Responding to Morgan
July 20th, 2012 at 2:00 pm by David FarrarMorgan Godfery blogged a response to me on the Takamore case. He said:
There is a clash of laws. In New Zealand, and elsewhere, the common law position is that the executrix of the will (Miss Clarke) will prevail. Under Maori law, a majority opinion in the whanau will prevail. The wishes of the deceased and the deceased’ partner are, in most cases, subordinate to the wishes of the wider whanau.
The question then is, what law should prevail? In this particular case, I am comfortable with the common law position (or the western position) prevailing. Why? Well, because the deceased made it clear he wanted to lay in Otautahi (Christchurch) as did his children. However, in a situation where there is no explicit wish and the deceased is Maori, I think Maori law must prevail. These situations are rare and should be decided on a case by case basis.
I’m not necessarily against the wider whanau deciding, if there is no explicit wish from the deceased. I am very firm that the explicit wishes of the deceased should be paramount.
However I believe good laws deliver certainty. People should know where they stand under the law, so they don’t break then. And this is where a law that say the wishes of a majority opinion in the whanau will decide, has problems. Who decides who counts in the whanau? Does an uncle or aunt count? How about cousins? Do children and partners get the same say as a second cousin? Do only Maori members of the whanau count? Does that mean the Pakeha partner doesn’t even get a vote?
If one seriously wants customary law to prevail, then you need to define it better. If you do not, then I think that significantly increase the number of disputes and potential for unilateral action.
Related posts:
- No banning body snatching is not cultural genocide
- No opt out
- Organ Snatchers!
- Latest Roy Morgan poll
July 20th, 2012 at 2:15 pm
Perhaps there should be some legislation here. That could provide for a binding expression of an individual’s wishes and for a mechanism to allow input from whanau in the absence of such wishes.
Vote:I do wonder a bit about some of the cases that arise where there has been an estrangement of some kind within families. It seems to me that where whanau care enoguh t want to retrieve a body; that they could perhaps to more to repair or maintain a relationship while their whanau members is still alive. Maybe that takes two willing parties.
July 20th, 2012 at 2:40 pm
That is a very well expressed post DPF. And it also demonstrates very well what a can of worms is opened when you start talking about “customary law”.
Vote:July 20th, 2012 at 2:43 pm
I also agree with DPF and disagree with Morgan Godfrey. This is silly and clearly not thought through – for example how much Maori do they need before the whanau get a say? 1 in 16? 32? 64? – If someone’s great-great-grandfather happen to be Tahoe, if there is no explicit statement, can the Maori body snatchers take them away also?
The law should be written so:
- in the case where the deceased does not specify their wishes for their mortal remains, only the executor can decide what occurs,
- where the person does make explicit reference to this, the executor has to meet those wishes unless it is 1) illegal/offensive, 2) impractical (impossible) or 3) would cost the estate such that it would cause hardship or suffering to the beneficiaries or leads to an unlawful outcome (i.e. I believe a surviving spouse must gets at least half) in cases the person’s desires are too expensive.
Now in almost every case in either above, the executor will take into account the families wishes, but the decision needs to be with one clearly and legally defined person.
Vote:July 20th, 2012 at 2:47 pm
It is astounding that the current case is still proceeding through the Courts. To me it just demonstrates what a waste of money, time and space our Justice system is. Even when a decision was made, the Police refused to enforce it, because they didn’t have the resources to take on the family.
Vote:What a load of shit if the Family wasn’t Maori they would have just gone in and done the job.
Who is paying for all this litigation, probably legal aid.
One man, one vote, one law for all.
July 20th, 2012 at 2:49 pm
the decision needs to be with one clearly and legally defined person.
The executor can be more than one person, so the executors should make the decisions jointly (if appointed by the deceased).
Vote:July 20th, 2012 at 3:11 pm
Mr Blobby: Hard to argue with any of that…This case is an excellent illustration of the fact that we do NOT have “one law for all”
Vote:July 20th, 2012 at 3:34 pm
I have some sympathy for the idea of the law reflecting Maori impulses to kidnap bodies and take them back to their marae. It should be very clear cut. The law should state clearly that if one registers with an Iwi, the implication is that their body belongs to that Iwi, unless a person specifically states otherwise in a will or similar sworn statement. So it should reflect traditional Maori custom.
That said, this bullshit where a tribe can kidnap a body against the will of a person, where it is clear cut, should be rabidly prosecuted by police. At the moment it seems like the police are too chicken to take on a bunch of feisty Maoris. That has to end. If it’s the will of the deceased to be buried in a pakeha cemetery, that is what should happen and no Iwi should get in the way and the police should enforce rigorously the will of the deceased. If they have to bring out riot squads to do that, so be it.
Vote:July 20th, 2012 at 3:51 pm
Trouble is – what is a ‘whanau’, not the ordinary meaning, but as a ‘voice’ with standing to make decisions in this manner. Perhaps Whanau could be granted legal status, but trying to define and lay this down could be tricky. Would the Supreme Court be able to rule ‘whern is a Whanau not a Whanau’.
The Tawera Nikau case comes to mind. See:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10810204
“Ex-league star Nikau found guilty of assaulting daughter”
He took a real hiding in court, and his chances of gaining custody of his grandchildren must now rate as zilch (he seemed to hold his daughter in low esteem for whatever reason). I wonder what would have happened if there was Marae justice and Whanau were listened to. My guess is Whanau would have blindly supported him, found that the assault was provoked so did not warrant sanction, his daughter deemed as unsuitable to bring up children and hence he and his wife would have custody of their children. Would sound like medieval justice to me.
So a loud mouth distant relative with lots of Mana can effectively dictate where peoples’ nearest and dearest are buried and to hell with the wishes of the deceased.
