Takamore judgment: Tikanga Pakeha

[UPDATE-- 9:30PM: For the record the High Court is the residual jurisdiction in which many categories of legal actions are justiciable civil and criminal - all members of the superior courts sit as High Court Judges. It has registrars and sheriffs. Formerly the Supreme Court established 1841, re-named 1980 and excercising the Common Law since it was brought into existence/promulgated/first used: January 14th 1840. Before the Treaty. That's their legal mandate - to before the signing of the Treaty of Waitangi. The laws of England were brought into effect over NZ on 14 January.

When the common law was introduced to New Zealand, it was adapted to reflect local custom, including property rights. This was made explicit in New Zealand by the English Laws Act 1858, which provided that English law was part of the law of New Zealand with effect from 1840 only "so far as applicable to the circumstances of New Zealand"
- That is what they say.

That also by implication makes the things leading up to - if not the Treaty itself - possibly justiciable in the court. But it also diminishes the acknowledgment of the Maori right of sovereignty by taking the date of the introduction of English law to a point prior to consent being granted. This is the country's legal position. The start of the extinguishment of Maori jurisdiction began before they had even discussed the terms with them.

It does make Hobson's deliberations therefore justiciable... why else would it have been done except to make Hobson's conduct and that of his officers under the protection of their own court. The legal clock upon which the pendulum swings in 2009 is set to an English law before the Treaty came into effect. How can that be? A new Supreme Court was established recently however and it was set up to exercise its legal mandate to deal with Treaty issues. Explicitly in section 3 (a) (ii) of its own Act.

Here is where our High Court laws come from:And so on.The Limitation Act 1950 that sets the de facto general confiscation law too:

6. Application of Act to land of the Crown, Maori customary land, and land subject to the Land Transfer Act [...]
7. Limitation of actions to recover land
(1) No action shall be brought by the Crown to recover any land after the expiration of 60 years from the date on which the right of action accrued to the Crown or to some person through whom the Crown claims.
(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or to some person through whom he claims [...].
[...]
7A Limitation of actions in relation to Maori customary land
(1) No action to which this Act applies by virtue of subsection (1A)(a) of section 6 of this Act shall be brought after the expiration of 12 years from the date on which the right of action accrued to the person bringing the action or to some other person through whom the person bringing the action claims.
2) No action to which this Act applies by virtue of subsection (1A)(b) of section 6 of this Act shall be brought after the expiration of 6 years from the date on which the cause of action accrued.
[...]
8 Extinction of title after expiration of period
Subject to the provisions of section 10 of this Act, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.

The Te Wiki o te Reo Maori link:
This is from the Waitangi Tribunal report of 1986 - the following year Te Reo Maori was made an official language with an Act:
to declare the Maori language to be an official language of New Zealand, to confer the right to speak Maori in certain legal proceedings, and to establish Te Taura Whiri I Te Reo Maori and define its functions and powers.

Wasn't that kind of them to stop being Nazis - before South Africa even. NZ leads the world in race relations... ...only 20 years after the UK itself if you believe the footnotes at legislation.govt.nz. --UPDATE ENDS].
I gave some brief comments to TV3 yesterday for their report. I had criticised the Christchurch reporter, Lachlan Forsyth earlier for giving a one-sided account, so I appreciate his commitment to add different perspectives to this story. I'll go through the Takamore judgement now it is online with my rough notes attached (which given the animosity that exists between the feuding parties may be indicative of possible appeal points on the part of the defendants.)

The main thrust here is that there are two parts of a family and two cultures and systems that are in conflict, but the jurisdiction and culture and rules in which the dispute is to be judged is not neutral - it is firmly Pakeha. It is not balanced between Pakeha and Maori - it is Pakeha full stop. The judiciary, the rules of court, the written law and precedents upon which it will be decided are all Pakeha. In that respect the matter has already been stacked against the Maori side. The colonial legacy lives on in just about everything we do and this is no different. This is something that most people fail to recognise as cultural or legal bias.

