Reading the sobering 188 page
Indigenous Legal Needs Project: Northern Territory Report (2012) by Fiona Allison, Chris Cunneen, Melanie Schwartz and Larissa Behrendt. The report [
PDF] presents key findings and recommendations based on research conducted in 2011 by the Indigenous Legal Needs Project (ILNP) in the Northern Territory (NT).
The ILNP involves identification and analysis the legal needs of Indigenous communities in non-criminal areas of law (including discrimination, housing and tenancy, child protection, employment, credit and debt, wills and estates, and consumer-related matters) and
an understanding of how legal service delivery might work more effectively to address identified civil and family law needs of Indigenous communities.
The report is based on focus groups (149 Indigenous community members in Darwin, Wadeye, Katherine, Bulman, Tennant Creek, Alice Springs, Papunya and Alpurrurulam) and 60 interviews with legal and related stakeholders.
The authors comment that
identified issues generally followed those used in other large scale legal needs projects ... with additional questions relating to specific Indigenous concerns (for example, stolen generations, stolen wages, Basics Card). Some matters such as police complaints, native title or intellectual property were omitted from the questionnaire for practical reasons, in particular due to the size of the document and the time it takes to complete. Consistent with other civil law needs analyses, family and domestic violence was treated as a criminal matter rather than civil law. Some civil law issues not identified in the questionnaire arose in focus group discussions and in stakeholder interviews.
They go on to state that
In determining the priority areas for non-criminal law matters for Indigenous people in the NT, we have considered the responses of focus group participants in both questionnaires and discussion and the views of stakeholders and organisations delivering services to the focus sites. We also note that some areas of legal need such as child protection have such serious consequences (loss of children) that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem, the associated consequences and the views of stakeholders also influence our determination of priority areas. We also note some areas of legal need are influenced by gender. It should be noted that we do not assess whether there is an effective legal remedy available for the areas of legal need which have been identified.
There were two areas of law raised in the focus group questionnaire in which more than 25% of all participants indicated that they had experienced a legal problem in the last two years. These were:
• housing (54.1%)
• neighbourhood disputes (27%).
On the basis of focus group participant responses, we identify housing as a priority area. Issues involving neighbourhood disputes were particularly seen as a priority area of concern by Indigenous women.
There were a further four areas of law that were identified by more than 18% of respondents has having caused them some problem in the same time frame. They were:
• discrimination (22.6%)
• accident and injury (22.3%)
• employment (19.6%)
• credit and debt issues (18.4%).
We note further below the importance of discrimination and credit and debt as priority areas from the above list.
In relation to social security, 73.2% of all focus group participants were in receipt of Centrelink payments and of these 29.1% identified a potential legal problem. We identify social security as a priority area because of the significant proportion of people who are dependent on Centrelink payments, the majority of whom are also subject to Income Management.
In relation to family matters between 6.8% and 12.2% of participants identified problems with child contact etc., or child protection matters. We view child protection in particular as a priority area: legal needs relating to child protection have such serious consequences that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem and consequences also influence our view that it is a priority area, particularly, also because of the identified lack of legal assistance to parents. We also note that focus group participants identified this area as a priority in discussion, even though they may not have identified family law as an issue that they personally were dealing with.
Credit and debt, and consumer issues are also considered a priority. Overall, 18.4% of focus group participants said that they had had legal action threatened against them in the last two years for failure to pay a bill or repay a loan. Difficulty in repaying loans was the most prevalent credit and debt issue identified by focus group participants. Consumer issues were identified by stakeholders in particular as an area of unmet legal need. It is difficult to distinguish consumer issues from credit and debt because of the intertwined nature of these areas in the experiences recounted. On the basis of both participant responses to issues relating to debt and loan repayments as well as the stakeholder information relating to consumer issues we identify these areas as a priority.
Discrimination emerged as a priority issue in both focus groups and stakeholder interviews conducted in the NT. Overall, nearly a quarter of all focus group participants (22.6%) identified having experienced discrimination. There is a level of acceptance in relation to discrimination, a lack of knowledge about rights, and difficulties in ‘naming’ an incident as discrimination, potentially leading to under-reporting of this issue. Because discrimination impacts on all areas of social life from health services, to housing, to employment, to education, and because there appears to be a large unmet legal need in this area, we regard it as a priority legal need.
We raise the potential for considering wills and estates as a possible priority area because of unmet legal need: very few Aboriginal people have wills and many people indicate a desire to have assistance to complete a will.
Another way of considering priority legal areas in civil and family law is by gender. In many of the legal issues discussed in this Report there were pronounced gender differences both in the identification of issues and in the likelihood of seeking legal advice or assistance. In relation to housing, neighbourhood disputes and social security, Aboriginal women were more likely to identify an issue or problem but much less likely than men to seek assistance. The issue was particularly pronounced in relation to neighbourhood disputes and social security (women were half as likely as men to seek advice in relation to neighbourhood disputes, and four times less likely than men in relation to social security).
