Table of Contents
List of Cases
Chapter 1: Maori and Christian Funeral Rites
B Tangihanga: Maori Ceremony of the Dead
I. Maoridom: Mythical Origins of Death
II. The Rituals of Tangihanga
III. The T p paku
C Christian Burial Rites
D Differences between the Maori and Christian Processes of Mourning
Chapter 2: Recognition of Tikanga Maori and the Treaty of Waitangi
B What is Tikanga Maori?
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?
Chapter 3: Proprietary and Possessory Rights in Corpses
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
2. New Zealand ’ s Position
Chapter 4: Methods of Enforcement
B Civil Law Enforcement Options
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
Chapter 5: A Way Forward for New Zealand
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 Maori 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
Chapter 6: Conclusion- Recommendations for Reform
Appendix One: Glossary of Maori Words
Appendix Two: Clause 55 of the Human Tissue Bill (1st Reading: 18 April 2008)
Appendix Three: Ethics Approval
Appendix Four: Ng i Tahu Reserach Consultation Committee Approval
Appendix Five: Letter from Hon Annette King to Hon Jim Anderton (27.02.08)
Appendix Six: Letter from Dr Ranigui Walker to Hon Jim Anderton (25.09.07)
Appendix Seven: Letter from Hon Jim Anderton to Dr Ranigui Walker (17.09.07)
Appendix Eight: Consent Form Signed by John Hayes
Appendix Nine: Consent Form Signed by Hon Jim Anderton
Embryonenschutzgesetz (Embryo Protective Code) Strafgesetzbuch (Criminal Code)
Administration Act 1969 Bill of Rights Act 1990
Burial and Cremation Act 1964 Coroners Act 1988 (repealed) Coroners Act 2006
Crimes Act 1961
Defamation Act 1992
District Courts Act 1947 Evidence Act 2006
Family Protection Act 1955 Fisheries Act 1983
Guardianship Act 1968 Historic Places Act 1993 Human Rights Act 1993
Human Tissue Act 1964 (repealed) Human Tissue Act 2008
Native Land Act 1865
Official Information Act 1982 Property Law Act 2007
Resource Management Act 1991 State-Owned Enterprise Act 1986 Status of Children Act 1969 Summary Offences Act 1981
Te Ture Whenua Maori Act 1993/ Maori Land Act 1993 Town and Country Planning Act 1977
Treaty of Waitangi Act 1975
Water and Soil Conservation Act 1967 Wills Act 2007
Human Rights Act 1998
Interference with Goods Act 1977
Non-Contentious Probate Rules 1987 Sale of Goods Act 1979
General Statues of Connecticut, 2009 revision, title 45a, chapter 802b
The Vienna Convention on the Law of Treaties 1969 Treaty of Waitangi 1840
United Nations Declaration on the Rights of Indigenous People 2007
List of Cases
Calma v Sesar (1992) 106 FLR 446 (FCA)
Doodeward v Spence (1908) 6 CLR 406 (HCA) Jones v Dodd (1999) SASC 125 (SSC)
Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA)
Calder v Attorney-General of British Columbia (1973) 34 DLR 145 (SCC) Delgamuukw v Britsh Columbia (1997) 3 SCR 1010 (SCC) Miner v Canadian Pacific Railway Co. (1910) 15 W.W.R. 161 O'Connor v City of Victoria (1913) 11 DLR 577 (BCSC) Phillips v Montreal General Hospital (1908) 33 Que. S.C. 483 R v Mills (1992) 77 CCC (3d) 318 (CA)
R v Moyer (1994) 92 CCC (3d) 1 (SCC)
R v Van der Peet (1996) 137 DLR (4th) 289 (SCC)
Saleh v Reichert (1993) 104 DLR (4th) 384 (Ont. Gen. Div.)
Ashby v Minister of Immigration 1981 1 NZLR 222 (CA)
Attorney-General v New Zealand Maori Council 1991 2 NZLR 129 (CA) Attorney-General v Ngati Apa & others 2003 3 NZLR 643 (CA)
Awa v Independent News Auckland Ltd 1995 3 NZLR 701 (HC); affd1997 3 NZLR 594 (CA)
Barton-Prescott v Director-General of Social Welfare 1997 3 NZLR 179 (HC)
Clarke v Takamore unreported, HC Christchurch, CIV-2007-409-1971, 21 November 2008,
DSH v JMC unreported, Family Court North Shore, Fam-2005-044-1873, 11 December 2006, Ryan J
Hineiti Rirerire Arani v Public Trustee (1920) AC 198 (NZPCC)
Hoani Te Heuheu Tukino v The Aotea District Maori Land Board 1939 NZLR 107 (SC & CA); and (1941) NZLR 590; (1941) AC 308 (PC)
Huakina Development Trust v Waikato Valley Authority & Bowater 1987 2 NZLR 188; (1987) NZTPA 129 (HC)
Keam v National Water and Soil Conservation Authority (1979) 7 NZTPA 11 (PT) R v Maihi 1993 2 NZLR 139; (1992) 9 CRNZ 304 (CA)
Mahuta and Tainui Maori Trust Board v Attorney-General 1989 2 NZLR 513 (CA)
Metekingi pp Atihau-Whanganui Inc v Rangitikei-Wanganui Regional Water Board 1975 2 NZLR 150; 5 NZTPA 330 (SC)
Murdoch v Rhind & Murdoch 1945 NZLR 425 (NZSC)
New Zealand Maori Council v Attorney-General 1987 1 NZLR 641 (HC & CA)
New Zealand Maori Council v Attorney-General 1989 4 NZLR 142 (CA)
New Zealand Maori Council v Attorney-General 1994 1 NZLR 513 (PC)
New Zealand Maori Council v Attorney-General unreported, HC Wellington, CIV-2007-485- 000095, 4 May 2007, Gendall J; affd (2007) NZCA 269;2008 1 NZLR 318 (CA); (2007) NZSC 87 (SC)
Nireaha Tamaki v Baker (1901) AC 561; (1901) NZPCC 371; affd1902 22 NZLR 97 (SC) Police v JC (2006) DCR 465 (YC)
Re Allardice; Allardice v Allardice 1910 29 NZLR 959 (CA) Re Clarke (Deceased) 1965 NZLR 182 (SC)
Re Hokimate Davis (Deceased) 1925 NZLR 19 (SC)
Re Walker (Deceased) 2002 NZFLR 481 (HC); affd2003 NZFLR 64
R v Cox unreported, HC Wellington, CRI-2008-035-549, 5 March 2009, Clifford J R v Ilich (1987) 162 CLR 110; (1987) 69 ALR 231 (NZSC)
R v Pora 2001 2 NZLR 37 (CA)
R v Secretary of State for the Home Department (1998) AC 539 (HL) R v Secretary of State for the Home Department (2000) 2 AC 115 (HL) R v X (2004) 21 CRNZ 471 (CA)
Re Southern Rhodesia (1919) AC 211
Re Tupuna Maori unreported, HC Wellington, P580/88, 19 May 1989, Greig J
Takamore Trustees v Kaipiti District Council (2003) NZRMA 433 (HC)
Tapora v Tapora unreported, CA 206/96, 28 August 1996, Henry J, Keith J, Neazor J
Te Runanga o Muriwhenau Inc v Attorney-General 1990 2 NZLR 641 (CA)
Te Runanga o Ngai Tahu v Waitangi Tribunal 2002 2 NZLR 179 (CA)
Te Runanganui o Te Ika Whenua Inc. Society v Attorney-General 1994 2 NZLR 20 (CA) Te Weehi v Regional Fisheries Officer 1986 1 NZLR 680; (1986) 6 NZAR 114 (HC) The Public Trustee v Loasby 1908 27 NZLR 801 (NZSC)
The Queen (On The Prosecution of C.H. McIntosh) v Symonds (1847) NZ PCC 387 Watene v Vercoe (1996) NZFLR 193 (DC)
Wi Parata v The Bishop of Wellington & Attorney-General (1877) 3 NZ Jur (NS) 72 (NZSC) Williams v Aucutt 2002 2 NZLR 479; (200) NZFLR 532 (CA)
AB v Leeds Teaching Hospital NHS Trust 2004 EWHC 644 (QB) Armory v Delamirie 93 E.R. 644 (1722)
Bourhill v Young (1943) A.C. 92
Chic Fashion (West Wales) Ltd. v Jones (1968) 2 Q.B. 299
Chief Constable of Kent v V (1982) 3 All E.R. 36
Clerk v London General Omnibus Co Ltd (1906) 2 KB 648 (CA) Dewar v HM Advocate (1945) S.L.T. 114
Dobson v North Tyneside Health Authority (1997) 1 WLR 569 (CA)
Exelby v Handyside reported in the textbooks: Sir E.H. East ’ s Pleas of the Crown (1794) 4, 652 and J. Curwood Pleas of the Crown (C. Roworth, Bell Yard, Temple Bar: London, 1824) 18th ed. vol. 1 p 148
Foster v Dodd (1867-68) L.R. 2 Q.B. 67
Haynes ’ s Case 77 E.R. 1389 (1614) 12 Co. Rep. 113 Holtham v Arnold (1986) 2 BMLR 123
Hughes v Robertson (1913) S.C. 394 Hunter v Hunter 65 OLR 586 (1930) Jenikins v Tucker (1778) 138 E.R. 55 King v Phillips (1953) 1 Q.B. 429
National Provincial Bank v Ainsworth (1965) A.C. 1175
Parker v British Airways Board (1982) Q.B. 1004 Pollok v Workman (1900) 2 F. 354
Re P (Minors) (Wardship: Surrogacy) (1987) 2 FLR 421 R v Bristol Coroner (1974) Q.B. 652
R v Feist 169 E.R. 1132 (1858) R v Fox (1841) 2 Q.B. 246 R v Lynn 100 E.R. 394 (1788) R v Kelly (1999) Q.B. 621 R v Price (1884) 12 Q.B. 247 R v Rothery (1976) R.T.R. 550 R v Shape 169 E.R. 959 (1857) R v Stewart 113 E.R. 1007 (1840) R v Welsh (1974) R.T.R 478
Sommersett ’ s case 98 E.R. 499 (1772)
Stevens v Yorkhill NHS Trust and Southern General University Hospitals NHS Trust (2006) CSOH 143
Williams v Williams (1881-82) L.R. 20 Ch.D. 659 Ward v Macauley 100 E.R. 1135 (1791)
United States of America
Arthur v Milstein, 949 So 2d 1163 (Fla. 4th DCA 2007)
Bruning v Eckman Funeral Home, 300 N.J.Super 693 A. 2d 164 (App. Div. 1997)
Carney v Knollwood Cemetery Association, 33 Ohio App.3d 31, 514 N.E.2d 430 (1986) Charles Venner v State of Maryland, 30 Md. App. 599 (1976)
Cohen v Cohen, 896 So2d 950 (Fla. 5th DCA 2005)
Cruzan v Director of Missouri Dep ’ t of Health, 497 U.S. 261 (1990) Enos v Snyder, (1900) 131 Cal. 68
Fidelity Union Trust Co. v Heller, 16 N.J.Super. 285, 84 A.2d 485 (Ch. Div. 1951) Funk Bros. Seed Co. v Kalo Inoculant Co., 333 U.S. 127 (1948)
Greenberg v Miami Children ’ s Hosp. Research Inst., Inc., 264 F. Supp. 2d 1064 (S.D. Fla. 2003)
Hinz v Berry, (1970) 1 AER 1074
