The responsibility to decide as to the disposal of the body where there is dispute is inescapably that of the Court on application made to it.
Although the position of a court asked to resolve such differences is not a comfortable one, there is nothing particularly unusual in that. Courts not infrequently have to decide between positions that are not readily comparable.
17.4It will probably be unusual for most disputes to reach this stage. We expect that most disputing survivors are likely to want to resolve the dispute between themselves, “in the shadow of the law”, and in a way that suits their family circumstances. Nonetheless, on the occasions that disputes do reach the courts, the courts should be able to resolve them appropriately.
17.5The question we explore in this chapter is whether the High Court is accessible for parties who need it and whether it is well-placed, under the current common law framework, to decide burial disputes. We set out options for reform that might make the court system more accessible and effective for parties in dispute, including in disputes involving tikanga Māori. We also discuss potential remedies at the end of this chapter.