A Supreme Court ruling in a Christchurch 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 North Island iwi Tuhoe and authorities.
Takamore died of an aneurysm 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 took his body to the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.
Clarke, who is executrix of Takamore's estate, obtained a High Court judgment confirming her right to decide his burial place and ordering her partner's body be exhumed.
The decision was upheld in the Court of Appeal, but 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 the appeal had been unanimously dismissed.
Justice Elias ruled that, although the cultural claims were powerful, Takamore's own preferences and life choices should 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."
Clarke told TVNZ she was emotional at the decision.
"I haven't got my head around it."
Her lawyer, Gary Knight, said there was a "profound sense of relief". The next step would be to make contact with the Takamore family in the new year and 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 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 was expected. He warned it could lead to a standoff with Tuhoe people.
If 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 [she] wanted to see this through, she would have to act on this knowing the Takamore family would likely be not helpful."
The five-year process was a tragedy - the courts were not the place for customary protocol to be decided.
Massey University sociology professor Paul Spoonley said the situation was a cross-cultural miscommunication, but it was clear that immediate family members' rights had not been respected.
He described the situation as "uncharted cultural waters", and said whether Tuhoe would allow the body to leave the marae was unclear.
Barrister Felix Geiringer said the decision gave cultural considerations greater "force of law".
Takamore and her lawyer did not return calls yesterday.
- © Fairfax NZ News
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