February 2013 Māori Law Review
What does Takamore mean for tikanga? – Takamore v Clarke [2012] NZSC 116
Takamore v Clarke
Supreme Court [2012] NZSC 116
18 December 2012
Natalie Coates provides an analysis of Takamore v Clarke. The case is about who has the right to decide where a body is buried.
Download Takamore v Clarke [2012] NZSC 116 (556 KB PDF) here.
Overview and result
The Supreme Court’s Takamore v Clarke decision addresses whether New Zealand law entitled Ms Clarke (the partner and executrix of Mr James Takamore) to determine the disposal of his body. After his death, Mr Takamore’s body had been taken by members of his family and buried. The Judges unanimously dismissed the appeal and gave Ms Clarke the right to proceed to have Mr Takamore’s body reburied in a place of her choosing.
This decision is significant in at least two respects. It is important because the Supreme Court settles the position in New Zealand about how decisions are made in regards to body disposal. In a joint judgment Tipping, McGrath and Blanchard JJ ruled that when there is no agreement or acquiescence on what is to be done with a deceased, where arrangements have broken down or where nothing is happening, the common law is that personal representatives (executors and potential administrators) have both the right and duty of disposal of the deceased. A person who is aggrieved with the personal representative’s decision may challenge it in the High Court.
This judgment is also significant, however, because of the Supreme Court’s approach to tikanga Māori (the customary law and practices of the Māori people). Particularly surprising was the manner in which the Court treated tikanga, in this case Tūhoe burial customs.
The majority judgment of Tipping, McGrath and Blanchard JJ placed primacy on the rights held by the personal representative. Māori burial customs were seen as being a relevant consideration to be weighed among others in considering how to exercise those rights.
Chief Justice Elias and William Young J disagreed that the personal representative of the deceased has the role of “first-decider”. However, they concurred that the common law imports tikanga as a value and matter to be weighed.
This approach of treating tikanga as a relevant consideration was, however, adopted without explicitly addressing how tikanga could itself be recognised as law. The Supreme Court decision therefore sidestepped, without explanation, addressing when and how tikanga has the status of law as part of the common law.
The Court’s lack of discussion on this point means that it is not entirely clear what this decision means for the recognition of tikanga as law in burial matters and the recognition of tikanga within Aotearoa/New Zealand’s common law more generally.
This article analyses the Supreme Court’s decision. It first looks at who gets to decide where a body is buried. It then focuses on how the Supreme Court treats tikanga; the approach taken by the Court and the potential implications that this decision could have for the recognition of tikanga.
Background
Mr James Takamore died in 2007 having lived most of his adult life in Christchurch with his partner (Ms Clarke) and their children. After he passed away, Mr Takamore’s body was taken by members of his Whakatōhea and Tūhoe whānau (extended family) and buried in Kutarere in the Bay of Plenty in accordance with tikanga observed by his hapū. This was done without the consent of Ms Clarke, who was appointed executor by Mr Takamore’s will. Ms Clarke and Mr Takamore’s children sought to have his body exhumed and reburied in Christchurch.
Ms Clarke succeeded in the High Court. Fogarty J found that members of Mr Takamore’s Māori whānau had no entitlement to take his body in the manner that occurred.
Ms Josephine Takamore (Mr Takamore’s sister), appealed this decision to the Court of Appeal. The Court of Appeal dismissed the case (see (2011) November Māori LR and Laura Lincoln’s analysis of that judgment in this issue).
The Supreme Court granted Ms Takamore leave to appeal from the Court of Appeal ([2012] NZSC 17). The ground of appeal was whether the Court was correct to hold that New Zealand law entitled the executor of Mr Takamore’s will to determine his place of burial and to take possession of his remains for reburial.
The Supreme Court unanimously dismissed the appeal and found that Ms Clarke was entitled to proceed under an exhumation license and have Mr Takamore buried in a place of her choosing. The matter was remitted to the High Court to deal with any necessary consequential orders to give effect to Ms Clarke’s final determination.
Discussion
Who gets to decide where a body is buried?
