Time for body-snatch parties to work together

20:05, Dec 21 2012

Disputes within families after the death of a family member can be angry and bitter. Fortunately, most of them play out in private and with luck, and the passage of time, are resolved without outside intervention. If they become public, however, an amicable resolution can be much harder to achieve. The case over the burial place of James Junior Takamore, whose body was snatched from his immediate family in Christchurch as it lay awaiting interment and taken by his wider whanau to his tribal urupa in Tuhoe country, has not only become public, it has also gone all the way to the Supreme Court. The court has resolved the legal issues put before it. It should now be possible for the parties to set their emotions aside and work in a civilised way together to put it into effect.

At the time of his death five years ago, Takamore had lived in Christchurch away from his wider whanau and tribal lands for 20 years. There was no evidence he had consciously severed links with his Maori background, but he had, as the court found, lived a life in Christchurch with his pakeha partner and his two children that was certainly detached from it. One son, for instance, gave evidence that he had been raised by his father with no knowledge of his tribal affiliation.

Before he died Takamore had vaguely expressed a wish to be buried in Christchurch. Before that wish could be carried out, however, Takamore's wider family (his mother, sister, and others) arrived to press a claim, based on tikanga, to take him back to be buried near his father. Takamore's partner and one of his sons were reluctant and when discussions failed to resolve the differences, the wider family took matters into their own hands. On the night before the scheduled interment they took the body and later buried it according to appropriate tikanga at the family burial site.

This action, contrary to the wishes of his closer family, understandably caused great distress. It may have arisen from a misunderstanding, but there is little that could justify such high-handed behaviour. Takamore's partner, as his executor, claimed she had the final say on the matter and sued for the return of her husband's body.

The case raised an interesting issue about precisely who, when there is a dispute over the matter, does in fact have final say on the disposal of a body. As it emerged, the law was far from clear and even in this case the Supreme Court is not unanimous. A majority of three of the five judges held that where there is a dispute on the matter, the final say rests with the deceased's executor. Anyone who disagreed with the executor's decision could challenge it in the High Court. The Chief Justice and Justice Sir William Young would not go so far as to say there was a legal rule that the executor had the final say. They thought that where there was a dispute, the matter could only be resolved by the court. In practice there may not be much between the two views.

Certainly, so far as the role of tikanga is concerned, there is little between them. Whether an executor or the court decides the matter, custom has long been recognised in the law in many jurisdictions as one of many factors that an executor, in the proper conduct of his or her duties, should take into account in deciding on the disposal of a body. How much weight it should be given will vary with the circumstances and the other factors to be considered.

All five judges in the Supreme Court decided in this case that after a careful weighing of all the factors, including tikanga, Takamore's executor, his partner, should determine where Takamore is to be buried. The court has sent the matter back to the High Court for any orders necessary to bring this about. It must be hoped, though, that this will not be necessary. Takamore's wider family took the matter to the Supreme Court. Now that court has ruled unanimously against them, they should accede to the ruling without demur.

There will have to be discussion about how to do this. It may be that after further such discussion the close family will consider it better to let their loved partner and father rest in dignity where he lies rather than disturb him any further. But that is a decision, as the Supreme Court has said, that is theirs to make.


The Press