TAKAMORE V CLARKE COA CA525/2009

TAKAMORE V CLARKE COA CA525/2009 23 November 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA525/2009[2011] NZCA 587BETWEEN JOSEPHINE TAKAMOREAppellantAND DENISE CLARKEFirst RespondentAND NEHUATA TAKAMORE AND DONALDTAKAMORESecond RespondentsHearing: 3 February 2011Court: Glazebrook, Chambers and Wild JJCounsel: J P Ferguson and M M T Tuwhare for AppellantG J X McCoy and P N Allan for First RespondentNo appearance for Second RespondentsJudgment: 23 November 2011 at 10:00 AMJUDGMENT OF THE COURTA The appeal is dismissed. The matter is returned to the High Court to deal with the question of remedy.B The appellant must pay to the first respondent the costs for a standard appeal on a band A basis and usual disbursements.REASONSGlazebrook and Wild JJ [1]Chambers J [266]GLAZEBROOK AND WILD JJ(Given by Glazebrook J)Table of ContentsPara NoIntroduction [1]Overview of this judgment [8]Background [21]The relationship between Ms Clarke and Mr Takamore [21]Mr Takamore's Māori heritage and contact with his family [25]Mr Takamore's death and ensuing events [32]What the Taneatua family intended [45]Mr Takamore's wishes as to burial [52]Tūhoe custom [58]Mr Kruger's evidence [59]Professor Temara's evidence [74]Summary [92]Fogarty J's decision [95]The parties' submissions [102]Issues [105]Recognition of customary law by the common law [109]Indigenous customary law [112]Presumption of continuity [112]Recognition in colonial courts [114]Principles of recognition [121]Longevity and continuity [122]Reasonableness [124]Certainty [128]Extinguishment [133]Application of the test for recognition to this case [135]Longevity and continuity [136]Reasonableness [137](a) The parties‟ submissions [138](b) Possible breaches of requirement [146](c) Individual autonomy [147](d) Fogarty J‟s factual findings [153](e) Right not might and the rule of law [163](f) Summary: reasonableness [166]Certainty [167]Has the custom been extinguished? [168]Must the custom be a general Māori custom? [170]Summary [175]To whom does indigenous customary law apply? [176]The personal application of customary law [177]Difficulties in this case [184](a) Identifying the relevant person(s) to whom custom applies [185](b) Does the common law or tikanga determine ethnic identity? [189](c) The application of custom to Māori relations inter se [192]Should the common law on burial accommodate Tūhoe custom? [197]The common law position [198]Executor's duties [199]Wishes of the deceased as to burial [207]Relevance of the wishes of the deceased's family [219]Emerging human rights jurisprudence [226](a) European Convention on Human Rights [226](b) International Covenants to which New Zealand is a party [230]Summary of common law position [236]Other relevant instruments [243]The Treaty of Waitangi [243]The Declaration on the Rights of Indigenous Peoples [250]A more modern approach [254]Conclusion on this case [259]Result and costs [264]Introduction[1] Mr James (Jim) Takamore died on 17 August 2007 in Christchurch, where he had lived with his partner, Ms Denise Clarke, and their two children for approximately 20 years.[2] Ms Clarke is the executrix of his will. Contrary to her wishes, Mr Takamore‟s body was taken from Christchurch by his sister,Ms Josephine Takamore, and other members of his whānau and buried in the urupā1at Kutarere Marae next to his father and among other whānau members.[3] Ms Clarke sought orders from the High Court authorising her to enter theurupā at Kutarere Marae, disinter the body of Mr Takamore and deal with his body"in any way she sees fit". The orders sought were opposed by Ms JosephineTakamore and Mrs Nehuata (Nehu) Takamore, Mr Takamore‟s mother, in the High Court. Mr Donald Takamore, Mr Takamore‟s brother, decided not to participateactively in the High Court hearing.1 Burial ground.[4] Fogarty J held2 that there was no legal authority for Ms Josephine Takamoreand other members of Tūhoe to dispossess Ms Clarke of Mr Takamore‟s body. Asthe taking of the body was unlawful, he held that it is not properly buried. Therefore Ms Clarke is entitled to possession of the body as the executrix of Mr Takamore‟swill.[5] In Fogarty J‟s view there was, however, an issue with the orders sought byMs Clarke. This was because the body is buried on private land and it was not immediately apparent to the Judge that Mr Takamore‟s sister and mother had control over the burial place. Tūhoe tikanga requires collective decisions.[6] Fogarty J therefore invited the Takamore whānau to return the tūpāpaku3 of Mr Takamore to Ms Clarke and his children. In the meantime, he adjourned the proceedings with leave for Ms Clarke to make a further application for remedies and to add additional parties.4 We understand that there have been sincere efforts at mediation since the High Court judgment but that a resolution of the dispute has not been achieved.[7] Ms Josephine Takamore appeals against the High Court decision.5 The main issue in the appeal is the effect, if any, of Tūhoe custom regarding burial on thecommon law duties of an executor or executrix. An overview of our conclusion in relation to this issue is set out below. We then outline the background in more detail,outline Tūhoe custom relating to burial, provide a more detailed summary of Fogarty J‟s decision and the parties‟ submissions, and set out our reasons in moredetail.Overview of this judgment[8] Mr Takamore, a Māori man of Tūhoe descent, died in 2007 in Christchurch,where he lived with his partner, Ms Clarke, and their children. Mr Takamore was2 Clarke v Takamore [2010] 2 NZLR 525 (HC) ["The High Court Judgment"].3 Body of the deceased.4 In the High Court, and originally in this Court, Mr Puti Brown and Ms Edna Maui, as the ownersof the urupā at Kutarere Marae, were named as parties. They were, however, deceased at the time of the High Court hearing. They have been removed as respondents on this appeal.5 Neither Mr Takamore‟s brother nor his mother participated in the appeal hearing.originally from the Bay of Plenty, where his extended whānau resides, but had beenliving in Christchurch for the last 20 years.[9] Ms Clarke is the executrix of Mr Takamore‟s will. She was intending to bury Mr Takamore in Christchurch. Contrary to her wishes, Mr Takamore‟s body was taken from Christchurch by his sister and other members of his whānau (from Tūhoe) and buried in the urupā at his whānau marae in the Bay of Plenty.[10] It was determined in the High Court that the members of Tūhoe who hadtaken Mr Takamore‟s body had done so unlawfully. Under the common law,Ms Clarke was entitled to possession of Mr Takamore‟s body as the executrix of hiswill and, while expected to consider the wishes of the deceased and his family members, was ultimately entitled to make the final decision about the location of Mr Takamore‟s burial.[11] Mr Takamore‟s sister appeals against the High Court decision and argues that the burial of a Māori deceased is governed by Māori tikanga (the customarypractices of the Māori people) because Māori custom is part of the common law ofNew Zealand. She submits that the taking of Mr Takamore‟s body was in accordance with Tūhoe tikanga.[12] We based our view of Tūhoe tikanga on evidence given by two independentexperts. In their view, according to Tūhoe tikanga, the decision as to where somebody should be buried is a collective one to be made by the deceased‟s whānau, which can give rise to conflict and negotiation among whānau members. If there is disagreement as to where the deceased should be buried, there have been instances where the body has been taken by one party without consultation. The taking of thebody accords with Tūhoe tikanga and enhances the mana of the deceased.[13] In this judgment, we determine the effect that Tūhoe burial custom has on the common law duties of an executor (or executrix). Māori custom is recognised aspart of the common law of New Zealand as long as certain criteria are met: the custom is long-standing, it has continued without interruption since its origin, it isreasonable, it is certain in its terms, and it has not been displaced by Parliament through clear statutory wording.[14] The requirements for the recognition of customary law are not met in this case. The custom does not meet the criterion of reasonableness, as the custom authorises the use of force through the ability to take the body without agreement. Resorting to the use of physical force to settle private disputes is repugnant to a"root" principle of our legal system, the rule of law.[15] There would also be difficulties with the application of Tūhoe burial custom even if it met the requirements for recognition by the common law, as Māori custom generally applies to interactions between Māori only. The application of Tūhoecustom to a non-Tūhoe person such as Ms Clarke (who also does not wish to besubject to Tūhoe custom) is problematic. In addition, it is unclear whether a person‟sethnic identity (for the purpose of establishing whether Māori custom applies to aparticular person) is determined by the common law or by indigenous standards.[16] However, those issues do not need to be resolved in this case. We concludethat a more modern approach to customary law is to integrate the Tūhoe custom into the common law relating to burial. The common law has developed, or at least is developing, to a point where executors should take indigenous practices relating to burial into account. This conclusion is also reinforced by the need to develop the common law, so far as is reasonably possible, consistently with the Treaty of Waitangi, the importance of recognising the collective nature of indigenous culture (as recognised in particular by the United Nations Declaration on the Rights of Indigenous Peoples) and by international human rights covenants to which New Zealand is a party.[17] We consider that a workable compromise between the common law relatingto burial and the Tūhoe custom can be achieved by requiring Tūhoe burial custom tobe taken into account by the executor (or executrix) as a relevant cultural consideration when determining the method and place of burial. Where the deceasedis Tūhoe and one or more of his or her family members is Tūhoe, the executor shouldfacilitate (as far as it is practical to do so) a culturally appropriate process ofdiscussion and negotiation among the whānau members as to the place of burial. All whānau members should have a full opportunity to participate, even if not Tūhoe.Where consensus is reached, it would normally be unreasonable for an executor to refuse to bury in accordance with that consensus. Where consensus is not reached, the common law position will prevail and the executor should make the final decision.[18] The process of negotiation should occur even where the deceased hasexpressed burial wishes, as both in the common law and in Tūhoe custom the deceased‟s wishes are not determinative of the burial location. However, where thewishes of the deceased‟s family conflict with the wishes of the deceased, the executor would not be unreasonable if he or she buries in accordance with thedeceased‟s wishes.[19] Ms Clarke, as executrix, was faced with a situation where Mr Takamore had specified in his will that he wished to be buried, but had not expressed to Ms Clarke where he wished to be buried. The wishes of Ms Clarke and of Mr Takamore‟schildren (they were the children also of Ms Clarke) conflicted with the wishes of Mr Takamore‟s wider family. A process of discussion and negotiation among the whānau members, where all whānau members had a full opportunity to participate,did not occur. However, Ms Clarke cannot be criticised for any failures in the negotiation process. Mr Takamore‟s whānau members had come to Christchurch for the express purpose of taking Mr Takamore‟s body and were not open to negotiation.Further, where members of the deceased‟s family are asserting cultural values, it isnecessary that they explain these fully to the executor, so that the executor may take them into account, and this did not occur here.[20] Ms Clarke is entitled now to possession of the body. There was no legal authority for Mr Takamore‟s sister and other members of Tūhoe to takeMr Takamore‟s body. The matter is returned to the High Court to deal with the question of remedy.BackgroundThe relationship between Ms Clarke and Mr Takamore[21] Mr Takamore was born in 1952. He is of Whakatōhea and Tūhoe descent. His father‟s and mother‟s hapū are Ngāti Ira and Te Ūpokorehe respectively. His whānau marae is Kutarere, which is in the Bay of Plenty. It is a Te Ūpokorehe marae, governed by the tikanga of Tūhoe.[22] Mr Takamore‟s whenua6 is buried on his whānau‟s farm in Hiwarau(approximately four kilometres from Kutarere Marae). Mr Takamore was the eldestof 11 children and was given his father‟s name, James.[23] Ms Clarke was born in Christchurch in 1964 but spent part of her teenageyears in Pūtāruru near Rotorua. It was there that she met Mr Takamore and they entered into a de facto relationship. In the first years of their relationship they remained in the North Island and Mr Takamore kept in close contact with his family, visiting them most weekends. Ms Clarke generally went with him. She said that shewas made to feel very welcome by Mr Takamore‟s family and friends.[24] In 1985 Mr Takamore and Ms Clarke had their first child, Jamie. At this stage Ms Clarke was missing her family. She thus returned to Christchurch with Jamie and Mr Takamore followed about a month later. The couple then settled in Christchurch and had their second child, Jenna, there in 1990. They lived in Christchurch in a steady and stable relationship for over 20 years.Mr Takamore's Māori heritage and contact with his family[25] While they were in the South Island, Ms Clarke said that Mr Takamore‟scontact with his family in Taneatua, in the Bay of Plenty, became infrequent. She could recall only two occasions when Mr Takamore travelled up to the North Island to see them. The first was when his father died about ten years ago and then more6 Placenta.recently when their daughter, Jenna, went to a sports tournament in Rotorua where she met some of her cousins for the first time.[26] Family members, including Mr Takamore‟s mother, did come down for the60th birthday of Mr Takamore‟s aunt, Sarah, who lived in Christchurch, and also for Mr Takamore‟s 50th birthday party. Ms Clarke sensed that by returning toChristchurch with Mr Takamore, this caused a rift between them and the rest of the family. Mr Takamore was always reluctant to return to the family home in Taneatua and, when the topic arose around Christmas times, he found excuses not to go. On the two occasions Mr Takamore‟s mother visited Christchurch she had stayed withher sister, Sarah, and not at Mr Takamore and Ms Clarke‟s house.[27] Ms Clarke said by coming to Christchurch Mr Takamore "did not consciously abandon his family roots, but nevertheless there was a real sense of separation". Also, while Mr Takamore "did not consciously abandon his Māori heritage, it also had faded in significance". Mr Takamore could still understand te reo Māori but could not speak it well. Māori culture was not part of their children‟s upbringing,except as part of their school curriculum. Mr Takamore had little contact with the local marae.[28] Even while the couple were still in the Bay of Plenty, Ms Clarke said that itseemed to her that Mr Takamore‟s Māori heritage was an understood background,rather than a conscious part of his daily life. The same applied to the Takamorefamily generally. She said there was little Māori spoken around the Takamore familyhome.[29] By contrast, Mr Takamore‟s mother deposed that Mr Takamore "always stayed connected with his tūrangawaewae [home]". She said that he "never turnedhis back on his taha Māori [Māori side]. His nannies when he was a child taught him his Māori side well. It was instilled in him from birth and he never forgot it".She said that Mr Takamore kept in contact with her and rang every Saturday afternoon or Sunday to see how she was, and that he was going to renovate her house for her when he retired. But, as it turned out, he died before he could go back.[30] Ms Clarke agreed that Mr Takamore often phoned his mother at weekends. He rarely discussed those phone calls with Ms Clarke and never mentioned anyfuture plans to renovate his mother‟s house. She said that Mr Takamore expressedthe same feelings to her as he had to his work colleagues that he did not want ever to return to his family in the North Island.[31] A work colleague said that Mr Takamore had said to her on one occasion that"he was now a South Island Māori". Another work colleague said he had had littleto do with his family in the North Island. He still had time for his mother and for a couple of his brothers but he was concerned that his mother had disowned hischildren and that he "didn‟t like the stuff that happened" in his family. He did not want to "go up and sort out matters with his family" but it would be fine if hischildren ever wanted to. Yet another work colleague said that Mr Takamore was very blunt in his views that he would not return to the North Island, whatever the circumstances, and that his home was now in Christchurch.Mr Takamore's death and ensuing events[32] Mr Takamore suffered an aneurism on 17 August 2007 and died that day. Ms Clarke immediately began telephoning family and friends to pass on the news ofhis passing. She was not able to contact Mr Takamore‟s mother in Taneatua byphone, so she passed the news on through his sister, Ms Josephine Takamore. Mr Takamore‟s extended family in Christchurch, including his uncle Mr JohnManuel, his uncle Robert and his aunt Sarah, with various cousins, immediately came round to their home. Ms Clarke was glad of the support, although somewhat surprised, as few of them had come to the house before.[33] Ms Clarke began making funeral arrangements, deciding on the type of casket, that the service was to be held on 21 August and that Mr Takamore was to be buried at Ruru Lawn Cemetery. Mr Manuel suggested that the service should be held at Te Whare Roimata Marae and that Mr Takamore should lie in state there. Ms Clarke reported that she approved that as she believed that "Jim would have wanted a link to his Māori heritage".[34] Mr Takamore‟s body was taken to the Marae on 18 August but was housed ina room in a community centre a few doors away rather than at the Marae itself. Ms Clarke asked Mr Manuel how the actual service was to be conducted but did not get any clarification. Mr Manuel told her that members of Mr Takamore‟s familywere coming down from the Bay of Plenty.[35] That evening, Mr Takamore‟s mother, his brother Donald and his sister,Ms Josephine Takamore, arrived at the community centre. For convenience, we refer to them from now on collectively as the Taneatua family. They were accompaniedby Ms Josephine Takamore‟s partner, Mr Henare Heremia, and a friend, Mr John Mika. There was initially a welcome followed by food. Then Mr Takamore‟smother, brother and sister demanded that they be allowed to take Mr Takamore‟sbody for burial at his home marae at Kutarere. Ms Clarke did not know then thatsuch a demand accords with Māori custom and that the immediate family issupposed in turn to defend their entitlement.[36] In cross-examination, Ms Josephine Takamore said that she thought that Mr Manuel was going to advise Ms Clarke and her (and Mr Takamore‟s) children asto what was to happen. Ms Clarke said they only had the briefest explanation from Mr Manuel and had no inkling of the impending process. Mr Jamie Takamore (Mr Takamore‟s son) confirmed that Mr Manuel did not explain that the Taneatuafamily was intending to claim his father‟s body.[37] Ms Clarke said that the demand soon degenerated into an argument, which lasted about an hour and a half, and at one point it became so fraught that her sister was manhandled from the room by Mr Donald Takamore. Mr Jamie Takamore also said that what followed the demand was not a discussion but an argument.[38] Ms Clarke agreed in cross-examination that, during the discussion, Mr Manuel strongly advocated on her behalf for keeping Mr Takamore inChristchurch. Mr Manuel had earlier told them that Mr Takamore‟s son, Jamie, hadthe final say as to where Mr Takamore was to be buried. Mr Jamie Takamore made it quite clear during the discussion that his wish was for the burial to be in Christchurch.[39] Towards the end of the discussion, however, Mr Jamie Takamore said "take him, whatever" or words to that effect. At that point Mr Manuel stepped in, pointingout that Mr Jamie Takamore‟s consent had been given under duress, that nothing hadbeen finalised and that they should go home for the night.[40] It was pointed out to Ms Clarke that Mr Takamore‟s body should not be leftalone and his aunt Sarah agreed to stay with him. Ms Clarke said she would have been willing to stay with the body, except that she felt intimidated by the presence of the Taneatua family. In any event, nobody explained to Ms Clarke and her children that, as claimants to the body, they had to remain with it. Ms Clarke said that shehad been assured that Mr Takamore‟s body would not be moved until a resolutionwas reached.[41] Mr Takamore‟s mother said that the Taneatua family telephoned the next morning on 19 August to ask Ms Clarke and her children to return to resume themeeting. "[Ms Clarke] didn‟t say she would come to meet with us so that‟s why we decided to uplift James". During cross-examination, Mr Takamore‟s mother saidthat they did not wait for Ms Clarke to come back because "we was trying to catch up with the ferry".7 She, however, agreed that, if Ms Clarke had come back on 19 August, she would not have changed her mind about taking Mr Takamore‟s body.[42] Ms Clarke said that they had not agreed on a time on the morning of 19 August to go back to the Marae to continue the meeting. She accepted in cross- examination that she was aware that the Taneatua family were waiting there for them but said that she wanted support before she went back, fearing for her and herchildren‟s safety. Ms Clarke acknowledged that she received a telephone call fromMr Takamore‟s mother. She did not, however, recall that call as being a specificrequest to resume the meeting. She recalled having a sense that there was little left to discuss and that the Taneatua family had made up their minds.[43] Later in the morning Ms Clarke received a telephone call from Mr RichardPrice, one of Mr Takamore‟s work colleagues, to report that he had visited the community centre and that Mr Takamore‟s body was being taken away. Ms Clarke7 Ms Josephine Takamore, however, said that was not really a factor as "ferries run all the time".called the police immediately. She and her children then rushed to the communitycentre but found that Mr Takamore‟s body and casket had already been taken by theTaneatua family to be buried at the Kutarere Marae.[44] Ms Clarke sought and was granted an interim injunction to restrain the burialof Mr Takamore‟s body but, when the sealed injunction order reached the ŌpōtikiPolice Station and two police officers took it by car to Kutarere, they found the burial service was already underway and decided not to serve the injunction. There were then subsequent negotiations facilitated by the police for the return of the body but to no avail.What the Taneatua family intended[45] Mr Takamore‟s mother deposed that, when Mr Takamore was hospitalised, Ms Clarke rang her and told her that he was having an operation. She started tomake plans to travel down to be with him, but at about one o‟clock in the morningher daughter, Ms Josephine Takamore, rang to say that Mr Takamore had passed away. Mr Takamore‟s mother deposed that they then "decided to go and get him"and that her son, Donald, had hired a van for that purpose.[46] Mr Takamore‟s mother was concerned that Ms Clarke may remarry and thatthe children would grow and get married themselves and may move fromChristchurch and "my son would be alone there". Her attitude may have beendifferent if Mr Takamore and Ms Clarke had been legally married but he would havebeen left "in somebody else‟s cemetery in other people‟s lands".[47] Mr Takamore‟s mother deposed that all her family are buried at the urupā atKutarere Marae. She said that it is important to bring her son home because that iswhere all his whānau are. She said that, when Mr Takamore went down to Christchurch, he said "if anything was to happen to him that he would come backhome". The family understood that, if he was to die in Christchurch, then he would return home as he has "no land, no people and nothing down there". She said in her affidavit that "if the Court gave [Ms Clarke] the right to take him out of the urupā where he is and away from us I think it would kill me. I would just collapse".[48] Ms Josephine Takamore said they had a family meeting at Taneatua and decided they were going down to Christchurch. One of her brothers did not agreeand said that Mr Takamore‟s children should decide, but the rest of them believedthat, as Mr Takamore was the eldest child, they should bring him home.[49] Ms Josephine Takamore confirmed in cross-examination that there had been a decision to go and take Mr Takamore‟s body. Ms Josephine Takamore‟s view is that,while Mr Takamore is alive, he belongs to Ms Clarke and their children but "on his death he comes back to us". Mr Takamore was going to be amongst his ancestorsand his father as they were all lying at Kutarere.[50] Mr Henare Heremia, the partner of Ms Josephine Takamore, also confirmedthat the whānau had met and decided to travel to Christchurch to get Mr Takamoreand bring him home. He also agreed in cross-examination that there was no question about coming down to Christchurch and having a discussion. The task was to cometo Christchurch and bring Mr Takamore‟s body back. He agreed they did not cometo ask for the body but to take it.[51] It is clear from the above that, while the Taneatua family were willing to engage with Ms Clarke and her and Mr Takamore‟s children up to a point, they were not willing to compromise. They had come to take Mr Takamore‟s body, whether Ms Clarke and her and Mr Takamore‟s children consented or not.Mr Takamore's wishes as to burial[52] Mr Takamore did not discuss funeral arrangements with Ms Clarke, except when they made their wills at the time of purchasing their second home, some nine years previously. Mr Takamore specified in his will that he wished to be buried. Ms Clarke deposed that they did not discuss where he wanted to be buried and,although they had recently attended Mr Takamore‟s father‟s funeral, which was aweek-long tangi, Mr Takamore did not then or afterwards express any views as to the format he wanted for his own funeral.