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.
18.60A 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.
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.
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.
18.69Such 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?
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):
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:
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.
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.
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:
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.
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.
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.
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.
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?
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.