February 2013 Māori Law Review
Sir Edward Taihakurei Durie student essay competition 2012 – Takamore v Clarke [2011] NZCA 587: the most significant legal development affecting Māori
Sir Edward Taihakurei Durie student essay competition 2012
Takamore v Clarke [2011] NZCA 587: The Most Significant Legal Development Affecting Māori
The Māori Law Review is pleased to publish Laura Lincoln's prize winning essay on the Court of Appeal's approach to recognising Māori custom.
Foreword by Carwyn Jones, Māori Law Review co-editor
In 2012, the Māori Law Review held the inaugural Sir Edward Taihakurei Durie Student Essay Competition. This is intended to be an annual competition aimed at supporting and developing emerging scholars in this field.
Sir Edward Taihakurei Durie graciously agreed to lend his name to the essay competition. As many readers will be aware, Sir Edward has had a distinguished legal career, during which he has served as Chief Judge of the Māori Land Court, Chairperson of the Waitangi Tribunal, Justice of the High Court, Law Commissioner, and when he retired from the bench in 2004, he was then the longest serving member of the New Zealand judiciary. In 2009 he was appointed to chair the ministerial taskforce reviewing the Foreshore and Seabed Act 2004, which eventually led to the repeal of that Act. In 2008 he was appointed a Distinguished Companion of the New Zealand Order of Merit (later converted to Knight Companion). He continues to play a leading role in the area of Māori law and he is currently a Trustee of the Crown Forestry Rental Trust and a Co-Chairperson of the New Zealand Māori Council. The editorial team are delighted to have his support for this competition.
The essay competition was judged by a panel of the Māori Law Review’s consulting editors and the judges noted that they were very impressed with the high standard of the essays submitted. The winning entry was judged to be the essay submitted by Victoria University of Wellington law student, Laura Lincoln. Ms Lincoln was presented with her certificate and prize at the formal re-launch of the Māori Law Review in October 2012 and her essay appears in this issue.
The essay competition had asked students to write about what they saw as the most important legal development affecting Māori from the previous year. There was certainly no lack of major legal developments to choose from. 2011 had seen such developments as the long-awaited publication of Ko Aotearoa Tēnei, the report in the Wai 262 inquiry, and the Supreme Court’s Haronga decision, which had the potential to significantly change the Waitangi Tribunal’s involvement in settlements. Ms Lincoln chose the Court of Appeal’s decision in Takamore v Clarke as her subject. In her essay, Ms Lincoln provides a critical analysis of the approach adopted by the Court of Appeal and in particular examines the test the Court applies for the recognition of Māori custom.
It should be noted that Ms Lincoln’s essay was written before the Supreme Court issued its decision in this case at the end of 2012. Ms Lincoln has added a short overview of the Supreme Court decision to her essay. A more detailed analysis of the Supreme Court’s decision by Natalie Coates follows this essay (What does Takamore mean for tikanga? - Takamore v Clarke [2012] NZSC 116).
Overview
The Court of Appeal set a test for recognising Māori custom
The Court of Appeal decision Takamore v Clarke is significant because it is the first to focus explicitly on, and set a precedent for, the recognition of Māori custom by the New Zealand common law.
The joint judgment of Glazebrook and Wild JJ sets out requirements for recognition, based on an analogy with English local custom, and includes a novel “more modern” approach to apply in circumstances where those requirements are not met.
However, both the requirements and the alternative approach are not as accommodating to Māori custom as they initially appear to be.
The requirements for recognition are not easily satisfied when applied to Māori custom, casting doubt on whether the analogy drawn with the recognition of English local custom was appropriate in New Zealand circumstances.
Furthermore, it is questionable whether the “more modern” approach has any effect on the treatment of Māori custom by the New Zealand common law.
This article explores these issues, and the resulting implications for Māori custom in respect to its position in New Zealand common law, in order to demonstrate why the Court of Appeal’s decision in Takamore is a significant legal development affecting Māori.
