Takamore V Tand Case Study

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Common Law v Customary Law: The Case of Takamore
Takamore v Clarke
The Supreme Court’s decision in Takamore v Clarke raises the question of whether New Zealand permitted Ms. Clarke (the partner and executor of Mr. Takamore) to dispose of his body. When Mr. Takamore died, his body was taken by his extended family, and buried, against the wishes of Ms. Clarke. The judges of the Supreme Court agreed to dismiss the appeal by Ms. Takamore (sister of Mr. Takamore). As such the Supreme Court ordered the body to be exhumed and reburied in a place agreed to by Ms. Clarke.

The judgment is important for two reasons. It is significant because the Supreme Court made the position clear in New Zealand about what happens with regards to a deceased body. Tipping, …show more content…

Judge Durie, notes that in discussing the Maori customary law, an important word that conveys what custom is, is the word tikanga. Dame Metge draws a distinction between ture (law) and tikanga (custom).

Tikanga Maori and Common Law
The Takamore judgment was an attempt to settle the law surrounding who has the body for the purposes of burial. The decision is significant as it regards Maori customary rights and tikanga. The Supreme Court’s position was to consider the connection between Maori customary law and British common law.

The Supreme Court looked at the decision differently from the Courts behind. The Courts below considered that the common-law doctrine could recongise tikanga as law, so long as the Court was certain that it meets criteria. The criteria is that custom must have existed since time immemorial, it must be reasonable, certain, continuing, and non-extinguishable. If a custom meets this test, that it could trump other common law …show more content…

The whole thing, we were still grieving and we were not given a say about where our Dad was to be buried, if they had their way, we would not have even known. Our father had consulted his father while he was alive, and our mother after he died. Takamore v Clarke is a case about forced removal of a body, my Dad’s case was similar, albeit over several years.
If my father’s family had been open about their intentions from the start, we could have had an open and frank discussion. Takamore’s family should have had an open and frank decision with Ms. Clarke and her children. If the facts of the case were different, then the results of the questions surrounding whether tikanga could be recongised as common law might be different. The judges considered the forced removed of the body to be unreasonable, a factor that contributed to the judge’s decisions. What if the custom was more oriented to who the primary decision makers were?
Conclusion
In conclusion, I feel that based on the facts of the case, Takamore v Clarke was decided rightly. Had the facts been different. The case might have had a different

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