Lawyers for both sides of a family that are warring over the burial location of a Christchurch man have finished their submissions at the Supreme Court.
James Takamore died of an aneurysm in 2007 and was to be buried in Christchurch, where he had lived with his partner Denise Clarke and their two children for nearly 20 years.
But his body was removed by his Tuhoe relatives before this could happen and driven up to the Kutarere Marae near Opotiki in Bay of Plenty for burial.
Clarke has a High Court judgment upholding he right as executrix to decide his burial place, which has been upheld in the Court of Appeal.
Takamore's sister, Josephine, appealed the decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the burial place.
This morning during the second day of the hearing, Clarke's lawyer Gerard McCoy continued to argue that while important, there was no way tikanga trumped his client's right as executrix under New Zealand common law.
He produced several previous cases from countries including Canada and Australia that he claimed supported his stance.
The removal of Takamore's body by his whanau had been unreasonable and a violation of the law, he said.
Clarke had a legal obligation as executrix to decide the burial place, but this had been "destroyed" when the whanau had take the body north in an "unrefrigerated van".
There was an opportunity for tikanga to exist alongside common law but it could not break it, he said.
Yesterday Josephine Takamore's lawyer Jamie Ferguson said Takamore could not opt out of being Tuhoe, no matter how he had chosen to live his life.
"The only basis on which they are not subject to tikanga is if they are not Tuhoe."
It was part of that tikanga that James Takamore's son and daughter were also Tuhoe, and the iwi was obliged to "address and redress" the conflict caused by the burial.
The hearing finishes this afternoon, but even if the Supreme Court decides in Clarke's favour, it is expected another court hearing will be needed to decide what happens next.
- © Fairfax NZ News
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