Common Law V Customary Law Essay

Common Law V Customary Law Essay

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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, McGrath and Blanchard JJ in a joint judgment stated that when arrangements and discussions are not settled regarding the burial of someone, the common-law position is that the executor has the power to make the decision. Ms. Clarke was the executor, so it was her choice.

The other observation that could be made was the Supreme Court’s attitude to Tikanga Maori, especially the way the Supreme Court addressed the issue of the Tuhoe burial customs.

The basic facts were that Mr. Takamore’s will stated that he did not want to be buried on tribal land. He had denounced his iwi, and his partner decided that he should be buried in Christchurch. Mr. Takamore’s extended family did not like this, so turned up at the Christchurch Marae, and took the body without any explanation and buried Mr. Takamore’s remains on tribal lands.

Ms. Clarke applied to the High Court for an order to allow her to exhume the body from tribal areas, for her to bury her late partner as she saw fit. The High Court ruled...

... middle of paper ...

...ied. 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?
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 result.

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