In the Estate of Meksras, 63 Pa D. & C. 2d 372 (C.P. Phila. County 1974)
International News Service v Associated Press, 248 U.S. 215 (1918)
Kasmer v Guardianship of Limner, 697 So2d 220 (Fla. 3d DCA 1997)
Janicki v Hospital of St Raphael, 744 A.2d 963 (Conn.Super.Ct. 1999)
Moore v Regents of the University of California, 249 Cal. Rptr. 494 (1988); (1990) 51 Cal.Rptr. 146, 793 P.2d 497; cert. denied 111 S.C.T. 1388 (1991) Johnson v Calvert, 5 Cal.4th 84, Cal.Rptr.2d 494, 776 (Cal. 1993) Larson v Chase, 47 Minn. 307, 50 N.W. 238 (1891) Re Estate of Eichner, 18 NY.Super.2d 573 (1940)
Re Human Tissue Products Liability Litigation, Slip Copy, 2008 WL 4665765, D.N.J., October 22, 2008 (No. CIV-06-135, MDL)
Re Scheck ’ s Estate, 172 Misc. 236, 14 NYS 2d 946 (Sur. 1939)
Schloendorff v Society of New York Hospital, 105 N.E. 92 (1914)
Snyder v Holy Cross Hospital, 30 Md.App. 317 (ND N.Y. 2002)
Spanich v Reichelderfer, (1993), 90 Ohio App.3d 148, 628 N.E.2d 102
Stewart v Schwarz Brothers-Jeffer Memorial Chapel Inc. and Scott, 606 NYS 2d 965 (1993) Union Oil Co. v State Board of Equal., (1963) 60 Cal.2d 441
Worcester v State of Georgia, 31 U.S., 6 Pet. 515 (1832)
Zaldana v KB Home, Slip Copy, 2009 WL 1299082, N.D.Cal., May 08, 2009 (No. C083399 MMC)
In recent years, there have been several high profile instances where Maori wh nau1 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 Maori 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.
In December 2007, Tina Marshall-McMenamin died from a suspected drug overdose. De- spite arrangements for a Wellington funeral being agreed to, her body was allegedly taken from a Lower Hutt funeral home by her father who drove away with his daughter’s corpse. Her fiancé4 attempted to drive after him but was blocked by other Maori wh nau members. Her body was buried on Ngati Porou land in Ruatoria the next day, although the High Court granted an interim injunction5 before the burial. Her father told the media afterwards that he had heard that a court injunction was pending, but did not want to wait. Her fiancé was upset that Tina was buried in a town she may never have visited, even though she was not brought up as a Maori and did not know that side of her family. In the end, Tina’s body was disinterred after the families came to an agreement, and the cremated ashes were given to her adoptive family after a High Court hearing at Wellington.6
James Takamore died on 17 August 2007.7 Ms Clarke, the sole executrix of Takamore and his de facto partner, claimed in her affidavit that the deceased wanted to be buried in Christchurch.8 However, his body was removed by members of the Taneatua wh nau and buried in the Bay of Plenty near Opotoki, even though Panckhurst J granted an interim injunction9 before the burial. Since the Taneatua wh nau refused to relinquish the body, Ms Clarke was granted an order from the High Court at Christchurch forcing the wh nau to exhume Takamore’ s body from the marae.10 Additionally, the Ministry of Health issued a disinterment license to the police, with the intention of enabling police forces to comply with the High Court order.11 In the end, however, the family came to an understanding and buried Takamore in Christchurch after exhuming his body themselves rather than calling in the police.12
These recent cases have graphically highlighted a gap in law whereby because there is no legal property in a dead body,13 the police are unable to resort to criminal law to pursue charges of theft. Under the current law it is arguable that a person taking the corpse could only be accused of theft of the coffin, theft of sheets/clothing or theft of tangible things worn by the deceased.14 Such charges were not brought in any of the above cases.
Because of the inconsistent status, the Ministry of Justice recently recommended that the power to seize bodies with or without a warrant in case of disputes over burial arrange- ments should be given to the police.15 However, this is not the only potential solution. Sev- eral academics writing in the area have made different suggestions on how to solve the issue.16 Their proposals stem from various areas of law where property issues are prevalent and the Coroners Act 2006, as integral part of the New Zealand law, is indicatory.
On the other hand, different cultural values may result in potential conflicts about the type of funeral that is appropriate. While most New Zealanders may be familiar with Christian burial rituals, not everyone is familiar with the Maori funeral practice, “tangihanga.” For Maori and many other people with religious views (orthodox or unorthodox), death and interment remain deeply rooted in culture and religion and are normally not considered in legal terms, but as an intrinsically cultural or religious event. At present, New Zealand legislation is in fact silent on whether the tangihanga ceremony should be recognised in courts. This begs the question: Who is to say which beliefs are suitable and which are not? Does te Tiriti o Waitangi/the Treaty of Waitangi,17 which is acknowledged to be the founding document of New Zealand,18 give preference to the position of the Maori wh nau over the position of family members from other ethnic groups?
Further, it is questionable to what extent the deceased’s (posthumous) autonomy should be protected by law. This raises further questions about the responsibility for funeral ar- rangements.19 The Human Tissue Act 2008 will play a key role in this discussion, since this issue is closely related to the complexities of organ donation, which have proliferated in recent years.
The main purpose of this thesis is to consider whether legal sanctions would be capable of deterring the practice of “body snatching,” and, if so, whether the law should be reformed in New Zealand to clarify the legal situation of ownership in, and burial of, a dead body. The project will involve an analysis of existing law, proposed law changes, tikanga Maori, and comparative law elements. It will examine and synthesise primary and secondary legal sources, including relevant case law and statutory law. More specifically, the research aim is to provide an explanation of the legal aspects of the “body snatching” issue within Aotearoa/New Zealand, as it occurs within bicultural Maori and Pakeha20 families.
To give context to recent events, chapter one of this thesis traces the development of, and differences between, Maori culture and tikanga, and Christianity.21
Chapter two provides an overview of the historical legislation regarding rights of the In- digenous People of New Zealand derived from the Treaty, followed by the question of whether Maori tikanga (particularly on burial) is recognised within New Zealand law. It also discusses the legal aspects of the Treaty in New Zealand, the legal obligation of the Crown to honour and respect tikanga Maori relating to burial, and the principles of the Treaty, as handed down by all five judges in the landmark decision New Zealand Maori Council v Attorney-General.22 The chapter concludes that New Zealand courts should rec- ognise the right of Maori to bury wh nau according to the tangihanga even though legisla- tion is silent on these rights.23
Chapter three explores the possibility of proprietary and possessory rights in corpses. The chapter will come to the conclusion that the common law does not consider corpses as the subject of property (so-called “no property” rule). An analysis of the issue of who has the right to possession for the purpose of burial, which distinguishes between a person dying testate and intestate, will follow this discussion.
The purpose of chapter four is to examine the protection and enforcement of various proprietary and possessory rights, elaborating on criminal sanctions and actions in tort.
Chapter five will establish whether a law change is needed in New Zealand after recent cases of “body snatching”. Following a positive affirmation, the thesis will examine and critically analyse several solutions, evaluating in particular, the rejection of the “no prop- erty” rule. In this context, comparisons between New Zealand law, other common law countries, and civil law countries (for example Germany) will provide practical sugges- tions. In the end, the chapter will attempt to reassess the discussion on “body snatching” also in the light of succession law, positing that amendments to the Wills Act 2007 could have the effect strived for. Finally, chapter five will come to the conclusion that there is no single clear solution available, and that a combination of solutions is a better approach.