[53] Ms Clarke said she wanted to have Mr Takamore buried at Christchurch because she believed he would have wanted to be buried in what was now his home town. Ms Clarke also said that she wanted Mr Takamore to be buried in Christchurch because she and the children did not want to be separated from him.[54] Ms Clarke said that she was surprised to read in the affidavits by Mr Takamore‟s work colleagues that he had expressed funeral preferences to them.She was particularly surprised to read that he had chosen Ruru Lawn Cemetery. Shesaid "in choosing that cemetery, I may have had a sense of what Jim might have liked, but I cannot say that this was a conscious factor".[55] Shortly before his death, Mr Takamore had been unwell for some days and had been off on sick leave. When he came back to work, he had said to a number of colleagues that, when his time came, he wanted to be buried in Christchurch and not taken back to the North Island.[56] Another work colleague remembered Mr Takamore saying once that he had a burial site sorted out in Christchurch, by some trees. He did not remember when that was said. Mr Price, who had gone to visit Mr Takamore at the community centre and telephoned Ms Clarke to warn her that the body was being taken, deposed that,shortly before his own death, Mr Takamore was arranging to go to his cousin‟sfuneral at the Ruru Lawn Cemetery. Mr Takamore had said to Mr Price that "Ruruwas a peaceful place with lovely trees and that is where he would want to be buried".Mr Takamore died shortly afterwards. There was no cross-examination on theaffidavits of Mr Takamore‟s work colleagues.[57] By contrast, Mr Takamore‟s mother deposed that Mr Takamore often talkedto her about what would happen when he died. He used to say that he had "kids over in Christchurch but that when he died he wanted to come back home". She said thatthey had that conversation every now and again when he rang her and she used tosay to him that he was "too young to be thinking about those things". There was no cross-examination on this part of her affidavit.Tūhoe custom[58] Evidence as to Tūhoe custom was given at trial by two independent experts, Mr Tamati Kruger, a Tūhoe historian, and Professor Pou Temara, a professor of Māori language (te reo Māori) and culture (tikanga) at the University of Waikato.8Mr Kruger's evidence[59] Mr Kruger deposed that in tikanga Māori9 generally, the living and the dead continue to be equally important. The dead continue to be recognised in every day practices and they are constantly referred to, sung about or quoted from. Māori view their ancestors as omnipresent. The dead play an influential role in the lives of the living and give assurance to generations that there is life after death, through relocation to Hawaiki (the ancient homeland). Māori have a memory of the departing place of the dead from wherever the tangi was held and where they are buried.[60] Another point of significance is that in the Māori world view, the beginning and the end always reach out to one another. This means that the beginning of the life of a person reaches out to the end of the life of a person to complete a circle. What is regarded as a complete life is when the beginning and the end have touched each other. Mr Kruger said that when Tūhoe people die outside of their tribe orterritory there is a sincere effort to repatriate that person, even to the point where they exhume or have just part of the person brought back home.[61] While a person is absent he or she may lose their influence over the familyand hapū as regards lands and issue. They can also lose their connections to their8 There was also evidence on tikanga given by the family witnesses but we have based our summary on the evidence given by the independent experts.9 As defined by Mr Kruger, tikanga is the customary practices, attitude and regulation of behaviour of people. Tikanga is applicable and is accountable in terms of its general practice of the particular marae and the particular hapū. It is the connection between the cultural identityand the language of the people and their cultural practices. Tikanga, as the New Zealand LawCommission notes, is the closest Māori equivalent to concepts of law and custom, although theterms "Māori custom law" and "tikanga Māori" are not entirely interchangeable. Refer LawCommission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 1–2 ["Māori Custom and Values"]. In the present appeal, however, the parties agreed (and we accept) thatTūhoe burial custom could properly be seen as customary law.tikanga, but can never extinguish their whakapapa.10 Whānau at home keep up theconnection. They continue to represent the absent relative at gatherings and festivals. They also continue to represent the dead from generations ago. The living have a duty of care to the deceased to make sure the whakapapa links are maintained down through the generations.11[62] All of the above explains the struggle about where someone should be buried and, where there is an impasse or disagreement on the location of the burial, Māori have designed practices to help manage those predicaments.[63] Mr Kruger acknowledged that incidences of disagreement between families about where someone is to be buried have occurred throughout history. There are a number of concepts that assist in resolving such conflicts. One question is where the person was born and where their umbilical cord was cut. That signals the beginning. The umbilical cord is buried back into the whenua, forever connecting that person to the land.12[64] Another question relates to the things that sustained the person‟s life andwhere they are. This includes not just physical sustenance but also intellectual, spiritual and emotional sustenance that informed the way the person thinks and his or her values. A further question is whether the person has children or partners or parents that they have left behind and what those who are suffering a loss and are inmourning want. These are the whānau pani. In this situation, the mother, brotherand sister of Mr Takamore are part of the collective of the whānau pani and have asmuch right as the widow and the children to contribute to the decision.10 Genealogy.11 "[W]hakapapa is the heart and core of all Māori institutions": Apirana Mahuika "Whakapapa is the Heart" in Ken Coates and P G McHugh (eds) Living Relationships: The Treaty of Waitangi in the New Millenium (Victoria University Press, Wellington, 1998) 214 at 219. In addition,Professor Andrew Sharp in "Blood, Custom, and Consent: Three Kinds of Māori Groups and the Challenges they Present to Governments" (2002) 52 U Toronto LJ 9 at 19–21, refers to evidence from affidavits adduced in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 (HC), which emphasise the fundamental importance ofwhakapapa in Māori society.12 In an affidavit of Professor Hirini Moko Mead (referred to in Sharp, ibid, at 21), Professor Meadnotes that "[t]he act of whakawhānau (giving birth) produces a newborn child, a whenua(placenta) and eventually a pito (umbilical cord). The whenua and the pito are buried or placedwithin the land of the whānau and that establishes a spiritual link between the land and the child".[65] The whānau pani are left to make the final decision but they can invite otherpeople to join in to help the decision-making process. If the whānau pani come to animpasse then a wider circle can become engaged in the process (and in particular those with cultural expertise) to provide advice and counsel. Where a decision does not arise out of the process or where the decision is not accepted by everyone, "it comes down to will power and those key concepts which I mentioned . Including which side has the higher moral ground".[66] Mr Kruger said that the tikanga of claiming bodies has never been extinguished. It is not vague and in fact is actively practised whenever the occasion arises. It does not discriminate by ethnicity, gender, age or identity. He said that in his opinion the Taneatua family who took Mr Takamore‟s body to Kutarere to beburied have done so in accordance with tikanga.[67] In Mr Kruger‟s view this case is a clear struggle between two cultural norms.On the one hand there is the nuclear family unit and, on the other hand, the extended collective unit and its values. In his view, the Christchurch option devalues the Taneatua family. On the other hand, with the Kutarere option, his view was that Ms Clarke would always have unimpeded and unfettered access to the marae and urupā as she has a connection to the Taneatua family.[68] Mr Kruger gave an example of a dispute over where a body should be buried,the case of Prince Tui Teka from Tūhoe. It was expected by the people of Tokamaru, where his body was lying, that Tūhoe would come and claim him. It came down to abattle of wills. To settle the issue Tūhoe told the Prince‟s wife that she would foreverbe a widow and, if she ever remarried, they would come to collect the Prince and take him back.[69] He also said that he had witnessed bodies being uplifted and that"[w]illpower and using influence, strategy and tactics have all been at play". He saidhe has witnessed physical fighting and arguments and slinging of insults and threats. While this might initially seem shocking, he said that it has to be viewed as passion and an honour to the departed.[70] In cross-examination Mr Kruger agreed that a Tūhoe man or woman canchoose where they wish to be buried. If they choose somewhere other than their birth place, this will be taken into account, but will be overridden by a consideration of what the living relatives of the person are seeking. He also said that the position of the person is important. In this case the fact that Mr Takamore was the eldest sonand carried his father‟s name were issues that were in play. He agreed that in Tūhoecustom, a lot is expected from the oldest son.[71] Mr Kruger agreed that it was important to ascertain the views of everyone who was closely related to the deceased and that all those factors need to be talked out and if possible resolved by way of consensus. He thought it would be fair to say that the opinion of the deceased‟s eldest son would be of equal importance to that of the deceased‟s mother. After that point, it comes back to a contest of will andinfluence as to which opinion would prevail.[72] To Tūhoe it is always accepted that the living will make the final decisionsfor the deceased. He expressed the wish that Ms Clarke and Mr Takamore‟s (andMs Clarke‟s) children and the Taneatua family could discover a way forward and that Mr Takamore could become "a symbol of unification rather than division for this family".[73] Mr Kruger would not accept the proposition that it is never appropriate for someone to come onto a marae or other burial areas and take a body without consultation. He said that, under Tūhoe tikanga, they can do that, but by doing sothey open up a whole new level of argument and controversy and it becomes veryintense and very political. He agreed that it would be "fair to say that that‟s how wars are started". In re-examination, however, he said that, in the modern daycontext with an intense conflict of that nature, "there should never be a limit placed on talking".Professor Temara's evidence[74] Professor Temara deposed that he had first hand experience of tūpāpaku13being taken and he has had a hand in bringing closure to such issues. His firstexperience of the tikanga of a body being taken was in 1995 where a kaumātua14 ofTūhoe, who came from his hapū at Ruatahuna, died. The kaumātua had grown up inRuatahuna, moved out as a young man and married and had children in Waikaremoana. Before he died, he had expressed a desire to lie in state at Ruatahuna where he was brought up and to be buried there.[75] The children were divided on the issue. The eldest sibling agreed with the wishes of the children‟s father and brought their father back to Ruatahuna. He lay instate at the marae for the first day and night. In the meantime the younger siblings decided that their father should have laid at Waikaremoana where they were born and where their mother was buried.[76] On the morning of the second day, a truck arrived while it was still dark and while many of the mourners who were keeping the body company in the tent were at breakfast. Just before daylight, the body was taken along with some greenstoneheirlooms and kākahu.15[77] Professor Temara was in a party travelling from Wellington to Ruatahuna when they were told of the taking of the body. While they were angered and numbedby the news they nevertheless recognised it as "part of our culture for that to happenand in fact it was enhancing the mana of the deceased".[78] Professor Temara‟s party considered, however, that the people atWaikaremoana needed to know the depth of their concern and anger. They decided, in consultation with the people of the Ruatahuna Marae, that they were not going todemand the return of the body but instead demand "utu, satisfaction, compensation".13 Body of the deceased.14 Elder.15 Cloaks.[79] When they arrived at Waikaremoana, the men of the marae stripped down to their trousers, grabbed their weapons and formed their ranks to challenge Professor Temara and his group. It was the middle of winter. When the group went onto themarae, those at the marae performed the different challenging haka of Tūhoe. Therest of the group had gone to their seats but Professor Temara would not sit down.[80] According to tradition, the tangata whenua16 had to remain standing and the group with weapons also had to remain standing. Professor Temara felt that the group with weapons wanted to retreat and go about their duties, so he pulled a greenstone mere17 from his overcoat and started shaking it at his side. In seeing this action the group quickly re-formed and re-energised themselves with weapons at theready and waited for Professor Temara‟s next move.[81] Some minutes passed and, when the group with weapons had started to relax, Professor Temara lifted the greenstone mere to another position, which prompted the group to re-energise themselves again. This went on for about an hour. He then indicated that he was going back to the seats provided and sat down. The fact that the group with weapons had been left without shirts or shoes in the cold for an hourbrought immeasurable satisfaction. Also the kaumātua and the women on thepaepae18 had stood for the whole time he had been toying with the others and had to suffer by standing and waiting.[82] There were then a number of carefully worded speeches and compensation in the form of a greenstone weapon was asked for. This request was accepted and compensation was paid three months later by the presentation of a greenstone patu19at a ceremony on the marae from which the body had been taken. Professor Temara named the taonga20 "Te Maungārongo" or "the peacemaking" and this provided thesymbol for closure.[83] Professor Temara gave another example, where in 2002 a kaumātua had beenbrought up in Ruatahuna and wanted to be buried there, even though all his brothers16 In this context, this refers to the hosts of the marae.17 A short, flat weapon.18 The threshold of the marae.19 Club.20 Treasure.had been buried at Waikaremoana. The people of Waikaremoana came to the marae, stripped to the waist and waved their weapons outside the gate. In accordance with the kawa21 they could not enter while the marae was occupied by an earlier party.The party in the marae "prolonged their anxiety by surrounding the tent where thebody lay and turning our backs to them for about an hour". Once they thought thegroup had settled down, they indicated that they could come onto the marae. Lying on the body was the patu that had been brought over as compensation by the people of Waikaremoana in the incident described above.[84] As the opening speaker on the marae, Professor Temara went onto the marae mate,22 took the patu from the body and performed with that weapon while welcoming the people of Waikaremoana. The climax was to challenge them to see if they had come to re-enact the events of seven years earlier. Having said that, heplaced the patu called Te Maungārongo on the ground, halfway between himself andthe group, and made it clear to them that the indication that hostilities had been re- opened would be through picking up this taonga and breaking it into pieces.[85] Within the group were some very high powered Tūhoe. There was one kaumātua who was not really part of the group but, because he was waiting at thegate, had come onto the marae with them. This provided an opportunity for Professor Temara to take advantage of the situation and direct all his verbal insultsand challenges to that kaumātua, who understood the predicament and understoodwhat he had to do.[86] When Professor Temara laid the patu down, the kaumātua picked it up, tookit in his arms, walked over and handed the patu back to Professor Temara and indicated he wanted to hongi, which they duly did. They thus managed to deter thefamily who had come to take the tūpāpaku on that occasion.[87] Moving to the present case, he said that it was within the bounds of Māoritikanga and common sense, that some compensation of an appropriate order be given because it is symbolic of closure and the return to harmony. He considered that it21 Marae protocol.22 The tent where the body lay in state.would be culturally offensive to demand that the body go back to Christchurchbecause "it is at one with its pito [umbilical cord] now". What occurred in his view was in accordance with their tikanga. It is important in Māori culture to keep thedead close to them.[88] Further, with the body in a hapū urupā, Mr Takamore becomes the responsibility of the wider collective of the hapū. The people at Kutarere areresponsible for the ongoing maintenance of the grave and of ensuring that he is looked after.[89] In cross-examination, Professor Temara conceded that there is no absolute presumption about being buried where a person is born. This is the ideal, however. He agreed that the wishes of the eldest son and of the deceased were factors in determining a settlement of any dispute over burial. He said, however, that often thewishes of the deceased are not carried out in Māori society. In his view a person‟smana could be enhanced by a conflict over burial and their wishes not being carried out.[90] He did concede in cross-examination that there had been cases where a body has been dug up and moved after burial. Indeed that had happened in the case of his father who had died in 1963. His grandfather had determined that his father was to be buried where they had all grown up and his will prevailed over that of the hapū. The hapū agreed on the basis that the grandfather would be buried with his father.However, that did not occur. In 1994, Professor Temara exhumed his father because he felt that the issues of 30 years previously had not been resolved. He then took his father back to his own marae to be buried.[91] He said that the hahunga23 ceremony is even more tapu than the tangi ceremony. It has to be carried out in the hours of darkness before the first rays of the sun. All involved are under tapu but the tohunga24 is under so much tapu that he has to be fed with his hands behind his back until such time as the tohunga has deemed that he can come out of tapu and re-join normal life.23 Exhumation.24 Expert.Summary[92] In summary, according to Tūhoe tikanga, the right to make the decision as towhere somebody is buried falls to the living. That decision is a collective one to bemade by the whānau pani, the relations of the deceased who are suffering the lossand are in mourning.[93] The choice of an appropriate burial place can be a matter giving rise toconflict and negotiation among the members of the whānau pani. Considerations which may assist to form a conclusion include where the person is born and wherethe person‟s whānau, hapū and iwi are. When Tūhoe people die outside of their tribeor territory, there is a sincere effort to repatriate that person. Decisions on burial location seek to avoid the severing and breaking of continuity of the whakapapa. Other considerations include where the person was physically, intellectually, spiritually and emotionally sustained, whether the person has children or partners orparents that they have left behind and the views of the whānau pani. The wishes ofthe deceased as to burial will be taken into account, but may be overridden by whatthe whānau pani are seeking.[94] Where a resolution or agreement does not arise out of the consultation process, the burial location may come down to a contest of who has the greater influence and will. There have been instances where this has occurred through one party taking the body of the deceased without consultation. The party who takes the body would be required to then provide some form of compensation to satisfy the aggrieved party from whom the body has been taken.Fogarty J's decision[95] Fogarty J first considered the common law power of executors to choose where the body of the deceased is to be buried and summarised the relevant common law as follows.[96] The executor of the deceased‟s will has the right to possession of thedeceased‟s body against all other persons and must decide how the burial is to bearranged. He said that the executor will, as a fiduciary, take into account the wishes of the deceased, the surviving spouse or partner, children and other relatives, and where appropriate, friends or confidants of the deceased. However, the executor is not legally bound to carry out the wishes of the deceased or the wishes of his spouse, family and other persons. The executor must make the decision that he or she considers to be the best and right decision, as executor.25[97] Fogarty J thus determined that Ms Clarke, as the executrix of Mr Takamore‟swill, was entitled to make the final decisions as to the funeral arrangements and that in that context she was entitled to claim possession of the body at all times until its final and proper burial.26[98] He then considered whether the tikanga of Tūhoe could be recognised as partof the common law of New Zealand. He held that the expert evidence adduced attrial established that the Tūhoe tikanga relating to the making of decisions as to where a member of Tūhoe would be buried was longstanding and still actively practised.27[99] In Fogarty J‟s view, the ultimate question of law in this case was whether or not the Tūhoe tikanga was reasonable, "taking the whole of the circumstances into consideration".28 Fogarty J considered that, whenever any local custom is recognised in common law, there must inevitably be a question as to whether or not the custom is consistent with other principles of common law. Because the Court is determining the extent of recognition of the custom as part of the common law, it is inevitable that the Court must take into account whether it can be accommodated with other principles of common law.29[100] In Fogarty J‟s view, however, it was beyond doubt that Mr Takamore chose to live outside tribal life and the customs of his tribe. Under the common law, the Judge considered that Mr Takamore was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the25 The High Court Judgment, above n 2, at [47].26 Ibid, at [48].27 Ibid, at [56].28 Public Trustee v Loasby (1908) 27 NZLR 801 (SC) at 806.29 The High Court Judgment, above n 2, at [83].decision as to his funeral. The collective will of Tūhoe could not be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tūhoe tikanga.30 Because of this, Fogarty J concluded that he did notneed to decide the content of the relevant Tūhoe tikanga or whether it is part of the common law of New Zealand.31[101] Accordingly, Fogarty J held that there was no legal authority for the Taneatua family to dispossess Ms Clarke of Mr Takamore‟s body. The taking of the body wasunlawful, and Ms Clarke, as executrix, was entitled to possession of the body.32The parties' submissions[102] On appeal, the appellant contends that a fundamental flaw in Fogarty J‟sreasoning was that he considered it unnecessary to determine whether the relevantTūhoe tikanga was a part of the common law of New Zealand. The appellantsubmits that the legal position in New Zealand is that the executor is prima facie responsible for exercising certain duties and rights in relation to disposal of adeceased‟s body. However, where the deceased is Māori, the appellant submits thatthose rights are subject to the exercise of customary law and tikanga regarding burialby the whānau of the deceased. Where the whānau of the deceased determine toexercise their customary rights in respect of burial, the executor must allow those rights to be exercised. This is because, "save extinguishment, the Tūhoe tikanga exists as part of the common law of New Zealand". The appellant also submits thatthere is no test of reasonableness before customary law can be recognised as part of the common law of New Zealand.[103] The appellant further submits that consideration of how the deceased lived and his preferences as to place of burial is irrelevant, as the tikanga can be applied toany deceased of Tūhoe descent, whether or not they themselves practised the tikangawhen they were alive. In any event, the appellant challenges Fogarty J‟s finding thatMr Takamore chose to live outside tribal life and the customs of his tribe.30 Ibid, at [88].31 Ibid, at [89].32 Ibid, at [90].[104] The respondent supports the reasoning of Fogarty J and submits that theTūhoe tikanga cannot be recognised as part of the common law of New Zealand, asany custom that is "anomalous and unilaterally imposed" is unreasonable. Therespondent submits that the custom is unreasonable given that it can allegedly apply irrespective of the fact that the deceased has renounced any Tūhoe connections. Further, the respondent submits that any custom that is "based on violence or force or stealth" is unreasonable.Issues[105] The main issue in the appeal is whether Tūhoe burial custom has any effecton the common law duties of an executor or executrix. This requires consideration of two questions:(a) Does Tūhoe custom fulfil the common law test for the recognition ofcustomary law, so that it is part of the common law?(b) If not, can and should the common law relating to burial neverthelessaccommodate Tūhoe custom in some way?