Victoria University

Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

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Show simple item record Webb, Matthew 2014-02-20T02:27:03Z 2014-02-20T02:27:03Z 2013 2013
dc.description.abstract Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court. en_NZ
dc.language.iso en_NZ
dc.subject Burial disputes en_NZ
dc.subject Tikanga Māori en_NZ
dc.subject Merits-based assessment en_NZ
dc.subject Court intervention en_NZ
dc.subject Mediation en_NZ
dc.subject Prescriptive test en_NZ
dc.title Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome? en_NZ
dc.type Text en_NZ
vuwschema.contributor.unit School of Law en_NZ
vuwschema.type.vuw Research Paper or Project en_NZ
vuwschema.subject.anzsrcfor 180104 Civil Law and Procedure en_NZ
vuwschema.subject.anzsrcseo 970118 Expanding Knowledge in Law and Legal Studies en_NZ

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