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Tuesday, July 17, 2012

Common and customary

The Takamore case is back in court today (and set down for tomorrow as well) at the Supreme Court. Many Maori are anxious that the court - the Pakeha bench - may decide against Maori customs and law - tikanga - and will endorse the usual domination that Pakeha customs and law are presumed to have in this country.
NZ Herald:

The lawyer for a woman fighting to keep her brother buried in the family marae told the Supreme Court today the decision on where people should be buried should not be made in a courtroom.

James Takamore died from an aneurism in 2007. Since then a legal battle has been fought between Mr Takamore's Tuhoe family and his partner Denise Clarke over where he was to be buried - either in Christchurch, or in the family marae in the Bay of Plenty, in accordance with Tuhoe custom.

The media, the Pakeha media that is to say, have used the term "body-snatching" and alike in this case, which is an immediate siding with that of one party in this case - the Pakeha one. The alternative would have been that the wife would have "snatched" the body and "stolen" it off the parent's group - but of course the Pakeha media would have nothing to say on this as they wouldn't have regarded this as theft as they do when a Maori does it. The Pakeha press find it difficult to present this in a neutral way because of their own prejudices.

I have already blogged extensively on this and nothing further has come to light to change the circumstances or my opinion, so I'll restate it as succinctly as I can:

The deceased has parents - one of whom at least is alive and a party to the case - that have already determined where he shall lie. This determination is implicit, inherent and obvious in such a community that has an urupa for whanau - he was always going to be buried there. That would have been the expectation the day he was born. Any spouse, partner or whoever that makes a life with him and comes along later with their own ideas (and the deceased only said in his will that he wanted to be buried - not where) must be of lesser importance than the pre-existing wishes and understandings of his wider whanau and parents in particular.

This is Maori understanding and I can't see a legitimate reason why that should be any different than the English common law understanding as it is applied in this jurisdiction. I can't see why Maori customs and law can't be treated as if they were common law and have become NZ common law because it is a Maori custom or law. Can't it be the same diff?

The issue is how much weight does a spouse (and their offspring) have as compared to parents (and their offspring) in this sort of situation. To say that the English common law puts the spouse above anyone else may be true, but that doesn't make it right or desirable and the question is begged: why should that be true in this country?

The statute books in NZ are full of pernicious examples of Maori having their rights and customs trampled over. It's not just land seizures. The creation of "half-caste" rules by the NZ parliament was devised to, and had the effect of, disinheriting Maori, underminimg the Maori system and a forced conversion to the foreign and hostile system controlled by a Pakeha parliament, administration and judiciary.  The abolition of all customary marriages under the Maori Affairs Act 1953 is but one example of this stripping of rights.

It will be fascinating how the Supreme Court works its logic regardless of what the outcome is. The problem will be if they make the wrong decision and order the body reinterred. Being in this area I can tell you that it won't happen lightly, if at all.


At 18/7/12 9:26 pm, Blogger CAS said...

"Any spouse, partner or whoever that makes a life with him and comes along later... must be of lesser importance than the pre-existing wishes and understandings of his wider whanau and parents in particular."

Why? Why shouldn't this woman, who spent 20 years of her life with him and built a family with him not get any sort of say in where her partner is buried?


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