Chapter 24
The role of the courts

Which courts should exercise jurisdiction?

24.4For the reasons set out in the following paragraphs, we recommend that the High Court, the Family Court and the Māori Land Court should each have statutory jurisdiction to hear burial disputes.

24.5Each court has particular attributes that will suit particular disputes. The High Court has the ability to deal quickly with legal questions and can provide injunctive relief. The Family Court can apply a less formal approach that, in many cases, will be better suited to burial disputes. The Māori Land Court can deal with those burial disputes that require a deep understanding of tikanga.

24.6Our recommendations therefore do not remove the High Court’s jurisdiction to hear burial disputes. Rather, they clarify that jurisdiction in statute, and they confer concurrent statutory jurisdiction on other courts in order to provide a greater range of options for court-based dispute resolution to the general public.

24.7We do not expect that these proposed changes will increase the number of court applications. Our proposed statutory provisions concerning deceased’s representatives and executors should reduce disputes by clarifying who has rights to make decisions and who has obligations to dispose of the body, by providing for the deceased person to appoint a decision-maker before their death and by establishing the matters that must be considered when making post-death decisions. Bereaved families will continue to treat the courts as a measure of last resort. The court will have discretion to refuse to hear proceedings that are brought for frivolous or vexatious reasons. We think it extremely unlikely that any of the courts would face a significant increase in workload as a result of our proposed changes.

The High Court

24.8The High Court currently exercises jurisdiction over burial disputes under its inherent jurisdiction.477 We make no recommendations for change to that position except to set out the jurisdiction of the High Court in statute and clarify the matters that the Court should take into account when hearing civil proceedings of this kind.

The Family CourtTop

24.9We noted in Issues Paper 34 that family matters lie at the heart of most burial disputes and that, in many respects, the Family Court seems an obvious forum to hear many of these disputes. Family Court judges are used to hearing matters of a highly personal nature that may also have significant implications, such as child custody orders. Sometimes, these require speedy decisions, for instance, where there is a risk of child abduction.478

24.10The Family Court’s existing work provides a good model for determining who should make funeral, burial and cremation decisions or for reviewing a decision that has been made. The rules by which the Family Court operate and the ability of Family Court judges to ask questions directly of the parties are likely to align with the way that many people might choose to deal with a burial dispute. For many people, the process is likely to be important, and the main concern for someone may be that his or her voice is heard within the decision-making process.

24.11In our view, therefore, the Family Court should have statutory jurisdiction over burial disputes. Roughly 90 per cent of submitters who answered this question in Issues Paper 34 supported this proposal.

24.12We note that some aspects of Family Court processes have recently been reformed. The review, initiated by the Minister of Justice in 2011, sought to return judges of the Court to a more judicial rather than therapeutic function, in other words, making decisions rather than attempting to reconcile the parties.479 The Cabinet paper said that “reconciliation services have a place in resolving family disputes for those who choose them, but that place is in the community, not in the Court”.480
24.13We have sought to make our proposal for Family Court jurisdiction consistent with this approach. We make recommendations that may help disputes to be resolved outside of court as far as possible. If parties choose to undertake private dispute resolution before initiating court proceedings, this will be at their own expense and not undertaken by judges. The role of the Family Court judge would be limited to giving a decision if none has otherwise been reached. This is an obligation of the State, as noted by then Principal Family Court Judge, Peter Boshier—it reflects the right of all people in a civilised society to have civil disputes heard and resolved by an official arm of the State’s government.481

The Māori Land CourtTop

24.14In Chapter 21, we noted that, in Māori communities, questions about burial are resolved by the application of established rules and principles based on tikanga. This suggests that court jurisdiction is unnecessary to help resolve disputes of that kind—there is already an established dispute resolution process that is, as is appropriate for matters of tikanga, exercised on the marae.

24.15Despite that, we have considered whether there remains scope for court-based resolution of disputes involving tikanga, for example, concerning which hapū or family group should determine the burial location of a deceased Māori person. Some Māori may wish to make use of a court-based jurisdiction in cases where application of tikanga by the parties themselves has failed to bring about a result.

24.16One might not expect such court jurisdiction to be heavily used, since tikanga has well developed rules for determining burial location of a Māori deceased, which have been applied throughout history. Nonetheless, the Māori Land Court is highly skilled at dealing with tikanga matters and already deals in questions concerning Māori land. Therefore, it seems appropriate that people should have the option of applying to that Court to help determine tikanga-based burial disputes if they choose.

24.17We have therefore considered whether the statutory jurisdiction of the Māori Land Court should be extended to hear questions about the funeral, burial or cremation of a deceased Māori person. At present, the Māori Land Court’s jurisdiction is limited mainly to matters concerning how Māori land is dealt with under the Te Ture Whenua Māori Act 1993, but it would not be inconsistent with the Court’s existing jurisdiction to enable it to hear questions of burial of deceased people since, in Māori thinking, the burial of a deceased is an expression of connections to the land.

24.18The Māori Land Court supported this extension of its jurisdiction in its submission on Issues Paper 34. It noted that its judges are accustomed to dealing with questions of tikanga and its interplay with legal issues, they are familiar with the Māori communities in their respective districts and they have regular dealings with trustees responsible for urupā. This existing skillset of Māori Land Court judges could be particularly relevant to questions about the burial of a deceased Māori person.

24.19Among other submitters who commented on this question, there was also general support. One submitter, however, opposed the idea of the Māori Land Court having jurisdiction over these matters. They noted that holding the remains of the deceased person pending an outcome from that Court would be expensive and that it would be a cumbersome judicial process rather than a marae-based process.

24.20We understand that this proposal might raise deeper questions about whether tikanga, as a body of rules and principles, should be developed on the marae as has traditionally been the case or whether it can or should be applied and developed by a court exercising judicial functions. We think that this is a question that could arise in broader circumstances than burial disputes.

24.21We also note that there could be delays and loss of control in taking a burial dispute to the Māori Land Court. Many people will choose not to, and where people can resolve matters themselves in accordance with tikanga, they should do so. However, we support people being given more options for resolution, and therefore, on balance, we support the Māori Land Court being given jurisdiction to determine burial and related matters.

477 Takamore v Clarke (SC), above n 5, at [7] and [90]–[91].
478Care of Children Act 2004, s 77.
479Cabinet Social Policy Committee Family Court Review – Proposals for Reform (July 2012) at [28]–[30].
480At [30].
481Peter Boshier “The Role of the State in Family Law” (2012) 7 NZFLJ 199. At the time of publishing this Report, we note that Peter Boshier was a Commissioner with the Law Commission but was not directly involved in this project.