Chapter six provides a conclusion and outlines those legislative amendments that should be adapted to New Zealand law.
Before proceeding to chapter one, one brief comment relating to the meaning and history of the term “body snatching,” which is used commonly in New Zealand’s newspaper arti- cles, must be made. Black’s Law Dictionary describes “body snatching” as “[t]he unlawful removal of a corpse, esp. from a grave.”24 This definition arose in 19th century Europe where “body snatching” was frequent in wide sections of the educated population.25 In New Zealand, the first court decision referring to “body snatching” was on 16 October 1995.26 This decision aroused large media interest due to the fact that it focused on the body of Billy T. James. The High Court considered the question of whether the use of the expression “body snatcher” in a newspaper article to describe a person was defamatory. The publisher could prove that by calling the plaintiff “body snatcher” the commentator was expressing an honestly held opinion without malice, on a matter of legitimate public interest (as affirmed in the Defamation Act 1992, s9), and that he was not making a com- ment about Maori practice and custom as such.27 Therefore, the High Court found the re- spondent not liable in defamation. The judges concluded that readers would have under- stood the expression as meaning that the plaintiff was “somebody who had taken a body without proper justification.”28 In the context of this thesis the expression “body snatcher” or “body snatching” should not be misread29 but be used to describe the taking of a corpse with the intention to bury it elsewhere without the consent of the other side of the family.
Chapter 1: Maori and Christian Funeral Rites
It is believed that the interment of dead bodies dates back to the Neanderthal man in 70,000 B.C.E.30 From then on, various burial rites developed within different religious and cultural groups. Even though the actual procedure of the ritual depends on the particular religious and cultural affiliation, some similarities between cultures exist.31 The predomi- nant religion in New Zealand is Christianity, observed by 55.6 % of the population.32 To- day Maori make up approximately 15 % of New Zealand’s population.33 In order to rea- sonably understand the “body snatching” conflict, this chapter will analyse both Maori and Christian religious beliefs, because they encompass significantly different practices for the disposal of a deceased’s body. This chapter will then draw a comparison between the Christian and Maori funeral ritual, and subsequently suggest how a cultural conflict may occur.
B Tangihanga: Maori Ceremony of the Dead
I. Maoridom: Mythical Origins of Death
Maori believe that people derive from two immortal personifications: Ranginui, the Sky Father, and Papat nuku, the Earth Mother.34 People, therefore, have a Te Tah Wairua (immortal life force). Elsdon Best points out that Maori culture distinguishes three kinds of death: mate aitu or mate tara whare, death as the result of disease; mate t ua, death in bat- tle; and mate whaiwhaiaa, death of witchcraft.35 Whatever the cause of death, the underly- ing cause was supernatural.36 For example, if Maori break the law of tapu (sanctity, sacred) by not living in harmony with the nature, the anger and wrath of the Gods (Atua and Tipua) will invoke,37 followed by the breakdown of a person’s defence. The evil influences could cause mate wairua (spiritual sickness) and, at worst, result in death.
Symbolically, an old Maori expression describes the subsequent funeral ritual: “Me tangi, ka pa ko te mate it e marama,” which means “Let us weep over him; he has departed for ever; if he had disappeared like the old moon we would not have mourned- he would have appeared to us anew after time.”38
II. The Rituals of Tangihanga
In essence, the term “tangihanga”39 describes the Maori approach to the process of mourn- ing for someone who has died. The noun “tangihanga” is literally translated as “weeping, crying, sound, funeral [or] rites of the dead.”40 The ritual itself customarily consists of three phases: the initiation of the public, the ceremony itself, and the disposal of the t p - paku (body of the deceased person).41 Since a common belief is that the t p paku should never be left alone after death, traditionally the wh nau pani (close family members) guard the body during the tangihanga. This is consistent with the common belief that the wairua (spirit) remains with the t p paku until it is finally buried. Maori generally know what is expected from them during the tangihanga ceremony.42 Everyone is entitled to participate in the tangihanga event, which usually takes place over a number of days,43 and during which grief is publicly shared. The ritual itself is often a chance to meet with wh nau and distant relatives. It is common for various speakers to narrate the deceased’s life, as public sharing of grief is believed to strengthen social cohesion. The topic of the k rero (talks) can either be “cordial” and “hilarious” or even “honest” and “uncomplimentary.”44 In general, public grieving is one of the two Maori funeral rituals.45 Nin Tomas specifies these ideals as follows:
…first that short-term grief is best openly expressed and public shared amongst wh nau [family] and friends, and second, that the dead should rest amongst their kin in their ancestral land.46
The tangihanga is commonly held on a marae,47 close to the urup (cemetery). Both the location of the tangihanga and the burial ground are decided by the bereaved family or tribal elder.48 Therefore, one might assume that the deceased becomes a property of the wh nau.49 If the dead person has links to more than one tribe, disputes may arise between the wh nau as to where the tangihanga should be held, and the t p paku should be laid to rest. The matter is usually determined by negotiation as to who has the stronger case.50 Even though these negotiations can be stressful and heated, such talks are a sign of love and respect for the deceased.51
It is common that the coffin52 is left open during the whole ceremony so that mourners can touch, hug, or kiss the t p paku, accompany the deceased during his final days on earth, and express their grief. With the burial, the recently dead are relieved into the care of Earth Mother and interred into the belly of Papat nuku from whence people sprang. According to Maori legend, Earth Mother said:
Leave me the dead. Let them return within me. I brought them forth to the light of day; let them return to me [when dead]. Mine shall be the care of the dead.53
It follows that the wairua eventually leaves the body and journeys upwards to the Sky Fa- ther, Ranginui, immigrating to an afterworld called the Reinga.54 In Maori legend, Cape Reinga is the “jumping-off” place for the land of hereafter.55 Then, the soul returns to the land it came from, and the body comes back to the bosom of Earth Mother.56
III. The T p paku
When a Maori person dies at a private home instead of a marae, the local hap formally ask the spouse and family whether the t p paku can be taken to the marae. In case of frictions between different tribes, negotiations will be held until an amicable solution is reached. This sometimes leads to compromise, such as the t p paku staying at a marae one night and then at another marae, until it finally gets to the marae where the tangihanga will be held.57 Bigger issues may arise when a Maori person dies at a hospital, or delays might occur due to coronial inquest if the death was unexpected.
C Christian Burial Rites
Even though attitudes to death and burial vary greatly amongst Christians, similarities ex- ist. It is, for example, common that when a Christian dies a funeral is held58 for the friends and family to grieve for the deceased and give thanks for their live. It is a common Chris- tian tradition that close family members have the right to decide where the deceased’s body is buried. There is usually a hierarchy in decision-making on funeral arrangements: First in line is the spouse, followed by children and parents, and then the siblings.59 This person(s) arranges the funeral in consultation with the funeral director, priest or pastor.60 Commonly, adherents of Christian denominations are buried in graveyards or cremated within a church service and prayer. The ceremony itself is commonly held at a church which is affiliated to a graveyard. Family members, close friends, and colleagues attend the burial ceremony.
During the funeral service songs are shared and prayers of intercession are spoken. Funeral orations are commonly held by non relatives. These orations respectfully reflect the posi- tive sides of the deceased’s life. After the burial the close family is left to grief in private.
D Differences between the Maori and Christian Processes of Mourning
Unanimity between the Maori and Christian funeral ceremony is sometimes difficult to reach. Certainly, the tangihanga differs in many ways from Christian funerals. This is not surprising as Maoridom and Christianity stem from different worlds and cultures. The main reasons for the escalation of the cases mentioned in the introduction were the differ- ences between the funeral rituals and the lack of understanding of the opposite culture. Tomas has pointed out two cultural differences that draw adverse comment from Maori:
Without passionate displays and claims of whanaungatanga (kinship, sense of family connection) and whakapapa (descent, genealogy) to raise the mana (spiritual power) of the deceased and proclaim ancestral worth, how can his or her ongoing value as part of the community be acknowledged?
Why should the interests of the spouse take precedence over parents, uncles and aunts, and siblings, who have a longer, and ongoing association with the deceased?”61
Although a lot of European New Zealanders do not actively practise any form of Christian- ity, many of them believe in the Christian perspective that marriages last “until death do us apart.”62 In biblical verses it says that God’s design for marriage is companionship and intimacy. It might be that the family has a longer relationship with the deceased, but in Christianity the spouse is the person who has the deepest and most intimate connection to the deceased. Conversely, genetic heritance is seen as a cultural treasure within the Maori world view because the whakapapa is handed down from one generation to the next.63 This is seen as a defining feature of Maori which becomes apparent because Maori introduce themselves by referring to their ancestors amongst each other. Thus, Maori consider the relation to the spouse as not necessarily everlasting. It could be deemed a tragedy for an iwi if the deceased would be laid to rest in a Christian churchyard solely because of the spouses’ wishes. In Maori estimation, one should not lose sight of the fact that a spouse may distance him/herself from the deceased and fall in love again with another partner. Hence, they believe that the location of the tangihanga should be decided by the bereaved family and not the spouse.