Vote:July 20th, 2012 at 3:54 pm
Collectivist, obstructive Maori bullshit; not dismilar to the way the Kahui/King families behaved by disrespecting and being uncooperative with lawful authorities. Unsurprising that it came from Fairy Godmorgan’s mouth, though.
Vote:July 20th, 2012 at 4:47 pm
BlairM: We have had our disagreements…but that is very well said in my view. It is an outrage that the Police can decide not to enforce Court Orders because, in ex cop Paul Eastbay’s words “there might be a ruck.”
Vote:July 20th, 2012 at 7:10 pm
here’s a similar one:
Iwi elders stop autopsy on washed-up orca
Wednesday, 02 June 2010
Vote:A SCIENTIST wanting to perform an autopsy on a dead orca was prevented from doing so by Ngati Awa elders.
The killer whale, as the creatures are popularly known, had washed up on the beach at Piripai on Monday.
World-leading scientist Ingrid Visser, who has a permit from the Department of Conservation to conduct orca research, found her request to internally examine the dead animal to determine a cause of death opposed by tangata whenua.
http://www.whakatanebeacon.co.nz/cms/news/2010/06/art10007255.php
July 20th, 2012 at 7:17 pm
That burial would have taken place after they hacked the jaw bone out with a chainsaw.
Vote:July 20th, 2012 at 7:22 pm
expat: spot on! I was there as a child when a large pod of pilot whales stranded on a beach north of Gisborne in the early 70′s…I still recall how upset I was watching “iwi” (back then they were simply “Maoris”) chainsawing the jaws off whales which were clearly alive and sensitive to pain…while they were at it, their kids poured sand down the unfortunate creatures’ blowholes…they found the reactions most amusing…I dont recall any of the parents remonstrating with their sadistic offspring
Vote:July 20th, 2012 at 7:29 pm
This should not only be a civil case but a criminal matter. Those dickhead relatives of the guy should be thrown in jail.
Vote:July 20th, 2012 at 7:32 pm
hj – she should have said that the Ngati Awa elders can eat the orca carcas after she’s finished with it.
Vote:July 20th, 2012 at 7:46 pm
You could always take the Solomon approach I suppose.
The close family wants the body & so does the wider whanau.
Easy. Tell both parties that unless they agree upon a solution that the body will be ripped through a bandsaw and both parties will be given exactly half each to do with as they wish.
I bet 50 cents that there would be agreement between both parties in about 99% of cases.
As for the 1% – well I guess the dead person wouldn’t feel much so no biggie……!
Vote:July 20th, 2012 at 8:19 pm
I was just reading Toads definition of racism [from the Standard]:
toad4.3.2.1.2
26 July 2011 at 9:14 am
I was using the term as meaning the political ideology of social, cultural and political dominance by whites, Gosman. Usually implicit in that is a belief that white culture is superior.
and
White supremacy is the belief, and promotion of the belief, that white people are superior to people of other racial backgrounds. The term is sometimes used specifically to describe a political ideology that advocates the social and political dominance by whites. White supremacy, as with racial supremacism in general, is rooted in ethnocentrism and a desire for hegemony…
so you can see that those on the left who advocate for Maori nationalists are stuck: they can’t recognise any issues with the behaviours of other cultures or predominant in other racial groups or they are being “white supremacists” (i.e all cultures are equal even if say, Elizabethans were to appear amongst us).
Vote:July 20th, 2012 at 8:45 pm
Agreed hj. In this context though, there still seem to be many ready to “oh, but of course a body belongs to the spouse, executor or whomever”, without recognising that is simply a culturally determined belief, in the same way the whanau-centred approach is culturally determined. As in so many things, neither approach is better; just different.
Vote:July 20th, 2012 at 8:58 pm
There seems to be an element of Maori culture having to assert itself in a fundamentally correct way (cultural fundamentalism).
Vote:July 20th, 2012 at 9:40 pm
“There is a clash of laws. In New Zealand, and elsewhere, the common law position is that the executrix of the will (Miss Clarke) will prevail. Under Maori law, a majority opinion in the whanau will prevail.”
There is no such creature as “Maori law”.
Vote:July 20th, 2012 at 9:41 pm
http://en.wikipedia.org/wiki/Gail_Kelly
Could this be Australasia’s equivalent – except with triplets, cause we’re tougher in this part of the world.
Vote:July 20th, 2012 at 10:11 pm
Morgan or DPF didn’t think that one through, whose ‘common law’ prevails. ‘Common law’ is buried deep in custom, sorry about using the word ‘buried’ in that fashion. In the meantime I didn’t realise there was ‘kidnapping’ a corpse of our criminal statutes and the suggestion of applying ‘Solomon’s law’ probably shows the mindset that prevails for some.
Of course we all remember that Billy James was also ‘kidnapped’ and is now buried at Taupari.
Vote:July 20th, 2012 at 10:25 pm
@ David Garrett at 7:22pm – I was there as a boy as well, it was Wainui beach, where we lived. I remember a teacher of mine (a pakeha) taking an axe to one of the whales jawbones when it was still alive. My father went down and put a stop to it.
Vote:I don’t know about the rest of it.
July 20th, 2012 at 11:02 pm
Michael King was a loss to this country (who fiddled with his brakes??). I remember him criticising the notion of tikanga as unwritten (and) a thing “only Maori can know”.
He wasn’t happy with the idea some had as being literally “of the whenua”
Vote:July 21st, 2012 at 12:25 pm
Can I assume that the Maori appellants are on Legal Aid ?
Vote:You could not expect them to bring a legal action and pay for it themselves, can you.
July 23rd, 2012 at 8:52 pm
Maori law – which article of the Treaty is that in?
Vote: