Phil Taylor is a Weekend Herald and New Zealand Herald senior staff writer.

Grave offence

About 30,000 New Zealanders die each year, affecting hundreds of thousands.

In all but a few instances decisions about how to mourn and dispose of a person's remains go without hitch but when intractable disputes end up in court, judges have struggled to balance competing interests and provide an effective and timely decision.

Our dignity as human beings does not end when we die. It is recognised in criminal law which makes it an offence to "offer an indignity" or "improperly or indecently interfere" with a dead human body, and there is a legal presumption that once buried, a body should not be disturbed, but there are otherwise few regulations in New Zealand statutes and not much case in the way of law.

The legal mechanisms for resolving disputes about where a person's physical remains should be interred, or whether they should be cremated or buried are being examined by the Law Commission, an independent Crown entity which reviews the law and provides advice to the Government. It is calling for feedback from the public on the law regarding death, including how it should respond to disputes over whether remains are buried or cremated and the final resting place for those remains.

Funeral directors have reported a increase in disputes, though causes are unclear.

The commission says disagreements can arise out of deeply rooted cultural or religious convictions or entrenched family conflicts and are expected to occur more often as New Zealand becomes more multi-cultural and family structures become more complex.

In its issues paper - The Legal Framework for Burial and Cremation in New Zealand: A first principles review - released yesterday, it asks whether disputes including a so-called body snatching case should be dealt with by the Family Court or, when tangata whenua are involved, the Maori Land Court, rather than as at present in the High Court.

The commission notes that case law will evolve slowly, since disputes rarely reach court and suggests that the High Court may not be the best suited to deal with such cases "because it is not designed to deliver mediated, consensus-based outcomes or to encourage parties to [reach an acceptable compromise]".

The law has very little to say about what is required after death, other than that a doctor is to certify cause of death and whoever takes charge of the body must disposes of it in a reasonable time.

The Burial and Cremation Act 1964 says nothing about how disposal should take place or about other aspects over which disagreements sometimes arise.

The commission is considering whether the law should be modernised by way of a statute setting out decision-making rights and duties of survivors of the deceased along with a set process for resolving disputes. Changes would seek to clarify who had the legal right to make decisions and how a deadlock should be resolved.

The first burial dispute in New Zealand was in 1945. The courts have since decided only four or five substantive cases with James Takamore the only one where a body has been removed and buried before the matter reached court.

Other instances that have made news but not been contested in court include the removal in 1991 of the body of comedian and actor Billy T. James from the Muriwai home of his widow by members of his whanau for burial on Taupiri Mountain in the Waikato.

Our slim line of common law holds that the legal right in burial disputes lies with the executor of the deceased person's will. But that doesn't necessarily solve the impasse, as the Takamore case showed. The wish of the executor - Takamore's partner - has not yet been carried out even though the country's top court confirmed she had the ultimate legal right. She is poised to ask the court to specify a date for the body to be disinterred and to involve the police.

Takamore died in 2007 in Christchurch where he had lived for 20 years with his partner, Denise Clarke, and their children. He was of Tuhoe descent.

Denise Clarke with daughter Jenna.
Denise Clarke with daughter Jenna.

Clarke, as sole executor of his will, intended to bury his body in Christchurch but members of his whanau took it from the funeral parlour to the Bay of Plenty, where it was buried next to his father at the family marae.

The case has been argued through to the Supreme Court, which last December confirmed that Clarke, as executor, had the right and duty to decide on disposal of his body. But in doing so it retained a precedent by the Court of Appeal for Tikanga Maori to be recognised, reflecting an international trend to recognise customary law. In another development, the court also said that great weight should be placed on the deceased's wishes, something previously given little legal relevance. Takamore's wishes were unclear but the court noted his "life choice" of living in Christchurch with his partner and their adult children.

While expressing sympathy for Takamore's partner, Merepeka Raukawa-Tait, a former chief executive of Women's Refuge, said it is important to Maori custom for family to be brought "home" for burial.

"It's not so much the deceased's wishes or indeed that of his immediate family that is the priority here," she wrote in the Rotorua Post about the case this year.

"By returning to your own tribal area you are ensuring that your children, and their children, retain this connection to their whakapapa, whenua, whanau, hapu and iwi. Where you come from; the place names, your river and mountain defines who you are as Maori.

"By burying family within their own tribal areas the whakapapa connection is kept alive. It was customary law. For Tuhoe in particular these old ways have never died. On the contrary they are determined to keep them alive."

James Takamore became the focus of a court case.
James Takamore became the focus of a court case.

The Supreme Court has treated the courts as having the final say and said the process should be straightforward and capable of a prompt decision. Overseas, courts are guided by statutes listing factors that must be taken into account. Here, courts faced with deciding between two burial places might compare the nature and closeness of the relationship between the deceased with each location at the time of death, the commission says, but it is otherwise unclear what should be taken into account.

The commission suggests legislation could guide on matters to be taken into consideration, leaving the courts to decide where to place the weight.

The ability of the courts to provide speedy resolution, including interim decisions, is important in cases such as Takamore's, Gary Knight, the lawyer acting for Clarke, told the Herald.

He said Clarke was in favour of the Family Court having jurisdiction as it was more accessible and likely to be able to make speedy decisions. Judges needed the power to authorise police to intervene at an early stage and take control of the body and have it cared for by a neutral party such as an undertaker pending resolution, Knight said.

"The problem they have where there is a full-on dispute and the body is in the back of a van being driven from point A to point B, is that by the time the court finalises its decision the body is likely to have been buried at a different location."

Knight said he had this week notified Takamore's whanau that they would go back to the High Court to get specific orders for a date and time that the body must be disinterred. The Takamore family, said Knight, had indicated at the time of the judgment that they would comply but had not acted.

"It's a hell of a thing the Takamore family is being asked to do. It is difficult for them to deal with and I understand why they are taking their time. But at this end it is hard to resist the thought that there is a lot of time-dragging going on."

Knight added: "We actually need to do this and get it done this year. That is the deadline we are working to - [getting] Jim home this year."

Legal and policy adviser Mihiata Pirini said the commission wanted to raise public awareness about the legal issues. She suspected a common misunderstanding was that a person's own wishes were legally binding. Though the Supreme Court treated them as relevant, they are not strictly enforceable. The legal right rested with the executor, which in some case may be the family-appointed solicitor.

Have your say. The deadline for submissions is December 20.

- NZ Herald

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