"Body Snatching" in contemporary Aotearoa/New Zealand: A legal conflict between cultures

Table of Contents

• Introduction
• Chapter 1: Māori and Christian Funeral Rites
  • A Introduction
  • B Tangihanga: Māori Ceremony of the Dead
    • I. Māoridom: Mythical Origins of Death
    • II. The Rituals of Tangihanga
    • III. The Tūpāpaku
  • C Christian Burial Rites
  • D Differences between the Māori and Christian Processes of Mourning
  • E Conclusion
• Chapter 2: Recognition of Tikanga Māori and the Treaty of Waitangi
  • A Introduction
  • B What is Tikanga Māori?
  • C What Did the Treaty of Waitangi Promise?
    • I. The Signing of the Treaty in 1840
    • II. Two Versions, Two Self-Understandings
  • D How Was the Treaty Interpreted by the Courts between 1840 and 1970?
  • E What is the Current Treaty of Waitangi Jurisprudence?
    • I. The Courts' Developing Jurisprudence
    • II. The Developing Jurisprudence of the Waitangi Tribunal
  • F Do the Courts Recognise Tikanga as it Relates to Burial?
    • I. Tikanga on Burial - Subject of Change
    • II. Statutory Recognition of the Tangihanga
    • III. The Public Trustee v Loasby
    • IV. Inconsistent Courts
    • V. Tikanga on Burial - More Likely to be Recognised
  • G Should New Zealand Law Recognise the Significance of the Tangihanga?
  • H Conclusion
• Chapter 3: Proprietary and Possessory Rights in Corpses
  • A Introduction
  • B The Body as Property
    • I. The "No Theft" Rule
    • II. The "No Property" Rule
    • III. Exceptions to the "No Property" Rule
  • C The Rights of Possession for the Purpose of Burial
    • I. The Coroners' Overriding Right to Possession
    • II. Possession by the Hospital
    • III. The Executor's Right to Possession
    • IV. Intestacy - Revolving Competing Rights to Possession
  • D Conclusion
• Chapter 4: Methods of Enforcement
  • A Introduction
  • B Civil Law Enforcement Options
  • C Criminal Law Enforcement Options
  • D Liability in Tort
  • E Conclusion
• Chapter 5: A Way Forward for New Zealand
  • A Introduction
  • B Differing Opinion: Does New Zealand Need a Law Change?
  • C Recently Discussed Options for Reform

Objectives and Key Themes

This thesis examines the legal conflict in contemporary Aotearoa/New Zealand surrounding the handling of deceased bodies, specifically focusing on the clash between Māori tikanga (customary practices) and the established legal framework. The study aims to analyze the existing legal mechanisms for resolving disputes related to body snatching and to explore potential avenues for improved legal recognition of Māori customary practices in this sensitive area.

• The conflict between Māori tikanga and Western legal traditions regarding burial rights.
• The legal status of corpses and the concept of property rights in relation to human remains.
• The role of the Treaty of Waitangi in shaping the legal landscape and its implications for the recognition of tikanga.
• An analysis of existing legal mechanisms, including civil and criminal law, for addressing disputes over the handling of bodies.
• Potential avenues for legal reform to better accommodate Māori customary practices concerning death and burial.

Chapter Summaries

Chapter 1: Māori and Christian Funeral Rites: This chapter lays the groundwork for understanding the central conflict by comparing and contrasting Māori (Tangihanga) and Christian burial rites. It explores the spiritual and cultural significance of Tangihanga within Māoridom, detailing its rituals and beliefs surrounding death and the tūpāpaku (deceased). The chapter highlights the fundamental differences between these two approaches to mourning and burial, emphasizing the deeply spiritual and communal nature of Tangihanga, which contrasts with more individualistic Western practices. This sets the stage for later chapters that explore the legal ramifications of these cultural differences.

Chapter 2: Recognition of Tikanga Māori and the Treaty of Waitangi: This chapter delves into the legal context surrounding the recognition of Tikanga Māori. It examines the Treaty of Waitangi and its interpretation through the years, illustrating how the courts have grappled with the incorporation of customary Māori practices into the legal system. The chapter discusses the evolving jurisprudence regarding the Treaty's principles and the increasing recognition of tikanga in various legal contexts. It specifically investigates the extent to which Tikanga is recognized in relation to burial practices, analyzing relevant case law and legislation. This chapter provides a crucial legal framework for analyzing the conflict at the core of the thesis.

Chapter 3: Proprietary and Possessory Rights in Corpses: This chapter focuses on the legal concept of property rights in relation to corpses. It explores the established "no property" rule and its exceptions, analyzing case law from various jurisdictions including New Zealand. The chapter examines the different perspectives and the potential for exceptions based on "work or skill" invested in the body or arising from the Human Tissue Act 2008. The discussion also addresses the rights of possession for burial purposes, exploring the roles of coroners, hospitals, executors, and the complexities arising in cases of intestacy (dying without a will). The chapter offers a thorough examination of the legal frameworks governing the possession and control of bodies post-mortem, laying the groundwork for understanding the legal arguments in the body snatching cases.

