Takamore case could lead to stand-off
SHANE COWLISHAW AND OLIVIA WANNAN
A Supreme Court ruling in the Takamore body-snatching case looks set to test "uncharted cultural waters".
The decision, a culmination of five years of legal action between James Takamore's partner and his whanau, could also lead to a standoff between Tuhoe and authorities.
Mr Takamore died of an aneurism in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and his two children for nearly 20 years. But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.
Ms Clarke, who is executor of Mr Takamore's estate, obtained a High Court judgment confirming her right to decide his burial place and ordering an exhumation.
The decision was upheld in the Court of Appeal, but Mr Takamore's sister, Josephine Takamore, appealed to the Supreme Court against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.
In a decision published yesterday, Chief Justice Dame Sian Elias said Ms Takamore's appeal had been unanimously dismissed.
But she ruled that neither of the stances taken by the two parties was entirely correct.
Ms Clarke did not have exclusive discretion as to where the body would be buried, but her views would be highly influential. Mr Takamore's whanau did not have an absolute right either, but their views would also be highly regarded.
Dame Sian ruled that, although the cultural claims were powerful, Mr Takamore's own preferences and life choices should also be taken into account.
"I have concluded that Ms Clarke should be given the right to determine where Mr Takamore is to be. He made his life with her for more than 20 years and they have two children together.
"During their time together, Kutarere was left behind. That may not have been Mr Takamore's personal preference - it is impossible to know - but it was the choice he made in his life out of commitment to Ms Clarke and his children."
Ms Clarke did not want to comment yesterday, but her lawyer, Gary Knight, said there was a "profound sense of relief".
The next step would be to contact the Takamore family in the new year to see if a mutually agreeable arrangement could be reached about moving the body.
If not, the matter would go back to the High Court, where a removal order would be sought.
"We would far rather we do this by mutual agreement. A forced exhumation would be a terrible affair."
Tuhoe spokesman Tamati Kruger said the Supreme Court decision was tragic and disappointing, but expected. He warned it could lead to a standoff with Tuhoe people.
If Ms Clarke were to show up with a court order and police to exhume the body, the Takamore family and the wider Tuhoe people would be "unco-operative".
"If Ms Clarke wanted to see this through, she would have to act on this knowing the Takamore family would likely be not helpful."
The courts were not the place for issues of customary protocol to be decided, he said.
Massey University sociology professor Paul Spoonley said the situation was a cross-cultural miscommunication, but it was clear that the immediate family's rights had not been respected.
He described the situation as "uncharted cultural waters".
"You've got to feel for the authorities here if they've got to exercise the court's ruling in exhuming a body."
- The Dominion Post
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