Contents

Chapter 18
Decisions about ashes, memorialisation, additional interments, and disinterment

Disinterment of individual graves

18.58Disinterment falls into two broad categories: the disinterment of individual graves, and the disinterment of multiple graves to clear cemeteries for alternative land use such as public works. We have already considered the issues raised by disinterment of multiple graves in chapter 7, and turn now to the decision-making rights in relation to disinterment of an individual body when desired by those close to the deceased.

18.59The removal of a body from its burial place (whether a cemetery, urupā or other place of burial) requires a licence from the Minister of Health.844 Since 2006, the Ministry of Health has received as many as 60 applications for disinterment each year, although over the last four years the average number of applications has been 40.845 The main reason for seeking to disinter remains is to rebury the body in a location of greater significance to the deceased’s relatives, including burial near family, burial in an urupā or repatriation overseas. Another common reason for disinterment is to allow an additional burial in the same plot or to allow cremated remains to be added to the same plot.

18.60A surprisingly high proportion of disinterment applications are necessary because the deceased was buried in the wrong plot due to a mix up by cemetery staff; since 2006, this situation has accounted for roughly 10 per cent of disinterment applications. Disinterment is also sometimes requested so that the body may be cremated. More rarely, disinterment is requested to rectify an unlawful burial, to move remains because of land subsidence or other environmental factors, or as part of a police investigation.

18.61The Ministry’s position is that no licence is required for the disinterment of pre-term foetuses or ashes as these do not meet the definition of “human remains”. While the disinterment of ashes can be a sensitive issue, there are two important points of difference between ashes and bodily remains. First, the disinterment of ashes does not raise public health concerns. Second, while ashes in a non-biodegradable and waterproof container will remain undamaged indefinitely, ashes in a biodegradable container cannot realistically be disinterred. Bodily remains, in contrast, are subject to gradual decay.

18.62Cemetery managers retain overall control of each plot within a cemetery and so also have a role in relation to disinterment. Disinterment fees range from $1,500 to $3,600 and cover the labour and machinery costs incurred by the cemetery. In some cemeteries, disinterment will not be permitted by the cemetery manager, because of the risk of damage to other graves or memorials. In addition, some local authorities have included restrictions on disinterment in cemetery bylaws.

Disinterment – the process

Disinterment licence

18.63Under the common law, there has been a strong presumption in favour of leaving human remains undisturbed. This principle is reflected in the restriction in section 51 of the Act on removing any body from its place of burial without a licence from the Minister of Health.846

18.64There are no criteria in the Act to guide decision making for the approval or non-approval of applications for disinterment licences. We have been advised by Ministry of Health officials that the assessment of a disinterment licence application is discretionary and that the authority to issue a licence has been delegated to officials who follow internal guidelines on a case-by-case basis. There is no transparency of decision making or formal review of decisions for consistency.

18.65According to figures from the Ministry of Health, each year about three applications are not granted because of a lack of family consensus. The Ministry also advises that approval will not be given if the reason for disinterment is frivolous.

18.66Currently, any person may apply for a disinterment licence, but they must have relevant documents including a death certificate, written consent or a note of disagreement from relatives, and a note about their relationship with the deceased. These requirements have been developed by Ministry officials. The Ministry considers whether the applicant has notified family or next of kin, or made reasonable attempts to do so. If the deceased person is of Māori or Pacific descent, the Ministry will consider whether consultation with a broader kinship group may be required. In cases where there is opposition or a lack of consensus among relatives the licence application is unlikely to be granted, but the process is flexible and the outcome will depend on the circumstances. The wishes of the partner or spouse, or the executor if any, will have a major influence.

Role of the courts

18.67Prior to the decision in Takamore v Clarke, cemetery managers and Ministry officials had proceeded on the basis that no court order was necessary for disinterment to proceed. However, the Supreme Court has now confirmed that an order of the Court is required in addition to the disinterment licence from the Ministry of Health, at least where an application is made to the Court in the context of a dispute:847

I would reject the more extreme argument put forward for the executor here under which she requires no authority from the court for reinterment but only licence under the Burial and Cremation Act. That Act is concerned with matters of public health and decency. Wider interests are engaged in disinterment. Those directly affected are entitled to be heard on the executor’s proposal. Entitled to consideration, too, is the public interest. The views of the executor may be highly influential (and it is a relevant consideration here that the initial disposal was contrary to her wishes). But in my view the court must determine whether reinterment is appropriate.

18.68Complex legal issues may also come before a court, around the respective rights of the executor and the rights of the holder of the burial plot. In Pauling v Williams,848 the applicant sought to disinter her child’s remains from a joint plot in which the child’s father had also been buried. Both had died in a car accident two years previously. However, the rights to the plot were held by the child’s paternal grandparents, who objected to the disinterment. The grandparents brought proceedings in the High Court to review the decision to grant the disinterment licence and sought an injunction to restrain the disinterment, which they said would amount to an unlawful trespass on the burial plot. The applicant succeeded in the High Court, but the decision was set aside by the Court of Appeal on the basis that the judge had incorrectly characterised the relevant rights. The Court of Appeal also said that the legal rights and duties of the applicant in respect of her daughter’s remains had not been adequately considered in the High Court.

18.69Such disagreements raise similar policy issues, and conflicting values and interests, as disagreements over the original burial location or method of disposal that were covered in some detail in the preceding chapters. However, they also raise additional, unique policy issues. In particular, once a body has been “properly” laid to rest, what are sufficient or justified grounds for disinterring it, particularly if some family members do not accept that it should be disinterred? Should the legal framework require full consensus amongst the family before a body can be disturbed? How can this be balanced against the strong desires and needs, sometimes driven by cultural imperatives, to ensure that the body is in the most appropriate resting place for eternity? And should account be taken of the circumstances of the original burial and whether there was sufficient opportunity for consultation and airing of all relevant views?

Reform considerationsTop

18.70This review is an opportunity to review the legal framework for individual disinterment, to ensure that it is operating efficiently and effectively. Our view is that the framework for disinterment should be flexible enough to allow for disinterment when appropriate, but not so permissive that disinterment can occur without proper consideration of the relevant public and private interests, including public health interests. An overhaul of other aspects of the legal framework for burial and cremation would also require an assessment of the implications for the particular framework for individual disinterment, and whether adjustments would be needed to ensure a cohesive and consistent regulatory framework overall.

18.71Disinterment is rare, and disagreement about disinterment is rarer still. Our assessment is that the legal framework should seek to ensure that public interests are adequately safeguarded, and the views of the family are given effect without unnecessary complication. We invite submissions as to the best way to achieve this policy goal.

18.72 In considering the desirability of reform, we have first attempted to identify the interests that should guide decision-making about disinterment. The protection of public health will clearly be a significant factor for more recent graves, as is recognised by the current framework. However, it would be rare for disinterment to be prohibited on public health grounds. Such considerations speak to how the disinterment should be carried out and the conditions imposed, but other interests will have greater relevance in deciding whether the disinterment should proceed at all. The relevant interests vary depending on the reason for the disinterment. They could include (besides public health considerations):

(a) the respectful handling of human remains, including cultural and spiritual sensitivity;
(b) the views of the family or whānau of the deceased;
(c) the wishes of the deceased, if known;
(d) relevant matters under tikanga Māori;
(e) the contractual or property rights of the plot holder and cemetery operator, if any;
(f) finality of disposal;
(g) the time elapsed since burial and the likely level of decomposition;
(h) the appropriateness of the burial location;
(i) the impact on other graves, for example if the deceased is buried in a communal plot; and
(j) matters of general public interest, such as completing a police investigation, or leaving archaeological sites undisturbed.

18.73The main reform issues relate to identifying the most appropriate decision makers to make the key decisions, and ensuring adequate consideration of the factors outlined above. At present, the Ministry of Health makes discretionary decisions on the granting of the disinterment licence, covering both public health issues and issues of whānau and hapū consent. The courts also provide oversight of the overall appropriateness of the decision to disinter where an application is made by a party who objects to the disinterment.