The default setting for everything in NZ is the White Man's Law - that is what most Pakeha firmly believe and their reactions to anything that challenges this belief are reflexive, automatic and hostile. Maori of course are just supposed to accept this lesser status without complaint. Given they will always be on the back foot in proceedings where they claim tikanga Maori as either a defence or as a rule is it any wonder they figure the only way is to take preemptive and unilateral actions? And then given this situation it encourages Pakeha to also do likewise. This is a sad state of affairs, built on mistrust and instinctive prejudice more than it is on just misunderstanding.

At a wider level this is a debate a multi-cultural society ought to deal with at an early stage as there are so many mixed or "blended" families nowadays that conflicts may become an increasing occurrence. The answer for most people would be "write a will" - but that's not really much of a solution where families have religion, practices and traditions that are potentially in conflict. Some religions insist a body be buried the following day after death for example.

"Write a will" - although itself pre-supposing the Pakeha/White Man's Law is always the best and right way - is fraught with its own issues. The Prime Minister himself was involved in settling a will dispute earlier this month involving a distant cousin of mine because the situation was in danger of getting very messy - and all the participants were Pakeha! The cults of individualism and collectivism can only be taken so far in these judgments. Hopefully we will get it right.

This dispute is not being decided by the Maori Land Court in the Bay of Plenty with elements of tikanga Pakeha and tikanga Maori - this is being decided in Christchurch with no element of tikanga Maori. That must be the first thing to be noted. Is this a "neutral" scenario? Can there ever be a neutral scenario?

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I re-publish extracts here for the purposes of using it as a case study. The discussion is of legal and social issues - the details are important, but the names are not - and I could edit them all out but that seems like a lot of effort without much further distress being done as it all took place in open court and is now online.

Introduction
[1] Mr James Takamore, known as “Jim” by his friends and family, died suddenly from an aneurysm at Christchurch on Friday, 17 August 2007. He was in his 50s. His partner was Ms Denise Clarke, mother of his two children, James and Jenna, and with whom he had spent his adult life since the 1980s in Christchurch. She phoned around family and friends to pass on the sad news. Those members of Jim’s extended family who lived in Christchurch were quickly on the scene, particularly his uncle, John Manuel, his Uncle Robert and Aunty Sarah.

A Pakeha judge would begin this way - speaking about the immediate nuclear family of wife and kids as the starting point, rather than what a Maori judge would most likely have done by stating what tribal affiliations a person has and their whakapapa starting with the parents (the Mother of the deceased and two of his brothers are the defendants in this case afterall). Already the judgement is being framed in a typically Pakeha context. He is effectively telling her (the plaintiff's) story. This is how he's setting this up.

[2] Ms Clarke made arrangements with the funeral directors for the service to be held on 21 August: for Jim’s body to be buried at Ruru Lawn Cemetery in Christchurch; and at John Manuel’s suggestion, that the service should be held at Te Whare Roimata Marae in Gloucester Street where the body should lie in state. Ms Clarke approved of that suggestion as she believed that Jim would have wanted a link to his Maori heritage.

Fogarty J continues in a chronological fashion, but makes no reference to the date at which arrangements were made for the burial by the other defendants. Given they have an ancestral family plot this may have been some time, many years, previous to the date of 21 August 2007 given by his Honour as the date for which the plaintiff had made arrangements - the details of when the plot in Christchurch was acquired and for what purpose is strangely missing at this point. The Maori Heritage aspect is acknowledged in this second paragraph - by the plaintiff.

[3] As she thought Jim’s body was to be taken by the funeral directors to the marae, she was surprised to find that it was taken not to the marae itself, but to a room at a community centre a few doors along the street. On the Saturday evening, the day after Jim’s death, his mother, Mrs Nehutua Takamore, his brother, Donald, and his sister, Josephine, arrived. They were accompanied by Mr Henare Heremia, the partner of Josephine for more than 36 years and Mr John Mika. This party came from the Bay of Plenty, and were following Tuhoe tikanga (tribal custom, obligations, and conditions (legal)) to make a tono or claim for the tupapaku (body) of their son and brother.