[106] The first question is covered below from [109]–[196]. That section coversthe tests for the recognition of customary law and whether the Tūhoe burial custom meets those tests. It also covers the extinguishment of custom and discusses to whom the custom would apply were it recognised as part of the common law. We conclude that the custom does not meet the requirements for recognition at common law.[107] The second question is covered below from [197]–[263]. That section covers the content of the common law regarding burial and the duties of an executor to dispose of the deceased‟s body.33 It also covers emerging human rights jurisprudence in this area, the relevance of the Treaty of Waitangi, and the United Nations Declaration on the Rights of Indigenous Peoples. We conclude that the33 We use the term burial in the generic sense to cover both burial and cremation.common law has developed, or at least is developing, to a point where executors should take indigenous practices relating to burial into account.[108] Before dealing with these two questions we note that the Court and counsel were faced with a difficult task because there is very little New Zealand case law on customary law. Moreover, the case law that exists was mostly developed in an explicitly colonialist context. We also note that there is very little New Zealand case law on the common law duties of an executor or executrix.Recognition of customary law by the common law[109] As Fogarty J observed, English common law has always recognised local custom as law for a borough or other local area.34 Recognition of customary law is not unqualified, however. In order for an English custom to be recognised it has to meet the following requirements:35(a) it must have existed from time immemorial;(b) it must have continued as of right and without interruption since its origin;(c) it must be reasonable;(c) it must be certain in its terms, and in respect of the locality to which it obtains and the persons it binds; and(d) it must not have been extinguished by statute.[110] By time immemorial, the Courts require the custom to have been in existence since the first year of the reign of Richard I (1189).36 As to continuity, interruption34 The High Court Judgment, above n 2, at [62]. See generally Halsbury's Laws of England (online ed) vol 12 Custom and Usage ["Halsbury‟s Laws of England"].35 "Halsbury‟s Laws of England", ibid, at [606]. The foundation case for these requirements is The Case of Tanistry (1608) Dav Ir 28 at 32. In Wolstanton Ltd v Newcastle-under-Lyme Corporation [1940] AC 860 (HL) at 876, Viscount Maugham stated that for a custom to berecognised it must be "certain, reasonable in itself, and of immemorial origin".36 Wolstanton, ibid, at 876. However, the rule of immemorial antiquity does not apply to tradewithin legal memory defeats the custom. Merely not availing oneself of the right does not, however, destroy the right – it must be the right itself that is discontinued.37[111] For a custom to be reasonable it has to be "consistent, or, at any rate, notinconsistent, with those general principles which, quite apart from particular rules ormaxims, lie at the root of our legal system".38 The party asserting a custom does notneed to prove its reasonableness. Rather, a custom will be rejected if it isunreasonable.39 For a custom to be certain the principle or rule must be definite suchthat "by the application of it to each particular case it may be shown with certaintywhat are the rights which the custom gives in that case".40 Finally, customary rightscannot be set up against a positive rule contained in legislation.41Indigenous customary lawPresumption of continuity[112] By analogy with English custom, the common law also recognised customary laws of indigenous peoples in British colonies. Despite the acquisition of sovereignty and the general introduction of English law to a territory, colonial courts recognised pre-existing customary law of the indigenous inhabitants.42 When a new territory was acquired, the laws of the indigenous inhabitants continued to apply until altered by the new sovereign through legislation.43 The corollary of the rule isusages and local usages which are termed „customs of the country‟; any long-established user, supported by notoriety, is sufficient. Refer C K Allen Law in the Making (7th ed, Oxford University Press, Oxford, 1964) at 135.37 Allen, ibid, at 136.38 Johnson v Clark [1908] 1 Ch 303 at 311. See generally "Halsbury‟s Laws of England", aboven 34, at [609].39 "Halsbury‟s Laws of England", ibid.40 Ibid, at [615], citing Champneys v Buchan (1857) 4 Drew 104 at 116.41 Allen, above n 36, at 131.42 P G McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (PhD thesis, University of Cambridge, 1987) at 149–150 and 184 ["Aboriginal Rights"].43 The presumption of continuity has its roots in Roman and medieval precedents. However, it is generally attributed to Campbell v Hall (1774) 1 COWP 204, 98 Eng Rep 1045 at 1047, whereLord Mansfield reviewed these precedents and concluded that "the laws of a conquered country continue in force, until they are altered by the conqueror". Although Lord Mansfield referred toconquered territories, the presumption of continuity has also applied to ceded and settled colonies: P G McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi(Oxford University Press, Oxford, 1991) at 83–87 ["The Māori Magna Carta"].Dr Mark Walters states that the presumption of continuity was applied to the status of Saxon rights after the Norman conquest. He also suggests that the justification for the presumption ofthat English law is "adapted to reflect local custom" and that in the colonies Englishlaw applied "so far as applicable to the circumstances thereof".44[113] In colonial times the presumption was, however, that the continuity of customary law was a temporary state of affairs and that unification of the legal systems was viewed as an inevitability and as a goal. The new universal legal system might possibly incorporate parts of indigenous law but would be applicable to everyone.45Recognition in colonial courts[114] The presumption of continuity was applied by colonial courts, including in New Zealand.46 In Baldick v Jackson47 Stout CJ held that a statute of Edward IIconcerning the King‟s revenue that treated whales as Royal fish did not apply inNew Zealand. Stout CJ held that the statute could not possibly have applicationbecause it would have to be claimed against Māori and the Treaty of Waitangi assumed that their fishing was not to be interfered with.continuity was the constitutional separation of powers: local law was presumed to continue because the decision to abrogate or amend local law was a matter for the legislative branches ofthe State, not the courts. Mark D Walters "The "Golden Thread" of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1999) 44 McGill L J 711 at722–724 ["The Golden Thread"].44 Baldick v Jackson (1910) 30 NZLR 343 (SC); Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [17] per Elias CJ and [134] per Keith and Anderson JJ. It is also implicit in Tipping J‟s judgment that he accepted that the common law was modified by New Zealand‟scircumstances. Tipping J held, at [212], that when the common law came to New Zealand,Māori customary title was integrated into the common law, forming a "common law of New Zealand" that contained an "ingredient involving Maori customary title or land". Gault P madeno comment as to whether the common law was modified by local circumstances.45 Campbell McLachlan "The Recognition of Aboriginal Customary Law: Pluralism Beyond theColonial Paradigm – A Review Article" (1988) 37 Int‟l and Comp LQ 368 at 382 ["Recognitionof Aboriginal Customary Law"]. Refer also Law Commission "Māori Custom and Values",above n 9, at 21–22 and McHugh "Aboriginal Rights", above n 42, at 167.46 See the discussion and the cases cited in McHugh "Aboriginal Rights", ibid, at 148–150; Walters"The Golden Thread", above n 43; Noel Cox "The Extension of the Common Law to Settled, Ceded and Conquered Territories, and the Survival of Indigenous Laws, with Particular Reference to New Zealand" in Wayne Rumbles and Paul Havemann (eds) Prospects and Retrospects: Law in History: Proceedings of the 20th Annual Conference of the Australia and New Zealand Law and History Society (Centre for New Zealand Jurisprudence, Hamilton, 2001) 165.47 Baldick v Jackson, above n 44.[115] In Arani v Public Trustee, the Privy Council recognised that, despite theenactment of the Adoption of Children Act in 1895, Māori continued to be able toadopt through customary law.48 The Privy Council explained:49The right of the Maori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act.[116] Similarly, in Nireaha Tamaki v Baker, the Privy Council expressly rejectedthe argument that there was no Māori customary law of which the Courts could takecognisance for the purpose of land rights.50 The Privy Council essentially held that,given New Zealand statutes contemplated the existence of Māori customary law,51any argument that it was not cognisable by the common law must be wrong. Statutory contemplation of customary law went beyond customary law relating to land rights.52[117] However, early colonial courts did not always recognise customary law.53 InWi Parata v Bishop of Wellington, Prendergast CJ denied that Māori had "any kind of civil government" or any "settled system of law".54 Professor Richard Boast,48 Arani v Public Trustee [1920] AC 198 (PC). In this case, the Privy Council decided that a European child adopted by a Māori family under the statute then in force and therefore havingacquired the legal status of a child born in wedlock was, according to Māori custom, entitled to succeed to the adopting parents‟ estate in common with any other children. (We note, however,that the Courts below had held that the adoption would not have been valued under Māoricustomary law as it was of a European child. Arani is therefore not an apt authority for the recognition of customary adoption law.)49 Arani, ibid, at 203. Refer also Public Trustee v Loasby, above n 28, at 806–807, where Cooper Jrelied on Māori customary law to decide that it was reasonable for the costs of a tangi to be paid out of the personal estate of a Māori deceased.50 Nireaha Tamaki v Baker [1901] AC 561 (PC) at 577.51 The Privy Council referred to the statutory words of ss 3–4 of the Native Rights Act 1865.52 The Native Exemption Ordinance 1844, the Resident Magistrates Court Ordinance 1846, the Resident Magistrates Act 1867, and s 71 of the Constitution Act 1852 afforded at least temporaryrecognition to Māori customary law in the first few decades after the signing of the Treaty ofWaitangi. However, later judicial decisions that refused to recognise customary law, combined with executive and legislative policies of suppression led to the eclipse of most customary law.For discussion refer Law Commission "Māori Custom and Values", above n 9, at [80]–[115].53 In Australia and Canada, some decisions refused to recognise the customary laws of the indigenous inhabitants. Refer for example Doe dem Sheldon v Ramsay (1852) 9 UCQB 105,Cooper v Stuart (1889) 14 AC 286 (PC) at 291–294, R v Cobby (1883) 4 NSWLR 355 at 356,R v Murrell [1836] 1 Legge 72 and the discussion in Walters "The Golden Thread", above n 43, at 721.54 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur NS 72 (SC) at 77–79 per Prendergast CJ. Prendergast CJ took a similar approach in Rira Peti v Ngaraihi Te Paku (1888) 7 NZLR 235 (SC) at 239, to deny the validity of customary marriage. Refer also Rangi Kerehoma v Public Trustee [1918] GLR 483 (SC) at 485 and In re Wi Tamahau Mahupuku (Deceased), Thompson v Mahupuku [1932] NZLR 1397 (SC) at 1399.however, considers55 Prendergast CJ‟s approach, for New Zealand courts at least, "idiosyncratic".56 It was also contrary to the position later taken by the Privy Council (summarised above at [115]–[116]).[118] Customary law has also been recognised in more recent times. InTe Weehi v Regional Fisheries Officer,57 Williamson J, referring to the experience of British and North American courts in the nineteenth century, noted:58The treatment of its indigenous peoples under English common law had confirmed that the local laws and property rights of such peoples in ceded or settled colonies were not set aside by the establishment of British sovereignty. (See Campbell v Hall (1774) Lofft 655.)[119] Similarly in Huakina Development Trust v Waikato Valley Authority,59Chilwell J held:60 it may be said that customs and practices which include spiritual elements are cognisable in a Court of law provided they are properly established, usually by evidence.[120] The presumption of continuity has most frequently been referred to in cases dealing with aboriginal title. The exact basis of the doctrine of aboriginal title is a matter of some contention.61 Whatever its basis, however, the continuation of customary law is inherent in the recognition of aboriginal property in cases such as55 Perhaps charitably given the influence of that case on subsequent jurisprudence. An extensive analysis of Wi Parata, ibid, and its significance is contained in David Williams A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011).56 Richard Boast and others (eds) Māori Land Law (2nd ed, LexisNexis, Wellington, 2004) at 2.2.4.57 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC). The case concerned s 88(2) ofthe Fisheries Act 1983, which provided that nothing in the Act would affect any "Maori fishingrights". The appellant had been charged with taking undersized paua. However, Williamson Jfound that in taking the paua the appellant was exercising a customary right to do so and was therefore exempt from the size requirement. Accordingly, Williamson J quashed the appellant‟sconviction.58 Ibid, at 687.59 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC). The case concerned the interpretation of s 21 of the Water and Soil Conservation Act 1967, which gave local authorities the discretion to grant proprietors the right to discharge water from theirproperties. Chilwell J held that in exercising the discretion Māori cultural and spiritual valuesconcerning water were a relevant consideration.60 Huakina, ibid, at 215.61 See Brian Slattery "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Rev 727; Mark Walters "British Imperial Constitutional Law and Aboriginal Rights: A Comment onDelgamuukw v British Columbia" (1992) 17 Queen‟s LJ 350.Attorney-General v Ngati Apa62 and Mabo v Queensland.63 This is because customary law defines the content of aboriginal proprietary rights.64 In Ngati Apa, Keith J quoted with approval Professor D P O‟Connell‟s view that "the survival ofrights created under the previous system is inseparably connected with the survivalof law".65 Similarly, in 1901, in Nireaha Tamaki v Baker, the Privy Council held that the Court could take cognisance of Māori customary law under which Māoriclaimants might have tenure of land.66Principles of recognition[121] Customary laws of indigenous peoples were recognised according to principles analogous to those used to recognise customs in England, although with some modifications. Dr P G McHugh notes that "[i]n general terms the colonial tribunals required proof of a consistent, long-standing practice not „repugnant to justice and morality‟".67 We now discuss these requirements in more detail.Longevity and continuity[122] The requirement of practice since the time of Richard I was obviously inapplicable outside Britain.68 Indigenous customs require proof of a "long-standing, consistent custom"69 that demonstrates "continuity with a preceding legal system".70 There is, however, recognition in the New Zealand context that custom can adapt even after colonisation. The New Zealand Law Commission notes that whilst there has long been a tendency to insist that "genuine" Māori thinking must be that of tikanga Māori prior to contact with Pākehā, tikanga Māori should not be seenas fixed from time immemorial, but rather as based on a continuing review of62 Ngati Apa, above n 44.63 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15.64 Ngati Apa, above n 44, at [47] per Elias CJ and [184] per Tipping J; Mabo, ibid, at 15 per Mason CJ and McHugh J, at 58 per Brennan J and at 110 per Deane and Gaudron JJ.65 Ngati Apa, ibid, at [138].66 Nireaha Tamaki v Baker, above n 50, at 577.67 McHugh "Aboriginal Rights", above n 42, at 182.68 Law Commission "Māori Custom and Values", above n 9, at 9; McHugh "Aboriginal Rights", ibid, at 183; A N Allott "The Judicial Ascertainment of Customary Law in British Africa" (1957)20 MLR 244 at 246.69 McHugh "Aboriginal Rights", ibid, at 182.70 Walters "The Golden Thread", above n 43, at 719.fundamental principles in a dialogue between the past and the present.71 Like anylegal system, Māori customary law is not fixed.72[123] The Law Commission‟s view accords with the decision of the Privy Councilin Arani v Public Trustee. In Arani v Public Trustee the Privy Council referred to thedecision of the Māori Appellate Court in that case, which stated that native custom is "not a fixed thing".73 The Court had said that such custom is based on the old custom as it existed before the arrival of the Europeans but it can develop andbecome adapted to the changed circumstances of the Māori race. The Privy Council stated that it "may well be that this is a sound view of the law, and that the Maoris asa race may have some internal power of self-government enabling the tribe or tribesby common consent to modify their customs".74Reasonableness[124] The test of reasonableness for the establishment of a custom in the colonies was modified slightly from the English position when assessing the customs of indigenous peoples in the colonies. Professor C K Allen, writing in 1964, summarises the position by stating:75 it is clear that when a dominant people is dealing with the customs of a different civilization and of different religions, the tests of reasonableness, morality, and public policy must be looked at from an angle somewhat different from that which would be appropriate in the conditions of English society. In general, British administration has endeavoured to leave indigenous customs intact, however alien they may be to Western and Christian nations; but where they are considered to violate elementary considerations of humanity and decency, they are either rejected by the courts or, more frequently, suppressed by legislation.[125] For the custom to be unreasonable, it is not enough that it is simply "notconformable to the common law of the land, for it is of the very essence of the custom that it should vary from it".76 As Parker J observed in Johnson v Clark:7771 Law Commission "Māori Custom and Values", above n 9, at 2–3, referring to Michael BelgraveMāori Customary Law: From Extinguishment to Enduring Recognition (unpublished paper for the Law Commission, Massey University, Albany, 1996) at 51.72 Law Commission "Māori Custom and Values", ibid, at 3.73 Arani, above n 48, at 204.74 Ibid, at 204–205.75 Allen, above n 36, at 158.76 Public Trustee v Loasby, above n 28, at 806. the words "reasonable or not unreasonable" imply an appeal to somecriterion higher than the mere rules or maxims embodied in the common law, for it is no objection to a custom that it is not in accordance with theserules or maxims. a custom to be valid must be such that, in the opinion ofa trained lawyer, it is consistent, or, at any rate, not inconsistent, with those general principles which, quite apart from particular rules or maxims, lie at the root of our legal system.[126] Colonial courts nevertheless rejected quite a wide range of customs on the basis of incompatibility with fundamental principles of English law. Very violent customs such as those authorising torture were held to be suspended on the assumption of British sovereignty for inconsistency with fundamental principles of English law.78 Procedural rules, such as the nemo judex79 rule and the audi alteram partem80 rule, were often enforced by English courts in Africa.81[127] More recently, in Australia, the Courts have had to grapple with the limits of recognition of customary law for the purpose of defining native title. InMabo v Queensland (No 2), Brennan J (delivering the principal judgment of the majority of the High Court of Australia) held that customary law as to land and titleinterests could be recognised so long as it was not repugnant to "skeletal" principlesof the Australian legal system.82 This is in accordance with the approach inJohnson v Clark that a custom cannot be contrary to principles at the "root" of thelegal system.83Certainty[128] According to Halsbury's Laws of England, any custom should "point outclearly and certainly the principle or rule of the custom, but that principle or rule must be one which is definite and certain, so that by the application of it to each77 Johnson v Clark, above n 38, at 311.78 H A Amankwah "Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia" (1994) 18 Uni Queensland LJ 15 at 26–28. Refer also to theexamples collected in McHugh "Aboriginal Rights", above n 42, at 183.79 "No one may be a Judge in their own cause".80 "Hear the other side".81 Amankwah, above n 78, at 27.82 Mabo, above n 63, at 43.83 Johnson v Clark, above n 38, at 311.particular case it may be shown with certainty what are the rights which the custom gives in that case".84[129] This too may need to be modified to a degree for indigenous custom. This isbecause the object of many customary laws (including those of Māori) wasnegotiation leading to compromise and reconciliation, rather than the rigid application of the law. As noted by Professor A N Allott, the "rules" of customarylaw often only set a standard or provided a talking point.85 Allott says that the flexibility of customary law has sometimes been overlooked by the British courts.86[130] In the New Zealand context, the Law Commission noted that Māoricustomary law was essentially values based rather than rules oriented.87 Specifically,the basis of Māori customary law includes values such as whanaungatanga, mana,tapu and utu.88 Whanaungatanga refers to the primacy of relationships, especially whakapapa or genealogy.89 Mana refers to authority, power, prestige and leadership.90 Tapu provides a code of social conduct: at a spiritual level it means sacredness, and at a secular level it is linked to social practices that keep people safe and avoid risk.91 Utu loosely translates to reciprocity.92[131] A brief description of some of the key values in Māori customary lawillustrates their abstractness and breadth.93 The values are likely to have varying application in any particular case. Moreover, a further degree of uncertainty is added by the fact that the application of the values varies amongst different iwi and hapū.9484 "Halsbury‟s Laws of England", above n 34, at [615].85 Allott, above n 68, at 244–245.86 Ibid, at 245.87 Law Commission "Māori Custom and Values", above n 9, at 7. Refer also E T Durie "Will the Settlers Settle? Cultural Conciliation and Law" (1996) 8 Otago L Rev 449 at 454–455.88 Law Commission "Māori Custom and Values", ibid, at 28.89 Ibid, at 30.90 Ibid, at 32.91 Ibid, at 37.92 Ibid, at 38. Further discussion of the values underpinning Māori customary law can be found inDurie, above n 87, at 454–455 and Robert Joseph "Re-creating Legal Space for the First Law of Aotearoa-New Zealand" (2009) 17 Waikato Law Review 75 at 87–89 ["Re-creating LegalSpace"].93 The Law Commission in "Māori Custom and Values", above n 9, at 4, also notes that a problem that non-Māori judges face is that, "through no fault of their own, [they] are being called upon to assess the mores of a society still largely foreign to them".94 Law Commission "Māori Custom and Values", ibid, at 4.It is no surprise then that Māori customary law places a high value on mediatedoutcomes rather than resolving matters according to a single governing rule.95[132] Given that Māori customary law has its basis in broad values, and its capacityfor change and variations between iwi and hapū, the certainty criterion cannot applywith the same rigour as it does in relation to English customs.Extinguishment[133] Any wholesale extinguishment of customary law must occur through legislation. On the assumption of sovereignty some customary law was extinguished. We have already discussed how the common law would not recognise customs that were too unreasonable or uncertain.96 Common law rules that were incidents of the Crown‟s sovereignty also displaced local law.97 The continuation of customary criminal law was also often inconsistent with the assertion of sovereignty and so was displaced.98 However, as should be evident from our discussion above, outside of these exceptions, customary law (especially customary law on civil matters) was presumed to continue.[134] The proposition that customary rights may only be extinguished by an unambiguous statutory provision has been recognised as applying to New Zealand.99In Arani v Public Trustee the Privy Council held that a statutory provision that statedthat "[e]very person of the Māori race within the colony of New Zealand shall betaken and deemed to be a natural born subject of Her Majesty to all intents andpurposes whatsoever" and therefore gave Māori the same rights of adoption asBritish settlers was not sufficient to extinguish customary adoption.10095 Joseph "Re-creating Legal Space", above n 92, at 91.96 Refer to discussion at [124]–[132] above.97 Ruding v Smith (1821) 2 Hag Con 371, 161 ER 774 at 778; Kodeeswaran v Attorney-General of Ceylon [1970] AC 1111 (HL) at 1118 and refer to the cases collected in McHugh "Aboriginal Rights", above n 42, at 149.98 McHugh "Aboriginal Rights", ibid, at 170 and 184–185.99 Ngati Apa, above n 44, especially at [147]–[149] per Keith and Anderson JJ and [185] per Tipping J (in relation to property rights in the foreshore and seabed); Te Weehi, above n 57, at 691–692 (in relation to customary fishing rights).100 Arani, above n 48, at 203. Refer quotation at [115] above.Application of the test for recognition to this case[135] We now examine whether the requirements101 for the recognition of customary law are met in this case. We also deal in this section with some other aspects of the parties‟ submissions on this issue.Longevity and continuity[136] Fogarty J held, on the basis of the expert evidence adduced at trial, that the custom was proved to be longstanding and still actively practised.102 This finding is not in dispute on appeal. This means that the first and the second requirements of longevity and continuity are met.Reasonableness[137] We now turn to the reasonableness requirement.