The Supreme Court’s subsequent judgment did not overturn the test set by the Court of Appeal
In July 2012 the Supreme Court heard an appeal from the Court of Appeal decision. The grounds on appeal were whether the Court of Appeal was correct to hold that New Zealand law entitled the executrix[1] to determine disposal of the body of the deceased and whether it was correct to hold that the executrix is entitled to take possession of the body of the deceased notwithstanding its burial.[2]
On 18 December 2012 the Supreme Court released its decision dismissing the appeal.[3] The judges were unanimous in the result, giving Ms. Clarke the right to proceed under the exhumation licence to have Mr Takamore reburied in a place of her choosing.[4] The judges were divided as to their reasoning, with Elias CJ and Young J each producing separate reasons, and Tipping, McGrath and Blanchard JJ forming the majority.
The joint judgment of Tipping, McGrath and Blanchard JJ analyses the content of the common law of New Zealand in relation to the rights and duties of an executor, confirming that the executor has the right and duty to determine the manner and give effect to the disposal of the deceased’s body.[5] They consider this to be well-settled law.[6] They note that the New Zealand common law has not addressed the position where there is intestacy, and analyse the law relating to this issue in other jurisdictions.[7]
The joint judgment adopts the position of England and Australia, where the duties and rights of the executor are extended to the person with the highest claim to be appointed administrator of the estate.[8] Furthermore, a person aggrieved with the decision of the personal representative can challenge it in the High Court, and the Court must address the relevant view points and circumstances and decide, exercising its own judgment, whether the decision taken was not appropriate.[9] In respect to tikanga, Tipping, McGrath and Blanchard JJ decided that personal representatives are required to consider cultural, spiritual and religious values if they form part of the deceased’s heritage.[10] If those decisions are challenged, the High Court must also consider tikanga as part of the circumstances of the case.[11]
As a further development of the law in this area, the judges place great weight on the deceased’s wishes.[12] These were formerly considered irrelevant.[13] The Supreme Court has decided that the law has moved on from its early rejection of this factor.[14]
The joint judgment concludes, in consideration of all the circumstances of the case, that although Mr Takamore’s wishes were unclear on the evidence, his life choices, in relation to living in Christchurch with his partner and adult children, carried the greatest weight and were ultimately determinative.[15] For these reasons Ms. Clarke’s decision as executrix about the place of burial was an appropriate one.[16]
Tipping, McGrath and Blanchard JJ’s joint judgment does not expressly overrule the requirements for recognition of Maori custom as common law set out by the Court of Appeal. To the extent that the majority judgment of the Supreme Court comments on the recognition of Maori custom, it states that “the common law is not displaced when the deceased is of Maori descent and the whānau invokes the tikanga concerning customary burial practices” as consideration of tikanga is required by the common law in this area. This leaves the New Zealand courts open to adopting the requirements for recognition provided by the Court of Appeal in areas where recognition of tikanga is sought.
Background
In 2007 Mr. James Takamore died in Christchurch where he had been living for twenty years with his partner, Ms. Clarke, and their children. He was a Māori man of Tūhoe descent. As the sole executrix of Mr. Takamore’s will, Ms. Clarke intended to bury his body in Christchurch. Contrary to Ms. Clarke’s wishes, her partner’s sister and other whānau members took Mr. Takamore’s body from Christchurch to the Bay of Plenty, to be buried in the urupa at his whānau marae.
The High Court held that this taking of the body was unlawful.[17] Mr. Takamore’s sister appealed against that decision on the ground that the taking of Mr. Takamore’s body was in accordance with Tūhoe tikanga, a notion that the Court of Appeal did not dispute, and that such Māori custom is part of the New Zealand common law.[18]
Discussion
The Court of Appeal decision - overview
The central issue for the Court was whether Tūhoe burial custom has any effect on the common law duties of an executor. In deciding this, the joint judgment of Glazebrook and Wild JJ treated Māori custom as analogous to English local custom, applying the criteria upon which such custom is recognised by the English common law.[19] The joint judgment decided that the taking of Mr. Takamore’s body was unreasonable, as it was contrary to the principle of “right not might” and so, repugnant to the rule of law.[20]
Because the Tūhoe burial custom failed the reasonableness requirement, and the “more modern” approach devised was not feasible in the circumstances, the custom could not be recognised as part of the common law.[21]
The third member of the Court, Chambers J, issued separate reasons supporting the result reached in the joint judgment. He considered it unnecessary to pronounce on Tūhoe custom, particularly on whether it was reasonable or not. Instead, he concluded that regardless of whether the custom could be recognized as part of the common law, it did not apply to Mr. Takamore and his body upon death, as he had disassociated himself from Tūhoe and did not consider himself bound by its customs. Consequently, pure common law applied, and Ms. Clark, as the executrix of his will, was entitled to make the final decision as to his body’s burial.
