In recent years, there have been several high profile instances where Māori whānau1 have taken the body of a loved one against the wishes of other immediate family members for the purposes of burying the relative on ancestral land. A high profile incident occurred in
1995, with the uplifting of the entertainer Billy T. James’ body from his home by his uncle, so that, in accordance with Māori custom, the body could lie on a marae2 for a period of mourning. Since the Billy T. James case,3 there have been a number of so-called “body snatching” incidents including the “snatching” of the body of John Takamore, and the “snatching” of the body of Tina Marshall-McMenamin.
Table of Contents
Introduction
Chapter 1: Māori and Christian Funeral Rites
A Introduction
B Tangihanga: Māori Ceremony of the Dead
I. Māori-dom: Mythical Origins of Death
II. The Rituals of Tangihanga
III. The Tūpāpaku
C Christian Burial Rites
D Differences between the Māori and Christian Processes of Mourning
E Conclusion
Chapter 2: Recognition of Tikanga Māori and the Treaty of Waitangi
A Introduction
B What is Tikanga Māori?
C What Did the Treaty of Waitangi Promise?
I. The Signing of the Treaty in 1840
II. Two Versions, Two Self-Understandings
D How Was the Treaty Interpreted by the Courts between 1840 and 1970?
E What is the Current Treaty of Waitangi Jurisprudence?
I. The Courts’ Developing Jurisprudence
1. The Treaty of Waitangi Principles
2. Recognition of Tikanga in Cases where Legislation is Silent
II. The Developing Jurisprudence of the Waitangi Tribunal
III. Tikanga as New Zealand Law
F Do the Courts Recognise Tikanga as it Relates to Burial?
I. Tikanga on Burial – Subject of Change
II. Statutory Recognition of the Tangihanga
III. The Public Trustee v Loasby
IV. Inconsistent Courts
V. Tikanga on Burial – More Likely to be Recognised
G Should New Zealand Law Recognise the Significance of the Tangihanga?
H Conclusion
Chapter 3: Proprietary and Possessory Rights in Corpses
A Introduction
B The Body as Property
I. The “No Theft” Rule
II. The “No Property” Rule
1. The Origin of the “No Property” Rule
2. Nineteenth Century Developments
3. Modern-Day Authorities
4. Moore: New Perspectives
5. The New Zealand Position on the “No Property” Principle
III. Exceptions to the “No Property” Rule
1. The “Work or Skill” Exception
2. Exceptions Based on the Human Tissue Act 2008
C The Rights of Possession for the Purpose of Burial
I. The Coroners’ Overriding Right to Possession
II. Possession by the Hospital
III. The Executor’s Right to Possession
1. The “No Will” Rule
2. Disputes with the Spouse and Family
IV. Intestacy - Revolving Competing Rights to Possession
1. Foreign Concepts
a) United States
b) England
c) Australia
2. New Zealand’s Position
D Conclusion
Chapter 4: Methods of Enforcement
A Introduction
B Civil Law Enforcement Options
I. Injunction
II. Enforcement Issues
C Criminal Law Enforcement Options
I. Theft of the Coffin or Other Valuables
II. Misconduct in Respect of Human Remains
III. Enforcement Issues
D Liability in Tort
I. Tort of Negligence – Actions Claiming Mental Injury
II. Wrongful Interference with Goods
1. Conversion by Taking
2. Trespass to Goods
3. Trespass to Land
E Conclusion
Chapter 5: A Way Forward for New Zealand
A Introduction
B Differing Opinion: Does New Zealand Need a Law Change?
I. The Status Quo
II. A Necessity to Introduce a Law
C Recently Discussed Options for Reform
I. Non-Legislative Changes
1. Renewal of Māori Protocols
2. Tikanga Relating to Burial Needs to Be More Widely Known
II. Legislative Changes
1. Augmenting the Police Power
a) The Current Duty of the Police
b) Are the Police Capable of this Task?
2. Amendments to the Coroners Act 2006
a) The Coroners Role
b) Is Tikanga Incorporated in the Coroners Act 2006?
c) Enforcement Issues
3. Signing Declarations
4. The Property Solution
a) What are the Rationales for a Proprietary Interest?
b) Theoretical Models of Acquiring Property in a Corpse
c) Should the “No Property” Rule Be Rejected?
d) Should the “No Property” Rule Be Retained?
e) Interim Conclusion
5. Amendment to Criminal Law
a) Modifying Current Sections of the Crimes Act
b) Amendments to the Crimes Act 1961 Based on German Criminal Law
6. Creating a Liability in Tort
7. Legally Binding Burial Instructions
a) Taking Autonomy into Account
b) Comparison to Organ Donation
c) United States
d) Ideological Discussions
e) Introducing a Less Impersonal System
D Conclusion
Chapter 6: Conclusion- Recommendations for Reform
Research Objectives and Core Themes
This thesis examines the legal conflict arising in Aotearoa/New Zealand when Māori cultural practices regarding death (specifically the tangihanga ceremony) clash with existing legal frameworks that do not recognize property rights in human remains. The central research question explores whether legal reforms are necessary to resolve "body snatching" disputes and protect Māori cultural values, while balancing these with individual autonomy and established common law principles.
