The burial of Christchurch man James Takamore without his widow's approval was an "improper asportation", her lawyer has told the Supreme Court.
Takamore died of an aneurysm in August 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and their two children for nearly 20 years.
But before the burial could happen, his Tuhoe relatives took his body and buried him beside his father at Kutarere Marae, near Opotiki in Bay of Plenty.
Clarke, who is executrix Mr Takamore's estate, obtained a High Court judgment upholding her right to decide his burial place.
The decision was upheld in the Court of Appeal but Takamore's sister, Josephine Takamore, appealed against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the burial place.
Arriving at the Supreme Court yesterday, Josephine Takamore said Clarke and her children were whanau too and she hoped the two sides could come together.
"Hopefully together we will leave it all behind and become one."
Her lawyer, Jamie Ferguson, told the court that the customary tikanga process involved discussion and debate.
Clarke initially took part in that process but did not feel able to attend a second day of discussions and her absence was taken as acquiescence, so the wider family took his body for burial.
James Takamore could not opt out of being Tuhoe, Ferguson said, 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.
But Clarke's lawyer, Gerard McCoy, said there was no way that tikanga bore the same weight as an executrix's responsibilities under New Zealand law. He accepted the practice had a role to play, but it did not equal legal duty.
James Takamore's whanau had taken his body unlawfully because Clarke, as executrix, had exclusive power under the law and did not agree to the place of burial.
"That [acquiescence] did not happen in this case, there was an improper asportation of the coffin and body of the late Jim Takamore."
The hearing continues today, 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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