to
respectfully provide for their spiritual
comfort and to relocate it on to the
claimant/s in the guise of their ‘living rights’.
The reliance on administrative principles in settling burial disputes is even
more marked when the parties are indigenous. In Canada,
Australia and Aotearoa
New Zealand, the indigenous peoples still possess a pre-Christian worldview.
Although each of these societies
has been heavily impacted by Christianity, it
has not destroyed those worldviews. Nevertheless, in attempting a universal
approach
of ‘one size fits all’ for the common law, judges have
constrained indigenous claims within common law parameters and
subjected them to
administrative strait-jacketing.
Thus, in Canada, a Metis man killed in the line of duty while serving as a
member of the Royal Canadian Mounted Police was able to
be disinterred by his
wife for transferral to a special cemetery exclusively for RCMP members, against
the wishes of his Metis parents,
and despite her earlier agreement to his burial
in Metis territory. In reaching this decision Thomas J followed the order of
entitlement
set out in Section 11 of the Cemeteries Act General Regulations
which prioritises the executor, spouse (or partner), adult child,
and then
parent, in that order. In upholding the right of the Director of Vital
Statistics to evaluate the competing interests relating
to disinterment and to
conclusively decide the matter, he held:21
21 Johnston v Alberta, 2007 ABQB at p 10 of the judgment.
[40] In order to set aside the Director’s decision to issue the Permit,
the Applicant [parents] must satisfy me that there is no line of analysis
that could reasonably have led the Director, based on the factual
information placed before her, to reach a decision to issue the
Permit.
Effectively, the test requires the absence of any coherent line of
reasoning on the Director’s part, but permits him or her to ignore
completely any consideration of the Metis
relationship between land and people,
how it might continue on after death, and the imperative for burial within
one’s own
territory.
In the Australian case of Calma v Sesar,22 both parents of
the deceased were aboriginal but each desired burial in a different place. The
father supported his preference by
asserting Christianity as well as Aboriginal
custom. Martin J states:
... The father says that the deceased was baptised in the Catholic Church at
Port Hedland and that he believed that it would be appropriate
for him to be
buried in the same parish, along side his grandmother, in the family plot. He
also asserts that it is his culture that
the dead should be buried in their
homeland, and that that homeland for the deceased was at South Hedland near to
Port Hedland. He
deposed to the importance of visiting the grave site on the
anniversary of death and of birthdays and for commemorative church services
to
be conducted. The first defendant’s father said that he was a member of
the Bardi Aboriginal tribe and it was his wish that
the deceased by buried in
the family plot at South Hedland cemetery. He did not wish the deceased to be
buried in Darwin either as
he believed it to be disrespectful to him to bury him
in the same vicinity as the presence of his ‘alleged
killer’.
Martin J noted that there were deep divisions between the father and the
mother and various members of their respective families as
to the most
appropriate place for burial. This posed real difficulty for the court:
... Questions relating to cultural values and customs interceded. To state
that the Court was asked to make a decision taking into
account matters relating
to burial in a homeland and the profession of the Roman Catholic faith
demonstrates just some of the imponderables.
Further, issues such as these could
take a long time to resolve if they were to be properly tested by evidence in an
adversary situation.
A legal solution must be found; not one based on competing
emotions and wishes of the living, except in so far as they reflected
a legal
duty or right. The solution will not embrace the resolution of possibly
competing spiritual or cultural values.
22 [1992] NTSC, 446 at 450.
