Customary Law as Part of the Common Law - Burial; Executor's Duties Takamore v Clarke

12 Pages Posted: 8 Sep 2020 Last revised: 14 Sep 2020

See all articles by Carwyn Jones

Carwyn Jones

Victoria University of Wellington - Faculty of Law

Date Written: 2011

Abstract

The New Zealand Court of Appeal decision of Takamore v Clarke reflects an important development in the role of Māori Customary Law in New Zealand. The case involved a burial dispute, whereby the whānau removed the body according to Tūhoe burial custom. This article summarises the Court’s decision to dismiss the appeal in favour of the executor (over the whānau). The judgment of Glazebrook and Wild JJ set out a five step test for recognition of customs as law. Although not meeting the criteria of customary law, the judgment did hold that the custom was still a relevant consideration according to a “more modern approach” towards Māori tikanga. Chambers J, in a separate judgment, decided the case on the basis of individual autonomy, referring to both the Waitangi Tribunal and to the Bill of Rights Act 1990 to decide whether a person fell within the scope of customary law.

Keywords: Customary Law, Tikanga, Burial, Executor, Whānau.

JEL Classification: K10, K39

Suggested Citation

Jones, Carwyn, Customary Law as Part of the Common Law - Burial; Executor's Duties Takamore v Clarke (2011). November Māori LR 1-12, Victoria University of Wellington Legal Research Paper No. 71/2020, Available at SSRN: https://ssrn.com/abstract=2402046

Carwyn Jones (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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