A widon whose husband's body was snatched from a funeral parlour by his extended family has won the right to bury him where she wishes.
However, the Court of Appeal has told Denise Clarke that first she should seek to negotiate with family members who took James Takamore's body from Christchurch and buried it in a family plot at Kutarere, in eastern Bay of Plenty.
Ms Clarke's lawyer, Gary Knight, described the ruling as "the clearest statement yet by the courts on Maori custom and common law".
However, it had come at "enormous emotional cost" to Ms Clarke and her family, and could not be regarded as a "win" unless a mutual agreement was reached.
Her intention was to have Mr Takamore's body exhumed and returned to Christchurch, but a process had to be worked through.
"We are happy to follow Tuhoe protocols to enable the process to be completed. The first step is to talk to the family ... out of respect, we need to give them time to digest the judgment."
Mr Takamore, of Tuhoe descent, died in 2007 in Christchurch, where he had lived with Ms Clarke and their two children for 20 years.
His body was later taken from the funeral parlour by his sister Josephine Takamore and extended family members against the wishes of Ms Clarke, the executor of her husband's will.
The High Court ruled in 2009 that the extended family had acted unlawfully and that the body should be taken back to Christchurch. Ms Takamore appealed to the Court of Appeal, arguing that her brother's body was taken according to Tuhoe custom. Maori burials were governed by customary law, which was part of common law.
In their judgments yesterday, Justices Wild and Glazebrook said Ms Clarke should discuss with extended family how to find a consensus on where to bury the body. If a consensus could not be reached, she should make the final decision under common law.
While the two groups had not discussed burial at the time of Mr Takamore's death, this was not a criticism of Ms Clarke, as whanau members had not been open to negotiation, they said.
Justice Chambers said evidence showed that Mr Takamore, after living for many years in Christchurch, wanted to be buried in that city.
"He had expressed a clear view that he no longer considered himself Tuhoe or bound by its customs", so common law applied to him, rather than customary law. Ms Clarke, as executor, had the duty to dispose of his body.
Mr Knight conceded negotiations "could be very difficult to resolve, but we want to avoid further court action, and let common sense prevail".
"Only at the last resort do we want to go back to the court to get an enforcement order for the family to return the body."
Ms Takamore's lawyer, James Ferguson, could not be reached for comment on the ruling, or on whether the family intended to appeal to the Supreme Court.
National Police Headquarters said it could not comment on whether any charges would be laid.
'Almost a case of who loved him more'
An expert in Tuhoe and Maori protocol has described the court's decision as "part of the wreckage" of the case surrounding Mr Takamore's burial.
Tamati Kruger attended part of the court hearings, and said he felt both families had it within their power to resolve the matter outside court.
Yesterday's decision would have been "disappointing and hurtful" to Mr Takamore's Tuhoe family, but not surprising.
He had been surprised to see people go to court for adjudication on Maori customs. Tuhoe would generally prefer to resolve issues themselves.
The chances of the court finding against its own customs was relatively low.
"It would be a foregone conclusion – that you are going to a court that has no qualification or experience to rule on the aspects of Maori traditional custom."
Both families had acted out of belief in their own customs, but the issue almost became a case of who loved Mr Takamore more.
He believed such differences could always be resolved by "plain discussion and conversation".
Annette Sykes, the Mana Party candidate for the Waiariki electorate that covers Bay of Plenty, questioned whether a similar case would have the same outcome since the ratification of the United Nations Declaration on the Rights of Indigenous Peoples last year.
"That declaration clearly implies that Maori custom is to be recognised in the domestic laws of state.
"The intersection between Maori custom and law is one that is a fundamental issue arising from the Treaty of Waitangi that is yet to be dealt with in the modern constitutional terms."
August 2007: James Takamore, dies of heart failure. Mr Takamore's extended family take his body from Christchurch funeral parlour back to family burial ground at Kutarere, Bay of Plenty.
November 2008: Mr Takamore's widow, Denise Clarke, seeks High Court order to exhume body and return it to Christchurch.
July 2009: High Court rules family were unlawful to take body but does not order exhumation.
August 2009: Mr Takamore's sister, Josephine, appeals against High Court decision.
November 2011: Court of Appeal judgment says Ms Clarke, as executor, has sole authority to bury her late husband.
- The Dominion Post
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