In regard to the first statement made above about passionate display and claims of kinship, Maori believe in the existence of mana, brought to earth and endowed by the deities. This is not conformable with Christianity’s monotheistic belief. Mana is believed to be the su- pernatural force in a person, which is heritable (mana tipuna) but can also be lost in case of abuse. Mana, like wairua, stays in the deceased’s body until it is buried. Therefore, funeral orators reflect the real way of life of the deceased, not just the honourable and good deeds, and they direct their speeches at the deceased. Straight and harsh tones are not infrequent. This is significantly different to Christian funerals. During Christian funerals, locals of the community and family members talk about the deceased in a eulogy, and not directly to him/her.64 Silent grief is not favoured by Maori.65 It is believed that by making their fare- wells to the dead together, the fear of expressing grief will be removed.66 While Christians commonly grieve in quiet, Maori seem to “celebrate” the tangihanga. Unsurprisingly, Maori are adverse to cremation services and wish to spend their time with the deceased before the burial.
While we have seen that there are various differences between Maoridom and Christianity, there also exist similarities. Maori, as well as Christians, will frequently lay their loved ones to rest where they lived most of their life or where they came from, if no request was made beforehand.67 Other crucial similarities are the purpose of the tangihanga/ funeral. Both are to pay respect to loved ones, to come together and grieve as a group, to speak of the loved one and bury them in the ground.68
Fundamentally there are a lot of similarities between Maoridom and Christianity, with the crucial differences being ideology around where to bury the deceased and who gets to de- cide this. In this emotionally charged area it is likely that further dispute between Maori and Christian families will arise, especially because Pakeha may not be familiar with the tangihanga procedure.69 Past experiences have shown that Maori are cooperative, and compromise is normally reached in cases of disagreement with other tribes, but this does not mean that negotiations between Maori and non-indigenous New Zealanders would be successful. The Maori tikanga in tono (claim) proves the opposite by directly addressing the spouse, and implying that “in life the deceased was yours, in death he/she returns back to us, to be buried and rest alongside their own tipuna, their own people.”70 Recent dis- putes, such as the Takamore and Marshall-McMenamin cases, undermine this theory. As mentioned earlier, even police gave up the hope that negotiations between those two groups would lead to amicable solutions, since most negotiations were put on hold. It is of fundamental importance, however, to achieve a consensus, considering that cross-cultural relationships between Maori and other ethnical groups are more and more common in New Zealand.
Chapter 2: Recognition of Tikanga Maori and the Treaty of Waitangi
The chapter seeks to answer the question of whether New Zealand should go so far in giving preference to the tikanga surrounding the tangihanga ceremony. It further questions whether there is any legal instrument, statute or case law that strengthens or recognises the significance of tikanga Maori referring to burial.
First and foremost, for a better understanding, the meaning of the expression “tikanga Maori” will be clarified. The following sections provide an overview of the historical legis- lation regarding rights of the Indigenous People of New Zealand derived from the Treaty, followed by the question of whether Maori tikanga (particularly on burial) is recognised within New Zealand law. New Zealand has no entrenched constitution to supplement Acts, bills, regulations and the Treaty of Waitangi. The Treaty is a unique and significant docu- ment that has never been directly incorporated into New Zealand law with binding force for general purposes. This chapter discusses whether its principles are directly or indirectly enforceable in law. Because Parliament had incorporated the Treaty principles into s9 of the State-Owned Enterprise Act 1986, the Court of Appeal interpreted and applied the principles of the Treaty of Waitangi in the Lands case. After concluding that the case itself is significant because it judicially recognises the Treaty as an evolving document, and the judges declared the importance of the “spirit of the Treaty,”71 the impact of this and other cases on New Zealand jurisprudence will be discussed. By the end of the 20th century the Treaty of Waitangi Act 1975 had established the Waitangi Tribunal, which was empow- ered to hear and determine claims brought by any Maori that an Act or policies of Parlia- ment were in breach of the Treaty, and prejudiced Maori.72 Prominent incidents that helped develop the jurisprudence in the Waitangi Tribunal and courts will be described. Before examining the central question of whether the tangihanga ceremony should be recognised in courts despite legislation being silent on the issue, it will be questioned whether tikanga relating to burial should be a formal source of enforceable law in New Zealand today.
B What is Tikanga Maori?
The noun, “tikanga” is a common term that is derived from the Maori stative verb, “tika” meaning “lawful” (e.g. of behaviour) or “right” (not wrong).74 It has a variety of meanings, from which most are extensions of the literal meaning of tika. Because tikanga controls social events and relationships between Maori, it is important to have a basic understanding of Maori society in order to understand tikanga.73
Maori consider tribes and tribalism to be important.75 Iwi are the largest social unit in Maori everyday population. Each iwi sub-divides into a number of hap76 who are again composed of several wh nau. The Ng ti Wh tua iwi, for example, consists of four hap : Te Uri-o-Hau, Te Roroa, Te Taou, and Ngati Whatua ki Orakei. Statistics New Zealand (Tatauranga Aotearoa) describes the social concept of Maori as:
the focal economic and political unit of the traditional Maori descent and kinship based hierarchy of:
-Wh nau (family).77
In principle, iwi have the authority to administer tikanga in a number of different ways,78 and iwi can identify circumstances that require adjustments and changes to be made to ti- kanga. It is the ability of tikanga to change that accounts for its variations among iwi.79
Nevertheless, flexibility is not so great as to allow a proposition to be advanced as tikanga, where it is in conflict with core values handed down from relatives. There is no disorder in tikanga, because protocols specify if a specific custom is carried out by a group or individuals, or if a ceremony is public (like the tangihanga) or private.
Being a traditional Maori system, it might be said that tikanga Maori was the first practised law in New Zealand. Although, as established earlier, regional differences in tikanga Maori exist, the term can be brought down to a common denominator. The Dictionary of Maori Words in New Zealand English defines “tikanga” as “Maori culture.”80 Some lawyers tend to recognise tikanga as “Maori custom law.”81 Behind this understanding lies a more profound reason: Maori generally know what is expected of them, even though the majority of Maori do not live their day-to-day lives according to tikanga.82 Hirini Moko Mead suggests that “there is still a long way to go to reach a time when tikanga Maori might be adopted as customary law, binding upon a majority of the Maori population.”83 Logically, he describes tikanga as “the set of beliefs associated with practices and procedures to be followed in conducting the affairs of a group or individual.”84
Tikanga is also expressed in New Zealand’s law. For instance, the Resource Management Act 1991 (s2) and the Te Ture Whenua Maori Act 1993 (s4) defines tikanga as “customary values and practices.” The term “tikanga” appears in the third Article of the Treaty of Wai- tangi where it is translated (into English) as “rights”.85 Bishop Manuhuia Bennett has de- scribed tikanga as:
...the obligation to do things in the right way: doing the right thing for no other reason than because it is the right thing to do. Tikanga draws from many seeds; it has many shades and many applications.86
It is important to acknowledge that tikanga became more widely known and accepted by Pakeha in the final two decades of the 20th century. Nowadays tikanga is still adhered to in Maori settings, such as on the marae, and everyone present is expected to respect the tikanga in operation. The most common meaning of tikanga is “the Maori way”87 of living, this serves as a foundation for Maori customary law.
C What Did the Treaty of Waitangi Promise?
Maori people often refer to the Treaty of Waitangi to enforcing tikanga if they believe that their customs have not been administered by the executive or recognised by Parliament or the judiciary. But is it the Treaty’s objective to provide Maori with the opportunity to as- sert rights? Does it even warrant a special jurisdiction? The primary focus of this section is the Treaty in contemporary New Zealand law rather than in history. Yet, it is prudent to review the Treaty’s place in the New Zealand constitution and its historical understand- ings, as they are the breeding ground for contemporary understandings. The following dis- cussion is roughly in chronological order.
I. The Signing of the Treaty in 1840
In the early European settlement era, before the Treaty was drafted, tikanga Maori was recognised as law by ambassadors of the Crown.88 This state was not acknowledged to be perpetual, just temporary. The Crown’s aim was to initially consolidate its interest, and establish an English society in the long term. The Crown was aware of the increasing inter- ests of other imperial powers in New Zealand, which is why it required a treaty to assert its sovereignty over New Zealand.89
After years of negotiation between ambassadors of the Crown and Maori chiefs the Treaty of Waitangi (both the English and Maori text) was finally signed by approximately 500 Maori chiefs and representatives of the British Crown in 1840. The Treaty was clearly a constitutional document at that time and its drafting was a constitutional event.90 Since the Treaty of Waitangi was not considered a treaty between two or more states by the majority of non- Maori, it is not a bilateral treaty as defined in Article 2(1)(a) of the Vienna Con- vention on the Law of Treaties 196991 but is a “multilateral international agreement.”92 Like all treaties, it is an exchange of promises. It consists of three brief clauses, in which New Zealand became a British Colony.93 It confirmed the rights over properties of the Maori chiefs and tribes, and granted them protection. Additionally, the third Article prom- ises the Maori the “Rights and Privileges of all British Subjects.” Overall, the Treaty signi- fied the establishment of British law in New Zealand while ensuing Maori authority over their own culture and land.
II. Two Versions, Two Self-Understandings
Much of the controversy around the Treaty of Waitangi stems from the two linguistic ver- sions of the Treaty.94 Some academics even suggested that the two documents are not “in any reasonable sense” equivalent to each other.95 In general, there are controversial ques- tions and cases in which the Treaty’s interpretation has been ambiguous. Article two in the Maori version, for example, promises much broader rights for Maori in regard to posses- sion of their existing taonga (treasure) than in the English version. Using the word “taonga,” the Maori version gives Maori control not only over their forests, fisheries, land and other properties, but offers protection of intellectual possessions such as culture and language. Parliament only recently accepted a wider interpretation of Maori language by recognising it as a taonga.96 From this it can be deduced that the Treaty is likely to guaran- tee some protection of Maori custom.
