Takamore v Clarke: an Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?

Abstract

Upon one’s death, statute law is silent as to the disposal of the body. Ordinarily, New Zealand common law applies. However, when the deceased is of Māori descent, and has whānau who practice Māori burial custom, tension between the application of the common law and that custom is evident. Takamore v Clarke has highlighted this tension and presented difficult questions regarding the recognition of Māori custom by the common law. In their opinion, the majority treated Māori custom as analogous to English local custom. The Court held that Tūhoe burial custom could not be recognised as part of the New Zealand common law, as the custom did not meet all of the requirements for recognition. Nevertheless, with the view that custom should still be taken into account, the Court proposed a “more modern” approach to customary law. This essay begins by considering the appropriateness of the analogy drawn by the Court, with reference to the historical judicial application of Māori custom in New Zealand. It then critically analyses the application of the authorities cited by the Court. Finally, this essay explores the effect of the majority’s “more modern” approach on the treatment of Māori custom in New Zealand law.