(a) The parties‟ submissions[138] On appeal, Ms Takamore contends that Fogarty J erred in applying the reasonableness test to the custom. She contends that "save extinguishment, the Tuhoe tikanga exists as part of the common law of New Zealand".[139] This does not accurately state the legal position. Contrary to Ms Takamore‟ssubmission that customary law applies save extinguishment, British and colonial courts have always applied a reasonableness test to custom.103[140] On the other hand, Ms Clarke submits that the Tūhoe burial custom isunreasonable, being a custom that is "anomalous and unilaterally imposed". Relying on Wolstanton Ltd v Newcastle-under-Lyme Corporation, Ms Clarke submits that any alleged custom based on usurpation and not based on voluntary consent is101 As set out at [109] above.102 The High Court Judgment, above n 2, at [56].103 Refer to discussion above at [124]–[127].unreasonable.104 Similarly, relying on Kuar Sen v Mamman,105 Ms Clarke submits that a custom based on violence or force or stealth is per se unreasonable.[141] Additionally Ms Clarke submits, relying on Johnson v Clark, that a custom in direct contradiction of the free will to alienate any property or custodial right or carry out any trustee obligation is unreasonable.106 She further submits that the custom contended for in the present case is much more unreasonable than the custom that was held not to be able to be recognised by the common law in Fryer v Johnson of being allowed to bury a relative as near as possible to one‟s ancestors.107[142] The cases relied upon by Ms Clarke are distinguishable. The passages fromWolstanton and Kuar Sen, to the effect that customs that are imposed involuntarily or by stealth or violence cannot be upheld, were made in a different context to the present case.108 The Courts were not stating, as Ms Clarke contends, that customs, once established, are bad because they apply even where a person does not wish the custom to apply. Indeed, given their legal nature, once established, customs will inevitably be involuntary in their operation.[143] In Wolstanton and Kuar Sen, the Courts were stating that customs that areestablished through involuntariness or force are bad. The full passage relied on inWolstanton states that a custom may be held bad where it is "of a very oppressivecharacter and more probably founded in wrong and usurpation than in the voluntaryconsent of the copyholders of the manor" (emphasis added).109 Similarly, inKuar Sen the full context of the statement was that a custom should not berecognised unless the Court is satisfied by evidence that "the enjoyment of the rightwas not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement orotherwise, the usage had become a customary law" (emphasis added).110104 Wolstanton, above n 35, at 878.105 Kuar Sen v Mamman (1895) IRL 17 All 381.106 Johnson v Clark, above n 38, at 318.107 Fryer v Johnson (1755) 2 Wils KB 28, 95 Eng Rep 667.108 Wolstanton, above n 35, at 878; Kuar Sen, above n 105, at 384.109 Wolstanton, ibid, at 878.110 Kuar Sen, above n 105, at 384. Refer also to Allen, above n 36, at 136–137, where ProfessorAllen notes that a „custom‟ which has only been wrested from the public by the "strong hand" isnot a custom at all, but that the necessary implication of a custom, where it exists, is that it has[144] Similarly, Johnson v Clark is distinguishable on its facts. The case concernedan alleged custom whereby a married woman‟s property could be disposed of by theconsent of her husband without her separate examination and acknowledgment. The custom was held to be bad because it was in conflict with the general principle of the common law that an exercise of free will was essential to alienations and contracts.111 A custom that allows the removal of a body from the executor without the consent of the executor is not analogous to the custom in Johnson v Clark. There is a difference between the property rights in land and any rights an executor might have over a body. There is no property in a body.112[145] Finally, the relevance of Fryer v Johnson is unclear. The case is very short and it is not clear from it why the custom was held to be bad. Halsbury's Laws ofEngland suggests that the custom of being able to bury a dead relation as "near aspossible" to one‟s ancestors was unable to be upheld for uncertainty rather than unreasonableness.113 We agree with that comment.(b) Possible breaches of requirement[146] In our view, there are two possible general principles that might be seen to beat the "root" of our legal system that the Tūhoe custom as to burial could run against. First, there is the principle of individual autonomy which was relied on by Fogarty J. Second, there is the principle of "right not might", or rather the idea that resorting to the use of physical force to settle private disputes is repugnant to the rule of law.(c) Individual autonomy[147] The approach taken in the High Court is supported by Ms Clarke. Fogarty J held that the custom was unreasonable because it was not compatible with thecommon law‟s general presumption of individual freedom and autonomy. Fogarty J concluded:114obligatory force.111 Johnson v Clark, above n 38, at 318.112 Refer to discussion at [200] below.113 "Halsbury‟s Laws of England", above n 34, at [615] fn 3 and accompanying text.114 The High Court Judgment, above n 2, at [88].In this case it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe. Under the common law he was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. This is even more so because he chose as the executor of his will his life-long partner. He has personal rights as a New Zealand subject to the benefits of the common law of New Zealand. The collective will of the Tuhoe cannot be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tuhoe tikanga.[148] Ms Takamore submits that the approach in the High Court is erroneous. She submits that burial wishes cannot be enforced at common law and argues that this demonstrates that in this area the common law itself does not respect autonomy. Accordingly, she submits, the custom should not be struck down for failing to respect autonomy.[149] The counter to this may be that, even if the common law does not, as a matter of strict law, give effect to the rights of a deceased person, by allowing a person to appoint an executor it gives de facto protection to the deceased‟s wishes. As a general rule, it can be expected that a person will choose an executor who will give effect to their wishes as to burial.115[150] We, however, accept Ms Takamore‟s submissions on this point. This is notan area where individual autonomy rules at common law. There are wider interests at stake.116 As we will discuss below, while an executor or executrix must take into account the wishes of the deceased, so too must he or she take into account the wishes of the family.[151] Further, as a matter of principle, given that most Māori custom is based onthe collective and duty to the collective, rather than on individual rights,117Fogarty J‟s approach would have the effect of negating Māori custom in most cases.We thus consider that Fogarty J was not correct when he held that the custom breaches the reasonableness requirement because it does not honour individual autonomy.115 We discuss this point further below at [211] and following.116 Refer to discussion below at [197] and following.117 Refer to Durie, above n 87, at 453–455 and Joseph "Re-creating Legal Space", above n 92, and discussion in fn 260 below.[152] In any event, we consider that Fogarty J was not entitled to make the factual finding about Mr Takamore‟s rejection of Tūhoe customs that he did. We also do not consider that Mr Takamore had expressed a single clear view regarding his desired burial location.(d) Fogarty J‟s factual findings[153] When considering Mr Takamore‟s cultural identity, Fogarty J noted thatMr Takamore‟s contact with his family in the Bay of Plenty became infrequent when he moved to Christchurch.118 The Judge noted that Mr Takamore had told a friendthat he was now a "South Island Māori".119 The Judge also stated that:[15] [Mr Takamore] told one of his friends that he did not like theway his family lived in the North Island. He told another of hisfriends that his home was now in Christchurch and he intended to stay there and that he had said "I got out of all that bloody rubbish"referring vaguely, it seems to me, to the traditions of his tribe in theNorth Island. [154] The evidence referred to above was received without challenge. This isunsurprising given Ms Takamore‟s position that, according to Tūhoe tikanga, consideration of a person‟s connection to their indigenous culture is irrelevant.120Fogarty J acknowledged that this was Ms Takamore‟s position,121 and also noted thatthe term "South Island Māori" could be seen as an affront to tribal Māori, as "within tribal Māori culture the identity of all Māori is, as I understand it, by whakapapa (geneology) to whānau (immediate family), hapū (family groups/sub-tribe) and iwi(the tribe), all of which are tribal groups".122 Fogarty J later held that "it is beyonddoubt that the late Mr Jim Takamore chose to live outside tribal life and the customsof his tribe".123[155] We consider that a finding that Mr Takamore intended permanently to reside in Christchurch was justified. As we have discussed above,124 Mr Takamore‟s118 The High Court Judgment, above n 2, at [14].119 Ibid, at [15].120 Refer to [103] above and discussion at [190]–[191] below.121 The High Court Judgment, above n 2, at [72].122 Ibid, at [78]. Refer also to [190] and fn 164 below.123 Ibid, at [88].124 Refer to [29] above.mother deposed that Mr Takamore rang her every week to see how she was, and that he was going to renovate her house for her when he retired. Even if this evidence were accepted, in our view, that does not amount to an expression of Mr Takamore‟s intention to return to the Bay of Plenty to live (particularly given that Mr Takamore‟schildren and partner reside in Christchurch, and there was no indication that they intended to relocate).[156] We do not, however, consider that Fogarty J was justified (on the evidence) in making the finding that Mr Takamore had rejected Tūhoe tikanga. It is difficult toascertain whether Mr Takamore‟s remarks to his friends that he had little to do with his family in the North Island were indicative of a rejection of his Tūhoe heritage, orwere merely indicative of a rejection of certain members of his family. The former interpretation, as Ms Takamore points out, may be difficult to reconcile with the fact that Ms Clarke approved the suggestion to hold Mr Takamore‟s funeral service at TeWhare Roimata Marae, as she believed that "[Mr Takamore] would have wanted alink to his Māori heritage".[157] Further, Mr Takamore could still understand te reo Māori, although he couldnot speak it well. His mother deposed that Mr Takamore "always stayed connected with his tūrangawaewae [home]" and that Māori tikanga had been instilled in him since birth and that he never forgot it,125 and there was no cross-examination of Mr Takamore‟s mother on this matter.126 Given the clear importance of whakapapa in tikanga,127 a conclusion that Mr Takamore had retained his Māori identity but rejected his Tūhoe tikanga is one that should not have been lightly drawn. After all, by using the term "South Island Māori", Mr Takamore could merely have beenreferring to the fact that he had made his permanent home in Christchurch.[158] Finally, we make the observation that it is important not to jump to theconclusion that a Māori person has lost their connection with their indigenousculture simply because they live outside traditional tribal lands and do not practice125 Refer to [29] above.126 Mr Takamore‟s knowledge of Māori tikanga was not challenged during cross-examination of Mr Takamore‟s mother, however, Mr Takamore‟s ability to speak te reo Māori was raised.Mr Takamore‟s mother accepted that Mr Takamore could only understand te reo Māori.127 Refer to [61] and [130] above and fns 11 and 87 above.the traditional customs and ways of their indigenous group. In New Zealand, manyMāori do not live within their traditional tribal lands128 or practice the traditional customs and ways of their indigenous group, and this may be traced back to the monocultural colonial and post colonial systems.129[159] In relation to Mr Takamore‟s wishes as to burial, Fogarty J stated that:[15] [Mr Takamore] appears to have had a premonition of his death. Shortly before he died he told a number of his friends and work mates that when his time came he wanted to be buried in Christchurch, nottaken back up to the North Island. Their evidence was received without challenge.[16] Shortly before his own death [Mr Takamore] went to his cousin‟sfuneral at the Ruru Lawn Cemetery. He told his work mate, Richard Price, that Ruru Lawn Cemetery was a peaceful place with lovely trees and that is where he would want to be buried.[160] Fogarty J appeared to treat Mr Takamore‟s remarks to his friends and work colleagues as definitive, as he later held that "the deceased‟s wish to be buried in Christchurch is now known".130 As we have discussed above,131 Mr Takamore did not give any formal instructions in his will on what was to happen with his body, apart from that it was to be buried. He did not discuss any other arrangements with his executor and partner, Ms Clarke. Whilst he had expressed preferences to his work colleagues that he wished to be buried in Christchurch, in contrast, according128 According to Professor Temara, 86 per cent of Tūhoe live outside the traditional tribal lands.The greatest concentration is around the Bay of Plenty, followed by Auckland, Wellington and Hamilton. Professor Temara also noted that while for the first and second generations "Tūhoe is home", the same cannot be said for the next generation, and there is an "emerging Tūhoe urbanite" growing up in the cities. To try and remedy this, a Tūhoe Festival has been held since 1971, "to inculcate our Tūhoeness into those of our grandchildren and the generations who havebeen born outside of Tūhoe."129 The New Zealand Law Commission, in "Māori Custom and Values", above n 9, at 22–26, notesthat a "process of denial, suppression, assimilation and co-option put Māori customs, values and practices under great stress". For example, during the first quarter of the nineteenth century,Māori children were forbidden to speak te reo Māori in schools. In 1986, the Waitangi Tribunal noted that, for many years, European New Zealanders believed that the Māori people of NewZealand would be assimilated into the European population as the decades went by. During the second quarter of the century, the move to monolingualism in education was compounded by the movement of the majority of Māori people from their rural bases to urban areas, and reinforcedby an official policy of "pepper-potting" homes throughout the suburbs so that Māori families were scattered. By the 1960s, the second generation grew to adult life speaking English much more than they spoke Māori. The Tribunal stated that "[t]he result was that a whole generationhas been reared who know no Māori or who knowing so little of it are unable to use it effectivelyand with dignity". Refer Waitangi Tribunal Report Findings of the Waitangi Tribunal, Relating to Te Reo Māori (Wai 11, 1986) at [3.2.8]–[3.2.11] ["Wai 11"].130 The High Court Judgment, above n 2, at [53].131 Refer to discussion at [52]–[57] above.to Mr Takamore‟s mother, Mr Takamore had said that when he died he wanted to "come back home". Fogarty J does not mention this statement, and there was nocross-examination of Mr Takamore‟s mother in relation to this assertion.[161] It may be that Fogarty J did not mention the alleged comment to his mother because he considered that Mr Takamore was sparing his mother‟s feelings and did not mean what he said. However, it could equally be said that Mr Takamore‟sremarks to his work colleagues may have been no more than casual remarks made without genuine consideration of where in fact he wished to be buried. It appears that these remarks have taken on significance simply because they were made very shortly before Mr Takamore passed away.132[162] In view of the conflicting reports given by Mr Takamore‟s work colleaguesand his mother and the absence of any instructions as to place of burial to Ms Clarke, it cannot be said that Mr Takamore had expressed a single clear view as to the location of his burial. Our view on this is to be contrasted with Fogarty J‟s findingthat Mr Takamore wished to be buried in Christchurch.(e) Right not might and the rule of law[163] The second basis on which Tūhoe custom regarding burial might breach the reasonableness requirement is that it is contrary to the principle of "right not might".The custom contended for provides that, if agreement cannot be reached, then it is permissible simply to take the body. This essentially authorises the use of force and allows the stronger party to win.[164] In The Case of Tanistry the Court refused to recognise an Irish custombecause it offended the principle of "right not might".133 The custom, tanistry, provided that the eldest and worthiest relative of a deceased would inherit thedeceased‟s land. Worth was often established by force and bloodshed.134 We do note, however, that later commentators have noted that the real concern of the Court132 We discuss the practical difficulties in ascertaining the presumed wishes of the deceased at[215]–[218] below.133 Allen, above n 36, at 144.134 Refer to the description of the case in McHugh "Aboriginal Rights", above n 42, at 151.was the custom‟s incompatibility with English succession law and the case has been called more an example of English ethnocentrism than anything else.135[165] At the risk of falling into the same trap, we nevertheless consider that the custom of allowing the taking of a body is incompatible with the fundamentalproposition in our law of "right not might". As was acknowledged by Mr Kruger incross-examination, the taking of a body has in the past caused wars.136 Although in modern times the extent of this risk has lessened, the taking of a body nevertheless has the ability to escalate into violence, particularly where there is (perhaps because of a mix of cultures) no access to the type of cultural rituals set out by Professor Temara for diffusing such situations.137(f) Summary: reasonableness[166] In summary, we consider that Fogarty J was wrong to hold that the Tūhoecustom relating to burial is incompatible with the common law by reason of the denial of individual autonomy. Rather, in our view, the custom in this case of allowing the taking of a body is incompatible with the proposition in our law of"right not might", an application of the fundamental principle of the rule of law.Certainty[167] We need not decide this point, because we have already held that the taking of a body fails the reasonableness test. However, we note that, even if the unreasonable aspect of the custom was severed from the custom, it could also be argued that the custom in this case fails the certainty criterion, as the custom does not allow for a clear allocation of legal rights to the body. Rather, it provides a process for debate and negotiation. If consensus cannot be reached, the custom does not provide (apart from the taking of the body) a mechanism for making a final decision. While the more fluid nature of customary law should be taken into account,138 in our135 Australian Law Reform Commission Recognition of Aboriginal Customary Laws (ALRC 31, 1986) at [62] fn 306 ["Aboriginal Customary Laws"]; Allen, above n 36, at 144.136 Refer to [73] above.137 Refer to [74]–[86] above.138 Refer to the discussion at [128]–[132] above.view there would arguably have to be a process for a final decision to be made (that is, ultimate certainty) if compromise and negotiation failed.Has the custom been extinguished?[168] There is no clear and unambiguous statutory provision extinguishing anyMāori customary law relating to burial.139 Neither the Wills Act 2007 nor the Administration Act 1969 contain any provisions giving rights to bodies. In Public Trustee v Kapiti Coast Funeral Home Ltd MacKenzie J held:140There is no general statutory obligation on a personal representative todispose of the body. That obligation is imposed under the common law.[169] The Health Act 1956 imposes an obligation on a local authority to bury a body when it is in such a state as to be dangerous to health.141 However, this provision clearly does not unambiguously extinguish any customary right to possession of the body for the purpose of disposing of it.Must the custom be a general Māori custom?[170] Ms Clarke contends that, because the custom asserted by Ms Takamore is"not a general custom of Māori but a local and limited Tuhoe custom" it "cannotqualify as a general Māori custom and is therefore inoperative in law". For thisproposition, her counsel cites Public Trustee v Loasby where Cooper J held that for aMāori custom to be recognised by the common law it had to be proved that thecustom:142(a) "exists as a general custom of that particular class of the inhabitants of this Dominion who constitute the Māori race";(b) is not contrary to any statute law; and139 The relevant law is summarised in Laws of New Zealand Burial, Cremation and Cemeteries(online ed) at [3].140 Public Trustee v Kapiti Coast Funeral Home Ltd [2004] 3 NZLR 560 (HC) at [12].141 Section 86.142 Public Trustee v Loasby, above n 28, at 806.(c) is reasonable, "taking the whole of the circumstances into consideration".[171] Ms Clarke‟s argument seems to be that, because Cooper J held that he had to consider "whether such [a] custom exists as a general custom of that particular classof the inhabitants of this Dominion who constitute the Māori race", only customsthat are followed generally by all iwi may be recognised as customary law.[172] This is not a correct interpretation of Cooper J‟s statement. Whether customhad to be general rather than iwi-specific to achieve recognition at common law was not in dispute in Loasby (the judgment was really focussed on the reasonableness requirement for establishing custom). Accordingly, any implication that the custom must be common to all iwi is obiter at best.[173] In any event, the reference to a "general custom" is not aimed at the idea thatthe custom must be general across iwi but that the custom must be general in the sense that it must be a custom of an identifiable group, not just a practice betweenindividuals. This meaning of "general" accords with the requirements to establishcustom in the United Kingdom, from which the law applied in colonies was derived.Halsbury's Laws of England sets out that a custom "imports some general rule applying within the district where it operates, and cannot therefore arise from a few mere private acts of individuals".143[174] In other colonial jurisdictions such as Africa, the norm was for customary law to vary from tribe to tribe, sometimes considerably.144 In the British East Indies, Hindu, Muslim, Parsee, Armenian and other local codes were all applied, with personal application to particular inhabitants.145 There is no indication in the judgment that Cooper J sought to depart from the general rule applying in the United Kingdom or in other colonies. If he had done so, he would have been in error.143 "Halsbury‟s Laws of England", above n 34, at [601].144 Allott, above n 68, at 244.145 McHugh "The Māori Magna Carta", above n 43, at 85.Summary[175] In summary, we consider that Tūhoe custom regarding burial has not beenextinguished by statute, and meets the criteria of longevity and continuity. However, in our view, the custom does not meet the criterion of reasonableness, as the custom authorises the use of force through the ability to take the body without agreement. Accordingly, the custom does not fulfil the test for recognition by the common law.To whom does indigenous customary law apply?[176] If Tūhoe custom regarding burial could be recognised at common law, thequestion of to whom the custom applies would be of crucial importance. This issue is of particular complexity where it involves a deceased person. The difficultiesdiscussed below, however, may provide a further reason why Tūhoe custom on burialcannot be recognised under the colonial framework for the confirmation of customary law.The personal application of customary law[177] When the British acquired sovereignty over a "Christian territory" where alegal system recognisable to the colonists was in operation, that system continued to operate and governed colonisers and colonised alike.146 For non-Christian colonies, the doctrine arose that the common law is the birthright of the English and therefore is carried with them into the colonies. It determines the relations of the colonists among themselves. This did not, however, displace the common law presumption of the continuity of customary law to the indigenous population.147[178] By the time New Zealand was colonised it was well established that the customary law that continued to apply was personal (rather than territorial) in application.148 Customary law applied to the relations between Māori inter se: "native laws would continue to regulate their dealings as amongst themselves but146 McLachlan "Recognition of Aboriginal Customary Law", above n 45, at 379; Walters "The Golden Thread", above n 43, at 717–718; Campbell v Hall, above n 43.147 McHugh "Aboriginal Rights", above n 42, at 157.148 McHugh "The Māori Magna Carta", above n 43, at 85.English law would apply amongst the European settlers and in the natives‟ dealings with these peoples".149[179] Because customary law had personal application, as colonisation progressed, Courts in various colonial jurisdictions were frequently faced with determining whether the laws of one of several indigenous systems or the imported British system should apply to an individual. As Professor Campbell McLachlan describes it, in British or former British colonies in the nineteenth and twentieth centuries:150The science of determining into which legal system a person fell became a very complex and technical branch of colonial law known as the interpersonal conflict of laws.[180] In colonial times, racial status was the main factor in determining ethnic identity for the purpose of applying customary law. Professor McLachlan says:151Racial status became the prime connecting factor in the application of laws. These spheres for the operation of laws were rigid in the sense that they depended upon criteria of descent which could not be modified by choice.