Court jurisdiction, procedure, and remedies
17.6The jurisdiction of the High Court now extends to assessing the substance of a burial decision for its appropriateness. It has been said that the review process should be a “straightforward one that is capable of providing a prompt decision.” The Court should address the relevant viewpoints and circumstances and make its own assessment, and exercise its own judgment, as to the appropriateness of that decision.
17.7Overseas, courts that have statutory responsibility for reviewing burial decisions in this manner usually have recourse to statutory guidance, in the form of a list of factors they must take into account. This list guides the exercise of the courts’ discretion and can help increase the certainty and transparency of judicial decision-making. At the same time the courts are able to apply their discretion to determine what weight to give to relevant competing considerations.
17.8No such factors are contained in the Burial and Cremation Act 1964 (the Act), as it is not the source of the High Court’s jurisdiction in these matters. Guidance in existing New Zealand case law is also limited. If the Court is asked to decide between two proposed burial sites, it might assess the nature and closeness of the relationship of the deceased with each location at the time of death. Beyond that, however, it is unclear what, of a possibly wide range of matters, the Court could or should take into account, and what weight should be placed on them, in any future burial proceedings.
17.9 One option is to include in the Act, or its replacement statute, a list of matters the Court should take into account in a burial dispute. This could be included regardless of the final form of any statutory regime, although the list of factors included and the weight to be given to them will depend on the form of the statutory regime, as discussed in chapter 16. In British Columbia, where the deceased is entitled to leave binding burial directions, the Supreme Court may make an order upon the application by a person claiming “the right to control disposition”. In those proceedings the Court is required to have regard to “the rights of all persons having an interest” and, without limitation, to give consideration to:
- the feelings of family and those associated with the deceased;
- the deceased’s religious faith and the rules, practice and beliefs respecting burial held by people of that faith; and
- any “reasonable directions” of the deceased respecting the burial of their remains.
17.10In these proceedings the Supreme Court is also directed to consider “whether the dispute that is the subject of the application involves family hostility or a capricious change of mind”.
17.11 In its review of Queensland burial legislation, the Queensland Law Reform Commission recommended that the Queensland Supreme Court should be able to, upon application, make an order in relation to the exercise of “the right to control the disposal of the human remains of a deceased person”. In those proceedings it suggested that the Court should be required to have regard to:
- the importance of disposing of remains in a dignified, respectful and timely way;
- the funerary instructions or wishes of the deceased;
- the cultural and spiritual beliefs held, or the cultural and spiritual beliefs practised, by the deceased in relation to the disposal of remains; and
- the interests of family members.
17.12 The Minnesota statute provides that, where a dispute concerns many people with a right to decide who cannot make a decision by majority vote, the Court should consider:
- the reasonableness, practicality, and resources available for payment of the proposed arrangements and final disposition;
- the degree of the personal relationship between the deceased and each of the persons in the same degree of relationship to the deceased;
- the wishes of the deceased and the extent to which they have provided resources for those wishes to be carried out; and
- the degree to which the arrangements and final disposition will allow for participation by all who wish to pay respect to the decedent.
17.13In the New Zealand context, one relevant factor would be the impact on tikanga Māori.