The lawyer for a woman fighting to keep her brother buried in the family marae told the Supreme Court today the decision on where people should be buried should not be made in a courtroom.

James Takamore died from an aneurism in 2007.

Since then a legal battle has been fought between Mr Takamore's Tuhoe family and his partner Denise Clarke over where he was to be buried - either in Christchurch, or in the family marae in the Bay of Plenty, in accordance with Tuhoe custom.

A Court of Appeal decision ruled on the side of Ms Clarke, who was the executor of the will.


However, the Supreme Court granted an appeal 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.

James Ferguson, appearing for Mr Takamore's sister, Josephine, told the court that the decision by the family to bury Mr Takamore at the family marae was governed by tikanga, or decisions based on Maori customs and traditions that have been handed down through the generations.

He said the process works because there are very few disputes about burials.

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

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

Mr Ferguson said in this case tikanga did work 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 arbitor 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 Ferguson said if tikanga was recognised as common law in New Zealand, people should not be able to "opt out'' of the process, regardless of what race they were.

He said people could choose their level of participation in tikanga, "but to suggest that one can avoid it is a different matter''.

Justice Elias said it was an "extreme proposition'' to have common law replaced by tikanga.

The Supreme Court hearing is set down for two days.


Mr Takamore was originally from Taneatua, in Bay of Plenty, but moved to Christchurch with Ms Clarke 20 years before his death, where the couple had two children.

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

Despite him returning to the North Island only twice in 20 years, his family decided he should be buried on the family marae in Bay of Plenty, in accordance with Tuhoe custom.

However, Miss Clarke had intended him to be buried in Christchurch, but before that could happen, the Takamore family collected Mr Takamore's 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 Miss Clarke was entitled to make the final decision on where he should be buried.

However, Josephine Takamore, went to the Court of Appeal and argued that the burial of a Maori was governed by tikanga, and that taking Mr Takamore's body was in accordance with Tuhoe burial custom.

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

Miss Clarke said at the time she was relieved it was "all over'' and she would pursue the matter through the High Court to bring Mr Takamore's body back to Christchurch to be buried.

Josephine Takamore appealed the Appeal Court decision to the Supreme Court, which granted her leave to hear it.