Covering sovereignty, the first Article of the Treaty attempts to balance the Crown’s sov- ereignty and rangatiratanga (sovereignty, ownership). Again, discrepancies between the two versions are substantial. While the English version signed the right of sovereignty over to the Crown, the Maori version, which was signed by most of the Maori tribes, granted something very different, called k wanatanga. K wanatanga is a transliteration of the Eng- lish word “governorship”. For that reason, the Maori version granted something less than complete sovereign authority to the Crown, namely limited authority of governorship over the Pakeha population only.97
Another question is whether the terms of the Treaty just applied to the tribes who signed it. In 1943, after a series of intertribal conflicts in the Bay of Plenty, the Coronial Office clarified the question by ruling that British law and the terms of the Treaty applied to every single tribe including those who had not signed the Treaty.98
The different versions aside, it was not clear as to whether the Treaty was viewed as “a domestic law contract; or as an international treaty...or as a basic constitutional document evolving in its application to changing circumstances over the years.”99 Parliament’s inser- tion of the principles of the Treaty of Waitangi into statute100 as per a Privy Council case stating that the Treaty cannot be enforced in the Courts except insofar as a statutory recog- nition of the rights can be found, threw light on the matter.101
D How Was the Treaty Interpreted by the Courts between 1840 and 1970?
In the era between 1840 and 1970, there were a number of challenges facing the courts concerning the Treaty of Waitangi principles. One of the continuing debates was about native title and Maori customary rights. Others concerned the status of the Treaty. Is the Treaty legally binding or does it just have political and moral weight? Should courts nonetheless recognise Treaty rights if it is not legally binding?
The first prominent case to consider the status of the Treaty of Waitangi (The Queen v Sy- monds)102 in 1847 confirmed the common law recognition of native title. The case exam- ined whether the Crown had the exclusive right of pre-emption to purchase land from Maori as stated in the Treaty. Chief Justice Martin pointed out that the Crown is the only source of title and “acts on behalf of the whole nation.”103 Hence European settlers in New Zealand could only acquire legal interest in land from the Crown, not by purchasing land directly Maori. Consequently, titles to land purchased by settlers directly from Maori tribes were deemed on the one hand to be good against Maori but on the other hand null and void against the Crown.104 In Symonds it was also held that the Crown could extinguish native title, but native title could not be extinguished by tangata whenua (Indigenous People of the land) trading their land to European settlers. The case also declared that customary title could be extinguished only by Maori selling their land to the Crown, or by legislation.
Conversely, in Wi Parata v The Bishop of Wellington & Attorney-General105 Prendergast CJ held that the Crown could unilaterally extinguish all Maori customary ownership with- out any court being able to challenge its decision to do so.106 Additionally, referring to Maori as “barbarians”, Prendergast CJ famously ruled that “so far as it purported to cede sovereignty ... [the Treaty] must be regarded as a simple nullity.”107
In 1901, the Privy Council reconsidered Prendergast J’s ruling by finding that native title to land was recognised both by statute and common law, and that executive action could not is itself extinguish Maori customary title in land.108 The Privy Council observed that “it is rather late in the day”109 to say that extinguished title could not be recognised by a court. Nevertheless, New Zealand’s courts refused to follow the observations in the Baker case, and continued to apply Wi Parata.110
Eventually overseas developments in recognising the existence of native rights and title111 led New Zealand courts and Parliament to re-think the perception of the significance of the Treaty of Waitangi. However, there was still little significant case law on the Treaty following Baker until the Te Heuheu case in 1941. In Te Heuheu the court ruled that unless any purported rights were incorporated into New Zealand statutes, they were not legally binding.112 This is due to New Zealand’s classification of international treaties where treaties have no direct legal effect in the domestic legal system unless they are incorporated into domestic law by an act of Parliament. The finding of the Te Heuheu case has not been displaced and remains the current position in New Zealand law.113
Still, nothing had really changed in the ensuing years. Wi Parata was followed by New Zealand courts for many more decades until Williamson J set a “welcome trend”114 by rec- tifying part of the reasoning, in the case of Te Weehi v Regional Fisheries Officer115 in 1986. The case turned on a common law recognition of Maori fishing rights. A Maori man, who was charged with being in possession of undersized p ua,116 claimed that he was exercising a customary Maori fishing right that was exempt from the provisions of the Fisheries Act 1983.117 It was controversial whether the fishing right claimed could exist independently of proprietary rights to land. Williamson J held that rights can be non-exclusive rights to fish that do not depend on establishing ownership.118 In determining that the common law can be the substantive source of Maori claims, he emphasized the legal significance of the Treaty that was strenuously denied in Wi Parata.
In the years following the signing of the Treaty, legislation has been active in “recognising, suppressing, denying and then making further attempts in recognising”119 Maori customary law. Eventually, the Treaty was held to be both equally “valid and binding.”120 From being “a simple nullity,”121 it became a document of some importance for a society of cultural diversity and tolerance. Generally, the period following Symonds was dominated by the approach of assimilating Maori culture to the European way of life, demonstrating a lack of recognition of tikanga by the courts and Parliament. Cases like Symonds, Wi Parata and Te Weehi concerned claims based on the common law doctrine of native title. This doctrine regards the Treaty as declaratory but not the source of Maori property rights. Above all, Te Heuheu determined that Maori rights are only enforceable if the Treaty is incorporated into domestic law. This implies that tikanga related claims are vulnerable because courts might not recognise the significance of tikanga if legislation is silent on it.
E What is the Current Treaty of Waitangi Jurisprudence?
The research in this part focuses on the current jurisdiction in order to determine if New Zealand law satisfactorily recognises the significance of tikanga, even in cases like “body snatching” where the legislation could be silent. Since the 1970’s the courts have become more sensitive towards native title and the principles of the Treaty. This has resulted in the establishment of the Waitangi Tribunal, which developed important jurisprudence regard- ing the Treaty principles. However, recognition and definition of Maori rights is develop- ing from current courts cases.122 In 1987 the Court of Appeal considered for the first time what the principles of the Treaty are.123 Further cases interpreted tikanga in regard of stat- utes that did not refer to the Treaty.
I. The Courts ’ Developing Jurisprudence
1. The Treaty of Waitangi Principles
The Lands case is a milestone case that is comparable with the groundbreaking cases Mabo v Queensland (No 2),124 Delgamuukw v British Columbia125 and Worcester v State of Georgia.126 In this case, the Court of Appeal elaborated on the Treaty principles as re- quired by the State-Owned Enterprises Act 1986. The Act provides for the possibility of the Crown to transfer assets and liabilities to state enterprises.127 Maori were concerned that once land was transferred by the Crown to a state enterprise, they might not be able to purchase the land back, since the state enterprise might have disposed of the land within the scope of its own business dealings. An obvious solution to this conflict seemed to stem from the unique wording of s9 of the State-Owned Enterprise Act that read: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” This section was of great significance, because no other statute had ever confined public agencies in the exercise of their duties due to have to regard for the Treaty.128 In conclusion, the Court found that it was a breach of the Treaty principles for legislation to elude future Treaty claims over the land. In his judgment, Cooke P identified the principles of the Treaty as: partnership between Maori and the Crown, reasonableness and utmost good faith.129 Other hallmarks are the Crown’s duty to actively protect Maori taonga and Maori loyalty to the Crown.130 As Cooke P explained in that case, the “principles require the Pakeha and Maori partners to act towards each other reasonably and with the utmost good faith.”131 He emphasised the importance that: the duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the court will be to insist that it be honoured.132
Even though the moral obligation of “good faith” to the Crown is very significant,133 when applying the principles to the current issue of “body snatching” it seems that the most important principle is the one of “on-going partnership”.134 This principle signifies that steps should be taken by the Crown “as a partner acting towards the Maori partner with the utmost good faith, which is the characteristic obligation of partnership.”135 On the other hand, the principle involves “co-operation and independence between distinct cultural or ethnic groups within one nation”136 and does not mean that a fifty-fifty entitlement exists.137 It is quite an “abstract idea”138 of co-operation and consideration. Common sense suggests that the duty applies to both sides, and as Cooke P stated:
[t]he duty to act reasonably and in the utmost good faith is not one-sided. For
their part the Maori people have undertaken a duty of loyalty to the Queen, full acceptance of her government through her responsible Ministers, and reasonable co-operation.139
It is important to note, however, that partnership was not meant to be equal.140 Indeed, on a closer examination, the principle of partnership does not entirely relate to the recognition of tikanga.
Perhaps the important principle of active protection raises the need for courts to recognise tikanga. The principle encompasses the Crown’s obligation to protect Maori interests.141 Primarily, courts considered this principle in association with property interests as guaran- teed in Article 2 of the Treaty. As mentioned earlier, it is the Crown’s duty to actively pro- tect Maori taonga. This legal topic was revisited in a Privy Council case in 1994 where it was held that whenever a taonga is threatened, the principle of active protection requires forceful action.142 At the most basic level, the case established that te reo Maori (Maori language) is taonga, the protection of which was guaranteed by Article 2 of the Treaty.143 In 1987, the Waitangi Tribunal emphasised in the Orakei Report that “taonga is not limited to property and possessions.”144 Both jurisdictions underline the Crown’s duty to assist in the legal prevention of deterioration of intangible Maori values. The crucial question is: Does the Crown have an obligation to actively protect tikanga Maori? In order to answer that question, we need to refer to the origin and meaning of the word “taonga.” Most dic- tionaries define the word “taonga” as property, or treasure, or something prised.145 Yet, others define taonga as things.146 Such a vast definition would include intangible things like customs. These various definitions do not clarify the subject but on closer inspection, the Maori understanding does. Maori interpret the term “taonga” in a more abstract man- ner, so it is likely to include intangible values such as “important customs.”147 Equally, according to the Te Rora Report,148 taonga includes not only tangible indigenous treasures like human remains, but also intangible things like important customs. Thus, the conclu- sion that tikanga is encompassed in the term “taonga” can be reached. From this, it follows that the Crown has the duty to actively protect tikanga if a particular statute references the Treaty principles. Although litigation started after 1987 when Parliament began to insert mandatory directions into statutes, the principles of the Treaty were not incorporated into any “body snatching” related statutes. Hence, the question remains whether courts should recognise tikanga in cases where statutes do not specifically mention the Treaty.