[181] However, the rigidity of such a test was modified over time. Dr McHugh argues that the personal application of customary law was subject to individual litigants still living by and considering themselves bound by indigenous culture. As Dr McHugh says:152The continuity of the indigenous „civil‟ law on the basis that the application ofEnglish law was unsuitable to their circumstances was implicitly a transitional arrangement. Once the natives had adopted the English practice in matters such as marriage, descent and suchlike, the English law would apply to their civil relations inter se as fully as it did their criminal. This premise was not one applied by thejudicial assessment of the state of „civilisation‟ attained by the native community atlarge, so much as a function of the situation of the indigenous litigants before the court.149 P G McHugh "Aboriginal Title in New Zealand Courts" (1984) 2 Cant L Rev 235 at 236 ["Aboriginal Title in New Zealand Courts"].150 McLachlan "Recognition of Aboriginal Customary Law", above n 45, at 381. Refer also Campbell McLachlan State Recognition of Customary Law in the South Pacific (PhD thesis, University College London, 1988) at 44 and 80–81.151 McLachlan "Recognition of Aboriginal Customary Law", ibid, at 381.152 McHugh "Aboriginal Rights", above n 42, at 167. A number of cases have taken an approach similar to that set out by Dr McHugh. For example, Dr McHugh cites a Nigerian case, Adegbola v Folaramni (1921) 3 Nig LR 81 (FC), where it was held that the indigenous people had converted to Christianity and given up their customary laws; and The Case of Tanistry, above n 35, where Irish custom relating to succession of land was displaced because English rules of descent had been used for the particular land.[182] Certainly a more modern approach is to take into account wider considerations. For example, the Australian Law Reform Commission, in its report on aboriginal customary rights in 1986, adopted the threefold definition given by Deane J in Commonwealth v Tasmania: "a person of Aboriginal descent, albeitmixed, who identifies himself as such and is recogni[s]ed by the Aboriginalcommunity as Aboriginal".153 It recognised that this should not be restricted to tribal traditionally oriented Aborigines but extended to Aborigines in a wide range of communities.154[183] An approach to the application of customary law that takes wider factors into account is also consistent with Canadian155 and United States156 jurisprudence on determining ethnic identity. Such cases support the view that now at common law factors wider than blood are used to determine whether indigenous customary law applies and that identification with and acceptance by the indigenous community (inother words, a person‟s connection with an indigenous culture), wherever based, are key factors.157 Thus customary law might not apply to an indigenous person who does not identify with his or her indigenous group and/or is not recognised as part of the group. Equally, customary law might apply to a non-indigenous person who does identify with an indigenous group and is recognised as part of that group.158153 Commonwealth v Tasmania (1983) 158 CLR 1 (HCA) at 274 per Deane J (in one of fourseparate majority judgments); Australian Law Reform Commission "Aboriginal Customary Laws", above n 135, at [92].154 Australian Law Reform Commission "Aboriginal Customary Laws", ibid, at [95].155 Refer Norman K Zlotkin "Judicial Recognition of Aboriginal Customary Law in Canada: Selected Marriage and Adoption Cases" [1984] 4 CNLR 1 and Sébastien Grammond"Disentangling "Race" and Indigenous Status: The Role of Ethnicity" (2008) 33 Queen‟s LJ 487at 511. Refer also Re Wah-Shee (1975) 57 DLR (3d) 743 (NWTSC) and R v Powley 2003 SCC 43, (2003) 230 DLR (4th) 1 at [30].156 Refer to the United States approach in the criminal field: United States v Bruce 394 F 3d 1215 (9th Cir 2005) at 1224. For a comprehensive discussion of the application and development of the test, refer Weston Meyring "„I‟m an Indian Outlaw, Half Cherokee and Choctaw‟: CriminalJurisdiction and the Question of Indian Status" (2006) 67 Mont L Rev 177.157 As well as being more consistent with overseas authority, an approach to identity that takes intoaccount wider factors and an individual‟s actual degree of social connection with an indigenouspeople is in line with modern academic discourse on race and ethnicity. Social scientists have moved away from defining identity simply in terms of biological ancestry to defining it in terms of the culture to which an individual subscribes. This shift may be described as a shift from a"racial" to an "ethnic" or "constructivist" conception of identity. For discussion refer Grammond, above n 155, at 492–498.158 This is because the threefold definition from Commonwealth v Tasmania, above n 153, whilst ostensibly couched in terms of cumulative requirements, does not necessarily require the presence of all three factors. For example, the Australian Law Reform Commission, in"Aboriginal Customary Laws", above n 135, at [95], recognised that there may be situationswhere "it is appropriate that provisions for the recognition of Aboriginal customary laws shouldDifficulties in this case[184] In our view, if Tūhoe custom regarding burial could be recognised atcommon law, there are three main difficulties regarding the application of customary law in this case:(a) first, it is difficult to identify the relevant person or persons to whom customary law applies;(b) secondly, it is unclear whether the test for the personal application of customary law is determined by the common law or is left to indigenous standards; and(c) thirdly, the application of Tūhoe custom regarding burial is unclear where members of the deceased‟s family come from different culturalbackgrounds.(a) Identifying the relevant person(s) to whom custom applies[185] In the High Court, Fogarty J did not consider the common law rules relating to the personal application of indigenous customary law. Instead, Fogarty J framed his discussion in terms of whether a custom that applied notwithstanding the lifestyle of the deceased was reasonable.159 The written submissions of the parties to this Court have a similar focus on reasonableness rather than on the personal application of the law. We have already rejected the proposition of unreasonableness framed in this manner.160[186] We also express doubt as to whether consideration of Mr Takamore‟sconnection to his indigenous culture would have been relevant, even under anapply to persons who are not Aborigines". There have been some cases in Canada accepting that,if a non-Aboriginal person identifies as and is accepted as part of an indigenous band or tribe, then indigenous customary law will apply to them. Refer Zlotkin, above n 155; Grammond, above n 155; Re Wah-Shee, above n 155; R v Powley, above n 155, at [30]. Even where a non- Aboriginal person who identifies with an indigenous band is not accepted by that band, this may not be a bar to the application of indigenous customary law. Refer for example Jacobs v Mohawk Council of Kahnawake [1998] 3 CNLR 68 at 89.159 The High Court Judgment, above n 2, at [80]–[90]. See discussion at [147] above.160 Refer to [150]–[151] above.examination of the common law rules relating to the personal application of customary law. This is because generally the application of law to a person entails a requirement for the person to do something (a legal duty) or permits a person to be able to do something (a legal right). A person who is deceased is unable to exercise any legal duties or rights. It is therefore difficult to see how the application of the custom to Mr Takamore could be the critical consideration.[187] Ms Takamore submits that the customary rights relating to Mr Takamore‟sburial were not individual rights of Mr Takamore, but rather were collective rightsthat his whānau and broader hapū held and, in this case, chose to act on. Consideration of how the deceased lived and his preferences as to place of burial are therefore in her submission irrelevant in fact and in law in determining whetherTūhoe customary law on burial applies, although it is accepted that, once customarylaw applies, the deceased‟s wishes are relevant but not determinative.161[188] We agree that the issue of burial does not engage the individual rights of Mr Takamore because he is deceased. In our view, the fundamental difficulty with the application of customary law here is that the living persons associated with Mr Takamore who are able to exercise legal duties or legal rights are of mixed cultural backgrounds. The Taneatua family are of Tūhoe descent, as areMr Takamore‟s (and Ms Clarke‟s) children. However, Ms Clarke, Mr Takamore‟slife-long partner, is not of Tūhoe descent. Given that Māori customary law generally applies to Māori relations inter se, the application of Tūhoe custom to a non-Tūhoeperson like Ms Clarke is problematic.162(b) Does the common law or tikanga determine ethnic identity?[189] Even if Mr Takamore were the relevant person to whom Tūhoe customapplies, it is unclear whether the test for the personal application of customary law is determined by the common law or is left to indigenous standards.161 Refer to Mr Kruger‟s evidence at [70] above.162 We discuss this further at [192]–[196] below.[190] We discussed above163 an approach to identity that takes into account factors such as self-identification as an indigenous person and recognition as an indigenous person by the indigenous group, rather than simply focussing on descent. However, such an approach assumes that a common law test is applied in order to determine the personal application of customary law. Ms Takamore submits that, according toTūhoe tikanga, consideration of how the deceased lived is irrelevant to deciding if Tūhoe customary law on burial applies, as the tikanga on burial must be applied to any deceased of Tūhoe descent. Thus tikanga governs both who counts as kin and what choices an individual has as to affiliation.164[191] This means that there would be a tension between the common law andTūhoe custom as to the requirements for the personal application of customary law ifMr Takamore was the relevant person to be considered and it would be necessary to decide whether the common law or tikanga determines the personal application of customary law. We do not, however, need to decide this point as we have already held that the custom does not meet the requirements for recognition and in any event have also held that Fogarty J was not correct, on the evidence before him, to hold that Mr Takamore had rejected his Tūhoe heritage.(c) The application of custom to Māori relations inter se[192] As we noted above, customary law continued to have personal application tothe indigenous peoples, so it applied to the relations between Māori inter se.Customary law therefore did not apply amongst the European settlers or "in the natives‟ dealings with these peoples".165 The question therefore arises as to whether163 At [182]–[183] above.164 The balance between the three factors of blood, identification (individual choice) and acceptance (the collective) has been discussed in the New Zealand context in Sharp, above n 11. Professor Sharp makes a distinction between derivative groups, which are constructed and maintained in a process of acts of mutual consent of antecedently rights-bearing individuals and fundamental groups which are not constructed by consent for the individual benefit of each of its members,although it benefits them. Whānau, hapū and iwi are fundamental groups. Professor Sharp, at 22, says that in Māori society in those groups it is the group that is of vital importance. Consent does, however, play some part in such kin groupings. Professor Sharp, at 23, recognises that onecan leave a whānau, iwi and hapū and that it is possible, through multiple kinship links, toaffiliate with more than one fundamental group, particularly now in urbanised time that residence is no longer a criterion. However, Professor Sharp points to the most important element, namely custom. He says, at 25, that it is tikanga above all that governs both who counts as kin and what choices an individual has as to affiliation.165 McHugh "Aboriginal Title in New Zealand Courts", above n 149, at 235–236. Dr McHugh alsoTūhoe custom can apply where those of the whānau pani166 come from different cultural backgrounds. This could provide a conflict of law between those entitled torely on Tūhoe custom and those who come under the common law rules.167[193] Ms Takamore submits that the persons with the ability to decide on the appropriate location of the burial are limited to the whakapapa-connected whānau of the deceased, namely the Tūhoe members of the deceased‟s family. Ms Clarke is not Tūhoe and thus was not part of the relevant whānau pani. Therefore the issue of aconflict of laws would not arise.[194] In our view, the evidence given at trial by Mr Kruger and Professor Temara does not go so far as to establish this proposition. Mr Kruger simply describes the"whānau pani" as "[t]hose that are suffering the loss and [are] in mourning". Thismust include Ms Clarke. In any event, the common law could not countenance the exclusion of any of the close relatives from having their wishes consulted.[195] We did discuss above168 an approach to the application of customary law at common law that could allow custom to apply to a non-indigenous person who identifies as part of an indigenous group and is recognised by the group as an indigenous person.169 However, even if such an approach was applied here, Ms Clarke does not wish to be subject to Tūhoe custom.[196] We thus consider that the conflict of laws issue would arise. As we have heldthat Tūhoe custom does not meet the requirements for being recognised, however,we do not need to attempt to resolve the conflict.discusses the right to the use of Māori customary laws inter se (except in respect of dealings with European peoples and serious crimes) as distinct from "the natives‟ right to the continued useand occupation of their traditional lands" (namely "aboriginal title"). The consequence ofrecognition of aboriginal title is that aboriginal proprietary rights are not simply enforceablebetween Māori themselves. Refer also to discussion at [120] above.166 Who the whānau pani are is explained at [64] above. The decision as to the appropriate place ofburial is made by the whānau pani.167 We note that, whilst the issue does not necessarily arise in this case, the personal application of customary law may also be problematic where there is a clash of cultures within one personhimself or herself, either because a person‟s origins include a mix of different ethnic or culturalgroups (including religious affiliations) or where a person has multiple affiliations to differenthapū or iwi and there is a conflict of custom between those hapū and iwi.168 At [183] above.169 Refer also Arani, above n 48, discussed at [115] above.Should the common law relating to burial accommodate Tūhoe custom?[197] We now consider whether the common law relating to burial can neverthelessaccommodate Tūhoe custom in some way. In order to determine this, we considerwhat factors the executor must take into account when fulfilling the duty to disposeof the deceased‟s body, and in particular, whether the wishes of the deceased and/or the deceased‟s family as to the disposition of the body are relevant. We also discuss the emerging human rights jurisprudence, the relevance of the Treaty of Waitangi, and the United Nations Declaration on the Rights of Indigenous Peoples. We then discuss a more modern approach to the integration of customary law.The common law position[198] The common law relating to burial can be understood in terms of the following factors: respect for the dead, concern for the living left behind, and public health considerations. There is also a religious overlay and, indeed, the current law concerning burial and funerals derives from a mixture of inherited ecclesiastical law and common law.Executor's duties[199] At common law an executor has the duty to dispose of the body of the deceased.170 The application of this common law duty has not been modified by statute in New Zealand. Section 24 of the Administration Act 1969 states that all of the estate of a deceased person vests in the administrator of the estate. This provision does not alter the clear common law position that the estate does not include the body of the deceased, and that the obligation to dispose of the body is an obligation imposed under the common law.171[200] It is generally accepted that there is no property in the body of a deceased.172However, as the executor has the duty to dispose of the body of the deceased,173 he170 Williams v Williams (1882) 20 Ch D 659; Smith v Tamworth City Council (1997) 41 NSWLR 80;Murdoch v Rhind [1945] NZLR 425 (SC).171 Public Trustee v Kapiti, above n 140, at 563.172 Williams v Williams, above n 170; Dobson v North Tyneside HA [1997] 1 WLR 596; Murdoch vor she therefore has the right to possession of the deceased‟s body for the purpose offinal disposal.174 The right to possession of the dead body is directed towards theancillary duty of ensuring a proper burial, providing an exception to the "no propertyin a dead body" rule.175[201] The executor‟s duty to dispose of the deceased‟s body and the concomitantright of possession entitles the executor, above all persons, to make the funeral arrangements and determine the method and place of final disposal of the body of the deceased.176 The executor must bury the deceased in a manner suitable to the estate he or she leaves behind him or her.177[202] The duty to dispose of the body requires the executor to dispose of the body"without unreasonable delay".178 Dealing with bodies immediately after death was, first and foremost, a matter of public health expressed in legal terms as a duty to dispose of the deceased so as not to endanger the well-being of the living by the spread of disease resulting from the inevitable decay of the corpse.179 Public health concerns are now mostly expressed through legislation. The statutory framework in New Zealand imposes a number of obligations on the person in charge of thedisposal of a deceased‟s body for which failure to comply is an offence.180Rhind, above n 170.173 At common law, if there were no executor, the duty to bury would fall upon the near relatives (in order of priority: surviving spouse, children, parents, brothers and sisters, and then more distant kin), and, where there was no identifiable relative, the responsibility of attending to the burial would fall upon the householder in whose house the person died. Failing this, the obligation would fall on the local authority with control over the city, town or district in which the body is found. Refer Smith v Tamworth, above n 170, at 691–693.174 Williams v Williams, above n 170; Smith v Tamworth, ibid.175 It has been described as a kind of "quasi-property right" in the sense that the executor has alegally recognised right of custody, control and disposition (the essential attributes of ownership), but the property is subject to a trust and limited in its rights to exercising it in accordance with the duty out of which the rights arose: Pierce v Proprietors of Swan Point Cemetery 14 Am Rep 667 (SC 1872) at 676–677, adopted by Heath J in Re JSB (A Child) [2010] 2 NZLR 236 (HC) at 252.176 Williams v Williams, above n 170; Murdoch v Rhind, above n 170.177 Williams v Williams, ibid, at 664.178 Calma v Sesar (1992) 106 FLR 446 (NTSC) at 452; Hartshorne v Gardner [2008] EWHC B3 (Ch) at [9].179 R v Stewart (1840) 12 Ad & E 773 at 778 per Lord Denman CJ.180 For example the Burial and Cremation Act 1964 and the Health Act 1956. Refer also s 150 of the Crimes Act 1961 which states that it is an offence to neglect to perform any duty imposed by law with reference to the burial or cremation of any dead human body or human remains; or to improperly or indecently interfere with, or offer any indignity to any dead human body or human remains whether buried or not. There are also offences under Part 8 of the Burial and Cremation Act.[203] The common law in relation to the disposal of dead bodies, including their swift disposal, is also based on considerations of decency and respect for the dignity of the person.181 The duty to dispose of the body requires the executor to treat thebody with "proper respect and decency".182 In R v Stewart, Lord Denman CJ saidthat to do otherwise would be an indignity to the dead as well as "a real offence to the living".183[204] It is not entirely clear whether the executor has an absolute and unfettered right of decision-making in relation to the disposal of a body. In a number of common law jurisdictions, the courts have given a considerable amount of latitude to the executor to make decisions as to burial because of the need for appropriate speed and decision in relation to the disposal of a dead body.184 The public health concerns related to the disposal of a body may be of less importance in modern times but prompt disposal is still important in terms of respect for the deceased and sensitivity to family and friends (as well as cultural considerations in some cases).[205] It has been suggested (obiter) that the executor does not have an absolute and unfettered right of decision-making, and that, where an executor acts so unreasonably, beyond the parameters of any exercise of proper discretion, the relevant decision could be set aside by the court.185 It has been suggested that therecould be a challenge to the executor‟s decisions as to disposal of the body analogousto the challenges that might be made to the exercise of a trustee‟s discretion.186 Also, if appropriate, an application could be made under s 21 of the Administration Act 1969 to remove the executor.187181 R v Stewart, above n 179, at 778.182 Calma v Sesar, above n 178, at 452; Re JSB, above n 175, at [60]–[61]; Hartshorne v Gardner, above n 178, at [9]; Re Blagdon Cemetery [2002] 3 WLR 603 at [18].183 R v Stewart, above n 179, at 778.184 For example, Saleh v Reichert (1993) 104 DLR (4th) 384; Buchanan v Milton [1999] 2 FLR 844 (Fam).185 Grandison v Nembhard (1989) 4 BMLR 140 (Ch) at 143; University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch) at [16].186 Rosalind Croucher "Disposing of the Dead: Objectivity, Subjectivity and Identity" in IanFreckelton and Kerry Peterson (eds) Disputes and Dilemmas in Health Law (Federation Press, Sydney, 2004) 324 at 335.187 The court also has the power to interfere where questions of expense are involved (for example, where it is alleged that unnecessary expense has been incurred in the arrangement of thedeceased‟s burial): Grandison v Nembhard, above n 185, at 143–144.[206] We now consider what factors the executor must take into account when fulfilling the duty to dispose of the deceased‟s body, and in particular, whether the wishes of the deceased and/or the deceased‟s family as to the disposition of the bodyare relevant. We also discuss the emerging human rights jurisprudence.Wishes of the deceased as to burial[207] At common law188 a deceased‟s directions (including in a will) as to thedisposal of the body are regarded as merely declaratory. They are not legally binding and cannot be enforced. Williams v Williams, followed in Murdoch v Rhind,189 is cited in support of the proposition that there is no property in a dead body and that accordingly, burial instructions given by the deceased, even as part of his will, are not legally binding and cannot be enforced.190[208] Fogarty J viewed the common law as requiring the executor at least to consider the views of the deceased, although the executor would still ultimately be entitled to make the final decisions as to the funeral arrangements.191 We consider that to be a correct statement of the law.[209] In upholding the importance of taking into account Mr Takamore‟s wishes, Fogarty J, however, relied on the "fiduciary nature" of an executor‟s duties:192188 As it applies in England and Wales, Scotland, New Zealand and Australia at least. In the UnitedStates, the subjective wishes of a deceased as expressed in his or her will govern the executor‟sactions unless they are unable to be fulfilled or are unreasonable. Where the wishes are deemed unreasonable the claim of the next of kin may take precedence. Where there are no wishes of the deceased, the wishes of the family must be taken into account. Croucher, above n 186, at 331–332.189 In Murdoch v Rhind, above n 170, the Court confirmed, at 427, that the executor has the duty of disposing of the body of the testator and that it is for him to say how and where the body shall be disposed.190 John Martyn and others (eds) Theobald on Wills (Sweet and Maxwell, London, 2010) at [10- 025].191 The High Court Judgment, above n 2, at [47]. Refer also John Martyn and Nicholas Caddick (eds) Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th ed, Sweet and Maxwell, London, 2008) at [6-01] and Hartshorne v Gardner, above n 178, at [7]. Similarly, in Grandison v Nembhard, above n 185, at 144 it was accepted that "the most important factor" was the expressed wish of the deceased as to the place of the burial. Further, inManktelow v Public Trustee [2001] WASC 290 at [30] the Court acknowledged that a deceased‟sdirections as to burial were not binding, but that they had a bearing on the way in which the executor performs his or her duties.192 The High Court Judgment, ibid, at [46].Persons are appointed executors by the maker of a will in order that the dispositions in the will are carried out. They hold the legal estate in the character of fiduciary or trustee. None of their actions as executors can be taken for their own self-interest. All actions are justified ultimately as a fiduciary.[210] Whilst Fogarty J does not go so far as to say that the fiduciary nature of anexecutor‟s duties is a justification for giving greater recognition to a deceased‟swishes, it is perhaps worth noting that such a proposition may be problematic. This is because the fiduciary duty of the executor is owed to the beneficiaries of the will, not to the deceased person himself/herself.