Because the parents were equally entitled to decide for the deceased, His
Honour adopted the most expedient solution. As the body
was in Darwin and proper
burial arrangements had already been made, he held that there was no good reason
in law why that should
not continue and no good reason in law why the removal of
the body from the Territory and burial in Western Australia was to be
preferred.23
In Meier v Bell,24 Ashley J, in giving priority to the
custodial parent of a deceased aboriginal child, reinforced the hierarchical
order of common law
entitlement while ousting completely Aboriginal custom
law:
In the context of persons who have died intestate, the approach has been to
identify as best as is possible the person who is a potential
administrator, and
to treat that person in the same way as if he or she had been appointed
executor; that is, so that the decision
of that person as to place of burial
prevails. [p7]
In the event, I should direct that the plaintiff bears the responsibility for
the disposing of the body of the deceased and to that
end for making funeral and
burial arrangements in her sole discretion. In so resolving the matter I
emphasise that its resolution
involves no rejection of the aboriginal cultural
values asserted and relied upon by the defendant. The existence, or otherwise of
those values, as would be the case with any other religious or cultural
considerations, has simply been beside the point. [p11-12]
The harshness of this holding was modified somewhat in Dow v Hoskins &
Ors,25 an unreported burial dispute between an estranged defacto
partner and the sister of the deceased. The defacto partner wanted to bury
the
deceased near Warragul, Victoria, with his mother and her relatives. The sister
wanted him buried at Wallaga Lake in New South
Wales. After hearing evidence of
aboriginal custom, Cummins J, once again reaffirmed the universal application of
English-based legal
principle over Aboriginal custom:26
... I accept Ms Hoskins’ affidavit that Sydney had a strong connection
with his late father and I accept the evidence of Ms
Hoskins and also the two
affidavits of Mr Edward Foster, the uncle of the deceased, that that was and is
a powerful cultural imperative
in relation to the resting place of the deceased,
a son with a strong connection with his father. ....
[26] Ms Hoskins deposed that although the deceased left the Wallaga Lake area
after the death of his father, he returned there twice
yearly for men’s
business. The defendant deponents also swore that the deceased wished to be
buried
23 Ibid at 452.
24 Unreported but frequently cited decision of Ashley J in the Supreme Court of Victoria, 3
March 1997.
25 [2003] VSC p 7.
26 Ibid at 7.
at Wallaga Lake, although as I will come to, the law is that the wishes of
the deceased are not the determining factor. However cold
that may sound, that
is the law applicable to this and every other case.
After identifying the ‘administrator test’ as being the proper
prima facie test (but not to the exclusion of cultural
or other factors which
might arise in evidence), His Honour stated the relevant law as
being:27
[46] ... there is no property in a dead body; if a person is named an
executor that person has the right of burial; a person does
not have the right
to dictate what will happen with his or her body; a person with the privilege of
choosing how to bury a body is
expected to consult with other stakeholders, but
is not legally bound to do so; where no executor is named, the person with the
highest
right to take out administration will have the same privilege as an
executor; the right of the surviving domestic partner will be
preferred to the
right of children; and where two or more persons have an equally ranking
privilege, the practicalities of burial
without unreasonable delay will decide
the issue.
In consequence, Cummins J, held that priority should be given to the
estranged defacto spouse because she was the mother of the two
younger children
and she and the deceased had been working together to reunite their
family.28
Bearing these cases in mind, and if one only takes account of the common law
position as it has grounded itself in England, Canada,
Australia and Aotearoa
New Zealand, Takamore is unremarkable in its finding that the
deceased’s partner, who was also his executor, took precedence over his
relatives in
determining where he was to be buried. However, that is only one
half of the story.
B. Issue 2 - In what circumstances is Māori custom law the correct
law to apply?
In the above analysis, indigenous law falls into the basket of emotional,
religious and cultural concerns that must be wrestled into
submission under
English-based common law and administrative law rules. However, for Māori
(and the same will likely be true
of other Aboriginals and First Nations peoples
whose worldviews provide set protocols for dealing with death and burial), the
English
common law is deficient in its approach, processes, forum and the
outcomes it produces for the following reasons:
27 Ibid at 14.
28 [para 47].