18.74 There are a number of potential inter-relating reform questions:

(a) Who should be the key decision maker in relation to public health considerations? Options include keeping this role with the Ministry of Health, or devolving this role to local authority health protection officers.
(b) Should the requirement to obtain public health approval through a disinterment licence be limited to a particular time period, for example 50 or 75 years after the burial of the deceased?
(c) Who should have the role of checking that family/whānau/hapū consent has been obtained? Should this be the body that oversees public health issues (whether the Ministry of Health or local government), or a different body such as the cemetery manager or the courts?
(d) Should court approval of disinterment applications be required for all disinterment applications; only for contentious applications; or only for applications where the remains of the deceased will be removed from the cemetery or burial ground in which they were originally buried?
(e) Should court approval of a non-contentious disinterment application be required:

(f) Which is the appropriate court to have oversight of disinterment applications? Should this be the High Court (status quo), the District Court, or the Family Court? If the deceased is buried in an urupā, should the Māori Land Court have a role?

(a) Who should be the key decision-maker in relation to public health considerations? Options include keeping this role with the Ministry of Health (status quo), or devolving this role to local authority health protection officers.

18.75The Ministry of Health has core expertise in assessing public health risks, and is experienced in considering disinterment applications, as it has traditionally held this role. The number of applications is not large, and one consideration is whether the applications may be more likely to receive consistent treatment if they are dealt with by one agency. However, the Ministry has advised us that in practice, applications are first received by health protection officers at district health boards, who do the initial processing and ensure that the applications are complete.

18.76Devolution of the assessment of public health considerations to local government would be consistent with other reform proposals raised in this Issues Paper. Under reformed burial and cremation legislation, local authorities could have the role of issuing disinterment licences, and environmental health protection officers could have the power to oversee disinterment. The local authority mandate would be limited to imposing appropriate conditions that address health issues, and ensuring that the disinterment is carried out in accordance with these conditions. The removal of remains without a disinterment licence would become a regulatory infringement, and local authorities would be responsible for enforcement.

(b) Should the requirement to obtain a public health approval through a disinterment licence be limited to a particular time period of time, for example 50 or 75 years after the burial of the deceased?

18.77Health issues are important in the initial period after burial, when decomposition is most rapid. As time passes, these issues become less significant. In developing any new framework, we invite submissions on the merits of setting a time period beyond which public health approval through a disinterment licence is not required, such as 50 or 75 years from the date of burial. Other approvals, such as those from the cemetery manager or land owner, would still be needed after this time. It may also require a court order or some other independently verified check on family consent, depending on the answers to questions raised below.

(c) Who should have the role of checking that family/whānau/hapū consent has been obtained? Should this be the body that oversees health issues (whether the Ministry of Health or local government), the cemetery manager or the courts?

18.78Currently the issue of family consent is addressed both by the Ministry of Health in considering the disinterment licence application, and, where an objection is raised, as part of the oversight of the courts. This may have advantages in ensuring that consent issues are addressed by the applicant at an early stage, and may help to filter out applications where there is a lack of consensus. Court oversight is a useful safeguard to ensure that consent issues and family interests have been properly considered.

18.79But it may be inefficient to address issues of consent in relation to the disinterment licence. There are questions as to whether in principle, a government department should have the role of checking consent, and which potential decision maker has the appropriate expertise to take responsibility for this function. The process could be streamlined so that the disinterment licence is assessed solely on the basis of public health considerations, with the issue of consent being verified by a different decision maker.

18.80One approach would be to develop a model under which consent would be initially verified by the cemetery manager. For example, those seeking disinterment could be required to demonstrate to the cemetery manger that the family of the deceased were in agreement (in addition to providing the disinterment licence verifying that public health considerations had been considered). The cemetery manager has an involvement in the process by virtue of having control of the cemetery where the grave is located. The cemetery manager’s approval of the disinterment proceeding could be made conditional on being satisfied of the family’s agreement, or where the cemetery manager is not duly satisfied, approval could be conditional on the applicant obtaining a court order.