2. Recognition of Tikanga in Cases where Legislation is Silent
The Lands case explicitly left the issue of the status of the Treaty within New Zealand’s legislation to one side, but as jurisprudence has developed, it became apparent that Treaty principles are not directly enforceable in the courts unless they are incorporated into legis- lation by Parliament, because Parliament is the supreme lawmaking body under New Zea- land constitution.149 But should New Zealand courts not also recognise tikanga when the legislation is silent?
Twenty-two years ago, one particular High Court case strayed from the standard path. The judgment of Chilwell J in Huakina Development Trust v Waikato Valley Authority & Bo- water150 recognised Maori cultural values in a statutory context where the statute itself did not mention them, and thereby ascribed special significance to tikanga Maori. Chilwell J was convinced that the Planning Tribunal was obliged to consider Maori cultural and spiri- tual values when exercising its powers under the Water and Soil Conservation Act 1967.151 Since the Treaty is an international agreement, Chilwell J suggested that Parliament may be presumed to legislate in accordance with the Treaty or any other international obliga- tion.152 He emphasised the importance of there being “no doubt that the Treaty is part of the fabric of New Zealand society”153 because he believed that the Treaty is of “constitu- tional significance in the New Zealand legal system.”154 He characterised the Treaty as part of the backdrop of public policy against which legislation was to be interpreted. Chilwell J acknowledged that his earlier argument has not been convincing, so he drew parliamentary support for his findings by referring to sections of a parliamentary debate from 1975, in which the government plead in favour for the “statutory recognition and promotion of the full meaning of the treaty.”155 Additionally, he was able to underpin his findings by judg- ments of Cooke J in Metekingi156 and Turner SM in Keam.157 In general, Huakina revealed that the Treaty could be used to interpret statutes that did not refer to the Treaty. It is im- portant, however, not to overstate the effect of this case. The case is primarily an authority for the use of Treaty principles in the interpretation of legislation where the statute does not refer to it explicitly.158
Huakina is not the only case dealing with statutory provisions where the relevant legisla- tion did not refer to the Treaty principles. For example, in Attorney-General v New Zea- land Maori Council159 it was held that the Crown was bound to consider the Waitangi Tri- bunal’s recommendations before deciding whether to tender out radio frequencies.
1 Extended families.
2 Traditional, sacred meeting place of Maori people.
3 Awa v Independent News Auckland Ltd 1995 3 NZLR 701 (HC); affd1997 3 NZLR 594 (CA) [hereinaf- ter: Awa ].
4 He has recently been sentenced to two-and-a-half years’ jail for Tina’s manslaughter after injecting her with a fatal shot of morphine [ R v Cox unreported, HC Wellington, CRI-2008-035-549, 5 March 2009, Clifford J].
5 New Zealand Herald staff Injunction: Stolen body burial blocked by executor of will (Auckland, National, 6/3/2008) New Zealand Herald [hereinafter: NZ Herald staff]; no case reported.
6 Idem; N. Crombie Dispute over woman ’ s body resolved (Masterton, General News, 22/12/2007) Wairarapa Time Age p 1[hereinafter: Crombie].
7 He mentioned in his will that he wanted to be buried but did not specify where; J. Ihaka Burial rows give police cultural nightmare (Auckland, National, 4/5/2009) New Zealand Herald [hereinafter: Ihaka].
8 Clarke v Takamore unreported, HC Christchurch, CIV-2007-409-1971, 21 November 2008, Doogue J.P. 1 [hereinafter: Clarke v Takamore ].
9 This interim injunction on an ex parte basis was granted on 21 August 2007 by Panckhurst J referred to in Clarke v Takamore, idem.
10 Ihaka, supra n 7.
11 New Zealand Press Association Exhumation of body problematic (7/9/2007) Infonews.co.nz <http://www.infonews.co.nz/news.cfm?l=260&t=0&id=5726 (accessed 23/2/2009) [hereinafter: The Press]. A disinterment licence can be used when there is an agreement to exhume the body.
12 Letter from Hon Annette King to Jim Anderton, 25 February 2008 [hereinafter: Letter: King-Anderton ] given in Appendix five; Bettina Brandt interview with MP (National) John Hayes, (University of Otago, phone interview, 8. April 2009) [hereinafter: Interview with J. Hayes].
13 So-called “no property” rule: inter alia J.B. Robertson (main editor) Adams on Criminal Law (Wellington: Thomson Brookers, 2007) 3rd ed. para 1700 [hereinafter: Adams]; exemplified in more detail in the third chapter.
14 Crimes Act 1961, s219(1),(2). This matter will be considered more fully in the third chapter.
15 New Zealand Press Association Body snatching: New Police powers recommended (3/10/2008) stuff.co.nz <http://www.stuff.co.nz/print/4714812a11.html > (accessed 13/1/2009).
16 See, eg N. Tomas “Ownership of t p paku” (2008) NZLJ 233 [hereinafter: Tomas (2008)]; P.D.G Skegg “Medical Use of Corpse and the 'No Property' Rule” (1992) 32 Med. Sci. Law 311 [hereinafter: Skegg (1992)]; E. Binning Maori leaders must take charge: MP (8/3/2008) New Zealand Herald < http://www. nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10496914> (last accessed 8/4/2009) [hereinafter: Bin- ning]; New Zealand Press Association Coroner proposes “ body snatching ” law change (10/3/2008) New
17 Hereinafter this document is referred to as the Treaty of Waitangi, or simply the Treaty. This reference is intended to be a reference to both the Maori and English texts of this document.
18 M.S.R. Palmer The Treaty of Waitangi in New Zealand ’ s law and constitution (Wellington: Victory University Press, 2008) p 24 [hereinafter: Palmer].
19 The deceased may have misguided assumptions about burial instructions expressed in his/her will.
20 The term Pakeha describes New Zealanders of British origin.
21 According to the 2006 census, Christianity is the predominant religion in New Zealand, observed by 55.6% of the population (available to view at: <http://en.wikipedia.org/wiki/New_zealand>). Therefore, the thesis will contrast mainly Christianity and Maoridom. Islam and Judaism are discussed at suitable opportunities.
22 1987 1 NZLR 641 (HC & CA) [hereinafter: Lands case ]. The Judges expressed their reasons in five different, but consistent, judgments.
23 The Bill of Rights Act 1990 is not within the scope of this chapter.
24 B.A. Garner (main editor) Black ’ s Law Dictionary (St. Paul, MN: West, 2004) 8th ed. p 185.
25 University lecturers and their students around Europe, for anatomical studies, snatched corpses from graveyards because the only legal way to get a corpse for anatomical intentions was by regulatory action, and only the corpses of people who had been condemned to death and dissection by court were supplied for ana- tomical. For detailed information see, eg G. MacGregor The history of Burke and Hare and of the ressurec- tionist times ( Glasgow: T.D. Morison, 1884) p 14; S.C. Lawrence Beyond the Grave-The Use and Meaning of Human Body Parts: A Historical Introduction (Research paper, University of Nebraska Faculty Publica- tions, Department of History, 1998) p 111, 118 [hereinafter: Lawrence]; available to view at: <http://digitalcommons.unl.edu/historyfacpub/37> (accessed 12/11/2008).
26 Awa (HC), supra n 3.
27 Idem. Mr Awa, an uncle of Billy T. James claimed that he had been defamed in a newspaper article describing him as “Billy’s body-snatching Uncle Bill”. That was a reference to an incident where Awa took the body of his nephew from his home against the wishes of his widow, so that he could bring him to a marae, where the body could lie for a period of mourning before being buried.
28 Awa (HC), supra n 3 at 590.
29 As some academics criticized. For example, the Maori Law Review [ Awa v Independent News Auckland Limited (1997) 2-3] points out that the Human Rights Act 1993 and the law of defamation do not set “an acceptable response to the problem confronting a bicultural nation”. They believe that the judges failed to acknowledge tikanga Maori. Consequentially, Maori status as the tangata whenua of Aotearoa is in jeopardy.
30 Encyclopaedia.com Oldest Discovered Burial Site <http://www.encyclopedia.com/doc/1G2-3406300011. html> (last accessed 1/5/2009).
31 For example, both orthodox Jews and Muslims emphasize the importance of treating the dead body with dignity and that the norm should be to bury the entire body as swiftly as possible, see S. McGuinness & M. Brazier “Respecting the Living Means Respecting the Dead too” (2008) 28 Oxford Journal of Legal Studies 297, 307 [hereinafter: McGuinness & Brazier].
32 Statistics New Zealand (Tatauranga Aotearoa) available to view at: < http://www.stats.govt.nz/people/ population/subnational-ethnic-population-projections/Maori.htm > (accessed 12/12/2008).