1. Death is a public event for Māori
Death and burial for Māori are public and not private events. They are inclusive occasions that are shared by the community to which the deceased is linked by whakapapa (genealogy) and his or her friends and associates. Public mourning generally, but not always, takes place at the local Marae (meeting house), where set protocols determine the processes by which steady streams of people are welcomed, permitted to speak, provided with food, invited to join the other mourners attending the body until it is buried, and able to assist in receiving any new arrivals. An important part of the tangi process is the
‘tono’ for the body, ie. where those who are related by
whakapapa, or who have other close connections, make a claim to
have the
deceased buried in their home territory or, if they are already in the
group’s territory, at a specific place. The
intensity of these claims can
range from requests that appear to be made only out of politeness and respect,
to heated disputes between
those who were close to the deceased at different
stages of his or her life. In the end, the final decision is generally one that
is ‘owned’ by all those who are present. It is a collective and not
an individual decision, with whakapapa and spousal
wishes being major
determining factors. For this reason, it is arguable that in Takamore,
the tikanga process was not properly concluded because the parties did not reach
through their tears and grieving to find a consensus
decision. It is also not
clear whether there were elders present on all sides to provide the guidance
necessary to assist Clarke
and facilitate the reaching of a consensus. Outcomes
cannot be pre-determined. In the Honana case at the beginning of this
article, for example, the undoubted territorial authority of King Mahuta, backed
up by the law, still
had to give way to the authority of the personal whakapapa
links exerted by his close relatives.
2. Significance of ancestral status
Death for Māori and other indigenous peoples, marks a transition in the
status of the deceased from that of a living being into
that of
‘ancestor’. This is not a transition from life to death but from one
state of acknowledged existence into another.
It was this type of thinking that
led to the assertion on behalf of the native Hawaiians in Hui Malama v
Dalton,29 a case concerning ancestral remains that had been
disinterred from Mokapu Penninsula and were being held in a museum for
categorisation,
that:30
29 US District Court of Hawaii, 25 July 1995, unreported decision of Judge David Ezra.
30 Ibid at 5.
... according to Hawaiian custom, human remains are spiritual beings that
possess all of the traits of a living person. The Federal
Defendant’s
physical examination of the remains was, they contend, a violation and
desecration of the remains. As a result,
the remains have allegedly suffered an
injury to their spiritual well-being and have standing to bring suit.
Several cases were cited in which federal courts had discussed the advantages
of granting standing to non-human entities such as animals
and natural habitats.
Analogy was drawn between these entities and human remains. However, Judge Ezra
did not find the parallel convincing:31
The court finds no sound legal basis for granting standing to human remains.
Even the cases cited by Hui Malama refer to living organisms
of dynamic
ecosystems that are generally recognised as capable of suffering real injury in
terms of physical or demonstrable detriment.
Objects or entities without any
attributes of life in the observable or provable sense are generally not
afforded a legally-protected
interest for standing purposes.
The court notes that inanimate entities such as ships and corporations are
accorded standing in their own right, but these forms of
standing are legal
fictions created for the benefit of living members of society. Allowing these
entities to act as parties to lawsuits
facilitates business and commerce, which
in turn furthers societal interests and benefits individual persons. Hui Malama
has not
shown that a comparable identifiable benefit to living members of
society would result from affording human remains standing.
It could be argued that granting standing to ancestral remains is for the
benefit of the descendants of the deceased. In Aotearoa
New Zealand, standing
would not only recognise that ancestor status underpins whakapapa, it would also
further the interests of Māori
society and benefit its members by upholding
Māori custom law and maintaining the integrity of customary practices and
protocols.
It is clear, however, that the indigenous perception of death and the
significance of ancestry to the living is not something that
the culture of
English-based New Zealand common law finds easy to embrace.
3. The cultural imperative to preserve and reinforce the relationship
between people and their lands
In each of the indigenous cases cited above it is the relationship between
the deceased, his biological family (living and dead) and
the land that is
considered to be paramount. In comparison, the interest of the spouse is viewed
as being more in the nature of a
‘life interest’. Although it is not
unusual for people to be buried out of territory, that is generally for economic
reasons, or because the person has become estranged from their home territory,
by for example,
31 Ibid at 6.
marrying an outsider and moving away permanently. This is what, it was
argued, had occurred in Takamore’s case. However it is
not the norm. Most
Māori still respect tikanga to some degree, even though they are living
away from home or overseas, and pursuing
western lifestyles.
As the dispute between King Mahuta and Ramana Nutana illustrates, Māori
society is not immune from such disputes. It is not something
that only arises
in cross-cultural contexts: every Māori has multiple whakapapa lines, at
least some of which will activate
claims of burial entitlement after death. For
this reason, the fact that Takamore is buried in his ancestral territory,
whether he
wanted to be there or not, will be considered by his whanau as final.
