Contents

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

Human ashes

18.16Two significant legal and policy issues arise in the context of decision making about human ashes. The first relates to who has the right to make decisions about the treatment of ashes and how disputes should be resolved. The second relates to the public interest in placing legal or policy controls on what happens to ashes.

Personal possessory interests

18.17Potentially, disagreement may arise among family members about what to do with the ashes of a loved one. Some may wish to retain the ashes, others to divide them. Some may wish to scatter the ashes, others to inter them. If ashes have been retained by relatives of the deceased who subsequently separate or become embroiled in a personal conflict, disputes can arise about who should possess the ashes. We expect however, that most families are able to reach a resolution of their differences and accept a decision or compromise in the interests of laying the issue and their loved one to rest. However, the potential exists for legal disputes to arise, and for tangible items such as ashes to be the focus of any such dispute, especially where the parties are estranged and there has been a pattern of dispute between them.

18.18 One example of a dispute concerning ashes is the Australian case, Leeburn v Derndorfer,823 where two sisters interred the ashes of their father at a local cemetery without the consent of their brother. Two years later the brother sought to disinter and divide the ashes, to inter a portion in a cemetery near his home. Although the judge declined to grant the order given the lapse of time and the strong objection of one sister to dividing the ashes, the judge accepted expert evidence that dividing ashes is not an uncommon practice and that, in appropriate cases, courts might authorise or direct a division.824
18.19This case is also authority for the proposition that ashes may be owned or possessed, (unlike the rule that there is no property in a human body, discussed in chapter 14):825

So long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned or possessed. … Ashes which have been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. … The only qualification which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with reverence and respect.

18.20Our preliminary view is that Family Court processes would be suitable for addressing such disputes when they have become intractable – firstly and primarily through Family Court counselling and mediation, with the ability to seek court orders in appropriate cases. The option proposed is consistent with the option raised in the previous chapter that the Family Court and its attendant processes might be best suited for dispute resolution in relation to primary decision-making such as the place of burial. One way to filter the cases concerned with secondary decision-making that reach the court would be to require the leave of the court for an application to be heard. This would reduce the potential number of cases reaching the court, and could encourage real engagement by the parties in alternative dispute resolution. However it would retain access to the courts for any particular case that warrants a judicial hearing.

18.21If the Family Court is to be the preferred forum to handle such disputes, we must ensure that the court has jurisdiction to do so. It is doubtful that it does at present. Legislation should be considered that clearly sets out the right to apply to the Family Court for specific orders. Alongside such statutory right would be use of the Family Court’s alternative dispute resolution methods, which are currently being reformed but the focus of which is mediation. The proposed family dispute resolution service826 seems conceptually broad enough to be ideally suited for disputes of the sort we are referring to here, to be referred for resolution in the first instance.

18.22It may also be necessary to assess whether a clearer statutory articulation of the parties’ rights and responsibilities would be useful, both as a means of reducing the potential for dispute, and as a means of directing the parties towards possibilities for resolution should a dispute arise. This should improve the effectiveness of alternative dispute resolution. Elements of the statutory framework in relation to burial decisions and disputes discussed in chapter 16, which require identification and weighting of relevant interests, could be influential in relation to secondary decision making disputes such as those concerning the custody of ashes.

Scattering or burying ashes on public landTop

18.23 Under the current legal framework there is a great deal of flexibility and freedom about disposing of ashes, although under tikanga Māori, as human remains are tapu, there are cultural restrictions as to the places where it is not permitted. Otherwise there is currently no legal restriction on the disposal of human ashes.827 Some local authorities have developed policies to provide public guidance for their district, but in other areas very little guidance is available. The terms of reference for this review asked us to consider whether nationally consistent guidelines are required to regulate the dispersal of ashes to avoid cultural offence and nuisance.

18.24Ashes can be scattered or buried in a place the deceased person enjoyed spending time, or which had special significance to him or her. The ashes might be scattered in a private garden or on a farm, at a beach, or any other public place, or at sea. If cremation has been chosen for cultural or religious reasons, cultural or religious imperatives might also dictate where or how the ashes are dispersed. For instance, New Zealand Hindu may prefer to release ashes into flowing water, reflecting the original practice of releasing ashes into the Ganges to free the spirit of the deceased.

18.25The right to inter or scatter ashes can also be purchased. Many cemeteries sell plots where ashes can be interred or offer a place in a columbarium (a room or building with niches where urns can be stored). A private body may also sell the right to inter or scatter ashes on their land. An example is Eden Garden, a well-established garden run by a trust and located in a former quarry in Auckland. It offers guided tours, a café, and ash interments and memorials (shrubs, trees and seats).

