Rebecca Quilliam

Rebecca Quilliam is senior reporter at the APNZ News Service office in Wellington.

'Body burial' clash argued in Supreme Court

James Takamore was laid to rest in Bay of Plenty following his death in 2007, but his partner has been fighting to have him reburied in Christchurch. Photo / File
James Takamore was laid to rest in Bay of Plenty following his death in 2007, but his partner has been fighting to have him reburied in Christchurch. Photo / File

The lawyer for a woman fighting to have her partner's body returned to Christchurch has told the Supreme Court she has been unable to fulfil her legal duty to ensure he is properly buried.

James Takamore was buried at his Tuhoe family's marae in the Bay of Plenty, in accordance with tikanga Maori customs and traditions, after he died from an aneurism in 2007.

Since then his partner and executor of the will Denise Clarke has been fighting to have his body returned to Christchurch, where he lived with Ms Clarke and their two children for 20 years.

Her legal battle began after the Takamore family took his body and buried it in the Bay of Plenty - a move two courts have ruled was unlawful.

The High Court and the Court of Appeal ruled on the side of Ms Clarke, but Mr Takamore's family appealed to the Supreme Court.

Lawyers for both sides submitted arguments in the Supreme Court today on whether the Court of Appeal was correct that the executor was entitled to decide on where a body was to be buried.

Ms Clarke's lawyer Gerard McCoy argued it was her legal duty as executor to ensure her partner was properly buried.

But Mr Takamore had not been properly buried in accordance with her duty because his family had unlawfully removed his body, Mr McCoy said.

"I submit this is an unfulfilled duty she is required to pursue."

Mr McCoy said it was a criminal offence for someone not to fulfil that duty.

He said the executor should take tikanga into account, but no other person could be the ultimate decision maker on where a body should be buried.

The lawyer acting for Ms Takamore's sister Josephine, James Ferguson, told the court that tikanga should be given weight alongside common law considerations.

Tikanga had been handed down through the generations and the process worked because there were very few disputes about burials.

But Chief Justice Dame Sian Elias pointed out that in this case tikanga had not worked because it had made it to the Supreme Court.

She said it came down to what the common law in New Zealand was.

Mr Ferguson said tikanga had worked in this case because there had been a burial, but Ms Clarke was unhappy with the decision and has tested it in the courts.

"The questions are leaning towards who makes the ultimate decision.

"What the court is having to grapple with is, is the sole arbiter a better decision-making vehicle rather than a collective body."

Mr Ferguson said tikanga should be given a chance to work out this conflict, rather than court intervention.

"If there is a disagreement, tikanga must recognise that and atone for that.

"And that could take weeks, months, years ... tikanga is not defined to one's lifetime."

Mr Takamore was originally from Taneatua, in Bay of Plenty, and had returned to the North Island only twice in 20 years since moving to Christchurch.

He had specified in his will that he wanted to be buried but did not say where.

Ms Clarke had intended for him to be buried in Christchurch but before that could happen the Takamore family collected his body and buried it in the Bay of Plenty.

In 2009 the High Court ruled that the Takamore family had taken the body unlawfully and that Ms Clarke was entitled to make the final decision on where he should be buried.

Mr Takamore's family appealed.

After a four-year struggle, the Court of Appeal last November released its decision, siding with Ms Clarke and ordering the matter back to the High Court "to deal with the question of remedy".

But Josephine Takamore appealed to the Supreme Court, which granted leave to hear her case.

The Supreme Court will hear further submissions from Ms Clarke's legal team tomorrow.

- APNZ

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