Just as ecclesiastical courts placed great store on burial
in consecrated land,
Māori place an equal value on burial in one’s ancestral territory.
This is more than just an emotional
attachment, it is maintaining the ahi kaa
(ancestral fire) which is the basis of past, present and future claims to land
and territory.
It is the fundamental norm by which intergenerational links are
maintained. While the explanation may be in spiritual terms that
can be viewed
as being peculiar to Māori, the temporal dimension is nevertheless still
evident in the attendant funereal protocols
and burial practices.
4. A Constitutional question: Can Tikanga Māori ever be the law of Aotearoa
New Zealand?
The tangi is probably the most long-standing customary practice that
Māori society possesses. It has maintained its internal
consistency despite
the impact of English common law and the integration of Christianity into its
processes. Discredited in early
colonial days as not conforming to the
requisites of cognisable law, it was argued by the appellant in Public
Trustee v Loasby,32 that:
... It is unreasonable, for it tends to impoverish and to lower the morals of
the Maoris, and is contrary to their own interests.
The Court ought not to
encourage or recognise a custom which is against the best interests of the
Maoris themselves. ...
The respondent, on the other hand, argued that:33
... The Court should recognise and give effect to the custom, for it is
founded in the religious beliefs of the Maoris: Mullick v Mullick 1 Knapp
245. It fulfils all the requisites of a valid custom, and therefore has the
force of law. It is general; it is not unreasonable;
it is considered morally
binding by the Maoris themselves it is not contrary to any statute; and it is of
immemorial antiquity:
32 SC Vol 27, 801 at 802.
33 Ibid at 803.
Cooper J concluded that:34
... the Court ought to recognise what I hold to be the well-established Maori
custom. That in connection with Maori rights to Native
Land Maori custom must be
followed is recognised by ‘The Native Rights Act, 1865’. See also
Tamaki v Baker [1901] UKLawRpAC 18; [1901] A.C. 561. There is no legislation or any decided
case in reference to personal property. It is argued by Mr. Blair that such a
custom as I
have to consider in the present case is unknown to English law: by
this I assume is meant, to English common law. But it is no objection
to a
custom founded, as this is, on immemorial usage that it is not conformable to
the common law of the land, for that is the very
essence of the custom that it
should vary from it: Per Lord Kenyon, in Horton v Meckman [1796] EngR 2439; 6 T.R. 760,
764.
In considering a question of this nature, dealing with the ancient customs
still followed by a race like the Maori people, no decisions
in the English
Courts can be directly in point. One has to consider, I think, three things, -
1. The question of fact whether such
custom exists as a general custom of that
particular class of the inhabitants of this Dominion who constitute the Maori
race; and
I this I find to be proved. 2. Is the custom contrary to any statute
law of the Dominion? The answer is, No statute has forbidden
it. 3. Is it
reasonable, taking the whole of the circumstances into consideration? In this
connection the judgment of the Privy Council
in Mullick v Mullick (1
Knapp, 245) is of some assistance. The Maori people have for as long as records
of history can show been accustomed to hold upon
the death of their important
chiefs these tangis as a part of the funeral ceremonies, and the time has
not yet arrived when these ceremonies can be omitted without seriously wounding
the feelings not only of the relatives of the deceased chief, but of, at any
rate, a considerable proportion of the race. Now, Lord
Wynford, in delivering
the judgment of the Privy Council in Mullick v. Mullick, made some observations
very pertinent to the present
question. He said ‘The interest of
sovereigns, as well as their duty, will ever incline them to secure, as far as
it is in
their power, the happiness of those who live under their government;
and no person can be happy whose religious feelings are not
respected.
Section 71 of the New Zealand Constitution Act 1852 reinforces the view taken
by Cooper J in Loasby. Section 71 states:
And whereas it may be expedient that the laws, customs, and usages of the
aboriginal or native inhabitants of New Zealand, so far
as they are not
repugnant to the general principles of humanity, should for the present be
maintained for the government of themselves,
in all their relations to and
dealings with each other, and that particular districts should be set apart
within which such laws,
customs, or usages should be so observed
...