18.81This could be supported by a framework along the lines of the following:

(a) The applicant applies for a disinterment licence from the Ministry of Health or from the local authority that addresses public health considerations (discussed above); and
(b) The applicant presents a statutory declaration to the cemetery manager confirming consultation with the broader whānau/family, that there are no objections, and that they have obtained the express consent of the deceased’s spouse/partner and children, if any, or the parents of the deceased if the deceased was a minor; and
(c) The application includes the signed authorisation of the deceased’s spouse/partner and children, if any, or the parents of the deceased if the deceased was a minor; and
(d) The cemetery manager permits disinterment only if satisfied that the family is in agreement, based on the available information.
18.82This has some parallels to the approach taken to cremation, where the applicant for cremation is required to certify that the near relatives of the deceased have been informed of the proposed cremation, whether any near relative has expressed any objection to the proposed cremation, and the ground for any objection.849 If the land owner or cemetery manager, the plot holder, and the family of the deceased all consent, under this alternative model, disinterment might proceed subject to the conditions of the disinterment licence. However, if any of these parties object, a court order would then be necessary to authorise disinterment.

18.83This option would require cemetery managers to have processes in place to deal with disinterment applications and the verification of family consent. These processes exist to handle the disinterment of ashes from cemeteries (which is not subject to legal controls). However, one factor to bear in mind is the relatively low numbers of disinterment applications and it may be inefficient to create a specific model for the rare occurrences where disinterment arises.

18.84If the role of checking that family consent has been obtained remains with the Ministry or is conferred on local authorities in conjunction with the devolution of disinterment licensing, the revision of the burial and cremation legislation would provide an opportunity to enact clear legislative authority for this decision making function, which is presently lacking, and to review the content and range of current guidance that supports this function. For example, the implications of the Takamore v Clarke decision may need to be addressed or reflected for the benefit of future applications. It may also be an opportunity to consider the status of the guidance and assess whether decisions on disinterment applications should be made publicly available.

(d) Should court approval of disinterment applications be required for all disinterment applications; only for contentious applications; or only for applications where the remains of the deceased will be removed from the cemetery or burial ground in which they were originally buried?

18.85The advantage of requiring a court order is that it would be an open and transparent process, and would have established appeal pathways. It could be argued that family consent may not always be available to act as the necessary safeguard of interests in support of leaving the remains undisturbed, and that court approval for disinterment should generally be sought, regardless of whether there is family consent (or an absence of objections). For example, a surviving family member who was overruled at the time of burial could seek to rectify a situation they remained unhappy about by applying for disinterment once other family members had died or were no longer able to object.

18.86Some may regard the oversight of the court as a necessary check and balance in the process, given the range of public and private interests that are raised by disinterment applications. We note that the list of potential factors and interests we identify in paragraph [18.72] above is quite extensive, and this in itself may indicate the desirability of retaining the oversight of the court, even where there is consensus.

18.87For many people, finality may be more important than selecting the “right” location for burial, if that location means that the body has to be shifted from its original burial place. The disinterment of a body may be more emotive than the disinterment of ashes, and there may also be cultural or spiritual concerns to be considered. The potential impact of any liberalisation of disinterment procedures on the frequency of burial disputes would also need to be assessed. We consider that it would be against public policy to allow successive disinterment of one individual, for example, regardless of family consensus.

18.88For contentious applications, our view is that disputes over disinterment that reach the courts should be dealt with under the same broad framework that would apply to family disputes over the initial place of burial or mode of disposal, as discussed in chapter 16. The underlying principles are similar, or the same: there may be strong cultural or religious values at play, possible family tensions, and conflicting views about the appropriateness of shifting the remains and the new resting place.

18.89No matter what eventual statutory framework might be preferred, we are of the view –as for disputes over burial location or mode of disposal – that the courts should retain jurisdiction to hear these matters where there are disputes over disinterment. We endorse the view of the Supreme Court expressed in Takamore v Clarke that the courts are best-placed to consider the multitude of intersecting values and interests around the decision of whether or not to disinter, where families cannot come to agreement between themselves.

18.90The main argument against requiring court approval of all disinterment licences is that it might be unduly costly and inaccessible for applicants. Once public health issues have been addressed, it could be argued that disinterment is a matter for private interests and should not require additional supervision, and that when the relatives of the deceased all agree or acquiesce, there is no compelling public interest for additional oversight. We note, however, that if all the relevant parties are in agreement, and the application is unopposed, the court costs will be less than for a contested hearing.