In relation to victim’s compensation, employment, family law and child protection, and credit and debt, Aboriginal men were less likely than women to seek assistance. The issue was particularly pronounced in relation to victim’s compensation and credit and debt (men were four times less likely as women to seek victim’s compensation, and nearly five times less likely than women to seek advice in relation to credit and debt).
Last year's NZ Supreme Court judgment in Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 deals with traditional law and disposal of a body.
Tipping, McGrath and Blanchard JJ state
[165] In the present case Ms Clarke is the executrix of the late Mr Takamore. She had power under the common law rule to determine how and where he was to be buried which she was required to exercise once she was apprised of the views of the deceased’s sister and Bay of Plenty family. She discussed with them their preferences and the tikanga underlying them. Ms Clarke did not acquiesce in the wishes of whanau who took the body to Kutarere. In believing there was such acquiescence, the whanau were mistaken. Accordingly, what the whanau did was in accordance with tikanga but the act of taking and interring the body was not authorised by Ms Clarke, who at all times had legal power to determine how and where the body was to go.
[166] It is the Court’s responsibility now to consider all the circumstances in light of the applicable common law. They include, first, the fact that Mr Takamore made his life in Christchurch with his partner and their children, living there with them for over 20 years until his death in 2007 at the age of 55 years. Their urban life means that, following Mr Takamore’s death, his partner and now adult children have little relationship with Kutarere. Secondly, Kutarere is the place of central importance to Mr Takamore’s Māori family and their custom. Thirdly, different views were expressed in the High Court as to Mr Takamore’s own wishes. The evidence was that burial in Christchurch was in accord with what Mr Takamore told friends there but not what he gave his mother to believe his intention was. Fourthly, and importantly, burial in Christchurch is in accord with the wishes of Ms Clarke and the children of Mr Takamore, who are adult. Finally, Mr Takamore is now buried in Kutarere but that factor carries little weight in this case because Ms Clarke, as the person with power to decide at law, did not agree or acquiesce in that course that led to his burial there.
[167] Where two families from separate localities are in dispute over the appropriate place for interment of a deceased, and the issue is brought before the Court, the common law requires the Court to examine the nature and closeness of the relationship of the deceased with each family and each location at the time of death. The sensitivities of family and others close to the deceased are relevant along with the familial feelings of cultural, religious or other circumstances that underlie them.
[168] Consideration must also be given to the wishes expressed by the deceased as the law has moved on from its early rejection of the significance of this factor. Often, however, as here, the true wishes of a deceased may be debatable, particularly if the deceased has said different things at different times to different people. A court may of course need to consider the possibility that something was said out of a desire to please the person to whom the deceased was speaking. In this case, however, we do not find it necessary to resolve the question of Mr Takamore’s wishes as to where he was buried.
[169] This is a case where there are deeply held views that are in conflict. But when all relevant matters are assessed, it is Mr Takamore’s life choices, in relation to living in Christchurch with his partner and now adult children, that carry greatest weight and, ultimately, are determinative. The decision taken by Ms Clarke that Mr Takamore should be buried in Christchurch reflects her own views and those of her children. For these reasons, it was an appropriate decision. We would uphold it. It goes without saying that if Ms Clarke adheres to her decision and Mr Takamore’s body is to be disinterred, this should be done in a manner which, as far as possible, respects the sensitivities of his Kutarere family and relevant Tūhoe custom.
Elias CJ in dissent states
[1] There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency (considerations which underlie the provisions of the Burial and Cremation Act 1964). The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family.
[2] In most cases, decisions as to interment or other disposal of human remains are taken by the immediate family of the deceased. Any disagreements between family members are either resolved or overtaken by the disposal achieved in result by those who carry the day. Those who prevail in fact may do so for a number of reasons: perhaps because they are deferred to on the basis of social or cultural ideas as to what is fitting (as is common in respect of the wishes of the spouse); perhaps because of their personal standing or the strength of their personalities; perhaps because they can invoke the deceased’s own wishes in support of their position; or perhaps because they can invoke the authority of cultural or religious tradition to which the deceased or the family belongs. Such outcome may entail the wishes of some family members being overborne. They may remain deeply unhappy and unreconciled to the result. Although in the present case cross-cultural issues have exacerbated the differences between family members of the deceased, it should be recognised that deep differences as to the disposal of the dead arise without any such cross-cultural dimension.
[3] The appeal concerns a claim to the High Court by Denise Clarke for orders for the recovery by her of the body of her long-term partner, James Takamore. He was buried without her consent by members of his Whakatohea and Tuhoe family in a family urupa at Kutarere in the Bay of Plenty in accordance with the tikanga observed by their hapu. Ms Clarke and the two adult children of her relationship with Mr Takamore wish to have his body buried in Christchurch, where the family has lived for the last 20 years. Ms Clarke, who was appointed executor by Mr Takamore in his will, was successful in the High Court and on appeal to the Court of Appeal in her claim to be entitled as executor to determine where Mr Takamore is buried, although questions of remedy remain reserved in the High Court. Josephine Takamore, the sister of the deceased, appeals to this Court.