As a result, Ms. Clarke, as executrix, was entitled to possession of her partner’s body and to make the final decision as to its burial.[22]
The analogy with English local custom
Where English common law conflicts with an alleged local custom, the courts will recognise local custom as law for a borough or local area as long as set criteria are met.[23]
To be valid, a custom must be immemorial, have continued as of right and without interruption since its immemorial origin, be reasonable, and be certain in its terms.[24]
Furthermore, the custom cannot have been extinguished by statute law to the contrary.[25]
The joint judgment’s approach involved an explicit statement that Māori custom is to be treated as analogous to English local custom, a statement of the English common law requirements for recognition, and a stepwise approach in which those requirements were applied to Tūhoe burial custom.
The appropriateness of using this analogy in to New Zealand circumstances has been questioned. Furthermore, no New Zealand court prior to this decision has explicitly stated that their treatment of Māori custom is analogous to that of local English custom.
The closest New Zealand analogy appears to be an implied one in Public Trustee v Loasby.[26] Commentators have interpreted Cooper J’s analysis in that case as implicitly assuming the link between the recognition of local custom and the recognition of indigenous custom.[27] However, the test for recognition set out in Loasby can be seen as a distinct, and arguably more appropriate, test than the one adopted by the joint judgment.
An appropriate analogy?
The Privy Council in Arani v Public Trustee of New Zealand questioned the appropriateness of comparing Māori custom to English local custom due to a fundamental difference between the two; the ability to modify custom.[28]
In Arani, Lord Phillimore recognised that Māori may have an internal power of self-government allowing their customs to be modified, and because of this Māori custom could not be put on the same level as English custom, which lacks such quasi-legislative internal authority.[29]
His Lordship recognised that Māori custom is inherently dynamic. Unlike immemorial local custom, culture is forever a living, changing thing.[30] This dynamism of Māori custom was considered problematic by Glazebrook and Wild JJ in Takamore in analysing two of the requirements for recognition – longevity /continuity and certainty.[31]
The longevity/continuity requirement has been modified for indigenous customs, which instead require proof of a “long-standing, consistent practice” for recognition.[32] However, this modified test is still unsuitable for Māori custom. Because Māori custom can change to adapt to new circumstances,[33] Māori custom in its true form could never meet the modified test.[34]
The joint judgment in Takamore cites Arani and refers to the dynamic nature of Māori custom.[35] The unsuitability of the test is implied by the citation of authorities, yet the modified test was applied despite that lack of suitability. The Court does not propose an additional test or adjustment to address these concerns.
The application of this test was straightforward in this instance, as the Court approved Fogarty J’s findings in the High Court.[36] The joint judgment found that the longevity/continuity requirement was met, as expert evidence established that the taking of a body by whānau is a custom that has long existed, and has been and continues to be actively practiced.[37] For now this means that the future application of this test to a custom that has evolved considerably over time is uncertain but potentially problematic, as the test does not recognise the dynamic nature of Māori custom.
The joint judgment also raised concerns about the certainty requirement. This requires that a custom be certain in its terms; in respect of the locality where it is alleged to obtain; and, of the persons whom it is alleged to affect.[38]
In outlining the certainty requirement the joint judgment concluded:[39]
Given that Māori customary law has its basis in broad values, and its capacity for change and variations between iwi and hapū, the certainty criterion cannot apply with the same rigour as it does in relation to English customs.