18.26We do not have figures on how many people choose to scatter ashes, but it is reasonable to assume that given the relatively high ratio of cremation to burial, and the lack of any cost associated with scattering ashes in public places compared to the interment or scattering of ashes on private land, many people are making the choice to dispose of human remains in a public place. It may have been the reason why cremation was chosen – it provides more flexible options for disposing of ashes in a particular place, compared to burial which is largely restricted to public cemeteries or denominational burial grounds, as discussed in Part 1.

18.27The freedom to scatter ashes in a public place needs to be balanced against the wider public interest and the interests of those with a particular right or interest in the place where ashes are scattered. For people who work in these spaces or who visit and enjoy them it can be unpleasant or might cause offence for people to see ashes being scattered in public areas and ashes left visible. Offence may also be caused for cultural reasons, depending on where and how the ashes are disposed of.

18.28There is also a risk that the ashes may be disturbed, causing offence and upset to the person or family who scattered or buried them, for example, if the place where they are scattered is a garden where the soil is regularly replaced, or there are other earthworks. Natural memorials planted by families may also be disturbed or removed by those looking after the land who do not realise their significance. This may indicate that more guidance and information about the choice of location for the ashes would be helpful so that people have a greater awareness and understanding of the implications of their choice, both for their own peace of mind, and to appreciate the potential impact on others.

18.29Tikanga Māori places restrictions and conditions on the handling of human remains, including ashes, which are tapu. The Ministry of Health’s internal guidance notes that consultation with iwi and hapū is appropriate where a local authority receives an application to dispose of ashes at sea or on culturally or spiritually significant land, lakes or rivers, as the scattering of ashes in these waterways may contravene Māori values and protocols:828

Where for instance these waterways are used either for bathing or as a source of food or water, any contact with human remains undermines the sanctity of the waterways and their environs and they cannot be used for their customary purposes until the appropriate rituals have been performed.

18.30Local hapū and iwi will probably wish to be consulted before ashes are scattered in certain areas, particularly if the area has tapu status. Releasing ashes into water may be prohibited under tikanga, especially if the body of water is used as a source of food. As well as these tikanga-based concerns, where local hapū or iwi have customary usage or management rights, restrictions may be imposed on the disposal of human remains in these areas.829

18.31At present there is minimal regulation of the scattering and burial of ashes in public areas. As a matter of best practice, people are advised to seek local authority approval before scattering ashes. Sometimes Ministry health protection officers are asked for guidance. Local authorities can pass bylaws dealing with the practice or may publish information for local residents. They are not required to designate areas where people can dispose of ashes in an appropriate manner, although some do.

Is there a problem?

18.32 Media have reported on ash scattering in public areas causing offence to locals.830 A number of local authorities also expressed concern about the unregulated dispersal of ashes in the survey carried out for this review.831 Wellington City Council reported “unwanted” ash scattering in the Botanic Garden Rose Beds and areas in the town belt.832 Auckland City advised that, due to the increasing diversity of the regional population, more cases were being reported of members of the public disposing of ashes in public spaces and waterways and that this is causing issues. New Plymouth noted that tangata whenua had expressed a concern about ash scattering and a desire for clearer policies around this practice. Environment Southland was uncertain about the approach in areas over which Ngāi Tahu has statutory rights.

18.33Our initial research suggests that most local authority bylaws do not deal comprehensively with scattering ashes in public. We have found few bylaws stating where and how this may be done. While responses to our Local Authority Survey suggested that some local authorities have bylaws or legal processes to deal with the issue, our initial research suggests that such bylaws are limited to the interment of ashes in local authority cemeteries.

18.34Some local authorities release policies, plans or guidance on the scattering of ashes. An example is the Wellington City Council Commemorative Policy, which allows for scattering and interment in “re-vegetation areas” and “parks and reserves with low to moderate public use” and also states where ash scattering is prohibited.833 The policy states that an application must be made through the Council, which will consult with local iwi and, if it declines the application, suggest alternatives. If it approves the activity, the Council keeps a record of where the ashes were scattered.