34 Ibid at 806-807.
At first glance, neither this section nor Loasby refers directly to cross-cultural interactions between Māori and Pakeha. It is too much to presume however, that by simply acting in unison with others outside the tribal territory, Māori must lose their own customary entitlements. For this reason, the reliance in Takamore on uncontested evidence to establish that the deceased had given up his Tuhoe status, will be far from satisfactory to his relations. That the law focused on Clarke’s rights as an individual rather than the duties owed by her to her deceased partner as a tribal member, will also grate. Statements made by Cooper J in Loasby, to the effect that the ‘very essence’ of custom is that it differs from common law while being reasonable in its own terms, challenge the finding by Fogarty J that custom law must be consistent with the common law and ‘individual’ must trump ‘collective’ rights. Furthermore, if the sovereign has a duty to secure the happiness of its subjects by respecting
‘religious feelings’ this case is unlikely to achieve
that.
Robert Joseph, in ‘Recreating Legal Space for the first law of Aotearoa
New Zealand’35 argues that ‘local circumstances’
include Māori customs and usages that are part of the history and
traditions of
Aotearoa. He points to two statutory provisions as supporting
this:
Oaths and Declarations Act 1957, section 18, which states:
18 Judicial oath
... and I will do right to all manner of people after the laws and usages of New
Zealand without fear or favour, affection or ill will. So help me God. Supreme Court Act 2003 which states:
3 Purpose
...
(1) The purpose of this Act is –
...
(i) to recognise that New Zealand is an independent nation with its own
history and traditions; and (ii) to enable important legal matters,
including legal matters relating to the Treaty of Waitangi, to be
resolved with an understanding of New Zealand conditions, history and
traditions; ...
35 R Joseph, ‘Re-Creating Legal Space for the First Law of Aotearoa-New Zealand’ in Waikato
Law Review Taumauri (Vol 17, 2009) at 74-97.
Reading the two sections together with Chief Justice Elias’s comments in
Ngati Apa:36
Any prerogative of the Crown as to property in the foreshore or seabed as a
matter of English common law in 1840 cannot apply in New
Zealand if displaced by
local circumstances. Maori custom and usage recognising property in the
foreshore and seabed lands displaces
any English Crown Prerogative and is
effective as a matter of New Zealand law unless such property interests have
been lawfully extinguished.
The existence and extent of any such property
interest is determined by application of tikanga.
Joseph argues that the three combine to provide legal authority that
Māori customary laws and usages, as the first law of the
country, are part
of the local circumstances that give Aotearoa New Zealand its distinctive
nature.37
If we extend this rationale to include the processes of tangi as
binding Māori by virtue of birth and whakapapa, then unless an individual
provides substantial proof that they want to excommunicate
themselves, and to be
governed by another system of law in its entirety, they could be bound by tribal
custom. Certainly this was
the case in Otieno. Following such a precedent
would mean that the onus is shifted in inter-cultural burial disputes, away from
the biological family
having to prove that the tribal link still exists, to a
presumption that a Māori person should be buried in their tribal territory
unless the executor, spouse, or other administrator, proves that that link has
been satisfactorily and completely severed and the
deceased has intentionally
abandoned their birthright. In Otieno moving away from the tribal
homeland, choosing not to uphold tribal practices and adopting a western,
Christian lifestyle were not
sufficient to break with tribal burial practices.
Burial was viewed by the court as a discrete and important part of tribal
existence
that extended beyond the deceased to include his biological family and
kin group. His wife, on the other hand, because she had freely
chosen to marry
into the tribal group, was also bound by tribal custom. This effectively, is the
reverse of the situation found in
Takamore.
Māori still believe that they have authority to dictate burial matters
concerning members of their whanau. That authority is
not drawn from the English
common law – it arises from pre-existing custom law that is sourced from
within the community. It
still operates within Māori communities and
dictates what happens in many inter-cultural marriages. It remains an open
question,
however, whether it should continue to operate as it currently does,
in a defacto manner within the community, or whether it should
be formally
adopted as part of the law of Aotearoa New Zealand.
36 [2003] 3 NZLR 577, [para 49].