This recognises the difficulty in requiring Māori custom to be certain. While not strictly at issue in this case, as the recognition of Tūhoe burial custom by the common law failed on the reasonableness requirement, the joint judgment noted that the burial custom that allows for the taking of the body would have also failed the certainty requirement.[40] This failure would have been based on the burial custom providing an uncertain process for debate and negotiation, rather than a clear allocation of legal rights to the body.[41]
The Court commented that ultimate certainty would be required for the custom to be recognised.[42] However, ultimate certainty would require courts to modify an uncertain custom, which would result in common law failing to recognise authentically Māori custom.
As the approach taken in the joint judgment requires Māori custom to be modified, it may not be an appropriate approach to apply in New Zealand circumstances.
Loasby – a distinct and more appropriate test?
In determining whether the estate of a deceased rangatira was liable for the expenses of the tangi the High Court in Loasby had to consider the applicability of Māori custom.[43] Stating that decisions made by the English courts could not be “directly in point”, the Judge developed a three question test for recognition.[44] The first was a “question of fact whether such custom exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Māori race.”[45] Following this, the Court needed to consider whether the custom was “contrary to any statute law of the Dominion.”[46] Finally, the Court had to consider whether the custom was “reasonable, taking the whole of the circumstances into consideration.”[47] This test has been cited with approval in later decisions.[48]
Although there are similarities between the Loasby test and the requirements for recognition,[49] there are crucial differences in respect of the longevity/continuity and certainty requirements identified earlier in this article as problematic.
The Loasby criterion of a “question of fact whether such custom exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Māori race”[50] is effectively the requirement of proof. New Zealand courts have required such factual proof prior to any consideration of Māori custom.[51]
This limb was discussed in Takamore as submissions for Ms. Clarke required the Court to consider the meaning of the phrase “general custom”.[52]
The Court commented that this phrase did not mean that the custom had to be general, rather than iwi-specific, to achieve recognition at common law. The custom must be general in that it is a custom of an identifiable group, not just a practice between individuals.[53] In this sense it accords with the meaning and scope of custom as per the English test for recognition, in that a custom “imports some general rule applying within the district where it operates, and cannot therefore arise from a few mere private acts of individuals.”[54]
It can be argued that the requirement of longevity/continuity is also a requirement of proof of the existence of a custom, and so the tests are similar in this respect. However, there are issues surrounding longevity/continuity that do not arise with proof of existence. The requirements of longevity and continuity have required adaptation to apply outside of Britain. Where local customs required proof of existence since time immemorial,[55] indigenous customs have been said to require proof of a “consistent, long-standing practice”[56] that demonstrates “continuity with a preceding legal system”.[57] These requirements were identified as being problematic by the Court as they are not easily satisfied in the New Zealand context .[58] Despite the modification of the English test for indigenous customs, its continued existence is still unsuitable due to the dynamic nature of tikanga Māori. The problems with this modified test do not arise when simply requiring proof of existence, demonstrating the significant difference between these requirements in the two tests.
The requirement of certainty in the English test for recognising local custom, identified above as problematic, is also not required by the Loasby test. Without this requirement, Cooper J’s test in Loasby can be seen as distinct from the English test, and arguably more appropriate to New Zealand circumstances.
