JUDGMENT:

CoA

In the

Court of Appeal:

Same outcome, different approach. Also took an applicaon to the

different tests and

FOUND TIKANGA UNREASONABLE

- but said the HC reasoning was wrong,

as

even in the state system it is not about individual autonomy e.g. wills and probate.

Found it was unreasonable due to the "

might not right"

outcome that the outcome would

propagate.



Refer back to Tono process– where a dispute as to where body is buried will end in

either consensus, compromise, or no resoluon.

Where there is NO RESOLUTION the

party with the greatest influence will come out on top



greatest influence essenally

means greatest physical influence.

CoA didn’t think this “might not right” outcome was

right and would set a precedent.



Focused on the "influence" over body test, worried about seng a precedent.



Also failed the certainty test for who gets to decide on the bury.



OBITER:

Took the "modern-approach" -

executor gets to decide but must take into

account the Tikanga

The reason this was unreasonable was because of the ‘might not right’ principle’: it was not right that

whoever had the most people or whoever was the ‘toughest’ could just take the body.

This goes against

Tono – where the 3

opon (where no one agrees) is whoever has the most power can take the body

JUDGMENT:

SC

Tikanga argument

NOT CONSIDERED

Executor Rule- Executor has the right to decide

Observaon “Tikanga part of the values of NZ law”

only a consideraon. NOT

BINDING on the executor. Up to them to make the final decisions.

In relaon to burials in parcular,

established that kanga will apply if:



Executor agrees



No dispute about kanga



Tikanga dispute resolved between the pares in accordance with kanga – state law not called in to resolve



If there is a dispute and court finds kanga takes priority

Tikanga is simply a ‘consideraon’ for the executor

. This is in line with the Twinings idea of weak pluralism

. Here kanga is

recognised only when the dominant state law permits it to be recognised. if the executor of a will (a state law concept that is not

present in Tikanga Maori) does not wish to take Tikanga into account it will not be recognised. Tikanga and the rights of the

collecve are subordinate to the Western state system when it comes to burial rights. Tikanga and those who abide by it are not

offered uncondional legal protecon in the way that an executor under a will is.

Also refer to Jo Williams and the dangers of this level of Tikanga recognion

The whole idea of one law recognising another is fraught, because

if you are an advocate of pluralism, you

are really advocang for the connuaon of autonomous and separate legal orders, but forms of

recognion are oſten not seen to operate like this, forms of recognion tend to carry

assimilang/amalgamang tendencies

.

Williams discusses ‘integrate-to-perpetuate’ as a model of Tikanga recognion, in which Tikanga concepts

are incorporated into dominant legal processes, primarily through statute. Tikanga’s applicability and

recognion however is not absolute and has been argued as being discreonary.

There are posives of one legal system recognising another but this also raises the problem of giving one

system the status/posion from which to recognise another: Tikanga doesn’t need recognion by the state

nor does it want it if recognion by the state means something like ongoing assimilaon/amalgamaon.