18.91An option would be to limit the requirement for court oversight to situations where the body is to be reinterred outside the cemetery in which the initial burial took place. Around half of the total disinterment licence applications seek the reinterment of remains in another place of burial, with a few also requesting disinterment so that the remains may be cremated. This limitation on court oversight could be a means of identifying cases that are more likely to be contentious. The relocation of the deceased within the same cemetery is less likely to arise in the context of an underlying disagreement as to the appropriate place of burial. It usually occurs either to rectify a mistake by cemetery staff or to relocate remains to an area where neighbouring plots are available for purchase by family members to allow for future interments close to the deceased.

(e) Should court approval of a non-contentious disinterment application be required where the application is to rectify a mistake by cemetery staff (approximately 10 per cent of applications to disinter) or where the application is made after a particular time period (for example 50 or 75 years after the burial of the deceased)?

18.92In the case of mistakes, a process might be developed where the cemetery manager could make a statutory declaration or affidavit as to the mistake, and certify that the family has been informed and has consented to the disinterment and reinterment.

18.93Alternatively the option noted above, where reinterring the body within the same cemetery or burial ground would not require court approval, would provide a simpler process in situations where the body is mistakenly buried in the wrong plot.

18.94One consideration is whether court oversight is a useful tool and check on numbers of disinterments when there has been a mistake. Requiring a more onerous process (such as court approval) to correct a mistake may indirectly help to reduce the number of mistakes.

18.95Where a disinterment takes place after a significant period of time, the oversight of the court may be the only real check, as there will be no discernible public health issues and family consent may not be available. We note that disinterment after such a long time period would be rare.

(f) Which is the appropriate court to have oversight of disinterment applications? Should this be the High Court (status quo), the District Court, or the Family Court? If the deceased is buried in an urupā, should the Māori Land Court have a role?

18.96Currently the High Court has jurisdiction in respect of disinterment applications. We note that the District Court might be an appropriate forum, with the ability to refer cases to the Family Court or the Māori Land Court as required. Alternatively, if jurisdiction in relation to burial disputes is shifted to the Family Court, as we raise as an option in chapter 17, it may also be desirable on policy grounds for jurisdiction in relation to disinterment applications to be shifted to the Family Court.

18.97Unlike many provisions of the Burial and Cremation Act, the requirement for a disinterment licence applies to urupā as well as cemeteries and burial grounds. The Māori Land Court may therefore be a candidate for jurisdiction in relation to applications for disinterment from urupā.

Consultation questions

Q20 Do you support the option of giving the Family Court responsibility for dealing with disputes concerning memorialisation (for example the erection of headstones) or the custody of ashes?
Q21 Do you feel that scattering or burying human ashes in public places is problematic? If so what are the most appropriate measures for dealing with this issue?

Additional questions

18.98In addition to the questions posed above, we also raise the following questions for consideration by those who wish to address or respond to them.

Scattering of ashes
(a) Is there a need for cultural or other reasons to designate particular public places where the scattering or burying of human ashes is either permitted or restricted?
(b) Is consultation with local iwi and hapū an effective way to ensure that this activity does not give cultural offence?
​(c) Do the public have enough guidance and information about this activity? How could this be improved?
Disinterment of individual graves
(d) Do you have any comments or views about the list of interests that should guide decision-making about disinterment?850 Are there any other interests that should be included?
(e) Do you have any comments or views about the reform questions raised in relation to the disinterment of individual graves?851
844Burial and Cremation Act 1964, s 51(1).
845The Ministry of Health issued 36 licences in 2012/2013; 38 licences in 2011/2012; 44 licences in 2010/2011; and 42 licences in 2009/2010.
846See also Burial and Cremation Act 1964, s 55 for the offence of unlawful exhumation.
847Takamore v Clarke (SC), above n 822, at [89] per Elias CJ; see also the majority judgment at [159].
848Pauling v Williams CA69/00, 20 July 2000.
849Cremation Regulations 1973, sch 1, Form A.
850See [18.72] above.
851See [18.74] above and discussion following.