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Abstract
Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to this has been the long-running case of Takamore v. Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Maori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Maori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.
Highlights
When a person dies, happily most disputes as to location and manner of disposal of their remains are resolved expediently and amicably outside of litigation, or do not arise in the first place.1 In New Zealand this is illustrated by the lack of case law on how burial disputes are to be resolved.2 Situations do-arise-where-parties-to-such-disputes-are-unableto-resolve-the-matter-without-third-party-assistance.-This-has-been-the-case-in-theprotracted-burial-dispute in Takamore v Clarke (“Takamore”)
This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute
For present purposes a working definition is provided in the Law Commission paper “Māori Custom and Values in New Zealand Law” as “...a body of rules and values developed by Māori to govern themselves – the Māori way of doing things.”33 The key principles of Tūhoe tikanga in the present case were summarised by counsel for the appellant, in the High Court decision
Summary
In this part of the paper it is argued that there is no material difference between the majority and minority approach in resolving burial disputes; as they both provide the Court decides which party has the best claim. William Young J, in concurring with Elias CJ, stated that “[the Chief Justice’s approach] does, involve a substantial concession to custom in that it precludes any single participant (who may not be a family member) determining the outcome.” A closer analysis of the Supreme Court’s respective approaches reveals this conclusion is false. Both majority and minority were heavily influenced by the percieved importance of creating a legal framework which allows for Court supervision of burial decisions; whether the first decision is made by the deceased’s personal representative, or someone else. Minority’s judgment. And it can been seen through the majority’s unwillingness to accept burial decisions of personal representatives were to be reviewed in accordance with equitable jurisdiction of the High Court to review a trustee’s decision. Combined, this reflects the Court’s concern that burial disputes should be resolved in accordance with their merits. Later in the paper it will be argued that a merits-based test is inappropriate, despite the importance of resolving such disputes fairly
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