Chapter 4: Methods of Enforcement: This chapter analyzes the available legal avenues for addressing body snatching and related disputes. It explores the use of civil law remedies like injunctions, alongside the limitations in their effectiveness. Furthermore, it examines the applicability of criminal law provisions for theft, misconduct in relation to human remains, and related offenses. The chapter also investigates the potential for liability under tort law, including negligence and wrongful interference with goods, providing a comprehensive overview of available legal tools for resolving these complex cases. This analysis demonstrates how current laws often struggle to address the unique cultural sensitivities involved.

Chapter 5: A Way Forward for New Zealand: This chapter discusses various potential approaches to resolving the ongoing conflict, examining the current legal status quo and whether legislative changes are necessary. It details recently debated options for reform, including non-legislative options like increased awareness and understanding of Māori protocols. Legislative options, such as augmenting police powers, amending the Coroners Act 2006, and using declarations, are also discussed and analyzed for their potential effectiveness and challenges. This chapter offers a forward-looking perspective and potential solutions for balancing the legal system with the cultural significance of Tikanga Māori.

Keywords

Tikanga Māori, Treaty of Waitangi, body snatching, burial rights, property rights in corpses, human remains, legal conflict, cultural sensitivity, legal reform, New Zealand law, customary practices, Coroners Act 2006, civil law, criminal law, tort law.

Frequently Asked Questions: Aotearoa/New Zealand Legal Conflicts Surrounding the Handling of Deceased Bodies

What is the main focus of this thesis?

This thesis examines the legal conflict in contemporary Aotearoa/New Zealand concerning the handling of deceased bodies, particularly the clash between Māori tikanga (customary practices) and the existing legal framework. It analyzes legal mechanisms for resolving disputes, especially those related to body snatching, and explores ways to better legally recognize Māori customary practices.

What are the key themes explored in the thesis?

Key themes include the conflict between Māori tikanga and Western legal traditions regarding burial rights; the legal status of corpses and property rights related to human remains; the Treaty of Waitangi's role in shaping the legal landscape and its implications for tikanga recognition; an analysis of existing legal mechanisms (civil and criminal law) for addressing body handling disputes; and potential avenues for legal reform to better accommodate Māori customary practices concerning death and burial.

How does the thesis compare Māori and Christian funeral rites?

Chapter 1 compares and contrasts Māori (Tangihanga) and Christian burial rites. It details the spiritual and cultural significance of Tangihanga, its rituals, and beliefs surrounding death and the tūpāpaku (deceased). The chapter highlights the differences between these approaches, emphasizing Tangihanga's communal nature versus more individualistic Western practices.

What is the role of the Treaty of Waitangi in this legal conflict?

Chapter 2 examines the Treaty of Waitangi and its interpretation over time, showing how courts have dealt with incorporating Māori customary practices into the legal system. It discusses the evolving jurisprudence regarding the Treaty's principles and the increasing recognition of tikanga in various legal contexts, specifically focusing on burial practices and relevant case law and legislation.

What is the legal status of corpses and property rights concerning human remains?

Chapter 3 addresses the legal concept of property rights in relation to corpses. It explores the "no property" rule and its exceptions, analyzing case law. It examines rights of possession for burial, considering the roles of coroners, hospitals, executors, and complexities in intestacy cases. This clarifies the legal frameworks governing the possession and control of bodies after death.

What legal avenues exist for addressing body snatching and related disputes?

Chapter 4 analyzes legal avenues for addressing body snatching, exploring civil law remedies (like injunctions) and their limitations. It examines criminal law provisions (theft, misconduct related to human remains) and potential liability under tort law (negligence, wrongful interference). This provides a comprehensive overview of legal tools and how they address the cultural sensitivities involved.

What are the potential solutions or legal reforms suggested in the thesis?

Chapter 5 discusses potential solutions and whether legislative changes are needed. It details options for reform, including non-legislative options (increased awareness of Māori protocols) and legislative options (augmenting police powers, amending the Coroners Act 2006, using declarations). It analyzes their potential effectiveness and challenges.

What are the key words associated with this thesis?

Key words include: Tikanga Māori, Treaty of Waitangi, body snatching, burial rights, property rights in corpses, human remains, legal conflict, cultural sensitivity, legal reform, New Zealand law, customary practices, Coroners Act 2006, civil law, criminal law, and tort law.

What is Tikanga Māori?

Tikanga Māori refers to the customary practices, values, and beliefs of the Māori people of Aotearoa/New Zealand. It plays a significant role in many aspects of Māori life, including death and burial rituals.

What is the significance of the Tangihanga?

The Tangihanga is a Māori ceremony of mourning and burial. It's a deeply spiritual and communal process with significant cultural and traditional importance, often contrasting sharply with Western burial practices.

What is the significance of the Tūpāpaku?

The Tūpāpaku refers to the deceased in Māori culture and holds a significant spiritual place in the Tangihanga. Respect for the Tūpāpaku is central to the rituals and beliefs surrounding death and burial within Māori tradition.