Chapter 14
New Zealand law on care and custody of the body

Tikanga Māori concerning care and custody of the body

14.10Tikanga Māori contains a set of distinctive practices and principles that deals with care and custody of a deceased’s body, organisation of final burial arrangements, and decision-making among whānau, hapū and iwi of the deceased. These processes begin to unfold immediately upon death and continue throughout the tangihanga (tangi) held for the deceased.544
14.11 It is important in tikanga Māori to maintain the strength of the deceased’s whakapapa (genealogical) connections with past ancestors and future descendants. As a result it is expected that the deceased will be buried in their ancestral lands or the place of their birth. This is not a rigid rule.545  In contemporary times, many Māori are born or live outside of their tribal territories, and this can affect the outcome of the decision as to burial location and sometimes also whether burial or cremation is chosen.546
14.12 The process of reaching decision is important. Emphasis is placed on giving adequate expression to core underpinning values, including maintaining whakapapa connections and allowing time for debate and discussion.547  The final decision might be reached by way of consensus, compromise, or acquiescence; or by one party exercising greater influence or willpower over the other; but there is usually an emphasis on all present “owning” the decision.548  It is important that any conflict is not left unresolved, or it is thought that the wairua (spirit) of the deceased will linger and the passage of the deceased to the status of ancestor will remain incomplete.549  Complete spiritual death only occurs once the tangihanga and its rituals have been properly concluded.

Rituals at the tangihanga

14.13 Tangi can last several days and involve large numbers of people travelling from all over the country to pay their respects to the deceased.550  They frequently include lengthy discussion or debate as to the most appropriate burial location for the deceased.
14.14 One of the rationales for the tangi is to provide an opportunity for members of the deceased’s whānau and hapū from both near and further afield to make a claim for the deceased to be buried in their own home territory or in a specific place.551  This is important to avoid breaking the continuity of whakapapa lines and to reinforce whanaungatanga values.552  Having the deceased in home territory also strengthens the mana of the family group by drawing their descendants back to them.553  Claiming the body of the deceased is also necessary to recognise the mana of the deceased or their family. It is considered a compliment and a mark of respect, as noted by Nin Tomas:554

Without passionate displays and claims of whanaungatanga and whakapapa to raise the mana of the deceased and proclaim ancestral worth, how can his or her ongoing value as part of the community be acknowledged?

14.15The process of coming to the tangi to make a claim for the body of the deceased also challenges the local hapū to demonstrate that they will properly care for the deceased in its final resting place and will fulfil their ongoing responsibilities.

14.16Claims may range in intensity. They may be made merely out of politeness and respect to the deceased. At other times the claim may give rise to heated disputes of a proprietary nature over the body of the deceased, and the body may be moved to a different marae for burial in a different urupā.555  Speaking up and insisting on one’s claim to the deceased may be important, as walking away or remaining silent can sometimes be seen as implicit acceptance that the claiming party may take the body.556  However, the party who succeeds in their claim may face obligations and conditions that continue for generations after the burial location has been decided.

14.17It is important for someone with knowledge and expertise in tikanga to manage the process to avoid causing unnecessary distress. This could be a kaumātua (elder) who is experienced in tikanga matters and who is able to take into account long-term considerations and ensure tikanga is upheld, not only for surviving hapū and iwi members but also for their ancestors and descendants.

544See generally Linda Waimarie Nikora, Bridgette Masters and Ngahuia Te Awekotuku “Final Arrangements following Death: Maori Indigenous Decision Making and Tangi” (Māori and Psychology Research Unit, University of Waikato, 13 March 2012). See also Kiri Edge and Linda Waimarie Nikora Different Coloured Tears: Dual Cultural Identity and Tangihanga (Tangi Research Programme Working Paper 2, Māori and Psychology Research Unit, University of Waikato, January 2010).
545See the discussion of what happened after the death of Prince Tui Teka in 1985: Nin Tomas “Who Decides where a Deceased Person will be Buried – Takamore Revisited” (2008–2009) 11–12 Yearbook of New Zealand Jurisprudence 81.
546Note that Māori living overseas may be more likely to choose cremation as ashes are more easily transportable back to New Zealand.
547Tomas, above n 545, at 92.
548See for example the summary of Tūhoe tikanga in Clarke v Takamore [2010] 2 NZLR 525 (HC). A body may be taken “through cunning, courage and determination and willpower that it is the right thing to do.” The tūpāpaku must be given an appropriate tangihanga and burial afterwards and the party that took the body may be required to “provide something to reciprocate and satisfy the aggrieved party”: at [57].
549Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) at 147–149.
550See ch 2.
551Tomas “Who Decides where a Deceased Person will be Buried – Takamore Revisited”, above n 545, at 92.
552Nin Tomas “Ownership of tūpāpaku” [2008] NZLJ 233 at 235. Whanaungatanga is a tikanga value expressing the importance of relationships between all things including between people, between people and the physical world, and between people and spiritual entities.
553At 235.
554At 233.
555Tomas “Who Decides where a Deceased Person will be Buried – Takamore Revisited”, above n 545, at 92.
556Tomas “Ownership of tūpāpaku”, above n 552, at 235.