23 Nov 2011
TAKAMORE V CLARKE COA CA525/2009
- Citation
- COA CA525/2009
- Court
- Court of Appeal
Tūhoe burial custom did not meet the common‑law recognition test because it authorises unilateral taking of a body (use of force) which is incompatible with the fundamental common‑law principle that rights must not be enforced by 'might' and thus fails the reasonableness limb; accordingly it is not part of the common law. Nonetheless the common law should, where practicable, require executors to take indigenous burial customs and collective family negotiation into account as a relevant cultural consideration; on the facts the executrix was entitled to possession and the appeal is dismissed an…