Associate Professor Nin Tomas of the Auckland University law school has researched customary and common law: the first emphasises rights held by whanau, the second holds that executors or spouses have the final say in burial matters.
The work has thrown up surprising finds in the historical record. Elsdon Best writes of cremation, as does Te Rangi Hiroa/Sir Peter Buck. The need to protect bodies from abuse in war was one reason given for cremation, contradicting the commonly held perception that Maori did not cremate.
"These sorts of stories tell us Maori were pragmatic when it came to death," Professor Tomas said.
However, the clash of cultures five years ago has led to intractability on both sides of the Takamore case.
The professor said that was not surprising given that common law, Pakeha and Maori saw death differently.
Three principles - whakapapa, whenua and whanaungatanga or genealogy, connection to the land and wider relationships - govern where a person should be buried under customary law. Usually, whakapapa trumps spousal rights but exceptions do occur.
Entertainer Prince Tui Teka, who was Tuhoe, was buried in Ngati Porou's Tokomaru Bay according to the wishes of his wife, but with the ultimate permission of his iwi.
Where a conflict occurs the marae is the forum for working the issue out, but Professor Tomas said that in the Takamore case little compassion was shown for either cultural position.
"It seems to me there are two ways to go about [resolving disputes]. One way is to assert your mana over those who have possession of the body. The second way, which takes aroha and patience but is more inclusive, is to enter into negotiations and to let everyone speak and then weigh up the pros and cons [of burial options]."
Still, she said, under customary law Ms Clarke should have given way to her husband's family.
However, the Court of Appeal in November found that Tuhoe burial custom could not be recognised in common law because it did not meet the "criterion of reasonableness".
Professor Tomas said the Takamore case "is a conflict-of-laws situation and the court needs to look at the overall custom and its importance to the society it supports".
"To dismember [tikanga], or to outlaw it as a system, as the [courts] have done, is cultural genocide."
The law needed to change to better accommodate customary law.