[4] It is accepted by the parties that entitlement to bury someone who has died is not prescribed by any enactment and that the claims fall to be decided according to the common law of New Zealand. The appellant and two other family members who do not appeal (Mr Takamore’s mother and brother) opposed Ms Clarke’s application to the High Court on the basis that New Zealand law does not recognise an exclusive right of an executor to determine disposition of the body when the deceased is Tuhoe. In such circumstances, it is said that the common law gives effect to Tuhoe custom or tikanga. By it, the question of disposal is determined by the whanau pani (the wider bereaved family) according to cultural values and practices. Those values and practices take into account the views of the wife and children (who participate as members of the whanau pani) but have a strong preference, based on the importance of whakapapa, for the return of a deceased to the hapu to be buried with those linked to him by whakapapa.
[5] Since Mr Takamore was buried in the urupa in accordance with the Tuhoe tikanga observed by his hapu, the appellant contends that the executor has no possessory right to his body for reburial, although she acknowledges the executor has standing to make application to the Court for reinterment of the deceased if proper grounds are made out. She says there is no proper basis in the present case to interfere with the burial of Mr Takamore.
[6] Ms Clarke, for her part, maintains that under New Zealand law she has the right as executor to possession and disposal of Mr Takamore’s body, as was recognised in the lower Courts. She acknowledges that her discretion as executor is in the nature of a trust and subject to the supervisory jurisdiction of the High Court for abuse of power or unreasonableness, conditions which she says are not made out here.
[7] For the reasons that follow, I am of the view that neither opposing position taken by the parties is correct in law. In circumstances where there is dispute as to burial, either party has standing to bring the dispute to the High Court for resolution. Their claims are of competing right which fall to be resolved according to law by the High Court in its inherent jurisdiction.
[8] The executor does not have the exclusive discretion to determine how the body is to be reburied or otherwise disposed of. Rather, Ms Clarke both as executor and as Mr Takamore’s partner has standing to seek from the Court the right to disinter his body for reburial. On such application, her views as executor will be highly influential and may well be accepted by the Court in result. [9] Nor is it correct, as the appellant maintains, that because of the deceased’s whakapapa the decision as to his burial lies with the whanau pani or the hapu to which it belongs, if their claims are challenged by others with standing to seek the determination of the Court (as Ms Clarke has both as executor and as Mr Takamore’s partner). As is the case with the executor, those representing the whanau pani and seeking to maintain the burial already undertaken have standing to oppose Ms Clarke’s application for exhumation and reinterment. Claims based on whakapapa and the tikanga observed by the hapu of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case. But the claim itself, like the claim of the executor, does not give rise to a possessory right in law against competing interests without Court resolution.
[10] Claims in relation to burial have been extremely rare in New Zealand. In other common law jurisdictions there are reported decisions concerning disputed claims to the right to bury, including some with cross-cultural dimensions comparable to those arising in the present case. Although, as is discussed in what follows, there are statements in some cases that executors (or, in the absence of an executor, those entitled on intestacy to administration) have the right in law to determine questions of burial or other disposal, I conclude that there is no hierarchy of rights to possession of the body and its disposition. 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. In discharging its responsibility, the Court may choose to defer to one of the claimants. Alternatively, it may give specific directions.
[11] When the jurisdiction of the Court is invoked in such disputes, the cases are uncomfortable not only because they usually involve deeply held differences between close family members, all of whom may sincerely believe that they are fulfilling a duty or otherwise doing the right thing by the deceased or the wider family. As importantly, the values behind the different positions may be very difficult for the Court to balance in reaching a fair and just result if they are taken from registers which are not commensurable. That will often be the case if the differences of view arise out of distinct religious or cultural value systems. A courtimposed result in such circumstances may not convince the disappointed party or indeed be universally convincing in its own terms. 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.
[12] For the reasons given below, I have come to the conclusion that the claim for reinterment put forward by Ms Clarke and her children is to be preferred in all the circumstances. This is not because, as executor, Ms Clarke has the right to decide and her views must prevail as a matter of law except where shown to be unreasonable or improper, as was argued on her behalf. It is not because the tikanga by which Mr Takamore has been buried cannot be recognised in law because inconsistent with fundamental values of the common law (as Fogarty J in the High Court[ and the majority in the Court of Appeal[ thought to be the case, although on different grounds). Cultural identification is an aspect of human dignity and always an important consideration where it is raised, as are the preferences and practices which come with such identification, as s 20 of the New Zealand Bill of Rights Act 1990 affirms. In the case of indigenous people, the preference for repatriation of the dead is recognised by the Declaration of the Rights of Indigenous Peoples as a matter of great moment. Nor is the result I reach because the wishes of the deceased are clear and to be preferred over interment in accordance with his Tuhoe heritage (as Fogarty J in the High Court and Chambers J in the Court of Appeal thought to be the case but, as I think in agreement with the majority in the Court of Appeal, wrongly). Rather, weighing up the different and valid claims of the parties as best I can, I have concluded that Ms Clarke and her children should in the circumstances of the case be left to decide where Mr Takamore is to be buried.