Nevertheless, the Court in Takamore was not bound to follow the decision of the High Court in Loasby, regardless of whether or not a distinct test was created by Cooper J. Interestingly, the joint judgment in Takamore took a different approach from the test in Loasby, but without expressly overruling that test. In fact, the Court did not acknowledge that the test in Loasby is an implied analogy or a separate test, despite commentary to the contrary.[59]
The Loasby test was only cited in response to a submission for Ms. Clarke that the custom at issue had to be a general Māori custom.[60] The Court also used dicta from Loasby in its analysis of the reasonableness requirement for recognition.[61]
Overall, the treatment of Loasby by the Court of Appeal is at odds with the treatment of that case by previous courts, including the High Court below in Clarke v Takamore.[62]
The “more modern” approach
Despite failing to fulfill the requirements for recognition set by the joint judgment, Glazebrook and Wild JJ were of the view that the custom should nevertheless be taken into account. They proposed a “more modern” approach to customary law involving the integration of Tūhoe burial custom into the common law relating to burial.[63]
Under this “more modern” approach, if the deceased was Tūhoe and at least one family member was also Tūhoe, Ms. Clarke would be required to take Tūhoe burial custom into account as a relevant cultural consideration when determining the method and place of her partner’s burial.[64]
This would require people in Ms. Clarke’s position to facilitate a culturally appropriate process of discussion and negotiation, providing the opportunity for full participation by whānau members, in an attempt to reach a consensus.[65]
Within this process, members of the deceased’s whānau would have an obligation to fully explain their cultural values to the executor to allow those values to be taken into account.[66]
When a consensus was reached, the executor would be required to bury the deceased in accordance with that consensus.[67] If a consensus was not reached, the existing common law position would nevertheless still prevail and the executor would be entitled to make the final decision.[68]
However, on the facts of this case, the joint judgment considered this approach was not feasible because Mr. Takamore’s sister and other whānau members were not open to negotiation and did not fully explain their cultural values to Ms. Clarke.[69]
The effect of the “more modern” approach on the treatment of Māori custom
Where parties are in conflict over the disposal of a loved one’s body, due to tension between Māori custom and the common law, the “more modern” approach could assist to reduce the risk of their dispute proceeding to litigation. However, it does not assist where disagreement persists. If no consensus can be reached by discussion and negotiation it is for the Court to decide whether the custom can be recognised by the common law. The “more modern” approach proposed does not do away with the need for a common law test for recognition.
The “more modern” approach could have a positive effect on the treatment of Māori custom in New Zealand law. It increases the chances of executors considering the wishes of the deceased’s (wider) family by explicitly requiring that those wishes are fully explained and discussed, that stakeholders have the opportunity to be involved, and that the executor, as decision-maker, approaches the matter openly.
However, the positive effect is arguably of limited to marginal extra benefit, as these requirements are already implicit in executors’ duties. The executor is already expected to take into account the wishes of the deceased’s family, which would include considering the application of custom relevant to the deceased’s culture.
An executor cannot have taken into account the wishes of the deceased’s family if they have not given all stakeholders the opportunity to explain their wishes, and if the executor is not open to the possibility of those wishes being taken into account.
The Court’s “more modern” approach purports to provide for a way of recognising Māori custom when the common law test for recognition fails, but it does not have significant extra practical effect. Arguably it merely pays lip service to applying Māori custom more meaningfully with its reinforcing of the executors’ existing duties.
Conclusion
In their judgment, Glazebrook and Wild JJ provided an approach for the recognition of Māori custom, but the requirements they established are not easily satisfied when applied in the New Zealand context. Furthermore, the alternative “more modern” approach has no significant additional effect on the treatment of Māori custom because it reflects executors’ existing duties.
The most significant development reflected in the Court of Appeal’s decision in Takamore is the resulting unlikelihood of recognition of Māori custom by the common law in future cases because of the high thresholds for recognition set in the joint judgment. That is why this case is such a significant legal development affecting Māori.
[1] Consistent with the terminology adopted by the Court of Appeal, the gendered terms ‘executor’ and ‘executrix’ are used in this article to discuss the Court’s decision. As discussed below, the Supreme Court has extended the rights of the executor to the administrator of the estate, where both are now referred to as the deceased’s ‘personal representative’. This is consistent with the updated term used in the Wills Act 2007.
[2] Takamore v Clarke [2012] NZSC 17.
[3] Takamore v Clarke [2012] NZSC 116.
[4] At [169] and [170].
[5] At [143] and [152]..
[6] At [143].
[7] At [143].
[8] At [145] and [155].
[9] At [160].
[10] At [164].
[11] At [164].
[12] At [168].
[13] Takamore v Clarke [2011] NZCA 587 at [207].
[14] At [168].
[15] At [169].
[16] At [169].
[17] Clarke v Takamore (2010) 2 NZLR 525 (HC) at [90].
[18] Takamore v Clarke, above n 13, at [11] and [12].
[19] At [121][175].
[20] At [166].
[21] At [262].