18.35It is clear that some local authorities have developed processes for managing the competing interests involved in the scattering of ashes in public places, although it is not clear how well known these processes are among the public. It is also clear that the approaches of some local authorities are more developed than others, raising a question as to whether it would be desirable for a more consistent approach. It may be that the scattering of ashes is not a prominent issue in districts with low population density; although even in such areas, there may be cultural concerns about the practice, even if it occurs infrequently. We are interested in feedback from the public and from interested groups about the extent to which the lack of consistent controls and guidance on the scattering of ashes in public places is regarded by New Zealanders as undesirable. Once we have a clearer idea of the extent of the problem and strength of public feeling, a range of approaches is possible.

18.36Given the cultural dimensions to the issue, it seems that more could be done to meet the needs and expectations of the bereaved, the community and local iwi in relation to the scattering of human ashes in public places. In particular areas of New Zealand, increasing cultural and religious diversity means the need for culturally appropriate options for dispersal of ashes is likely to become more, rather than less, pressing.

18.37At present, as a matter of best practice people are advised to seek local authority approval before scattering ashes; however, we expect that few people actually do so. We wonder whether a more effective and realistic approach would be for local authorities to proactively provide guidance and information to the public, as some already do.

18.38It would be worth considering whether there are mechanisms to better inform the public of cultural prohibitions when they choose their location for human ashes. Some local authorities have developed policies following consultation with local iwi. It would be desirable for these policies to be readily available to the public; one option would be for funeral services providers to bring these policies to the attention of the family when the ashes are returned to them following cremation. If local authority policies are readily available, then funeral directors could inform families of the approach taken in any particular part of the country when the family indicates that the ashes will be scattered outside the local district.

18.39Local authorities could be required or encouraged to pass bylaws dealing with ash scattering, where there is sufficient demand for controls in a particular area. That would permit the appropriate local processes to be given effect, including consultation with local hapū or iwi. However, the challenge will be to ensure that such bylaws receive enough publicity so that the controls are observed by the public.

18.40One option might be to require local authorities either to designate appropriate spaces for the scattering of ashes, or to identify places where the practice is not permitted following consultation with local hapū and iwi. This may help to meet the cultural needs of particular groups. In chapter 7 we raised the possibility of opening up older cemeteries for the interment of ashes, which may provide additional options for families with connections to these cemeteries through previous generations.

18.41Another option identified in our terms of reference is nationally consistent regulations so that the dispersal of ashes avoids cultural offence and nuisance. The advantage of regulations might be higher prominence being given to the issue resulting in greather public awareness of any restrictions. However, this option might not be sufficiently flexible for the needs of different communities.

18.42 We therefore welcome feedback on the nature and the extent of the problem in any particular part of the country, and the nature and extent of any desired reform.

823Leeburn v Derndorfer [2004] VSC 172, (2004) 14 VR 100; see Matthew Groves “RIP: Families, Funerals and the Law” (2006) 80(1-2) LIJ 54.
824Compare Fessi v Whitmore [1999] 1 FLR 767 where a submission requesting division of the ashes was rejected as “wholly inappropriate”; Doherty v Doherty [2006] QSC 257; Robinson v Pinegrove Memorial Park Limited (1986) 7 BPR 15, 097. See Eloisa C Rodriguez-Dod “Ashes to Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation and Cremated Remains” (2008) 17 Transnational Law and Contemporary Problems 311.
825Leeburn v Derndorfer, above n 823, at [27].
826Family Dispute Resolution Bill 2012 (90-3F).
827The Health Act 1956, s 29, defines certain acts that are injurious to public health to be a nuisance; however, the scattering of ashes is unlikely to endanger human health.
828Ministry of Health Environmental Health Protection Manual (June 2004).
829The Wellington City Council Commemorative Policy provides that the Council, the Wellington Tenths Trust and Te Runanga o Toa Rangatira Incorporated are responsible for identifying suitable sites for scattering ashes.
830Joseph Aldridge “Scattering ashes on Mauao causes locals concern” Bay of Plenty Times (online ed, 3 October 2012).
831Law Commission “Survey of Local Authorities” (November–December 2010) [Local Authority Survey].
832See Wellington City Council “Scattered ashes cause angst in rose garden” (21 April 2010) <www.wellington.govt.nz>.
833The Council’s Commemorative Policy (February 2006) describes areas that are unsuitable for scattering and interring ashes – areas of cultural or heritage significance (eg Māori heritage sites), high public use sites (eg sports fields or rose gardens at botanic gardens), sites that have extensive upgrades, renovations or excavations, unsafe sites (eg steep hillsides). The primary aim of the policy is around the placement, management and recording of commemorative memorials in the city, with the secondary aim of managing requests for scattering and interring ashes and other human remains on public land in a culturally sensitive manner.