[211] Some commentators have argued that instructions given by the deceased as to the disposal of his/her body should be upheld as an aspect of respect for the autonomy of the person.193 It has been said that it is somewhat anomalous that the law goes to great lengths to uphold testamentary freedom yet refuses to recognise burial instructions: an individual may dispose of their financial estate according to his or her wishes, but cannot dispose of their bodily estate in the same manner.194Giving effect to the deceased‟s burial wishes would not require any explicitrecognition of property rights in a dead body, but would simply create a power to give legally enforceable directions in respect of its fate.195[212] The other viewpoint is that the autonomy of an individual ceases on death, and that there should not be recognition of posthumous "rights". It has been saidthat, "although [there are] serious moral duties with regard to dead and future persons [they] have no rights".196 It has further been argued that the extent of thedeceased person‟s autonomy is limited to choosing an executor and trusting thatselected person to carry out the deceased‟s wishes with respect to disposal of the body.197 The executor‟s decision about the deceased‟s body is then a surrogateextension of the deceased‟s own decisions.193 Heather Conway "Dead, but not Buried: Bodies, Burial and Family Conflicts" (2003) 23 LegalStudies 423 at 432–433 and 438 ["Dead, but not Buried"]; Peter Skegg "Human Corpses,Medical Specimens and the Law of Property" (1975) Anglo-American Law Rev 412 at 416.194 Conway "Dead, but not Buried", ibid, at 432.195 Skegg, above n 193, at 416; Conway "Dead, but not Buried", ibid, at 432.196 Hillel Steiner An Essay on Rights (Blackwell Publishers, Oxford, 1994) at 250. Refer also J Harris "Law and Regulation of Retained Organs: The Ethical Issues" (2002) 22 Legal Studies527 at 532–534.197 Croucher, above n 186, at 330–331.[213] Further, giving full effect to the deceased‟s wishes can adversely affect theliving who also have an interest in the burial. As Professor Rosalind Croucher has said:198[A] principle which accords paramountcy to the wishes of the deceased will detract from the process for the living. There is a clash, therefore, between the idea of autonomy as an aspect of individualism (in this context,respecting the deceased‟s own wishes or as expressed through an agent or surrogate) and autonomy within relationships (recognising circumstances inwhich the individual‟s wish may be overridden in circumstances considered,for example, unreasonable in the context of family).[214] Even commentators favouring the ability to give binding directions recognise that individual autonomy may on occasion need to be restricted in order to recognisethat burial "is not merely about the deceased; it is also a process for the living."199[215] We also note that, from a practical point of view, it may be difficult to discernwhat are in fact the deceased‟s wishes regarding the disposal of his/her body wherethere is no direction on this matter in the will. Different things could have been said to different people at different times, either because of a change of mind or because the deceased was sparing the feelings of or pandering to the person to whom he or she was talking. Even where there is a direction in a will, there could have been a change of mind since the will was executed.[216] There would be significant practical difficulties for an executor if he or she was required to make extensive inquiries into the wishes of the deceased. Furthermore, if an executor was required to make extensive inquiries into the wishes of the deceased, this may run counter to the requirement to resolve the matter as quickly as possible to facilitate burial of the dead. As noted above at [202], theexecutor is required to dispose of the body "without unreasonable delay".[217] Murdoch v Rhind provides an illustration of the difficulties involved in discerning the wishes of a deceased. In that case, the widow alleged that the deceased wished his body to be brought to Christchurch and cremated, whilst the198 Ibid, at 332.199 Conway "Dead, but not Buried", above n 193, at 434.brother (who was the executor) alleged that the deceased wished to be buried with his parents at Hokitika.200[218] Here, as we have discussed above, Mr Takamore had not given any formal instructions in his will on where he wished to be buried and had not discussed any arrangements with Ms Clarke, his partner and executrix of his will. However, he had expressed preferences to his work colleagues that he wished to be buried inChristchurch. By contrast, according to Mr Takamore‟s mother, Mr Takamore had said that when he died he wanted to "come back home". As we have discussedabove,201 these conflicting reports meant that there were significant difficulties in ascertaining Mr Takamore‟s presumed wishes regarding where he wished to beburied. In the absence of formal indications202 made by Mr Takamore regarding his burial, his wishes were far from clear.Relevance of the wishes of the deceased's family[219] The common law position in relation to the wishes of the family of the deceased as to the disposal of the body is that whoever has the duty to dispose of thedeceased‟s body is expected to consider the wishes of other stakeholders, althoughhe or she is not under a legal obligation to act in accordance with those wishes, andmay opt for a form of burial which is opposed by the deceased‟s relatives.203Fogarty J held that stakeholders include the surviving spouse or partner, children and other relatives, and, where appropriate, friends or confidants of the deceased.204 We agree. We consider that the executor has a legal obligation to consider the wishes ofthese stakeholders. It may be that a challenge to an executor‟s decision, as suggestedabove at [205], would be available where the executor has refused to take those wishes into consideration.[220] Where there is a conflict between the wishes of the deceased and thedeceased‟s family as to the disposal of the body, this Court has emphasised that the200 Murdoch v Rhind, above n 170, at 425–426.201 Refer to discussion at [159]–[162] above.202 For example in his will or a clear deathbed request.203 Smith v Tamworth, above n 170, at 694.204 The High Court Judgment, above n 2, at [47].ultimate decision lies with the executor.205 In Tapora v Tapora, the Court considered a dispute regarding the disposal of the body of the deceased in circumstances wherethe deceased‟s will directed that the deceased be buried in his home village, but thewidow desired the burial to be elsewhere. The Court held that the High Court correctly summarised the law relating to the disposal of a dead body incircumstances such as these: "[b]oth the right and the duty lies on the executors, to the exclusion of other persons – including here [the wife]".206[221] Where an executor has not been named in the deceased‟s will, the commonlaw provides a hierarchy of persons to determine who has the highest rank to takeout administration with respect to the deceased‟s estate.207 Under the established hierarchy, the person entitled to a grant of letters of administration will normally be the next of kin. Professor Croucher notes the importance of the connection of kin inthis regard: "it is the family which expresses the extended autonomy of the deceased with respect to his or her body".208[222] In the event of disputes as to who is entitled to take out administration, courtsaward custody of the deceased‟s remains to the person with the strongest entitlementto possession of the body under the hierarchy. For example, as between the surviving spouse (or de facto spouse) and children, the spouse is to be preferred.209[223] Where there are two persons with an equal duty to bury and joint right to possession of the remains (for example, the parents of a child), the courts will resolve the dispute on a practical basis, but with a preference for securing promptburial "without unreasonable delay".210 Practicality in such situations is a way ofdealing with the difficulty that "[t]he law cannot establish a hierarchy in which one205 Tapora v Tapora CA 206/96, 28 August 1996.206 Ibid, at 3.207 Smith v Tamworth, above n 170, at 694. Refer above to fn 173 for a discussion of the common law hierarchy.208 Croucher, above n 186, at 337.209 Smith v Tamworth, above n 170, at 694. A criticism that has been made of legal entitlement arising from the hierarchy is that it may not be representative of the actual relationships which the deceased enjoyed while alive. Refer Heather Conway "Whose Funeral? Corpses and the Duty to Bury" (2003) 54 Northern Ireland Legal Quarterly 183 at 188.210 Calma v Sesar, above n 178, at 452; Manktelow, above n 191, at [31]; Smith v Tamworth, ibid, at 694.sort of feeling is accorded more respect than other equally deep and sincerefeelings".211[224] This hierarchy, although applied in the context of disputes as to who is entitled to take out letters of administration, could also provide a useful framework for the resolution of disagreements between family members as to the arrangements for the disposal of the deceased‟s body. The hierarchy could indicate the priority anexecutor should give to the views of certain family members regarding the manner and place of burial.[225] Here, the wishes of Ms Clarke and Mr Takamore‟s (and Ms Clarke‟s)children obviously conflicted with the wishes of Mr Takamore‟s wider family.Ms Takamore submits that Ms Clarke only consulted her own wishes when she decided on Mr Takamore‟s place of burial, and thus performed her role as anexecutor in a personal rather than fiduciary capacity. However, Ms Clarke, as the long-term partner of Mr Takamore, was entitled to consider her wishes (and her and Mr Takamore‟s children‟s wishes) regarding burial. Under the common law hierarchy, the wishes of Mr Takamore‟s children were arguably to be accorded the highest priority. As the executor, she was also entitled to make the final decisions as to the funeral arrangements. She cannot be criticised as failing her duties as executor by deciding on what she considered to be appropriate burial arrangements.Emerging human rights jurisprudence(a) European Convention on Human Rights[226] In England and Wales, creative arguments based on the Human Rights Act 1998 (UK) (which introduced the provisions of the European Convention on Human Rights into domestic law)212 are beginning to influence disputes concerning the posthumous fate of remains. In particular, the right to private and family life guaranteed by art 8 of the European Convention213 is relied upon. It was held in211 Buchanan v Milton, above n 184, at 855 per Hale J.212 This Act came into force in England and Wales on 2 October 2000.213 Which provides a right to respect for one‟s "private and family life, his home and hiscorrespondence".X v Germany that art 8 is engaged by a deceased‟s wishes as regards his funeral arrangements.214[227] This right was considered in Burrows v Coroner for Preston,215 where it was stated that in the light of the European cases, the earlier English authorities as to theirrelevancy of the deceased‟s wishes as regards burial arrangements were no longer good law.216 Thus the deceased‟s express wishes may in some circumstances amount to "special circumstances" justifying the court in overriding the right of the personalrepresentatives to direct the disposal of the body.[228] Nevertheless, there has been some reluctance to recognise and subsequentlyuphold the deceased‟s wishes. Dicta in the House of Lords in R(Pretty) v DPPasserted that the rights guaranteed by art 8 only apply while the individual is alive.According to the House of Lords, a right to private life only exists in relation to the manner in which an individual lives his or her life.217 The European Court of Human Rights in the subsequent decision in Pretty v United Kingdom218 did not accept, however, the argument that art 8 had no relevance to the manner of leaving life.[229] Article 9 of the European Convention guarantees the right to freedom of thought, conscience and religion. Some English cases have considered the impact of art 9 on the treatment of human remains, and these cases suggest that courts may bereceptive to submissions from the deceased‟s relatives based on religious beliefs, atleast where such persons are seeking to uphold values espoused by the deceased during his or her lifetime.219214 X v Germany (1981) 24 DR 137. There, the Commission suggested that the applicant‟s request tohave his ashes scattered on his own land was a means of expressing his personality and as such was so closely related to his private life that it fell within the sphere of art 8.215 Burrows v Coroner for Preston [2008] EWHC 1387 (QB).216 Ibid, at [17] and [20]. Cranston J utilised the existing jurisdiction of s 116 of the Senior Courts Act 1981 (UK), which gives the court power to pass over those with priority to a grant "in special circumstances", stating that the deceased‟s wishes could constitute such special circumstances. The court would then be required to find that it was also "necessary and expedient" to exercise the discretion. Cranston J indicated that it would be a relatively rare case in which those with priority would be so passed over in this manner.217 R(Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 at 835. This comment was made in the context of assisted suicide: the House of Lords held that a right to private life could not exist in relation to the manner in which a person departs from their life.218 Pretty v United Kingdom (2002) 35 EHRR 1 at [67].219 Re Durrington Cemetery [2000] 3 WLR 1322; Re Crawley Green Road Cemetery [2001] 2 WLR 1175.(b) International Covenants to which New Zealand is a party[230] The right to privacy is contained in art 17 of the International Covenant on Civil and Political Rights (ICCPR) to which New Zealand is a party. Article 18 of the ICCPR provides the right to freedom of thought, conscience and religion. New Zealand is also a party to the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to participate in cultural life in art 15.[231] In Jones v Dodd,220 the Full Court of the Supreme Court of South Australia was required to resolve a dispute between two claimants to the body of the deceased(the deceased‟s father and the deceased‟s former de facto spouse) and placedparticular reliance on art 18 of the ICCPR in concluding that spiritual and culturalvalues ought to be taken into account as part of the "proper respect and decency"necessary in resolving the dispute.[232] The deceased‟s father and some other family members gave evidence that thedeceased wished to be buried in his Aboriginal homeland, which was consistent withAboriginal custom. This was opposed by the deceased‟s former de facto spouse.After considering the right to freedom of thought, conscience and religion in the ICCPR, Perry J (delivering the principal judgment of the Court) stated:221True it is that the international instruments to which I have referred have as their primary application the protection of the rights of living persons. But it seems to me that common considerations of decency and respect for human dignity should lead those responsible for the burial of a corpse to recognise, and where possible give effect to, the cultural, spiritual and religious beliefs, practices and traditions of the deceased. Furthermore, for similar reasons, an appropriate degree of sensitivity and respect should be accorded the feelingsof the surviving members of the deceased‟s family.[233] The Court concluded that in all cases, consideration should be given to cultural, spiritual and religious factors, where such factors are present.222 In thatcase, those factors had been emphasised by the deceased‟s father and according to220 Jones v Dodd [1999] SASC 125 .221 Ibid, at [60].222 Ibid, at [68].the evidence, which was unchallenged, the views of the head of the family (thedeceased‟s father) were to prevail.[234] In Spratt v Hayden,223 the Supreme Court of Western Australia also considered the relevance of Aboriginal customs to a burial dispute. The Court ultimately concluded that the customary values that were said to be in support of burying the deceased in a certain location could not prevail in that case because,amongst other reasons, the deceased "did not maintain a traditional Aboriginal lifestyle".224[235] These cases therefore suggest that there is capacity for the common law to take a practical approach that will be receptive to upholding the cultural values and wishes of the deceased and his or her family, at least where the deceased‟s familymembers are seeking burial in a manner which does not conflict with what the deceased wanted.225 The extent to which the invocation of international human rights might deal with conflicts between the presumed wishes of the deceased andthe actual wishes of the deceased‟s family is "at best speculative".226Summary of common law position[236] In summary, at common law, the right to make the funeral arrangements and determine the method and place of final disposal of the body of the deceased falls to the executor. The executor is expected to consider the wishes of the deceased as to burial, but is still ultimately entitled to make the final decision.[237] Further, the executor is expected to consider the wishes of other stakeholders, including the surviving spouse or partner, children, other relatives and, where appropriate, friends or confidants of the deceased. Again, the wishes of thedeceased‟s family are not binding on the executor.223 Spratt v Hayden [2010] WASC 340.224 Ibid, at [21].225 We note, however, that these cases concerned disputes as to who was entitled to take out lettersof administration where there was no executor of the deceased‟s estate. They are thus in adifferent context.226 Conway "Dead, but not Buried", above n 193, at 446.[238] Emerging human rights jurisprudence does suggest, however, that the right to privacy and the right to freedom of thought, conscience and religion may allow greater effect to be given to the cultural, spiritual and religious beliefs, practices and traditions of the deceased and his or her family.[239] The New Zealand Bill of Rights Act 1990 (Bill of Rights) affirms New Zealand‟s commitment to the ICCPR on which the rights and freedoms it contains are based. The right to freedom of thought, conscience and religion, guaranteed in art 18 of the ICCPR, is contained in s 13 of the Bill of Rights. However, the Bill of Rights does not reflect all ICCPR rights: the right to privacy, guaranteed in art 17 of the ICCPR, is not contained in the Bill of Rights.[240] The traditional position is that, unless incorporated by legislation, an international treaty or declaration cannot be enforced in domestic law.227 However, as was demonstrated by Hosking v Runting,228 the Courts are willing to have regard to international instruments in the development of the common law. In Hosking v Runting, the majority of this Court accepted that, although not expressly recognised in the Bill of Rights, the common law was nonetheless to be developed in accordance with privacy values.229[241] This Court‟s decision in Lange v Atkinson is another example of the ability of international instruments to affect the development of the common law.230 The Court was guided by the ICCPR and the European Convention on Human Rights in determining the New Zealand test for qualified privilege.231 Moreover, this Courthas recognised a "presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand‟s international obligations".232 We therefore consider that the case law relating to the227 Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).228 Hosking v Runting [2005] 1 NZLR 1 (CA).229 Ibid, at [92] per Gault and Blanchard JJ and [224]–[226] per Tipping J. Refer also to s 28 of theNew Zealand Bill of Rights Act 1990, which states that "[a]n existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included inthis Bill of Rights".230 Lange v Atkinson [1998] 3 NZLR 424 (CA).231 Ibid, at 457–459 and 465–466.232 New Zealand Airline Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289 per Keith J. In the immigration context, refer Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA); Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) and Zaoui vright to privacy and right to freedom of thought, conscience and religion is relevantto the development of New Zealand‟s common law in this area.[242] Where the cultural beliefs, practices and traditions of the deceased or his or her family are those of indigenous peoples, the development of the common law to give greater consideration to indigenous culture is therefore supported by the international covenants to which New Zealand is a party.Other relevant instrumentsThe Treaty of Waitangi[243] The Treaty of Waitangi233 is usually said to be relevant to customary law in one of two ways. First, it is argued that customary law is guaranteed under article two of the Treaty, which protects Māori rangatiratanga and taonga. Dr McHugh hasnoted that "[r]angatiratanga, the tribal basis of Māori society, arises from Māori customary law, indeed the two (tribalism and customary law) are inseparable".234Dr Robert Joseph contends that Waitangi Tribunal interpretations of article two demonstrate that it extends to the protection of customary law. He argues:235[I]n 1986, the Waitangi Tribunal defined taonga katoa more broadly toinclude „all [Māori] valued customs and possessions.236 The Tribunal added that taonga in a metaphorical sense covers a variety of possibilities ratherthan itemised specifics consistent with the Māori language,237 and as more than objects of tangible value that regulated daily life.238Under these juristic definitions and applying a ejusdem generis approach,taonga katoa in the Treaty should be construed to include the first law, Māoricustomary law.Attorney-General [2005] NZSC 38, [2006] 1 NZLR 289.233 Tūhoe did not sign the Treaty but the evidence from Professor Temara at trial was that theynevertheless abide by the Treaty.234 P G McHugh "Constitutional Theory and Māori Claims" in Waitangi Maori and Pakeha Perspectives on the Treaty of Waitangi (Oxford University Press, Oxford, 1989) 25 at 25.235 Joseph "Re-creating Legal Space", above n 92, at 76. A similar argument is made in Robert Joseph "The Government of Themselves" Case Law, Policy and Section 71 of the NewZealand Constitution Act 1852 (Te Mātāhauariki Institute, Hamilton, 2002) at 18–19 ["The Government of Themselves"].236 Waitangi Tribunal "Wai 11", above n 129, at [4.2.4]–[4.2.8].237 Waitangi Tribunal Report Findings and Recommendations of the Waitangi Tribunal on an Application for and on behalf of Te Atiawa Tribe in Relation to Fishing Grounds in the Waitara District (Wai 6, 1983) at [10.2(a)].238 Waitangi Tribunal "Wai 11", above n 129, at [4.2.4]–[4.2.8].[244] The second way the Treaty is said to be relevant to customary law is the so-called "fourth article", an oral promise made at the signing of the Treaty that "the several faiths (beliefs) of England, of the Wesleyans, of Rome, and also Māori custom shall alike be protected".239 Several assurances along the same lines were given as the Treaty travelled around the country for signing.240 There has been debate as to the importance of these assurances; Dr Claudia Orange has argued thatthe promise at Waitangi "amounted to very little".241 However, in its 2001 report onMāori custom and values, the Law Commission notes that Sir Edward Durie and theWaitangi Tribunal had "come down clearly in favour of the view that Crown representations in 1840 that tikanga Māori would be respected are indeed important in Treaty jurisprudence".242 This was on the basis of the assurances given in the so- called fourth article.243[245] In the Muriwhenua Land Report the Waitangi Tribunal found that when theTreaty was signed Māori expected that their customary law would continue becauseof assurances from British representatives.244 The Tribunal found that the remarks of Tamati Waka Nene ("[y]ou must preserve our customs") were typical of Māoriopinion.245 Such an expectation was consistent with common law principles that applied to colonies. In this sense article two may be seen as declaratory of these common law principles.246[246] As is set out in article three of the Treaty, the acquisition of sovereignty byBritain over New Zealand gave Māori the status of British subjects. However,acquiring the status of British subjects did not mean that customary law no longer239 Law Commission "Māori Custom and Values", above n 9, at 73.240 Ibid.241 Claudia Orange The Treaty of Waitangi (Bridget Williams Books, Wellington, 1987) at 53.242 Law Commission "Māori Custom and Values", above n 9, at 78 and refer to the discussion at 72-–74. Dr Robert Joseph also argues that the Treaty protects Māori customary law on the basis of oral assurances given by British officials. Refer Joseph "The Government of Themselves",above n 235, at 19.243 Durie, above n 87, at 460–461. We note, however, that the Waitangi Tribunal has also held that a"principle of options" applies under the Treaty and that Māori could choose to pursue their rightto "walk in two worlds". See Waitangi Tribunal Muriwhenua Fishing Report (Wai 22, 1998) at [10.5.4] and Waitangi Tribunal Ngai Tahu Sea Fisheries Report (Wai 27, 1992) at [11.5.7].244 Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 110–115.245 Ibid, at 113.246 McHugh "The Māori Magna Carta", above n 43, at 146 and see generally ch 3 and ch 4.applied. At common law, regardless of the Treaty, the acquisition of sovereignty over a new territory made all the inhabitants of that territory British subjects.247[247] In broad principle, the Treaty is consistent with the common law‟s treatmentof customary law. However, as Dr Joseph necessarily implies,248 a reasonableinterpretation of the Treaty‟s express terms is that they contemplate positive dutieson the Crown to protect customary law. That interpretation possibly goes beyond thecommon law‟s limited tolerance of customary law. The question then arises as to whether the Treaty modifies the common law or may oblige judges to apply and develop the common law, as far as possible, consistently with its terms.