Issue: The primary issue in Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) revolves around the dispute over the whakapapa (genealogy) of two individuals within the context of Māori land and trust law. Specifically, the case questions whether the whakapapa of these individuals can be determined through independent arbitration, and whether such a dispute is arbitrable under the Arbitration Act 1996, in light of tikanga Māori (Māori customs and traditions) and the specific tikanga of Ngāti Rehua-Ngātiwai ki Aotea. Facts: The case involves two groups of beneficiaries of the Ngāti Rehua-Ngātiwai ki Aotea Trust, a charitable trust managing assets, including land under Te Ture Whenua Māori Act 1993. Disagreements arose over various aspects of the trust's administration, a Treaty settlement, and the criteria for beneficiary registration and trustee election. After failing to hold an Annual General Meeting since January 2016, the plaintiffs sought the removal of the defendants as trustees and fresh elections. A mediation in May 2017 led to an agreement to arbitrate unresolved issues, including the whakapapa dispute. Rule: The case examines the applicability of tikanga Māori as law, the supervisory jurisdiction of courts over trusts, the Arbitration Act 1996, and the Te Ture Whenua Māori Act 1993. It highlights the principle that tikanga Māori, as the first law of Aotearoa (New Zealand), is recognized by both statute and common law, and that disputes involving tikanga, including whakapapa, must be approached with caution and respect for Māori sovereignty and customs. Analysis: The High Court found that deciding on whakapapa through external arbitration was inconsistent with tikanga Ngāti Rehua-Ngātiwai ki Aotea, as the parties were bound by their own tikanga and previous court orders. The court emphasized that tikanga must be proved as fact and that any court recognition of tikanga is only a snapshot for the specific case at hand. The court held that the dispute over whakapapa was not arbitrable under the Arbitration Act 1996, as it is a matter for the relevant iwi or hapū according to their tikanga. The application to set aside the agreed arbitration process was granted, reaffirming the importance of tikanga in disputes involving Māori land and trusts. Conclusion: The court concluded that the whakapapa dispute could not be resolved through independent arbitration outside the tikanga of Ngāti Rehua-Ngātiwai ki Aotea. It directed that the dispute should be addressed within the framework of tikanga Māori, respecting the autonomy and traditions of the iwi or hapū involved.

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Issue: The main issue in the case of Takamore v Clarke revolves around the rights and duties of an executor in the disposal of a deceased person's body, particularly when cultural practices and family wishes are in conflict. James Takamore, of Tuhoe and Whakatohea descent, passed away suddenly, and a dispute arose between his partner (and named executor) Ms. Clarke, and his family from the Bay of Plenty over where he should be buried. Facts: James Takamore lived in Christchurch with his partner, Ms. Clarke, for 20 years before his death in August 2007. Despite being named as his executor, his will did not specify burial wishes. After his death, his family from the Bay of Plenty intended to claim his body for burial in Kutarere, as per their cultural practices. Despite initial resistance from Ms. Clarke and her son, Takamore's body was taken by his family to Kutarere and buried there according to tikanga (Maori customs). Ms. Clarke obtained a disinterment license and sought legal orders to exhume Takamore's body, leading to a series of legal challenges up to the Supreme Court. Rule: The Supreme Court held that the executor of a deceased person has the right to custody of the body and the duty to dispose of it. This includes considering cultural, spiritual, and religious values important to the deceased's heritage. However, the executor's discretion can be operational if there is disagreement on burial arrangements or if arrangements have failed. The court also noted that the power of the personal representative to ensure proper disposal continues after burial, requiring a court order for disinterment in addition to a disinterment license. Analysis: The Supreme Court's decision underscores the balance between the legal authority of executors and the need to respect cultural practices and family wishes. It was determined that Ms. Clarke, as the executor, had the legal right to decide on the disposal of Mr. Takamore's body, with the court upholding her decision as appropriate under the circumstances. The ruling also highlighted that aggrieved parties could challenge the executor's decisions in the High Court, emphasizing the court's role in considering cultural practices and the deceased's and family's views in such disputes. Conclusion: The appeal by Josephine Takamore (Mr. Takamore's sister) was dismissed, affirming the High Court's decision that Ms. Clarke had the right to determine the disposal of Mr. Takamore's body. This case illustrates the complexities involved in balancing legal principles with cultural values and family dynamics in the context of burial disputes.