'Body burial' clash: Custom 'unreasonable'

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 that the Maori custom of returning a body to the family burial grounds, in this case, was unreasonable.

The Supreme Court is hearing a second day of arguments in one of the last chapters of a five-year legal argument over where Tuhoe man James Takamore should be buried.

Mr Takamore was buried at his family's marae in the Bay of Plenty, in accordance with tikanga, or 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 her 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 the High Court and the Court of Appeal ruled was unlawful.

Mr Takamore's sister, Josephine Takamore, appealed to the Supreme Court, which agreed to hear arguments on whether the Court of Appeal was correct that the executor was entitled to decide on where a body was to be buried.

The lawyer for Ms Clarke, Gerard McCoy, told the court tikanga should not be taken into consideration if its decision is "patently unreasonable, capricious or unreasonable''.

He said weight is given to Ms Clarke's position because she moved quickly to the High Court to stop her partner from being buried in the Bay of Plenty even "while the body was being moved in an unrefrigerated van'' up the country.

He pointed to numerous international cases where there was a family dispute on where a body was to be buried and the outcome favoured the executor of the will.

Mr McCoy told the court it was Ms Clarke's 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.''

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.

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

He said tikanga applied to Mr Takamore because he was Tuhoe and he could never "opt out'' of the tikanga process.

Tikanga had been handed down through the generations of Tuhoe people and the process worked because there were very few disputes about burials, he said.

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.