Cross-cultural differences in “body snatching cases” pit rights of individual freedom against the collective decisions of tribal custom. The High Court ruled that individual freedom takes priority where before death the deceased has made a clear choice about funeral arrangements.
Arrangements following the 2007 death in Christchurch of Jim Takamore gained national exposure when his body was taken by close relatives back to his home marae in the
The court was told that Mr Takamore had chosen to live outside the tribal life and customs of Tuhoe, his tribe. He had lived in
Justice Fogarty ruled that under common law Mr Takamore was entitled to have his views respected on death, especially where he had chosen his widow to carry out these wishes as executor. The collective will of Tuhoe could not be imposed on his executor.
Evidence was given that Tuhoe tikanga for dealing with disputes over where a burial should take place could be settled by consensus or compromise, but failing that strong-arm tactics could be used relying on cunning, courage and determination.
The court case followed heated discussions following Mr Takamore’s death between his immediate family and relatives who had travelled down from the
Mr Takamore’s widow immediately got a court injunction to prevent his burial in the
The Court ruled that members of Tuhoe had taken Mr Takamore’s body north without legal authority. His widow was entitled to have the body returned.
One complication however is that Mr Takamore was buried on private land at his home marae. Consent of his Tuhoe relatives was required to disinter his body. The case was adjourned to give all parties a chance to reflect on the court ruling. There was evidence that some Tuhoe were distressed that tribal members had taken Mr Takamore’s body north against the wishes of his widow.
Clarke v. Takamore – High Court (29.07.09)
10.09.001