34 E. Best Maori Eschatology (Christchurch: Kiwi Publisher, 1998) p 2 [hereinafter: Best]; A.W. Reed Reed Book of Maori Mythology (Wellington: Reed Publishing NZ, 2004) p 3-23 [hereinafter: Reed].
35 Best, ibid, at 69. Hinetitamata is dreaded as the goddess of death
36 H.M. Mead Tikanga Maori- Living by Maori Values (Wellington:Huia Publishers, 2003) p 149 [hereinaf- ter: Mead].
37 Department of Health (NZ) The Undiscover ’ d Country- Customs of the cultural and ethnic groups of New Zealand concerning death and dying (Wellington: The Department, 1987) p 3 [hereinafter: Department of Health].
38 G. George Ko ng whakapepeha me ng whakaahuareka a ng tipuna o Aotearoa/ Proverbial and popular sayings of the ancestors of the New Zealand race (Christchurch: Kiwi Publisher, 2004) p 80.
39 Usually abbreviated to “tangi”.
40 J. Moorfield Te Pihinga: pukapuka t taki: study guide (Auckland: Longman, 2003) 2nd ed. 80-82; J. Moorfield Te M huri: pukapuka t taki: study guide (Auckland: Longman, 2004) 1st ed. 56-57.
41 R.S. Oppenheim Maori Death Customs (Wellington: A.H. & A.W. Reed, 1973) p 48 [hereinafter: Oppen- heim].
42 Mead, supra n 36 at 137.
43 Oppenheim, supra n 41 at 22; Continuing Education Unit Radio New Zealand Whaikoorero- Ceremonial Farewells to the death (Wellington: The Unit, 1981) p 3.
44 Tomas (2008), supra n 16 at 233.
45 Note that the practices and protocols can differ from tribe to tribe, but the ceremony is similar throughout Maoridom.
46 Tomas (2008), supra n 16 at 223.
47 Nowadays, tangihanga are also held at private residences and funeral parlours.
48 Department of Health, supra n 37 at 8.
49 Interview with J. Hayes, supra n 12.
50 Letter from Ranginui Walker to Jim Anderton, 25 September 2007 [hereinafter: Letter: Walker-Anderton ].
51 K rero Maori; available to view at: <http://www.k rero.Maori.nz/forlearners/protocols/tangi.htlm> (ac- cessed 4/2/2009).
52 Traditionally the t p paku is laid upon mats of woven or plaited fibres of New Zealand flax, or of kiekie (a climbing plant with leaves which contain a strong fibre).
53 Best, supra n 34 at 41.
54 Oppenheim, supra n 41 at 93; Mead, supra n 36 at 147; Reed, supra n 34 at 91.
55 Mead, ibid, at 42; M. Pomare & J. Cowan Legends of the Maori (Vol. 1) (Wellington: Fine Arts, 1930- 1934) p 48.
56 Tomas (2008), supra n 16 at 235.
57 Department of Health, supra n 37 at 5.
58 Traditionally, about a week after death, see BBC Home; available to view at: <http://www.bbc.co.uk/ reli- gion/religions/christianity/ritesrituals/funerals.shtml> (accessed 4/2/2009).
59 Tomas (2008), supra n 16 at 233. There is no law on this order in New Zealand, see below p 56-69.
60 Department of Health, supra n 37 at 29.
61 Tomas (2008), supra n 16 at 233.
62 P.C. Jupp “Religious Perspectives on the Afterlife: Origin, Development and Funeral Rituals in the Christian Tradition” in B. Brooks-Gordon (main editor) Death Rites and Rights (Oxford and Portland, Oregon: Hart Publishing, 2007) p 100.
63 For a valuable discussion, see Mead supra n 36 at 183, 215.
64 S. Laulainen Tangihanga: Maori Funerals Essay (Henry Cogswell College, 2004) p 3; available to download at: <http://www.sorenlaulainen.com/Writings/Maori%20Funerals.pdf> (accessed 12/11/2008) [hereinafter: Laulainen].
65 Best, supra n 34 at 21.
66 J. Matenga-Kohu & J. Roberts Tangihanga- Maori burial rituals (Cambridge NZ: Wotz Wot, 2006) p 6 [hereinafter: Matenga-Kohu & Roberts].
67 Since nowadays many Maori are Christians, it needs to be acknowledged that the comparison concerns Maori and European culture.
68 Other commonalities between the two funeral rituals are related to clothing. For both funeral ceremonies, black is the traditional colour for attendees. Usually, the deceased’s body is dressed in its finest clothing for the ceremony, see Laulainen, supra n 64.
69 Since, amongst other things, most churches in New Zealand are very bi-cultural, for example the Anglican Church, Maori are familiar with the Christian funeral ceremony.
70 Matenga-Kohu & Roberts, supra n 66 at 12.
71 Lands case, supra n 22 at 662.
72 Treaty of Waitangi Act 1975, s6. For further discussions, see Te Runanga o Ngai Tahu v Waitangi Tribunal 2002 2 NZLR 179 (CA).
73 This chapter will provide an abstract of the meaning of tikanga Maori. For a valuable discussion, see N. Tomas Key Concepts of Tikanga Maori (Maoris Custom Law) in Tai Tokerau past and present (PhD Thesis, University of Auckland, Law Faculty, 2004) p 28-29; available to download at: <http://www.law.auckland. ac.nz/uoa/fms/default/law/docs/Nin_Tomas_PhD.pdf > (accessed 4/2/2009) [hereinafter: Tomas (phd)], Mead, supra n 36 at 34.
74 The Law Commission Te Aka Matua O Te Ture Study Paper 9- Maori Custom and Values in New Zealand Law (Wellington: Law Commission, 2001) para 68-76; available to view at: <http://www.lawcom.govt.nz/ UploadFiles/Publications/Publication_112_288_SP9.pdf> (accessed 4/2/2009) [hereinafter: Study Paper 9].
75 New Zealand’s largest iwi, the house of Ng puhi stretches from T maki Makaurau in the south to Cape Reinga in the north.
76 Who can trace ancestry to a common but remote figure.
77 Statistics New Zealand (Tatauranga Aotearoa) available to view at: <http://www2.stats.govt.nz/ domi- no/external/Web/carsweb.nsf/94772cd5918085044c2567e6007eec2c/24c382c1c1d4ba31cc256a41007d0cd6? > (accessed 13/11/2008).
78 T. Gallagher Tikanga Maori Pre-1840 in O. Mercier & T Biddle Te K hui Kura Maori, Volume 0, Issue 1 (Wellington: Schools of Maori Studies Assembly, 2008).
79 This allowed for common tikanga, not only within internal hap , but also at a regional level (Study Paper 9, supra n 74 at para 236).
80 J. Macalister Dictionary of Maori Words in New Zealand English (Melbourne, Auckland: Oxford University Press, 2005) p 134.
81 See, eg Tomas (2008), supra n 16 at 235.
82 Mead, supra n 36 at 137.
83 Ibid, at 6.
84 Ibid, at 12.
85 B. Briggs [“Humpty-Dumpty on the Treaty of Waitangi” in IH Kawharu Waitangi: Maori & Pakeha Pers pectives of the Treaty of Waitangi (Auckland: Oxford University Press, 1989) p 300, 309] claims that “rights” is not a fair translation of tikanga (and vice versa) [hereinafter: Briggs].
86 Discussion between the Law Commission and Bishop Bennett, 19 February 2001, Rotorua; printed in Study paper 9, supra n 74 at para 70.
87 Ibid, at 11.
88 See, eg E. Shortland The Southern Districts of New Zealand: A journal (London: Longman, Brown, Green and Longmans, 1851) p 95.
89 New Zealand Ministry of Maori Development He tirohanga kawa ki te Tiriti o Waitangi (Wellington: Te Puni, 2001) p 28-29[hereinafter: Tiriti o Waitangi ].
90 Palmer, supra n 18 at 31.
91 Which implies that a treaty is “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” New Zealand is a signature to the Vienna Convention on the Laws of Treaties and is cognitive of its obligations from the treaty.
92 J. Williams ”Chapman is wrong” (1991) NZLJ 373, 374. It is ambiguous whether the Treaty is a valid international, bilingual Treaty of cession. For a valuable discussion, see B. Kingsbury “The Treaty of Wai- tangi some international law aspects” in I.H. Kawharu Waitangi: Maori & Pakeha Perspectives of the Treaty of Waitangi (Auckland: Oxford University Press, 1989) p 121-149 (proponent); Palmer, supra n 18 at 164 (opponent).
93 For a critique of the case, see B.V. Harris “The Treaty of Waitangi and the Constitutional Future of New Zealand (2005) NZLR 189 [hereinafter: B.V. Harris]; G. Chapman “The Treaty of Waitangi- fertile ground for judicial (and academic) myth-making” (1991) NZLJ 228, 230. He states that the Treaty, alone is not the document, which New Zealand sovereignty rests upon. In this article, he slashes the meaning of the Treaty conscious that recent cases strengthened the recognition of Treaty rights.
94 The original Treaty text was in English. In February 1840 Henry Williams translated the text into Maori and then again back into English, which became the official version of the Treaty. Williams himself later observed in a letter [Public Record office, London, CO 209/7 (17 February 1840) 13-15] to Governor Gipps: “I certify that the above is as literal a translation of the Treaty of Waitangi as the idiom of the language will admit of;” available to view at <http://www.treatyofwaitangi.net.nz/Ruth Ross.html> (accessed 1/5/2009).