Now at this stage it seems the plaintiff is in custody of the deceased - that seems undisputed. The mother of the deceased is first mentioned here - not in ¶1 but ¶3 - this is consistent with Fogarty J telling this story from the plaintiff's perspective. The correct chronology is that the mother comes first - she gave birth to him after all - it's obvious, but not to acknowledge that already tells us something about how his Honour is thinking and what side he will favour.

[4] That night, around the body of Jim, his mother, and Josephine and Donald sought Jim’s body to be buried at the urupa (burial ground) of their home marae, Kutarere, in the Bay of Plenty. The discussion grew heated as Ms Clarke and the children wanted to continue with the burial arrangements in Christchurch. Jim’s son, Jamie, spoke and at one point with resignation said that they could have Jim. However, it is common ground between the parties that the discussions were not over and would continue the next day.

"Sought" must mean sought to gain consent and the son gave it... "with resignation." If it had been the other way around, no doubt the mother and the brothers would have similarly acceded "with resignation." I take from it there was no duress as such, or else that would definitely be mentioned here. My guess here is that it is the plaintiff (at least) that must have continued an objection for the issue to be unsettled in the way his Honour has put it.

[5] The next day the Takamore family from Kutarere tried to telephone Ms Clarke and ask her and her immediate family to come back to the marae. She did not receive the call. Later in the morning a friend of Jim’s, Mr Richard Price, who had gone to visit the body, found that it was being removed. He telephoned Ms Clarke, but by the time she arrived at the marae the body had been taken by his Takamore family from Kutarere.

There seems to be a gap here. Fogarty J is implying the deceased was taken from a marae - and yet in his previous paragraph he makes it clear it was instead at a community centre. This is confusing.

[6] These proceedings were commenced in the High Court and an interim
injunction was obtained on Tuesday, 21 August, which ordered:
1. That the burial of the body of James Junior Takamore be restrained pending further order of the Court.
2. That the New Zealand Police take into custody the body of James Junior Takamore pending further order of the Court.
3. That costs are reserved.

And this is almost certainly why the defendants took the deceased. They knew that this is exactly what the plaintiff would do - go to the court. In a Pakeha Court in Christchurch there's no way the mother and brothers would be able to get the deceased back. This ruling itself looks likely to confirm that assumption.

[7] This order was entrusted to the New Zealand Police to be served. Two members of the police force based at Opotiki took the injunction order to the Kutarere Marae. The burial service was already under way, although as I understand it the coffin had not been interred. The police officers did not attempt to serve the order.

I don't think anyone is going to seriously blame the pair of local cops for not serving the order in the circumstances.

[8] On 7 October Ms Clarke and her family met at Kutarere Marae with the wider Takamore whanau, a meeting which was largely conducted in Maori, though translated for the plaintiff. It did not resolve the differences between the two families.

This is sad. It's pity it could not have been resolved at his point.

[9] In these proceedings, Ms Clarke, as the executrix of Mr Jim Takamore’s will, seeks four orders:
1. An order authorising the plaintiff and her representatives and agents to enter the Kutarere Cemetery and remove the coffin and the deceased’s body which is contained within it.
2. An order authorising the plaintiff to deal with the coffin and deceased’s body in any way she sees fit following its removal from the Kutarere Cemetery.
3. An order restraining the first defendants and any other persons acting at the request or at the direction of the first defendants from taking any action that would obstruct the plaintiff and her representatives and agents from doing anything pursuant to order 1 and 2.
4. Any other orders required to give effect to these orders.

Well the plaintiff has certainly covered all her bases here. Note that this is the first time the plaintiff has been described as the executor (executrix) of the estate, and that it is stated as fact rather than as a contention or something needing clarification. For the judge this is undisputed.

The deceased’s cultural identity

[10] Mr Jim Takamore was the son of Mr James Takamore from Waioweka, just south of Opotiki in the Bay of Plenty. His hapu is Ngati Ira. His mother’s maiden name is Manuel. Her hapu is Te Upokorehe. Their marae is Kutarere. [...]

This will be an interesting section. Apart from the extracts that the TV3 reporter read out to me yesterday I have not read any further into the judgment... so, to be continued.