[248] The answer must depend ultimately on the legal status and force of the Treaty.249 But, as Dr Matthew Palmer discusses in his recent work, despite the fact that recently that question has not directly confronted the courts, the courts have nonetheless enforced the Treaty indirectly in a number of ways.250 First, the Treaty has been held to be an extrinsic aid to statutory interpretation, even where it is not itself mentioned in the text of the legislation.251 Secondly, it may have "direct impact" in judicial review252 – whether for example as a mandatory consideration,253or potentially as providing the basis for a legitimate expectation.254 Lastly, although the scope for their judicial enforcement remains doubtful, the obligations of good faith, reasonableness, trust, openness and consultation arising from the nature of therelationship between Māori and the Crown are now accepted.255247 McHugh "Aboriginal Rights", above n 42, at 150.248 Joseph "Re-creating Legal Space", above n 92, at 76; Joseph "The Government of Themselves",above n 235, at 18–19.249 The settled judicial approach being that it is a treaty of cession at international law and does not confer directly enforceable rights at domestic law except to the extent that it is incorporated into law by statute: Te Heuheu, above n 227.250 Matthew S R Palmer The Treaty of Waitangi in New Zealand's Law and Constitution (Victoria University Press, Wellington, 2008) at 199–215.251 Huakina, above n 59, at 223; Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184.252 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318 (CA) [New Zealand Maori Council v Attorney-General].253 As it was, albeit indirectly via a report of the Waitangi Tribunal, in Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA).254 For example, Thomas J‟s dissent in a full Court of seven in New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA).255 New Zealand Maori Council v Attorney-General, above n 252, at [81].[249] It requires no leap of faith therefore to suggest that in general the common law of New Zealand should as far as is reasonably possible be applied and developed consistently with the Treaty of Waitangi.256The Declaration on the Rights of Indigenous Peoples[250] The international human rights instruments that we have mentioned above257suggest that greater effect be given to the cultural, spiritual and religious beliefs, practices and traditions of the deceased and his or her family. We also note that the United Nations Declaration on the Rights of Indigenous Peoples258 recognises the need to safeguard both the individual and the collective rights of indigenous peoples.259[251] Customary laws of indigenous peoples tend to have an emphasis on the collective as against the individual.260 The difficulty that has arisen, as Professor McLachlan has pointed out, is that New Zealand‟s legal system hasgenerally been based on the notion that society is nothing more than a collection of individuals and that the law need not concern itself with the separate identity of groups as such.261 Related to this is the notion that there should be one law for all –256 There is an analogy in the approach the courts have taken to the relationship between the Bill of Rights and common law. This is exemplified by the acceptance of qualified privilege as a defence to defamation in Lange v Atkinson, above n 230, and by the majority‟s recognition inHosking v Runting, above n 228, that a right to privacy must be a justified limit on freedom of expression in terms of s 5 of the Bill of Rights. This is discussed above at [240]–[241]. The point is discussed further in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [5.6.6]–[5.6.10] and Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 99–108.257 Refer to discussion at [226]–[235] above.258 The United Nations Declaration on the Rights of Indigenous Peoples is non-binding and was adopted by the United Nations General Assembly on 13 September 2007. 143 countries voted in favour of the Declaration. New Zealand was one of four countries that voted against the Declaration. However, on 19 April 2010, the New Zealand Government announced that it endorsed the Declaration.259 The Declaration, while recognising the rights of indigenous peoples to develop and maintain"juridical systems or customs" in art 34, also states in art 46(2) that nothing in the exercise of the rights under the declaration undermines "fundamental freedoms".260 For example, Sir Edward Durie, in the context of describing Māori land tenure, states that it was "central to the Māori way that wealth should not be individually aggregated but distributed through the community" and that "[f]or Māori the benefits of the lands, seas and waterways accrued to all of the associated community, and an individual holding extensive rights of use,carried a commensurately large obligation to the community". Refer Durie, above n 87, at 454. Similarly, Dr Joseph, in "Re-creating Legal Space", above n 92, at 88, notes that Māori custom "puts group rights ahead of those of the individual".261 McLachlan "Recognition of Aboriginal Customary Law", above n 45, at 368.that it is somehow discriminatory for the law to recognise the cultural differences between groups in society, that all must be treated identically.262[252] However, these notions have now been challenged.263 The importance of protecting collective rights of indigenous peoples is specifically recognised in the Declaration. Accordingly, there is an argument that the common law relating to burial needs to give greater consideration to the collective nature of indigenouspeople‟s rights. Article 12 of the Declaration specifically acknowledges that the "right to repatriation of human remains" is inherent to the right of indigenous peoples "to manifest [and] practice their religious traditions, customs and ceremonies".[253] Whilst the Declaration is non-binding, New Zealand announced its support of the Declaration in 2010. It is also a party to the international human rights covenants on which the Declaration is based. Professor Elsa Stamatopoulou observes that the Declaration does not in fact contain any new cultural human rights, but restates, in one systematic text, human rights contained in previously adopted international instruments and confirmed through the case law of international bodies.264A more modern approach[254] We consider that a more modern approach to customary law is to try to integrate it into the common law where possible rather than relying on the strict rules of colonial times. This conclusion is reinforced by the need to develop the common law, so far as is reasonably possible, consistently with the Treaty of Waitangi, the importance of recognising the collective nature of the culture of indigenous peoples and the value of their diversity (as recognised in particular by the United Nations262 Ibid.263 Professor McLachlan, ibid, applauds the approach taken in the Australian Law ReformCommission‟s report, "Aboriginal Customary Laws", above n 135, which postulates the recognition of indigenous customary law as an enduring reflection of legitimate cultural distinctions.264 Elsa Stamatopoulou "Taking Cultural Rights Seriously" in Stephen Allen and AlexandraXanthaki (eds) Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oregon, 2011) 387 at 395.Declaration on the Rights of Indigenous Peoples) and by international human rights covenants to which New Zealand is a party.265[255] We consider that a workable compromise between the common law relatingto burial and the Tūhoe custom would be to hold that Tūhoe custom regarding burialwas a relevant cultural consideration for an executor or executrix to take into account in determining the method and place of burial. Thus he or she should, where one ormore of the whānau pani is Tūhoe and the deceased is Tūhoe under Tūhoe custom,266facilitate (as far as it is practical to do so) a culturally appropriate process ofdiscussion and negotiation among the members of the whānau pani as to the place ofburial. All members of the whānau pani should have a full opportunity to participate, even if not Tūhoe (and this requires them to be given full information toallow them to do so).267 Where consensus is reached, it would normally be unreasonable for an executor to refuse to bury in accordance with that consensus.268[256] We consider that the process of negotiation should occur even where thedeceased has expressed burial wishes as both in the common law and in Tūhoe custom the deceased‟s wishes are relevant but not binding. Where the wishes of thewhānau pani conflict with the wishes of the deceased, however, the executor wouldnot be unreasonable if he or she buries in accordance with the wishes of the deceased.[257] We note that this requires little extension of the common law relating to burial. While the cultural underpinnings of the common law relating to burial andTūhoe custom are clearly dissimilar, several of the principles of Tūhoe tikanga arealready accommodated in the common law, for example: a process of consultation269is expected with a range of stakeholders (primarily, the deceased‟s family) and the265 There may be an issue in either contexts of a clash between collective custom and human rights.The New Zealand Law Commission, in "Māori Custom and Values", above n 9, at 5–6, suggests that a compromise may be achieved by working within the underlying value system of each culture.266 We refer to Tūhoe custom as that is the case before us but the reasoning would apply to allcustom.267 This did not occur in this case, as we discuss at [261] below and at [32]–[42] above.268 Except where the deceased has expressed contrary wishes.269 We reiterate that the obligation is to take into account the views of relevant stakeholders, but that an executor is not bound to act in accordance with those wishes particularly where they conflict. Refer to discussion at [219]–[225] above.wishes of the deceased, although a relevant consideration, ultimately do not dictate the decision as to where the deceased is buried. The essential differences are that the common law requires an executor to make the final decision as to the method andplace of burial, and that Tūhoe custom permits the taking of the body withoutagreement.[258] We consider that where consensus is not reached, the common law position will prevail and the executor or executrix should make the final decision.270 We do not consider that the custom of the taking of the body should be allowed for the reasons we have already discussed.271 We note that, while the taking of a body inTūhoe culture increases the mana of the deceased,272 the same is not true in Pākehācustom and, as in this case, is likely to cause great distress to non-Tūhoe relatives, asit is likely to be seen as highly disrespectful to the deceased.Conclusion on this case[259] We conclude that Ms Clarke, as the executrix, was entitled to possession of the body. She had a duty to dispose of the body and was entitled to make the final decision as to the method and location of the burial. However, as the executrix, Ms Clarke was required to take into account the wishes of the deceased, whether expressed in the will or otherwise known, and the wishes of the wider family. She was also required to take into account relevant cultural considerations, including in this case Tūhoe burial custom. Cultural factors, where present, need to be taken into account as part of the "proper respect and decency" involved in burial decisions,including ensuring an appropriate degree of sensitivity and respect is accorded to the feelings of the surviving members of the deceased‟s family. This is in accordancewith the more modern approach to the integration of customary law.[260] Here, Ms Clarke, as the executrix of Mr Takamore‟s will, was faced with asituation where Mr Takamore had not expressed a single clear view as to where he wished to be buried,273 and the wishes of Ms Clarke (as the deceased‟s life-long270 Given the need for a final decision to be made.271 Refer to [163]–[165] above.272 Refer to [77] above.273 Discussed at [159]–[162] above.partner) and Mr Takamore‟s (and Ms Clarke‟s) children conflicted with the wishes of Mr Takamore‟s wider family. As Tūhoe custom regarding burial was a relevantcultural consideration for Ms Clarke to take into account, she was required toaccommodate the need for negotiation and discussion between the whānau pani.[261] As we have said above, however, it is incumbent on members of thedeceased‟s family who are asserting cultural values to explain these fully to theexecutor, so that the executor may take them into account. It is regrettable that Ms Clarke "only had the briefest explanation" from Mr Manuel274 about the cultural factors that were present. She cannot therefore be criticised for any failures in the negotiation process. In any event, it was obvious from inception that the Taneatuafamily came to Christchurch to take Mr Takamore‟s body and were not open tonegotiation.275 Further, the parties‟ sincere efforts at mediation since the High Courtjudgment have been unsuccessful. Compromise and consensus are therefore not achievable.[262] This means that Ms Clarke, as the executrix, was entitled to make a final decision as to burial. We therefore conclude, in agreement with Fogarty J, that there was no legal authority for Ms Takamore and other members of Tūhoe to dispossess Ms Clarke of the body. We agree with Fogarty J that, as Mr Takamore‟s body waswrongly taken and thus not properly buried, it may be disinterred. We note thatdisinterment is not contrary to Tūhoe custom per se. Tūhoe tikanga provides forrituals to be performed at the hahunga (exhumation) ceremony.276 Ms Clarke is entitled now to possession of the body, as the executrix.[263] Finally, we express the hope that there can be reconciliation between the Taneatua family and Ms Clarke and her and Mr Takamore‟s children. (The children are, after all, of part Tūhoe descent.)274 Refer to [36] above.275 Refer to [51] above.276 Refer to [90]–[91] above.Result and costs[264] The appeal is dismissed. The matter is returned to the High Court to deal with the question of remedy. We do not disagree with Chambers J‟s discussion ofremedies at [323]–[327] below. However, we prefer not to express a concluded view as we did not hear argument from the parties on this matter.[265] The appellant must pay the costs for a standard appeal on a band A basis and usual disbursements to the first respondent.CHAMBERS JIntroduction[266] Although like the majority277 I conclude that Ms Takamore‟s appeal must bedismissed and the matter returned to the High Court to deal with the question of remedy, I reach that result by a different route. I do not find it necessary topronounce upon Tūhoe custom. The validity or otherwise of the Tūhoe custom inquestion is best left to a day where it would affect the outcome of litigation. For reasons I develop, I consider it extremely unlikely that this Court or any Court will ever need to pronounce upon it. In my view, that is a good thing.[267] I have to deal with only two issues. The first arises from a finding by the majority that Fogarty J was wrong to hold that "the late Mr Jim Takamore [had chosen] to live outside tribal life and the customs of his tribe".278 Are they right in overturning that finding of fact? I conclude they were not.[268] The second issue is concerned with how courts determine which law to apply in circumstances where pure common law279 points to one answer and customary277 Even though I am not dissenting, I refer to the opinion of Glazebrook and Wild JJ as the opinion of the majority.278 The High Court Judgment, above n 2, at [88].279 By "pure common law", I mean common law in circumstances where there are no considerationsof indigenous customary law to be taken into account. Common law itself recognises in appropriate circumstances indigenous customary law and in that way indigenous customary law can become part of the common law. See Attorney-General v Ngati Apa [2003] 3 NZLR 643law may point to another. How is that conflict of law to be resolved? On the facts of this case, there is a conflict between pure common law, which, if applicable, leads to the result that Ms Clarke, as executor, had the responsibility of disposing of Mr Takamore‟s body, and the alleged Tūhoe customary law, which is said to confer that responsibility on the deceased‟s whānau, who must return the body to thedeceased‟s traditional home for burial. For reasons I shall give, I conclude that, onthe facts of this case, the pure common law must prevail.[269] If we concluded that Tūhoe customary law did not apply, Mr Ferguson, forMs Takamore, accepted that common law would and that under common law Ms Clarke, as executor, would have been entitled to arrange a burial, as she saw fit,in Christchurch. That was because, he submitted, "[p]utting to one side the issue ofcustomary law ... it is the executor that has the right at common law to determine the appropriate disposal of the body of the deceased unfettered by the express desires ofthe deceased or the deceased‟s immediate family". In these circumstances, I choose not to express any views on the majority‟s discussion of the executor‟s duties set outat [204]–[258] of the majority opinion. These matters were not the subject of submissions before us. In the High Court, Mr Ferguson had submitted to Fogarty Jthat he "should be careful only to decide as much as had to be decided to address the issues in this case".280 Fogarty J agreed.281 So do I.[270] I shall deal with the issues in turn.Are the majority right to overturn Fogarty J's finding that Mr Takamore had chosen to live outside the customs of his tribe?[271] I begin by quoting a central passage of Fogarty J‟s decision:282In this case it is beyond doubt that the late Mr Jim Takamore chose to live outside tribal life and the customs of his tribe. Under the common law he was entitled to expect the choices he made during his life to be respected by the executor of his will when it came to the decision as to his funeral. This is even more so because he chose as the executor of his will his life-long partner. He has personal rights as a New Zealand subject to the benefits of(CA) at [13] per Elias CJ.280 The High Court Judgment, above n 2, at [84].281 At [84].282 At [88].the common law of New Zealand. The collective will of the Tuhoe cannot be imposed upon his executor and over his body, unless he made it clear during his life that he lived in accord with Tuhoe tikanga.[272] I agree with his Honour‟s finding of fact as to how the deceased had chosento live his life. This finding of fact was not only open to the Judge; in my view, it was the only available conclusion on the evidence presented in the High Court. Mr Takamore had made it very clear over many years before and up to his death thathe no longer regarded himself as bound by Tūhoe custom and that, when his timecame, he wanted to be buried in Christchurch, a wish in itself, of course, explicable only as a rejection of the asserted Tūhoe custom.[273] The evidence on this point was overwhelming and, for the most part, completely unchallenged. Indeed, even before us, Mr Ferguson did not challenge that finding of fact. That was because under his argument it was irrelevant: Mr Takamore was born Tūhoe and Tūhoe had what Mr Ferguson described as "collective common law rights in respect of the Tūhoe tikanga concerning burial"which could not be overridden. Notwithstanding that, the majority have reached a different view on the evidence from that of the trial Judge. Because on my reasoning Mr Takamore‟s choice of lifestyle is a pivotal feature, I need to traverse the evidencein some detail.[274] First, let me take Ms Clarke‟s evidence. She deposed that she andMr Takamore moved to Christchurch in 1985. They lived there together until Mr Takamore‟s death. She deposed that her partner‟s contact with his family in theBay of Plenty became infrequent. She could recall only two occasions when he travelled up to see them, once when his father died (in about 1998) and then more recently when he accompanied their daughter, Jenna, when she went to a sports tournament in Rotorua. (When there, Jenna met some of her cousins for the first time.) In all the time Ms Clarke and Mr Takamore lived in Christchurch, Mr Takamore‟s mother, Nehu, visited Christchurch only twice, and then stayed withher sister, Sarah, not with her son.[275] Ms Clarke did not in any way try to diminish Mr Takamore‟s Māori heritage.As Glazebrook J has explained, she was happy to acknowledge that heritage in thefuneral that she had planned for her late partner; part of the funeral was to take place at Te Whare Roimata Marae in Gloucester Street, Christchurch. She also acknowledged Mr Takamore‟s roots in her evidence. She said:He did not consciously abandon his family roots, but nevertheless there was a real sense of separation. It seemed to me that, while he did not consciously abandon his Māori heritage, it also had faded in significance.[276] As I go on to discuss, other, completely independent, evidence would suggestthat Ms Clarke‟s description was accurate. Moreover, there is nothing unusual aboutwhat Ms Clarke was describing. Most middle-aged atheists in New Zealand probably had a religious upbringing of sorts. Many of them are quite happy to acknowledge those cultural roots, which may be particularly strong with some denominations, such as Roman Catholicism. The fact they acknowledge those rootsdoes not mean, of course, they remain "Catholics", say, or want a religious funeral.[277] Ms Clarke also said that Māori culture had not formed part of their children‟supbringing, except as part of their school curriculum. She said that Mr Takamore had had little contact with the local marae in Christchurch. Although she and Mr Takamore had not discussed where he wanted to be buried, her assessment was that he would have wanted to be buried in Christchurch, which he now regarded as his home town. As executor, it was her intention to fulfil what she believed herpartner‟s wishes to be. Those wishes also conformed with what she and their children wanted. Not unnaturally, they wanted him buried in a place close to where he had lived and where they continued to live.[278] While Ms Tuwhare, who was junior counsel for the Taneatua family283 in the High Court as well as before us, cross-examined Ms Clarke, she did not tackle her, except peripherally, on the above matters. The cross-examination rather focused on the events leading to the taking of the body from Christchurch.[279] Jamie Takamore, the son of Ms Clarke and Mr Takamore, gave evidence that Māori culture and tradition were not part of his and his sister‟s upbringing. He saidthey encountered them only as part of their school curriculum. He recalled an283 I adopt the same shorthand expressions the majority have used.occasion when he was doing a project and had to find out to what iwi their family belonged. He asked his father, but he did not know. Jamie Takamore said that his father was much more interested in his children and their sporting exploits than he was in traditions. Counsel did not cross-examine him on that evidence.[280] Natalie Triggs worked with Mr Takamore at Linwood College in Christchurch. She remembered that Mr Takamore had been unwell for some days prior to his death and had been off on sick leave. When he returned to work, he said to her that, when his time came, he wanted to be buried in Christchurch, not taken up to the North Island. She remembered the conversation because it surprised her and was shortly followed by his death. She felt at the time that he had a premonition something was going to happen to him. Ms Triggs was not cross-examined. Expressing a wish to be buried in Christchurch was, of course, an express rejection of the asserted Tūhoe custom. It was equivalent to an assertion by Mr Takamore that he did not consider himself bound by Tūhoe custom.[281] Ivy Franklin was another work colleague. She knew Mr Takamore "very well". He was, she said, "a good talker". Over many chats, she learned from Mr Takamore that he did not feel close to his family in the North Island. He told her he did not like the way they lived up there. He talked about his mother, that he still had contact with her, but he was hurt that she treated his children differently from her other grandchildren. On one occasion, he said to her that he now regarded himself"a South Island Māori".[282] She too gave evidence about his being unwell shortly before he died. In addition to his sick leave, he then had to ask her for time off work to attend hiscousin‟s funeral. He still seemed to Ms Franklin to be unwell. While talking aboutfunerals, he made the comment to her that, when his time came, there was no way he wanted to be taken back up to the North Island to be buried. He would want to be buried in Christchurch. He died not long after the conversation. Ms Franklin was not cross-examined.[283] Another workmate was Stephen Stockwell. He too said that, having workedwith Mr Takamore for six years, he had got to know him "very well". He hadlearned from Mr Takamore that he now had little to do with his family in the North Island. He told Mr Stockwell that, since moving to Christchurch, he had gone back to visit on only two or three occasions. He still had time for his mother and fora couple of his brothers, but he felt "that his mother had disowned his children". Hesaid that if his children ever wanted to go up and sort matters with his family, that would be fine, but he himself did not want to. He did not want to move back to the North Island because he liked the way of life in Christchurch.[284] Mr Stockwell said that on one occasion they had a chat about where Mr Takamore wanted to be buried. He had told Mr Stockwell "that he had a burial site sorted out, down here in Christchurch, by some trees". Mr Stockwell did notremember more than that, but said he certainly remembered that much of the conversation. Mr Stockwell was not cross-examined.[285] Lindsay Harris was another workmate of Mr Takamore‟s. He had been friends with Mr Takamore for seven years. Mr Harris said that, "from many discussions over a long period of time", it became clear to him that Mr Takamore felt distant from his family in the North Island and preferred to keep it that way. Mr Harris had asked him whether he would ever return to his family in the North Island. He said that Mr Takamore was very blunt in his views that he would not return, that his home was now in Christchurch, and he intended to stay there. He said that on one occasion Mr Takamore referred to his family situation in the North Island and had said, "I got out of all that bloody rubbish." He told Mr Harris that he had kept close contact with only one of his siblings, his brother, Willie, who was working as a farm manager.