[22] At [262].
[23] See Halsbury’s Laws of England (4th ed, reissue, 1998, online ed) vol 12(1) Custom and Usage at [606]. These criteria, initially set out in the Tanistry Case (1608) Dav Ir 28 at 32 are firmly established.
[24] At [606].
[25] At [646]. See [607]–[618] for a detailed account of what is required under each criterion as the English courts have developed them post the Tanistry Case.
[26] Public Trustee v Loasby (1908) 27 NZLR 801 (HC).
[27] See Mei Lin NG “In Search of the ‘Golden Thread’: Common Law Interactions with Indigenous Law in Canada, Australia and New Zealand” (LLB (PhD) Dissertation, Griffith University, 2006) at 445; Richard Boast “Māori Customary Law and Land Tenure” in Richard Boast and others (eds) Māori Land Law (2nd edn, LexisNexis New Zealand Limited, Wellington, 2004) at 2.2.4; Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [35].
[28] Arani v Public Trustee of New Zealand [1920] AC 198 (PC).
[29] At 204–205.
[30] Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [9]–[11].
[31] Takamore v Clarke, above n 13, at [122]–[123] and [132].
[32] Paul McHugh “The Aboriginal Rights of the New Zealand Māori at Common Law” (PhD Dissertation, University of Cambridge, 1987) at 182.
[33] See Law Commission, above n 30, for examples of the adaption of tikanga to new circumstances.
[34] See Law Commission, above n 30, at [10] and [19] for commentary in support of this argument.
[35] Takamore v Clarke, above n 13, at [123]. Note that the Law Commission also refer to the internal self-governing power of Māori acknowledged by the Court in Arani at [41].
[36] At [136].
[37] At [136].
[38] Halsbury’s Laws of England, above n 23, at [606].
[39] Takamore v Clarke, above n 13, at [132].
[40] At [167].
[41] At [167].
[42] At [167].
[43] Public Trustee v Loasby, above n 26.
[44] At 806.
[45] At 806.
[46] At 806.
[47] At 806.
[48] In Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 215, upon stating the test set out in Loasby, Chilwell J concluded that “thus it may be said that customs and practices which include spiritual elements are cognisable in a court of law provided they are properly established, usually by evidence”. In Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC) at 206, Harrison J referred to Cooper J’s three questions as “criteria for qualification [of Māori custom] as a part of the law of New Zealand”. Fogarty J also recognised the ability of the New Zealand courts to recognise Māori custom as part of the common law using the Loasby test in his High Court judgment Clarke v Takamore, above n 17. However, Fogarty J did not have to apply that test and decide the content of Tūhoe burial custom or whether it was part of the New Zealand common law because of his interpretation of the facts.
[49] See Laura Lincoln “Takamore v Clarke: An Appropriate Approach to the Recognition of Māori Custom in New Zealand Law?” (LLB (Hons) Dissertation, Victoria University of Wellington, 2012) at 9 and 10.
[50] Public Trustee v Loasby, above n 26, at 806.
[51] Boast, above n 27, at 2.2.5.
[52] Takamore v Clarke, above n 13, at [171].
[53] At [173].
[54] Halsbury’s Laws of England, above n 23, at [601].
[55] At [607].
[56] McHugh, above n 32, at 182.
[57] Mark D Walters “The ‘Golden Thread’ of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982” (1999) 44 McGill L J 711 at 719.
[58] See section ‘An appropriate analogy?’ of this article.
[59] Boast, above n 27, at 2.2.4; Clarke v Takamore, above n 17, at [81]–[83]; Huakina Development Trust v Waikato Valley Authority, above n 48, at 215; Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority, above n 48, at 206. The first three of these authorities had been seen by the Court in Takamore v Clarke, as they were cited in the majority judgment.
[60] Takamore v Clarke, above n 13, at [170].
[61] At [115] and [125].
[62] See Lincoln, above n 49, at 7.
[63] Takamore v Clarke, above n 13, at [254].
[64] At [255].
[65] At [255].
[66] At [261].
[67] At [255]–[256].
[68] At [258].
[69] At [261].