37 Ibid at 10.
C. Issue 3: Dealing with the realities of burial disputes
There are only three real choices of decision-maker as far as burial is
concerned when one spouse is Pakeha and the other Māori;
(1) the deceased
may decide before he or she dies, and that decision may be considered binding
after death; (2) the whanau as a collective
may decide in a public forum after
death, using tikanga which presumes burial in the tribal territory, unless
otherwise decided in
the circumstances; or (3) the common law administrative
hierarchy that privileges the executor, spouse, child, parent, or sibling
before
others, and marginalises Māori and other indigenous peoples’
concerns, may continue to operate as it presently
does. Each of these options is
problematic.
Allowing the deceased to make decisions concerning his disposal while he is
still alive, falls foul of the common law rule that there
is no property in a
human body. Driven in part by the fear that individuals might begin selling
parts of themselves for economic
reasons and that this could lead to the poor
becoming a reservoir from which the wealthy purchase various body parts under
enforceable
agreements – treating oneself as property has long been
resisted by the law. Even though inroads have been made into that attitude
by
various statutes which allow for organ donation, the issue is still clouded.
Currently, some courts will hold that the executor
has the right to decide
issues of burial, while others will hold that the executor’s role is
limited to distributing property
and as the deceased is not property, burial is
not the responsibility of the executor but of the family. There is however, a
strong
argument that the autonomy of the individual ought to be recognised, so
that he or she is able to make decisions about burial, but
that they should only
come into effect at death. If that is so, then there must be some public way of
recording such intentions and
making them enforceable.
On the other hand, permitting the whanau, as a collective, to decide in a
public forum, has the advantage of allowing for the sharing
of grief and
inclusive decision-making. This is already common practice within the Māori
community, and perhaps it is time that
it was recognised as law, rather than as
cultural idiosyncrasy. The refusal of the family to disinter Takamore, for
instance, is
more than simple Māori belligerence. It is a principled stand
based on tikanga reasoning that has prevailed since before English
common law
arrived in Aotearoa.
However, a tikanga approach is not without its shortfalls. The values by
which decisions are made are not always apparent to those
unfamiliar with
tikanga processes. Whakapapa is not always espoused as the central tenet of
decision-making even though it always
is; and neither is the link between land,
ancestry and burial always spelt out but rather taken for granted.
English-based New Zealand society perceives the showing of respect as
something quiet, subdued and controlled. The highly charged,
emotional venting
that sometimes takes place at tangi can be frightening, and appear to be
disrespectful, particularly if accusations
are being flung at the deceased for
various misdemeanors committed during his lifetime.
The statement in Takamore, that Tuhoe tikanga has not developed into a
more flexible shape capable of accommodating inter-cultural and inter-tribal
marriage,
does not reflect the reality of what takes place when tikanga is
actually being applied at a tangi. When Māori entertainer,
Prince Tui Teka
died in 1985, his wife Missy, who was from Ngati Porou, made a successful tono
to have him buried in her tribal territory.
Although she had support from his
mother and Aunty Moi, the hui and discussion were not easy experiences for her,
and there were
some onerous conditions imposed by Tuhoe.38 When she
died, suddenly, in 2008, she was buried near him as was his wish, and the
conditions were fulfilled and the matter satisfactorily
completed.
Finally, the present administrative approach taken by New Zealand common law
is problematic for Māori because it marginalises
the long term interests of
whanau, while elevating the interests of those who have a current emotional
involvement with the deceased
which can be passionate but short-term. Providing
executors and spouses with priority of interest in determining place of burial
could eventually undermine the cohesive, whakapapa relationships that are at the
heart of Māori social organisation.
II. concluSIon
Much more research and thoughtful discussion than is provided here is needed
in order to find a solution to the difficulties outlined
in this article. While
collating shared values and principles relating to tangi and burial throughout
Aotearoa New Zealand is undoubtedly
a first step, there is likely to be
resistance from many Māori to any attempt at establishing a common
Māori custom law.
The suspicion that the ‘quantifying’
technique evident in the administrative approach to burial taken by the English
common law will be applied to tikanga is one concern. The handing over of
tikanga to Pakeha courts for deliberation is another. Takamore has
highlighted the problems, but not the solution.
38 Personal interview, 22 November 2007.
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