95 Briggs, supra n 85 at 311.
96 New Zealand Maori Council v Attorney-General 1994 1 NZLR 513 (PC) [hereinafter: NZ Maori Council v Attorney-General (1994)].
97 For a more valuable discussion, see Tiriti o Waitangi supra n 89 at 38-39.
98 Palmer, supra n 18 at 81; Palmer draws a parallel to the fact that British government was able to exercise power in New Zealand without all chiefs having signed the Treaty.
99 Ibid, at 671.
100 State-Owned Enterprise Act 1986, s9.
101 Hoani Te Heuheu Tukino v Aotea District Maori Land Board 1941 NZLR 107 (SC and CA); and (1941) NZLR 590; (1941) AC 308 (PC) [hereinafter: Te Heuheu ]; endorsed by the Lands case, supra n 22 at 655.
102 (1847) NZ PCC 387.
103 Ibid, at 396.
104 D.V. Williams “The Queen v Symonds reconsidered” (1989) 19 V.U.W.L.R 385, 391.
105 (1877) 3 NZ Jur (NS) 72 [hereinafter: Wi Parata ].
106 Today very little land is held under Maori customary title for Maori were encouraged by the Crown to have their titles converted into statutory property rights under the Native Land Act 1865.
107 Wi Parata, supra n 105 at 78.
108 Nireaha Tamaki v Baker (1901) AC 561; (1901) NZPCC 371. This case uphold the part of Wi Parata which held that native title matters involving Crown fall within the Crown’s prerogative powers, and so can be excluded by the Crown from the jurisdiction of the courts.
109 Ibid, (NZPCC) at 382.
110 Wi Parata was finally overruled by Attorney-General v Ngati Apa & others 2003 3 NZLR 643 (CA) as a matter of judge-made law. The case turned on indigenous custom forming part of the common law of the state. For a valuable discussion, see D.V. Williams “Wi Parata is Dead, Long Live Wi Parata” printed in C. Charters & A. Erueti (editors) Maori Property Rights and the Foreshore and Seabed (Wellington: Victoria University Press, 2007) p 31-58; J.W. Tate “Tamihana Korokai and Native Title: Healing the Imperial Breach” (2005) 13 Waikato LR 109-144.
111 See, eg Calder v Attorney-General of British Columbia (1973) 34 DLR 145.
112 Te Heuheu (supra n 101 at 596) is still the most recent judgment by New Zealand’s highest court to consider directly the legal status of the Treaty. For examples of contemporary statutes, see J. Ruru “Treaty of Waitangi principles 20 years on” (2007) NZLJ 87, 88.
113 Today, Parliament has explicitly commanded powers in relevant statutes. For a critique of the case, see A. Frame “Hoani Te Heuheu’s Case in London 1940-1941: An Explosive Story” (2006) 22 NZULR 148, 165.
114 F.M. Brookfield “The New Zealand Constitution: The Search for Legitimacy” 11, 12 in I.H. Kawharu Waitangi: Maori & Pakeha Perspectives of the Treaty of Waitangi (Auckland: Oxford University Press, 1989).
115 1986 1 NZLR 680; (1986) 6 NZAR 114 (HC) [hereinafter: Te Weehi ]. For a valuable discussion, see P.G. McHugh “The legal basis for Maori claims against the Crown” (1988) 18 V.U.W.L.R. 1-20 [hereinafter: McHugh].
116 P ua is the Maori name for abalone, which is a univalve shellfish that lives in rocky, coastal areas at depths between one and fifteen metres.
117 Section 88(2). The section reads: “Nothing in this Act shall affect any Maori fishing rights”.
118 Te Weehi, supra n 115 at 682. More recently, the Court of Appeal reaffirmed the place of Aboriginal title in the common law of New Zealand (Te Runanganui o Te Ika Whenua Inc Society v Attorney General 1994 2 NZLR 20 (HC)).
119 Study Paper 9, supra n 74 at para 364.
120 P.B. Temm QC in E.T.J. Durie (et al.) The Treaty of Waitangi: New Zealand Law Society Seminar (Wellington: The Society, 1989) p 2 [hereinafter: Temm QC].
121 Wi Parata, supra n 105 at 78.
122 For a valuable discussion on Cabinet decisions on the Treaty, see Palmer, supra n 18 at 130-147.
123 Lands Case, supra n 22.
124 (1992) 175 CLR 1.
125 (1997) 3 SCR 1010.
126 Worcester v State of Georgia, 31 U.S., 6 Pet. 515 (1832).
127 State-Owned Enterprise Act 1986, s23(1).
128 Before then the Treaty of Waitangi Act 1975 was the only other statute using the phrase “the principles of the Treaty of Waitangi,” see Preamble, Treaty of Waitangi Act 1975, s6(1)(d), 8(1), 8A(2)(a)(ii) and 8HB
129 Lands Case, supra n 22 at 661-667.
130 Idem. Subsequent cases have refined what the principles of the Treaty of Waitangi are, see eg New Zealand Maori Council v Attorney-General 1989 4 NZLR 142 (CA) [hereinafter: NZ Maori Council v AttorneyGeneral (1989) ]; NZ Maori Council v Attorney-General (1994), supra n 96.
131 NZ Maori Council v Attorney-General (1994), idem.
132 Ibid, at 667.
133 It was referred to not only by Cooke P but Richardson J (ibid, at 682) and Somers J (ibid, at 693).
134 Ibid, at 703 (per Casey J).
135 Lands Case, supra n 22 at 664 (per Cooke P) and 703-704 (per Casey J).
136 B. Mason “The Principle of 'Partnership' and the Treaty of Waitangi” (1993) PANZ Monograph Series Number 6, 4 [hereinafter: Mason].
137 Idem, with reference to the Court of Appeal’s warning against a fifty-fifty model of partnership in Mahuta and Tainui Maori Trust Board v Attorney-General 1989 2 NZLR 513, 527 (CA). Palmer (supra n 18 at 79- 81), suggest that public power was shared between Maori chiefs and the Crown in the 19th century. How- ever, he admits that the terms on which the shared power was exercised were unspecific both in reality and the Treaty, and Parliament and Cabinet were controlled by British settlers and backed by the British Army. This lead to the assumption that the power was not equally shared between Pakeha and Maori.
138 Mason, supra n 136 at 13.
139 Ibid, at 664.
140 NZ Maori Council v Attorney-General (1989), supra n 130 at 152.
141 Tiriti o Waitangi, supra n 89 at 93.
142 NZ Maori Council v Attorney-General (1994), supra n 106.
143 Ibid, at 519. Additionally, several Waitangi Tribunal Reports brought the concept of taonga into the na- tional politics discourse; see, eg Waitangi Tribunal Motonui-Waitara Report. (Wai 6, 1983) p 50; Kaituna River Report. (Wai 4, 1984) p 13; Manukau Report. (Wai 8, 1985); Wananga Capital Establishment Report. (Wai 718, 1999).
144 Waitangi Tribunal, Orakei Report. (Wai 9, 1987) p 188; other Waitangi Tribunal Reports that emphasised that taonga may be more then objects of tangible value are the Manukau Claim. (Wai 8, 1985) and the Te Reo Maori Claim. (Wai 11, 1989).
145 J.C. Moorfield Te Aka: Maori-English, English-Maori Dictionary (Auckland: Pearson Longman, 2005) p 154; E. Tregear The Maori-Polynesian Comparative Dictionary (Christchurch: Cadsonbury Publications, 2001) p 468.
146 P.M. Ryan The Dictionary of Modern Maori (Auckland: Heinemann Education Books, 1971) p 301.
147 Tiriti o Waitangi, supra n 89 at 39; Tomas (2008), supra n 16 at 236.
148 Waitangi Tribunal Te Rora Report. (Wai 38, 1992) para 6.2 [herinafter Te Rora Report ].
149 Te Heuheu, supra n 101; for more valuable information, see Palmer, supra n 18; P. Spiller, J. Finn & R. Boast A New Zealand Legal History (Wellington: Brookers, 2001) 2nd ed. p 123-185 [hereinafter: NZ Legal History].
150 1987 2 NZLR 188; (1987) NZTPA 129 (HC) [hereinafter: Huakina ].
151 Ibid (NZLR), at 196. He found statutory support in the Town and Country Planning Act 1977. Recognising Maori customs and values, this Act operates in close conjunction with the relevant Water and Soil Conservation Act. Hence, Chilwell J pointed out that both Acts “have to be complied with” (Huakina ibid, at 210), resulting in the circumstance that the Water and Soil Conservation Act has to be interpreted in accordance with the Treaty of Waitangi.
152 Ibid, at 215-217. However, Chilwell J avows that those obligations are of more moral force than legal force.
153 Ibid, at 210.
154 Ibid, at 196.
155 Idem, referring to (1975) 401 New Zealand Parliamentary Debate 4342 (Hon Matiu Rata).
156 Metekingi pp Atihau-Whanganui Inc v Rangitikei-Wanganui Regional Water Board 1975 2 NZLR 150; 5 NZTPA 330 (SC).
157 Keam v National Water and Soil Conservation Authority (1979) 7 NZTPA 11.
158 McHugh, supra n 115 at 1; Palmer, supra n 18 at 204-205.
159 1991 2 NZLR 129 (CA).
160 1997 3 NZLR 179 (HC) [hereinafter: BP v D-GSW).  (1920) AC 198 [hereinafter: Arani ].
162 For a valuable discussion, see D. Baragwanath “The Evolution of Treaty Jurisprudence” (2007) 15 Waikato LR 1, 3-5 [hereinafter: Baragwanath].
- 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