Chapter 2
How we approach death

Implications for our review

2.37This discussion illustrates the ways in which culture and religious or spiritual convictions influence the way death is approached by different groups in society. In some cases these beliefs can give rise to obligations that have equal moral weight for the followers of these belief systems, as would duties imposed by legal rules.

2.38For some, failure to comply with certain rituals or practices can be thought to result in harm not only to the deceased but also to their surviving relatives. For others the rituals and customs at the time of death may no longer be imbued with religious significance but may still provide an important collective cultural framework within which to approach death.

2.39In our view, as a matter of principle, it is important that any reform of New Zealand’s burial law makes adequate provision for these different religious and cultural constructs of what constitutes a decent burial. On the face of it, section 6 of the Burial and Cremation Act would seem to provide for such diversity in burial. However, as we discuss in Part 2, in reality this expansive provision can be constrained by the far more restrictive and prescriptive bylaws and rules imposed by those who currently manage and control New Zealand’s public cemeteries and the constraints on who may establish new places of burial.

2.40There are, of course, other relevant interests at play in this area of law. For example, the need to respect cultural diversity must be balanced against the need for access to affordable burial options for the whole community and the need to ensure that the practices associated with death and final disposition do not cause offence or create a public health risk.64

2.41Alongside these pragmatic considerations the law must also address how best to resolve disputes that may arise when there is a clash between the belief systems and cultural affiliations of those responsible for the deceased after death. Given the strength of beliefs and emotions associated with death distressing and intractable conflicts can result. It is possible that such conflicts will arise with greater frequency in the future as a result of marriage (and re-partnering) between couples from different cultures and religions.

2.42This review provides the first opportunity for New Zealanders to discuss these issues and to express their views about what constitutes a “good death” and a “decent burial” and how the law can help resolve disputes when values and traditions are in conflict.

64The rights to religious freedom and of minorities protected by the New Zealand Bill of Rights Act 1990 are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s 5).