Chapter 21
A statutory framework for burial decisions

Tikanga Māori and the new framework

21.20We have also noted that this review requires consideration of how the proposed new statutory framework will affect the practice of tikanga Māori. Tikanga in relation to burial varies depending on locality, but some common principles and practices apply. In particular, it is important that the tūpāpaku be accompanied by relatives to a marae or family home and that it not remain alone. If a tangi is held on a traditional marae, it may last several days, and people will come from far away to pay their respects to the deceased and the whānau and hapū.

21.21The tangi also provides a process for visitors to make a tono, or a challenge, for the right to bury the deceased body in a desired location. The tono allows different members of the deceased’s hapū, or multiple hapū if the deceased belonged to many hapū, to make a claim for the deceased to be buried in their home territory. This upholds whakapapa lines with the deceased, strengthens the family group and recognises the mana of the deceased and their family. Challenging for the right to bury the body is considered a tribute and a mark of respect. In rare cases, those making the tono may remove the body from the marae and take it elsewhere.

Submitters’ views

21.22A number of submitters commented on the need for tikanga to be considered within the design of the law. Te Rūnanga o Ngāi Tahu submitted that tikanga Māori should be a relevant and weighty consideration in any case involving Māori customary law and that dispute resolution processes should be as fair and sympathetic to the values of tikanga Māori as possible.

21.23It was emphasised at one of our public meetings that burial and cremation law must not be considered in isolation of wider issues to do with fulfilment of obligations under the Treaty of Waitangi and the expression of tino rangatiratanga. The Public Issues Network of the Methodist Church of New Zealand submitted that the Treaty provides “a plumbline for values and respect for tikanga Māori” and should provide the basis of the framework. Researchers based within the Tangi Research Programme at Waikato University said that the Treaty of Waitangi gives a voice to Māori interests within the social and legal landscape and should be applied here “with deep thought and concern”.

21.24Some submissions, such as the Ngāi Tahu Māori Law Centre and the Ōtautahi Māori Women’s Welfare League, strongly supported legislative reform because they felt that it would be a means to ensure tikanga is better reflected in the law than it is now, but some submitters were also concerned that statutory reform would have a harmful effect on tikanga—that it would stifle it and prevent it from operating.

Our approachTop

21.25There is ongoing discussion about how tikanga values and practices are or should be expressed in the law.436 It is clear that tikanga must be recognised in New Zealand’s law on burial, and we recommend it be expressly referred to in the statutory framework. We have sought to design a framework that, to the greatest extent practicable, enables whānau, hapū and iwi to make decisions in accordance with tikanga wherever this is appropriate in the circumstances.

21.26In the following chapters, we set out how we propose to reconcile the need for legal certainty with flexibility and cultural responsiveness, including a particular recognition of tikanga Māori.

436See, for instance, Natalie Coates “What does Takamore mean for tikanga? – Takamore v Clarke [2012] NZSC 116” (2013) February Māori LR; and Nin Tomas “Recognizing Collective Cultural Property Rights in a Deceased – Clarke v Takamore” (2013) 20 International Journal of Cultural Property 333.