Supreme Court to rule on Maori burial rights

James Takamore. Photo / Supplied

A bitter feud that began in 2007 over Maori custom and rights to decide a man's burial is set to drag on even further, with the country's highest court agreeing to consider the issue.

The Supreme Court's decision to allow an appeal over the burial of James Takamore has come as a huge blow to his long-time partner, Denise Clarke, who thought she had won the right to bury him in her hometown of Christchurch when the Court of Appeal found in her favour last year.

"I'm obviously very, very disappointed," Ms Clarke told the Herald yesterday.

"[But] I'll keep fighting for as long as I can."

After Mr Takamore died in 2007, his whanau from the Eastern Bay of Plenty claimed his body and took it north to bury him - according to their custom - at Kutarere Marae, against the wishes of Ms Clarke. She launched a legal fight to have his body returned to Christchurch, where he had lived for 20 years with her and their two children.

In July 2009, the High Court ruled that the relatives who had taken Mr Takamore's body had done so unlawfully. It ruled that Ms Clarke was entitled to possession of the body.

Mr Takamore's sister, Josephine Takamore, appealed against the High Court decision and argued that the burial of Maori deceased was governed by Maori tikanga (customary practices), because Maori custom was part of common law in New Zealand.

Her whanau believed it was Mr Takamore's wish that, if he was to die in Christchurch, he was to be taken back to the Bay of Plenty as he had "no land, no people and nothing down [in Christchurch]".

Last November, the Court of Appeal dismissed Josephine Takamore's appeal, saying Tuhoe burial custom could not be recognised in common law because it did not meet the "criterion of reasonableness".

This decision left Ms Clarke thinking the battle was over.

Now she is having to gear up for another battle, in the Supreme Court, which will consider if the Court of Appeal got it right.

A lawyer for the Takamores, Moana Tuwhare, said the Supreme Court's decision to hear the appeal would be very pleasing and a relief to the whanau.

While the case was about the burial of Mr Takamore, it had much wider ramifications in terms of the recognition of Maori customary law and how this affected decisions around any burial, she said.

Some police have already expressed an unwillingness to take part should Mr Takamore's remains have to be exhumed.

Josephine Takamore told APNZ the family were very happy. "We're pleased that we're going to get heard in the Supreme Court."

She said she couldn't comment on how Ms Clarke would feel about yesterday's decision but agreed the Takamores felt very strongly that the body of their whanau member should be at home in the Bay of Plenty with them.