[286] Mr Harris also recalled that, shortly before Mr Takamore‟s own death, his cousin had died. He had arranged a couple of days‟ leave to go to the cousin‟sfuneral. The question again arose as to whether Mr Takamore might ever return to his family in the North Island or expected that he might be returned there. Mr Takamore again made it very clear that he did not want to return, whatever the circumstances. Mr Harris was also not called to be cross-examined.[287] Finally, there was evidence from Richard Price, who had worked with Mr Takamore at Linwood College for ten years. He too had a number of conversations with Mr Takamore about his family. He had told Mr Price that "his mother had never ever come down to visit him". He remembered that on oneoccasion, when conversation turned to whether Mr Takamore would ever return to live with his family in the North Island, Mr Takamore had said, "No bloody fear".[288] Mr Price also remembered Mr Takamore going to his cousin‟s funeral, shortly before Mr Takamore‟s own death. Mr Takamore told Mr Price that the funeral wasto be at the Ruru Lawn Cemetery. Mr Takamore said that Ruru Lawn was a peaceful place with lovely trees and that is where he would want to be buried. The commentstuck in Mr Price‟s mind as, unexpectedly, Mr Takamore had himself then diedshortly afterwards. Mr Price was not cross-examined.[289] This evidence was overwhelming, and most of it was from independentwitnesses and unchallenged. I do not agree with the majority that "Mr Takamore‟sremarks to his work colleagues may have been no more than casual remarks made without genuine consideration of where in fact he wished to be buried".284 For sucha submission to be advanced (and it was not), the Taneatua family‟s counsel wouldhave had to cross-examine on that basis (and they did not). I do not consider the failure to cross-examine to be an error on counsel‟s part. I am sure Mr Ferguson and Ms Tuwhare were well aware of their cross-examination obligations under s 92 of the Evidence Act 2006. They did not cross-examine because, on their case, they didnot need to. As I have said, their case was that Mr Takamore‟s views were irrelevant. Although they did not put it this way, the defence effectively was: once Tūhoe, always Tūhoe. The Taneatua family‟s defence did not involve a challenge to thepropositions:(a) that Mr Takamore had expressed a wish never to return to the North Island to live; and(b) that he had expressed a wish to be buried in Christchurch.284 At [161] above.[290] I am not overlooking the evidence of Mr Takamore‟s mother, Nehu. It was, in brief, her view that her son had not rejected his Tūhoe roots. She asserted that hehad often talked to her about what would happen when he died and that he had saidthat "when he died he wanted to come back home". He also told her, she said, that "he wanted his children to follow him back". She was cross-examined by counsel. One would have to say the cross-examination was not as effective as it might have been.285 Nonetheless, it was put to Nehu Takamore that her evidence was wrong on a number of points and exaggerated. It may be that the cross-examination was less complete than it might have been because counsel already knew that all theplaintiff‟s evidence on the matter just discussed was unchallenged.[291] Fogarty J obviously rejected Nehu Takamore‟s evidence in so far as itconflicted with the evidence called on behalf of Ms Clarke. That is inherent in hisfinding that it had been proved "beyond doubt that the late Mr Jim Takamore choseto live outside tribal life and the customs of his tribe".286 On my assessment of the evidence, the Judge was correct in rejecting her evidence. The picture painted by Nehu Takamore seemed unlikely to be correct, given what Jamie Takamore had said his upbringing had been like and given the contrary evidence of so many independent witnesses. As well, Nehu Takamore had seen very little of her son since he left to live in Christchurch in 1985. It is possible, of course, that to some extent Mr Takamore shielded his mother from the fact that he had moved on in his life andhad now disassociated himself for practical purposes from Tūhoe. It is not at allunusual for children who in adulthood have rejected beliefs held by their parents not to flaunt such rejection in their parents‟ company, whether out of respect for theirparents or simply in the interests of family harmony.[292] I conclude that Fogarty J‟s finding of fact was correct.285 Dr McCoy, Ms Clarke‟s counsel on appeal, was not trial counsel.286 The High Court Judgment, above n 2, at [88].How do we decide who is entitled to possession of a body in circumstances where pure common law suggests one answer and customary law may suggest another?[293] When a person, whether Māori or not, dies in New Zealand, just abouteverything concerning the deceased and his or her estate is governed by statute law. Among the relevant statutes are the Administration Act 1969, the Trustee Act 1956, the Wills Act 2007, the Property (Relationships) Act 1976, the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. It may be, of course,that Māori values may be of relevance in the exercise of some discretions underthese statutes, but, if they are, they are nonetheless exercised entirely within astatutory context. Māori estates may also be subject to specific Māori legislation.Again, everything is statutory.[294] There is, however, at least one chink in the post-death statutory armour. That relates to who has the job of organising disposal of the body. "Disposal of the body"is a rather clinical and unfeeling expression, but it is a convenient shorthand for the tasks of deciding when and where the body should be disposed of, how it is to be disposed of,287 and the type of funeral. There is in New Zealand no statutory regime governing disposal of the body.[295] In the absence of statute, the normal reaction would be to fall back on the common law. As the majority have said, the position at common law is clear: the executor has the duty to dispose of the body of the deceased.288 But Mr Ferguson submits the common law does not apply in this case because it is trumped byconflicting Tūhoe customary law, which dictates that Tūhoe or some members of ithave the responsibility of disposing of the body. They have that responsibilitybecause the deceased "was of Tūhoe descent". Mr Ferguson submits that Tūhoe "customary practice and tikanga [dictates that] a tūpāpaku (the body of the deceased) [must be] returned to the deceased‟s traditional home for burial". The traditional home of Tūhoe is the Bay of Plenty. In particular, Mr Ferguson submits the287 Commonly a choice between burial and cremation.288 At [199]–[203] above. Where in this opinion I agree with the majority‟s opinion, I shall simplyrefer to the relevant paragraphs in their opinion and adopt them and the authorities to which they refer.appropriate burial place is "the urupā at Taneatua Marae next to [Jim Takamore‟s] father and among other whānau members".[296] The majority resolve the asserted conflict between the normal common lawposition of executor responsibility and the asserted Tūhoe custom by finding the custom to be unreasonable, with the consequence that it "does not fulfil the test forrecognition by the common law".289 The pure common law position therefore applies.[297] I prefer to express no opinion on the majority‟s elegant exegesis oncustomary law, spanning [112]–[175] of their opinion. This is for four reasons. First, for reasons I am just coming to, I find for Ms Clarke on this issue, even assuming Tūhoe custom is as submitted and valid.[298] Secondly, the majority‟s analysis goes far beyond what counsel submitted tous.[299] Thirdly, it is highly unlikely this issue will ever come before a court again. We are not therefore failing in any duty we might otherwise have had to settle thisaspect of Tūhoe customary law.[300] Fourthly, I am very conscious that the explanation of this aspect of Tūhoecustom came before the High Court from just two witnesses. With something asfluid as Māori custom, which is of its nature orally based, one should, in my view, be very careful before finding a custom to be unreasonable and therefore not worthy of recognition. The Law Commission in its study paper, Māori Custom and Values in New Zealand Law,290 discussed at length indigenous customary law in general andMāori customary law in particular. The Commission emphasised the fluidity ofcustomary law. For example, it said:291Tikanga Māori should not be seen as fixed from time immemorial, but asbased on a continuing review of fundamental principles in a dialogue between the past and the present.289 At [175] above.290 Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).291 Ibid, at 3.(Footnotes omitted.)[301] And:292Tikanga Māori comprises a spectrum with values at one end and rules at theother, but with values informing the whole range. It includes the values themselves and does not differentiate between sanction-backed laws andadvice concerning nonsanctioned customs. In tikanga Māori, the realchallenge is to understand the values because it is these values which provide the primary guide to behaviour. Aspects of tikanga may be subject to a particular interpretation according to certain circumstances but thenreinterpreted in the light of other circumstances. Thus tikanga Māori as asocial system was traditionally pragmatic and open-ended and it remains so today. It is by understanding these underlying values that order may be discerned and tikanga may be appreciated.(Footnotes omitted.)[302] The fluidity of Māori customary law makes it perilous to pronouncedefinitively on its scope and reasonableness. The High Court heard from only two witnesses. It would be very easy for a Court to fall into error if it pronounced on an asserted custom based on such limited evidence. This is not in any way to disparage the evidence given by the experts in this case: it is simply to acknowledge the reality that other members of Tūhoe, even other kaumātua, may view the custom differently.We know, for instance, from the evidence that some members of the Taneatua family did not agree with the taking of Mr Takamore‟s body. Of course, the situation mayarise where a Court has no option but to pronounce on an asserted custom and, in such a case, the Court has no alternative but to rely on the evidence presented. But if the issue of pronouncing on the custom can be avoided, then in my view it makes sense to do so.[303] I can resolve this issue without pronouncing on the validity or reasonableness of Tūhoe custom regarding the disposal of a body. That still leaves the question: does the custom apply to the disposal of Mr Takamore‟s body?[304] Mr Ferguson‟s argument essentially was, as I have said: once Tūhoe, always Tūhoe. He dressed up the argument more elegantly, of course, and framed theTaneatua family‟s right as a "collective right" vested in them. But, however it is put,it nonetheless amounts to an argument that nothing Mr Takamore did or said could292 Ibid, at 17.disassociate him from his Tūhoe upbringing. He was always to be regarded asTūhoe, whether he wanted to be or not. He was not permitted to make a transition into the Pākehā world or even to straddle the two worlds.[305] In my opinion, that submission is wrong. Mr Ferguson‟s argumentessentially means bloodlines are everything. Bloodlines are important, but they arenot decisive. The majority say, in my respectful view correctly, that "the personalapplication of customary law [is] subject to individual litigants still living by and considering themselves bound by indigenous culture".293 They cite cases in support of that proposition, which I do not repeat. There are many reasons, to which I shall come, as to why that is and ought to be the law for the living. Those reasons apply equally to the person on death. There can be no logic in accepting that a person may disassociate himself or herself from his or her indigenous culture and customs while alive but should somehow become subject to them again on death.[306] While legal authority is sparse, what authority there is supports that proposition. A case directly on point is Re Noah Estate.294 This is a case to which Dr McHugh refers in the doctoral thesis Glazebrook J cites.295 Sissons J considered the applicability of Inuit customary law to the deceased Noah‟s estate:296Noah had left his father‟s house and community and Eskimo society and hadbecome part of another society and economy where different laws and customs prevailed. He accepted those laws and customs. He trained for a job, and he worked for wages and saved a fair part of his wages and deposited this money in a bank to his credit for the use of himself and his own family. He did not make this money available to his father and the Eskimo community at Broughton Island.[307] The Judge held that general statutory law rather than customary law appliedto Noah‟s estate.[308] What the courts must do is try to ascertain how the deceased viewed himself. Sometimes, where people have lived across two cultures, it may not be easy to ascertain whether they have continued to acknowledge and live in accordance with293 At [181].294 Re Noah Estate (1961) 32 DLR (2d) 185 (NWTTC).295 P G McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (PhD thesis, University of Cambridge, 1987) at 167.296 At 206.their cultural roots. Some may have adopted some Pākehā cultural norms while still remaining essentially Māori (or Tūhoe). Others by their actions or declarations willhave clearly divorced themselves from their cultural roots. Thankfully, in this case, we have no fine judgments to make: where Jim Takamore stood on the spectrum is quite clear on the evidence.[309] This approach, which confers on the individual the right to choose with whom to associate and disassociate, is consistent with the New Zealand Bill of Rights Act 1990, by which the judicial branch of the Government is bound.297Section 13 accords "everyone ... the right to freedom of thought ... and belief, including the right to adopt and to hold opinions without interference". And s 17gives everyone "the right to freedom of association" which, it has been held,includes the right to disassociate.298 It is noteworthy that the United Nations Declaration on the Rights of Indigenous Peoples, to which New Zealand has subscribed, while recognising the rights of indigenous peoples to develop andmaintain "juridical systems or customs" in art 34, also states in art 46(2) that nothing in the exercise of the rights under the Declaration undermines "fundamental freedoms".[310] The fundamental rights affirmed by our Bill of Rights are reflected in other jurisdictions, where Courts have recognised that people can both move into and move out of indigenous cultures. An example of the former is the Canadian case ofRe Wah-Shee.299 In that case, an adopting mother who was not an Indian by birth was held entitled to adopt in accordance with Indian custom. The mother was registered as a member of an Indian band and was accepted as a band member by it. Morrow J held that, even without the provisions of the Indian Act (according to which she was a member of the band), he would have held that the fact she had been accepted as a member of the band by its chief, its council and its people made her a full member of the band entitled to rely on customary law.297 Section 3(a).298 Lavigne v Ontario Public Service Employees Union (1991) 81 DLR (4th) 545 (SCC). See also Andrew Butler and Petra Butler The New Zealand Bill of Rights: A Commentary (LexisNexis, Wellington, 2005) at [15.7.10].299 Re Wah-Shee (1975) 57 DLR (3d) 743 (NWTSC).[311] The North-West Territory Supreme Court faced a similar issue in Re Tagornak Adoption Petition.300 In that case, a Caucasian man and an Inuit woman sought validation of their customary adoption of an Inuit child. The father had accepted the customs of the Inuit people and he was accepted by them. The Court held, applying Wah-Shee, that the adoption was valid.301[312] An approach that determines identity in accordance with the choice of the individual is also consistent with how United States and Canadian Courts have determined indigenous identity where this has been required by statute. In R v Powley302 the Supreme Court of Canada considered whether provisions of the Fish and Game Act did not apply to two accused because of their identity as Métis and the protection of Aboriginal rights in s 35 of the Canadian Charter of Rights and Freedoms. The Court held in determining whether the individuals were Métis theCourt would consider three "broad factors self-identification, ancestry, andcommunity acceptance".303 Subsequent trial judgments have tended to infer community acceptance from participation in community activities.304[313] In the United States, criminal jurisdiction can differ depending on whetherthe accused is "Indian". The meaning of "Indian" is not defined in statute but has been left to the courts to develop through common law.305 In determining who is"Indian" North American courts have consistently applied a two-pronged test that takes into account the degree of Indian blood on the one hand and the degree of tribal or government recognition as an Indian on the other.306 When considering the second prong the Courts consider, in declining order of importance, evidence of:307(a) tribal enrolment;300 Re Tagornak Adoption Petition [1984] 1 CNLR 185 (NWTSC).301 These cases, as well as other cases concerning customary family law in Canada, are discussed in Norman K Zlotkin "Judicial Recognition of Aboriginal Customary Law in Canada: Selected Marriage and Adoption Cases" [1984] 4 CNLR 1.302 R v Powley 2003 SCC 43, (2003) 230 DLR (4th) 1.303 At [30].304 Sébastien Grammond "Disentangling "Race" and Indigenous Status: The Role of Ethnicity" (2008) 33 Queen‟s LJ 487 at 511.305 United States v Bruce 394 F 3d 1215 (9th Cir 2005) at 1223.306 Ibid. See generally Corpus Juris Secundum Indians (online ed, Westlaw) at [1].307 Ibid. United States v Bruce, above n 305, at 1224.(b) government recognition;(c) enjoyment of the benefits of tribal affiliation; and(d) social recognition as an Indian.[314] The Court may decide through the application of the test that because an individual does not have a strong enough affiliation with an indigenous community he or she does not qualify as an Indian.308 For example, in State v LaPier theSupreme Court of Montana held that because the record revealed "an integration intonon-Indian society, and an absence of cultural identity as an Indian" the accused was not an "Indian" for the purposes of the Court‟s jurisdiction.309[315] These overseas decisions whereby an individual‟s identity is based not on bloodlines but on the individual‟s actual degree of social connection with anindigenous people are in line with modern academic discourse on race and ethnicity. As the majority have correctly observed, "social scientists have moved away fromdefining identity simply in terms of biological ancestry to defining it in terms of theculture to which an individual subscribes".310 They describe the shift "as a shift from a „racial‟ to an „ethnic‟ or „constructivist‟ conception of identity". I agree.Some of the features that distinguish an ethnic from a racial conception of identity are:311Second, while racial conceptions see the classificatory features as immutable, an ethnic conception acknowledges that culture is not beyond the individual‟s control. In other words, one can change one‟s culture; it is not innate but acquired. Third, unlike race, ethnicity does not assume the existence of discrete groups of people objectively identified by the essential elements of their culture. Rather, modern theorists of ethnicity see group formation and identity ascription as fluid processes.308 For a comprehensive discussion of the application and development of the test see: WestonMeyring "„I‟m an Indian Outlaw, Half Cherokee and Choctaw‟: Criminal Jurisdiction and theQuestion of Indian Status" (2006) 67 Mont L Rev 177.309 State v LaPier 790 P2d 983 (Mont 1990) at 988.310 At fn 157 above.311 See Grammond, above n 304, at 492–497.[316] In New Zealand, Andrew Sharp has pointed out that modern administrativepractice relating to Māori recognises that consent is often important to determining identity:312It is true that in law and in much administrative and governmental practice,the sufficient as well as necessary condition of being Māori is simply having „Māori ancestry‟. But a modern, liberal ingredient is often added to the mix, and membership is importantly also seen as a matter of choice built on that foundation of blood.[317] If the common law is to reflect social values, then, in determining to whom customary law applies, the Courts should take into account the increased importancesociety places on a person‟s own choices in determining his or her identity.[318] The Waitangi Tribunal has recognised that respect for individual choice is consistent with the Treaty of Waitangi.313 In the Muriwhenua Fishing Report the Waitangi Tribunal explained the principle in the following terms:314The Principle of Options(a) The Treaty envisaged the protection of tribal authority, culture and customs. It also conferred on individual Maori the same rights and privileges as British subjects.(b) Neither text prevents individual Maori from pursuing a direction of personal choice. The Treaty provided an effective option to Maori to develop along customary lines and from a traditional base, or to assimilate into a new way. Inferentially it offered a third alternative, to walk in two worlds. That same option is open to all people, is currently much in vogue and may represent the ultimate in partnership. But these are options, that is to say, itwas not intended that the partner's choices could be forced.(Emphasis added.)[319] In the Ngai Tahu Sea Fisheries Report the Tribunal said:315312 Andrew Sharp "Blood, Custom, and Consent: Three Kinds of Māori Groups and the Challengesthey Present to Governments" (2002) 52 U Toronto LJ 9 at 16.313 Mr Ferguson based part of his argument on the Treaty. I refer to the Treaty without deciding whether it is relevant to this dispute between individuals. Instead, I make an assumption in favour of the interests Mr Ferguson represents that the Treaty might be relevant.314 Waitangi Tribunal Muriwhenua Fishing Report (Wai 22, 1988) at 195.315 Waitangi Tribunal Ngai Tahu Sea Fisheries Report (Wai 27, 1992).The principle of options11.5.7 This principle was also enunciated by the Muriwhenua tribunal. In essence it is concerned with the choice open to Maori under the Treaty. Article 2 contemplates the protection of tribal authority and self- management of tribal resources according to Maori culture and customs. Article 3 in turn conferred on individual Maori the rights and privileges of British subjects. The Treaty envisages that Maori should be free to pursue either or indeed both options in appropriate circumstances. The Crown is obliged to offer reasonable protection to Maori in the exercise of the rights so guaranteed them.(Emphasis added.)[320] All of these authorities support the proposition that Māori have a choice.Customary law should not apply to them where the person who is said to be subject to it has made a choice to reject it.[321] One final point. The emphasis I have placed on the deceased‟s choice ofcultures is not in any way to favour individual rights over collective (or iwi) rights.316 All I am acknowledging, contrary to Mr Ferguson‟s essential submission,is the right of a person to disassociate himself or herself from cultural roots. If a person remains undeniably Tūhoe, then, on the assumptions I have made, Tūhoewould have the right to determine the body disposal method. Of course, that will now not be possible as the majority have concluded, unnecessarily in my view, thatthis particular Tūhoe custom is unreasonable, with the consequence that the pure common law (under which the executor has the right to determine the body disposalmethod) will apply to everyone, including Tūhoe.[322] In summary therefore, I would have found as follows. On all the evidence, it is clear to me, as it was to Fogarty J, that Mr Takamore had chosen to live outside tribal life and the customs of his tribe. He had made a will. He had appointed hisPākehā partner as his executor. He had expressed a clear view that he no longerconsidered himself Tūhoe or bound by its customs. He had expressed a clear viewthat, when his time came, he did not want to be buried at Taneatua but rather wanted his resting place to be in Christchurch. In those circumstances, his disassociation from Tūhoe custom should be respected. Tūhoe customary law, even if valid, did not316 Contrast the majority‟s view at [151] above.apply to him and does not apply to his body. In these circumstances, the pure common law should apply. This means his executor was the person entrusted with the duty to dispose of his body.Remedies[323] All the judges who have heard this case have concluded that thoseresponsible for taking Mr Takamore‟s body committed the tort of conversion.Ms Clarke, as executor, had the right of possession of the body and the right to dictate the body disposal method. Taking the body against her wishes was wrongful.[324] There is no doubt that a court can order the specific restitution of a thing or body converted.317[325] A potential difficulty in this case is that the current parties to the litigation may no longer have control of the place where the body has been buried. In those circumstances, an order for specific restitution may not be possible against them. Other remedies would, however, be available.[326] If the current parties do not have control of the land where Mr Takamore has been buried, then Ms Clarke will need to make demand on the current owners of thatland. It is to be hoped that, in light of this Court‟s judgment, those owners willreadily comply with the demand. If they do not, they will commit the tort of detinue. In detinue, the normal remedy is specific restitution.318[327] There will, of course, be costs involved in disinterring the body and returning it to Christchurch. In my view, those costs should clearly fall on those responsible for taking the body from Christchurch.[328] These comments are simply intended to assist the parties to resolve this dispute without incurring further legal costs and without troubling the High Court317 Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at [12.3.04(2)].318 At [12.4.03(1)].again. I agree, however, that if the matter cannot be resolved amicably, then the question of remedy will have to be resolved in the High Court.Solicitors: Kahui Legal, Wellington for Appellant G C Knight, Christchurch for First Respondent