- The clash between Māori tikanga (customary values) and Western legal concepts regarding the status of a dead body.
- The limitations of New Zealand law, including the "no property" rule and current property/possessory rights frameworks.
- The role of the Treaty of Waitangi and its principles in the potential recognition of Māori customary burial rites within the legal system.
- Critical analysis of legislative options, including proposals to reform the Coroners Act, Crimes Act, and the introduction of legally binding burial instructions.
Excerpt from the Book
The Body as Property
New Zealand newspapers associate “body snatching” with theft of property. This point is significant, because it means that removing a corpse is seen as a criminal act, and therefore is generally considered to be wrong.
New Zealand criminal law distinguishes between two types of theft; theft by taking, and theft by using or dealing with the property (theft by conversion). The basic element of first type of theft is “taking”, something that is partly defined in s219(4) of the Crimes Act: “For tangible property, theft is committed by taking when the offender moves the property or causes it to move.” But what if the person has legitimately possessed the item? Certainly, theft under s219(1)(b) of the Crimes Act includes a person acting in a way that is unauthorised, or inconsistent with the rights of the owner. Problems, however, do not lie in the act of removing a corpse, but in the simple fact that in order to fulfil the actus reus of theft, corpses must be able to be the subject of property. But what counts as property? Pursuant to s2(1) of the Crimes Act, most things can be stolen. Some things though, cannot be stolen, in particular things that are not “susceptible of being owned.” Common law considers corpses not to be subject to rights of ownership, and therefore they cannot be stolen. Consequently, New Zealand “body snatchers” cannot be found guilty of theft.
Summary of Chapters
Chapter 1: Māori and Christian Funeral Rites: This chapter analyzes the fundamental differences between Māori funeral customs, which prioritize community and ancestral ties, and Christian practices, which often favor the nuclear family unit and the spouse.
Chapter 2: Recognition of Tikanga Māori and the Treaty of Waitangi: An analysis of how the Treaty of Waitangi and its principles are (or are not) utilized by the courts to recognize Māori customary practices in the absence of explicit statutory references.
Chapter 3: Proprietary and Possessory Rights in Corpses: This section investigates the common law "no property" rule regarding human remains and explores how this status complicates the assignment of legal possession for burial purposes.
Chapter 4: Methods of Enforcement: A critical review of civil and criminal law options for managing unauthorized body removals, highlighting why current criminal and tort laws are often ineffective in these specific cultural contexts.
Chapter 5: A Way Forward for New Zealand: This chapter critically evaluates proposed legal reforms—such as police power expansion, amendments to the Coroners Act, and modifications to property/succession law—to provide a more stable framework for resolving burial disputes.
Chapter 6: Conclusion- Recommendations for Reform: The final chapter synthesizes the research findings, advocating for a combination of legislative solutions that respect both Māori tikanga and the importance of ensuring timely, dignified burials for all New Zealanders.
Keywords
Māori, Tikanga, Tangihanga, Body Snatching, Treaty of Waitangi, No Property Rule, Burial Rights, Human Tissue Act, Coroners Act, Common Law, Legal Reform, Autonomy, Possession, Succession Law, Cultural Conflict
Frequently Asked Questions
What is the core issue of this research?
The work addresses the legal vacuum surrounding "body snatching" in New Zealand, where Māori whānau may take the body of a deceased relative for customary burial, clashing with the wishes of other family members or the legal status quo that does not recognize property rights in corpses.
What are the central themes of the work?
The core themes include the cultural clash between Māori traditions and Western legal concepts, the historical and constitutional role of the Treaty of Waitangi, and the tension between individual posthumous autonomy and collective family obligations.
What is the primary objective of this thesis?
The research aims to determine whether New Zealand law requires reform to prevent body snatching while acknowledging the cultural significance of Māori burial rites and providing clarity on the ownership and possession of human remains.
What scientific methods does the author use?
The author employs a legal research approach that synthesizes case law, statutory analysis, and scholarly commentary from New Zealand and comparative jurisdictions (including the UK, US, Canada, and Germany) to critique existing frameworks.
What is the main focus of the main body of the work?
The main body treats the historical development of the "no property" rule, the evolving recognition of Māori customs within the court system, and the practical and ethical challenges of implementing legislative changes like police intervention or property rights models.
What are the primary keywords for this research?
Key terms include Māori, Tikanga, Tangihanga, Treaty of Waitangi, body snatching, no property rule, and burial rights.
How does the "no property" rule affect legal disputes?
Because common law holds that a human corpse is not "property," it is technically impossible to charge individuals with "theft" when they remove a body. This legal classification complicates the enforcement of burial rights and creates the current, often chaotic, status quo.
What unique perspective does the author provide on the Takamore case?
The author discusses the Takamore case to highlight the practical failures of court injunctions and police intervention, concluding that relying solely on adversarial legal processes often exacerbates tensions rather than fostering the consensus-based solutions preferred by Māori culture.
- Quote paper
- Bettina Brandt (Author), 2009, "Body Snatching" in contemporary Aotearoa/New Zealand: A legal conflict between cultures, Munich, GRIN Verlag, https://www.grin.com/document/175644
