NEW ZEALAND’S highest court has ruled on a body-snatching case that will test “uncharted cultural waters”.
The Supreme Court has made a decision on five years of legal wrangling between the partner of a Christchurch man, and his whanau.
The man died in 2007 and was to be buried in Christchurch where he had lived for 20 years with his partner and their children.
However his family, of Tuhoe heritage, took his body to the Bay of Plenty where they buried him next to his father at Kutarere Marae, near Opotiki.
His partner, executor of the man’s estate, received a High Court judgement which confirmed her right to decide his place of burial, a decision backed by the Court of Appeal.
The man’s sister appealed to the Supreme Court against the exhumation order on the grounds that Tuhoe tikanga, or customary protocol, should decide the place of burial, Fairfax NZ reported.
In the decision, Chief Justice Dame Sian Elias said the appeal had been dismissed, ruling that while the cultural claims were powerful, the man’s own preferences and life choices should be taken into account.
“I have concluded that (partner Denise Clarke) should be given the right to determine where Mr (James) 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”.
They would talk to the family in the new year and try come to a decision on the moving of the body.
If an agreement could not be reached, they would seek a removal order from the High Court.
“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 not a surprise.
He said it could lead to a standoff with Tuhoe people.
The family would not co-operate with an exhumation order.
“If [she] wanted to see this through, she would have to act on this knowing the Takamore family would likely be not helpful.”
He said the courts were not the plcae 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”.