No banning body snatching is not cultural genocide

Yvonne Tahana at NZ Herald reports:

The contested burial of Christchurch father and Tuhoe man James Takamore goes to the Supreme Court tomorrow but an academic says a decision overriding customary law is akin to “cultural genocide”.

Mr Takamore died in 2007 in the South Island, where he lived with his partner Denise Clarke and children.

In a move described as “”, his wider whanau took him from Christchurch for burial according to Tuhoe custom at Kutarere in the Bay of Plenty.

Ms Clarke’s fight to disinter the remains was upheld by the High Court and Court of Appeal based on her rights as executor and spouse. However, Mr Takamore’s sister Josephine has appealed to the Supreme Court.

Ms Clarke told the Herald she expected to succeed in the latest round of litigation. “They’re not willing to compromise, they’ve made that clear.”

Associate Professor Nin Tomas of the Auckland University law school has researched customary and common law: the first emphasises rights held by whanau, the second holds that executors or spouses have the final say in burial matters.

Neither should have the final say. The clearly expressed wishes of the deceased should have force in law, and if necessary it should be a criminal offence to act against them (so long as they are legal and practical).

In the absence of clear directions in a will, then the order of precedence should be:

  1. Executor
  2. Spouse or partner
  3. Children
  4. Parents
  5. Siblings

Miss Takamore’s wishes should be well down the chain.

Professor Tomas said the Takamore case “is a conflict-of-laws situation and the court needs to look at the overall custom and its importance to the society it supports”.

“To dismember [tikanga], or to outlaw it as a system, as the [courts] have done, is cultural genocide.”

The law needed to change to better accommodate customary law.

There may be a clash of laws. I have no problem at all with saying a law which respect the wishes of the individual deceased and then the person that individual chose to marry should trump a customary law which robs the deceased and their chosen family of their rights to decide place of burial. Of course in a cross-cultural situation, individuals should try and compromise to agree on something palatable to all – but if agreement is not achieved, then the law should be followed and there should be penalties for body stealing.

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