This decision is important because it clarifies the law around who has the right to make decisions around body disposal. The majority judgment of Tipping, McGrath and Blanchard JJ held that there is a common law rule under which personal representatives (executors and potential administrators) have both the right and duty to attend to disposal of the body of a deceased (the “executor rule”) (at [114]).
Tipping, McGrath and Blanchard JJ (at [143]) went on to extend the executor rule in cases of intestacy, to the person with the highest claim to be appointed administrator of the estate. This is governed by the High Court Rules, which sets out a priority regime, subject to the discretion of the Court. Decisions about body disposal, however, are not completely unfettered.
Tipping, McGrath and Blanchard JJ (at [150]-[152]) found that the common law of New Zealand should reflect the special circumstances of this country and noted that the executor rule has been developed by requiring the personal representative to take into account different cultural, religious and spiritual practices as well as the views of the immediate and wider family. They considered that this ensured due weight is given to tikanga and Māori burial practices. They did, however, point out that it is not a requirement that the personal representative engage in consultation with others and, provided they have considered other viewpoints that come to their attention, they can act upon their personal view (at [156]-[158]). They also (at [154]) noted that the executor rule becomes operative when there is no agreement on a course of action, where arrangements have broken down or where nothing is happening.
The majority agreed that where a person is aggrieved with the decision of the personal representative they can challenge it in the High Court (at [160]). The Court in reviewing this decision must address the circumstances and make its own assessment and judgment as to whether an applicant has established that the decision taken was not appropriate. Here, the Court must also consider tikanga. Tipping, McGrath and Blanchard JJ therefore seemed to take an approach similar to that applied in administrative law, treating the executor as a person whose decisions will be subject to judicial supervision if necessary.
Both Elias CJ and William Young J in separate dissenting judgments disagreed with the majority of the Supreme Court that the common law provides for the personal representative of the deceased to have the role of “first-decider.”
Elias CJ in her minority judgment (at [10]) found that there is no hierarchy or rights to possession of a body. In particular, she found that there is no clear basis for the proposition that an executor has an exclusive right to determine disposal against the claims of others rightly interested. She held that such a rule is not established on the authorities nor should a rule be adopted by judicial decision (at [80]). The Chief Justice preferred the view that, the executor, although entitled to high priority, is but one of a range of views that must be considered. Where disputes arise, parties must have access to the Court for determination of their claims and the Court has to resolve the matter based on the different values raised by the parties.
William Young J agreed with the Chief Justice that the personal representative does not have a first decider role under law. However, he pointed out that, in practice, there may not be significant differences between the Chief Justice’s approach and that taken by Tipping, McGrath and Blanchard JJ as both provide for ultimate determination by the Court.
Applying this legal framework to the Takamore facts, Tipping, McGrath and Blanchard JJ found that Ms Clarke, as executrix, had the power to determine where his body was to be buried. In making their independent assessment of the circumstances, the Court weighed up a number of considerations. These included Mr Takamore making a life in Christchurch for 20 years; his children and partner having little relationship with Kutarere; Ms Clarke’s and the children’s wishes; and, Kutarere being of central importance to Mr Takamore’s Māori family and custom. When assessed, Tipping, McGrath and Blanchard JJ found that Mr Takamore’s own life choices in relation to living in Christchurch with his children and partner, carried the greatest weight and were determinative (at [169]).
Elias CJ and William Young J reached the same result. Elias CJ in her judgment (at [102]) concluded that although the cultural claims were powerful, Ms Clarke should have the right to determine burial. This was based on Mr Takamore’s life choices which put his partner and children first. However, the Chief Justice recognised that had Mr Takamore’s connections with Kutarere been maintained, even slightly, the claim based on whakapapa, identity and hapū may have prevailed.
The impact of this decision on the recognition of tikanga by the common law
The Takamore decision is primarily an attempt to clarify the law around body disposal. This decision is of particular significance because it involves Māori customary claims and tikanga. The Supreme Court’s approach to the interplay between tikanga Māori and the common law, however, was somewhat surprising in that it framed the issue quite differently from the way this was done in the courts below.
In both the High Court and the Court of Appeal, the Courts explicitly considered the common law doctrine that tikanga can be recognised as law provided it can satisfy certain criteria (existence since time immemorial, reasonableness, certainty, continuity and non-extinguishment). If a custom meets these tests, it could potentially trump other general common law rules, such as an executor rule.
In assessing the particular custom in question, the taking of a body to be buried in ancestral land, both the High Court and Court of Appeal found that as applied the custom did not satisfy the requisite tests. It was only after this analysis, however, that those courts then looked to other common law rules (such as the executor rule) and how it is influenced by or takes into account, custom and tikanga. Here, Glazebrook and Wild JJ in the Court of Appeal adopted their “modern approach” that the executor is given primacy in body disposal decisions but that tikanga is a relevant consideration.
The majority of Tipping, McGrath and Blanchard JJ in the Supreme Court ultimately adopted a similar legal position to the “modern approach” adopted by the Court of Appeal. However, the Supreme Court differed significantly in the route that its members took to arrive at this legal framework.
Tipping, McGrath and Blanchard JJ did not engage in the first step taken by the High Court and Court of Appeal and address the possibility of customary law being recognised as law. They went straight to the premise that the common law prioritises the executor in the first instance. On their view, common law accommodated custom and tikanga by influencing and adjusting this executor primacy rule so that tikanga is a relevant consideration in the decision of the personal representative and by the Court in its independent evaluation in the event of any challenge to that decision. As stated by Tipping, McGrath and Blanchard JJ ([at 164]):
The common law is not displaced when the deceased is of Māori descent and the whānau invokes the tikanga concerning customary burial practices … Rather, the common law of New Zealand requires reference to any tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation. Personal representatives are required to consider these values if they form part of the deceased’s heritage…
The approach adopted was therefore one in which tikanga is seen as being but one consideration to be weighed amongst others. This effectively sets the same framework as the Court of Appeal’s ‘modern approach’.
In coming to this conclusion Tipping, McGrath and Blanchard JJ did not explicitly explain why they did not address the possibility of customary law being recognised as law based on the doctrine of continuity. They simply started from the executor primacy rule. This eschewal to address the approach taken in the courts below, which set out clear requirements for custom to be recognised by the common law, makes it difficult to draw conclusions about the effect of this decision on the recognition of tikanga both pertaining to body disposal disputes, as well as more generally.
The difficulty is all the more obvious because the Supreme Court judgments do not reason through exactly how the Court took account of and weighed the relevant tikanga followed by Mr Takamore’s Māori whānau in this case. The considerable evidence before the Court on tikanga does not feature.
In relation to body disposal disputes, residual ambiguity results from this avoidance. It raises questions such as:
- Does the Supreme Court approach mean that tikanga is relegated to only ever being a factual consideration in burial disputes?
- Can tikanga still be law in this area?
- Do the Court of Appeal tests for recognition of tikanga as law stand?
- When might tikanga take primacy?
If one considers a different factual scenario these questions could become extremely relevant. For instance, if the tikanga at issue was not the taking of a body by force for burial, which the Court of Appeal rejected as unreasonable, but was a custom that was more orientated around who the primary decision makers are in respect of body disposal.
A hypothetical custom could be that when a deceased has extremely strong connections to their whānau, the decision of the collective whānau takes priority over the spouse. This custom could feasibly meet the tests for the recognition of custom as “law” set out by the majority of the Court of Appeal. In this situation, if the decision of the executor is challenged by the whānau, the question that could arise is: whether an applicant could argue that the executor decision was inappropriate because it conflicted with tikanga that is recognisable under the common law.
Thus although Tipping, McGrath and Blanchard make it clear that if a dispute is brought before the court “Māori burial practice must be taken into account” it is not apparent whether the Court has eliminated the possibility of tikanga coming into the matrix of consideration not just as fact but as law.
