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2015 N.Z. L. Rev. 1 (2015)

handle is hein.journals/newzlndlr2015 and id is 1 raw text is: 








        The Recognition of Tikanga in the

           Common Law of New Zealand


                          NATALIE COATES*



    This article examines the capacity of the common law to provide for
    the recognition of tikanga and Mtori customary law. It details the
    limited and mixed way in which courts have treatedMtori customary
    law within the common law thus far, focusing particularly on the
    recent articulations in the Court ofAppeal and the Supreme Court.
    It then looks at the many inherent limitations and barriers that are
    erected by the common law and argues that there is potential for the
    common law to be developed so that it becomes a limited vehicle for
    Mtori customary law to be afforded recognition in the state legal
    system in the 21st century.


I Introduction

Mr James Takamore passed away in August 2007.1 Mr Takamore, of Maori
descent and a member of the Tahoe tribe, had resided in Christchurch, where
he had lived with his non-Maori partner Denise Clark and their two children
for twenty years. Ms Clark was the executrix of his will and contrary to
her wishes, Mr Takamore's body was taken from Christchurch by his sister
and other members of his family and buried at Kutarere marae (in the
North Island) beside other whanau (family) members. This polarising and
emotionally contentious set of facts highlights a clash of legal orders. On one
hand, Ms Clark claimed rights under the common law, as executrix, to decide


*Solicitor at Kahui Legal, New Zealand. Parts of this article are adapted from a research
paper that I completed for my Master of Laws from Harvard University. I wish to thank Claire
Charters, Janet McLean and Treasa Dunworth for their comments and constructive feedback
on early versions of this work.
  1 These facts are taken from the case of Takamore v Clark [2011] NZCA 587, [2011] 1
    NZLR 573 [Takamore CA].

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