Overview of Part 4
Context and background
13.5In all common law countries, disputes over the body have become more frequent over the last century as cultural and religious diversity within families increases, and family arrangements and relationships become more complex. Changing social attitudes towards death mean that people may now expect a greater level of control over their own post-death arrangements. The emergence of a professional funeral industry has decreased the level of direct family involvement in preparation of the body. However, increasingly death and bereavement literature is recognising that it is crucial for family to be involved in the post-death period in some way, in order to facilitate the grieving process and bring closure. In turn, courts and academics have begun to become increasingly aware of the effect of these disputes on survivors, their effect on the exercise of cultural and religious rights, and the implications for the dignity of deceased persons.
13.6 Burial decisions or decisions concerning care and custody of the body arise at a time of high emotions and sometimes stress. The reasons why family and friends of the deceased might disagree over such decisions have been explored in depth by Conway and Stannard. Cultural and religious beliefs could be involved. The particular parties who are in dispute could include people related or unrelated to the deceased by kin and could be members of a single family (such as siblings) or two different families (such as the deceased’s partner and the deceased’s family of birth).
13.7 New Zealand has seen only a small number of burial disputes litigated in court, and on a narrow range of facts. But given New Zealand’s increasing ethnic diversity, and diversity of cultural and religious beliefs towards death and how it should be responded to, it is reasonable to assume that burial disputes will continue to occur. People may also be increasingly prepared to challenge burial decisions in light of judicial endorsement in Takamore v Clarke of the supervisory role of the High Court. It is timely, then, to consider whether the existing common law is principled and fit for purpose.
Burial disputes involving Māori and PākehāTop
13.8 An important discussion in this Part concerns burial disputes involving both Māori and Pākehā and involving application of tikanga Māori/Māori customary law, which may be particularly complex and legally difficult. During the preliminary stages of this review, a legal dispute involving tikanga Māori was being heard at three levels of the New Zealand courts. The number of people who identify as both Māori and Pākehā, and the number of families/whānau containing both Māori and Pākehā members, may mean that legal disputes raising tikanga Māori will continue to arise in future.
13.9Māori and Pākehā cultural practices and responses to death differ, which can create a risk of cultural misunderstanding. In Pākehā cultural tradition a proper burial within a relatively short timeframe is assumed to help people achieve closure and facilitate the mourning process. It can be viewed as unseemly or disrespectful to argue over the body of a dead person. In tikanga Māori settings, by comparison, it may be several days before the body is finally buried. There may be debate and discussion over the final resting place of the body, a process that places great significance on the deceased’s whakapapa links and which is considered to pay respect to the deceased’s mana and the mana of their whānau.
13.10That is not to suggest that disagreement over the burial location only ever arises where the deceased or their family is Māori. But a key difference may be that tikanga Māori provides an opportunity for those related to the deceased to claim the entitlement to bury the deceased’s body in their tribal area, which may also involve moving the body to a different marae or temporary resting place. Where this happens it tends to attract public attention, and sometimes cultural misunderstanding of the principles and values that lie behind that process.
13.11The potential for this cultural misunderstanding to afflict families/whānau with both Pākehā and Māori members has been expressed in research carried out at Waikato University:
Theoretically, whānau/family of dual cultural origin may enjoy the resources of two cultural communities which afford choices of rituals from two cultural worlds. However, the potential for conflict, tension and misunderstanding cannot be ignored. These families may be required to negotiate two sets of cultural values, beliefs and expressions within their bereavement. Inevitably, failure to negotiate these issues satisfactorily may have a huge impact upon bereaved families and the means by which they are supported within their grief.
13.12Not only are those disputes difficult because of their cultural dimension, they are also legally complex as they raise the debate around the status of tikanga Māori and its place in the law.
13.13Under common law if survivors disagree, the burial decision is made by a single person (the executor). Common law judges actively discourage disputes and repeatedly emphasise the need and desire for cases to be decided swiftly. In contrast, Māori customary law facilitates and encourages discussion and argument over the place of burial. The emphasis is on collective discussion and debate in deciding where the deceased will lie.
13.14This Issues Paper occurs against the background of continuing debate on the interaction between Māori customary law and common law. The Supreme Court’s treatment of tikanga in Takamore v Clarke has sparked fresh discussion, although the debate extends beyond burial decisions. Accordingly, in considering options for statutory reform, we have tried to leave space for those debates to unfold. We recognise that tikanga can be both custom and law and we wish to leave space for both those things within any new statutory regime. With the assistance of the Law Commission’s Māori Liaison Committee, we have tried to assess the implications of the options for statutory reform on tikanga Māori, and have tried to draw on legal concepts and institutions, which may be well placed to take account of Māori customary law in burial disputes.
Other kinds of disputesTop
13.15After death, decisions as to what ceremonies or rituals to carry out will also be required. Other decisions after the immediate post-death period has passed include how to memorialise the deceased and how to handle any ashes. Less frequently, the survivors of the deceased might also be required to consider possibly disinterring the body or interring another body in the same plot.
13.16In this Issues Paper we primarily examine the potential for disputes over burial (encompassing burial location or the decision of whether to bury or cremate the body). However, because we are directed to consider “care and custody” of the body more broadly, we also consider other kinds of decisions that arise (for example decisions as to memorialisation).
13.17There are few reported burial disputes on these secondary decisions in New Zealand. Courts in other jurisdictions have heard a range of disputes on such topics including:
- whether the ashes of the deceased’s body should be divided between family members;
- who decides what headstone is placed on the grave of the deceased; and
- whether the deceased’s remains should be exhumed from a municipal cemetery and reinterred in a Jewish cemetery.
13.18Disputes over donations of organs or bodies fall outside the scope of our review. These are dealt with under the Human Tissues Act 2008 and related policies and guidelines.