Elias CJ in her minority judgment also ultimately held that tikanga is only a consideration and a “value” to be weighed by a Court in determining a burial dispute. However, unlike Tipping, McGrath and Blanchard JJ, in coming to this conclusion the Chief Justice appears to have rejected that the law concerning burials involved a clash between the general common law (the executor rule) and the common law recognition of custom (through the doctrine of continuity). She described this as a “false antithesis” (at [92]). The Chief Justice therefore concluded that the law did not provide a determinative rule or law as to who can dispose of a deceased but Māori custom is a part of the “values” of New Zealand’s common law and is a matter to be weighed (at [94]).
Again, however, it is not entirely clear what the implication of this approach is for the recognition of tikanga. Does this turn everything into a factual consideration? What does being a “value” of the common law mean? What are the other values to be weighed?
The status of tikanga in relation to burial disputes is therefore left in a somewhat confused state. It is important, however, to consider the potential impact of this decision more broadly and whether it represents a new approach to the consideration of custom in the common law.
Significantly, despite the Supreme Court avoiding addressing directly the possibility of custom being law under the doctrine of continuity, all the judgments recognised that the common law requires reference to tikanga. This acceptance by the Supreme Court could mean that regardless of whether tikanga meets the tests for recognition as “law” set out by the Court of Appeal, that it is a part of the common law. Therefore in other areas of the law where tikanga is relevant, this case could arguably set a precedent for tikanga becoming a consideration or part of the “values” that come to influence outcomes. This is therefore a potentially exciting recognition of the relevance and applicability of tikanga in the New Zealand legal framework.
The impact of this decision on the tests set out by the Court of Appeal for the recognition of tikanga as law, is unclear. In the case of burials, the fact that the Court went straight to a position whereby tikanga was relegated to a value to be weighed, could perhaps be explained by the existence of what the majority judgment of Tipping, McGrath and Blanchard JJ would say are strong rules and precedents concerning executor primacy. None of the judgments expressly overrule the Court of Appeal approach to the recognition of custom. Therefore, New Zealand courts may apply at first instance the requirements of the Court of Appeal for the recognition of tikanga.
Although it is difficult to draw concrete conclusions from this case, it is suggested that the implication of this decision is that there are two possible paths by which tikanga can be recognised: as law under the Court of Appeal tests or, failing that, as a value or relevant consideration to be taken into account by decision-makers.
Other Comments
In regards to the more specific impact that this Supreme Court decision has in relation to the practice of Māori burial customs and tikanga, it does still allow for tikanga to be practiced in a number of circumstances. This includes when:
- There is no dispute over Māori burial customs applying;
- An executor or personal representative concurs with the tikanga based approach having taken account of this;
- An executor does not agree with the tikanga approach but the circumstances are such that on an application resulting from a dispute, the Court finds that tikanga should be given priority.
In regards to this latter point, an interesting situation would arise if Māori or whānau members with a strong cultural claim to the body (for example if the person had participated extensively in hapū affairs) carry out their custom by simply taking a body for burial, against the decision of the personal representative and before the issue is decided in the High Court. Elias CJ in her judgment considered whether there is a difference between rights of initial disposal and of re-interment. The Chief Justice noted that authorities in other jurisdictions maintain that even though the executor has the right of initial disposal, Court approval would still be required for disinterment. Therefore if this approach were adopted, even though the initial action of taking a body against the decision of the executor would be prima facie unlawful, the Court would still hear the case. Because a Court assesses the case largely afresh, it is possible that a Court could subsequently decide that on the merits the executor decision was inappropriate and the whānau have a stronger claim to bury a body where they choose. So tikanga could potentially be retrospectively validated.
Conclusion
Although this judgment attempts to clarify the process for determining where a body is to be buried, the approach taken by the Court does not clarify the law around the recognition of tikanga. Unlike the Court of Appeal, the Supreme Court did not explicitly consider how tikanga can be recognised as law. Tikanga is part of the “values” of the common law and must be taken into account. One can only speculate what the precedent impact of this decision is for the recognition of tikanga. There is, however, room to argue that the Court of Appeal tests for the recognition of custom still stand. However, when particular manifestations of tikanga do not satisfy the tests for recognition, it appears that on the Supreme Court’s approach, tikanga can still come in to the mix, be considered relevant and afforded weight. One can only wait and see how the Courts and Māori will react to Takamore.
