Contents

Chapter 3
A brief history of our burial and cremation law

Early Pākehā burial practice and legal responses

Burial

3.12Although enacted in 1964, the Burial and Cremation Act is an iteration of a much older Act passed by the young colony’s General Assembly nearly 130 years ago: the Cemeteries Act 1882.

3.13The provision of cemeteries in New Zealand began on an ad-hoc basis, responding to the rapid increase in population following the signing of the Treaty of Waitangi in 1840. Between 1851 and 1871, New Zealand’s Pākehā population grew from almost 27,000 to 255,000.70 The provision of places of burial was a necessity that could not wait for a tidy legal framework, and so early legislation responded to the situation that had developed in the absence of legal controls.
3.14The planned townships established by the New Zealand Company (including Nelson, New Plymouth and Christchurch) often included provision for public cemeteries.71 Provincial councils and private individuals also purchased and set aside reserves for cemeteries and churches, and mission stations often established burial grounds to serve their communities. Cemeteries were established in small settlements, as the need arose, and were managed by voluntary trustees. This mirrored the Māori approach to urupā, which tended to be intimate and closely connected with a particular marae. Indigenous burial customs continued throughout this period, adapting to the tenets of Christianity in areas influenced by missionary activity. Although the Church of England was a powerful influence within the settler society, and early mission stations often developed small burial grounds in the surrounds of the church, there was no tradition of parish graveyards and burials.

3.15The situation was characterised by a spirit of practicality and community-mindedness, if not extensive foresight or strategic planning. Until 1874, there was no nationally applicable law governing the establishment or management of cemeteries and burial grounds, and different provinces adopted different approaches. Our first burials statute was the Burial-Ground Closing Act 1874, and it is telling that the proliferation of small cemeteries and burial grounds was seen as a more pressing issue than the management of structures for places of burial. The Cemeteries Management Act 1877 established the roles and powers of cemetery trustees, and included provision for separate denominational areas in public cemeteries. However, this Act was not to endure and in 1882, responding to the uncertainty about where responsibility lay for the provision of cemeteries, the General Assembly decided to enact consolidating legislation: the Cemeteries Act 1882.

3.16The Cemeteries Act 1882 required local authorities to provide cemeteries, where there was a need, and established a uniform legal framework under which all cemeteries and burial grounds were to be managed. The principles underlying the 1882 Act were themselves strongly influenced by the reforms in English burial practices which took place under the Metropolitan Interments Act 1850. The Metropolitan Interments Act established the primacy of public health interests in England’s burial law and overturned the centuries-old practice of burial within the parish, replacing it with an obligation on municipal councils to provide public cemeteries. This reform was a response to the cholera outbreaks in London and other urban centres from 1831 to 1854.72
3.17The Cemeteries Act adopted the same broad approach as the Metropolitan Interments Act, including establishing the primacy of local authorities in the provision of cemeteries:73

It shall be the duty of every local authority to provide a suitable cemetery for the interment of the dead where sufficient provision is not otherwise made for that purpose, or where under the powers contained in this Act such cemetery shall have been closed.

3.18The Cemeteries Act also allowed for areas to be set aside in public cemeteries for the use of a particular religious denomination.74 The control of these areas was to be exercised by religious officials, consistent with the approach taken under the Metropolitan Interments Act granting Bishops of the Church of England and the Church of Ireland authority over the consecrated portions of public cemeteries.
3.19As well as clarifying where responsibility for the provision of cemeteries and denominational areas lay, the 1882 Act addressed concerns about the proliferation of small cemeteries and the lack of any form of management framework.75
3.20Although the 1882 Act made local authorities the default provider of public cemeteries, it retained provisions for the management of cemeteries by trustees.76 It did, however, change the management framework for these cemeteries, extending the level of central oversight. These were no longer private arrangements, but rather quasi-public forms of devolved management, with trustees appointed by the Governor-General. Local authorities could be appointed as trustees as well as operate cemeteries on their own account. New cemeteries managed by trusts continued to be established, generally with the full support of the local authority.77

3.21In line with England’s move to prevent bodies being buried in close proximity to heavily populated areas, the 1882 Act prohibited the establishment of any cemetery inside the city boundary. However, this prohibition came too late for a number of provinces which by 1882 had already established large public cemeteries on land that was initially on the fringe of the new urban centres. This included Auckland’s Symonds Street Cemetery, which was opened in 1842, and Wellington’s Bolton Street Cemetery, which was set aside as a burial reserve by Governor Hobson in 1841.

3.22As Stephen Deed observes in his thesis, although these early cemeteries reflected the secular and egalitarian ideals of the new colony, in practice the development of many early cemeteries was strongly influenced by religious and ethnic divisions:78

Although they may not have been governed by an established church, and were often created and maintained by municipal authorities, New Zealand’s cemeteries were far from non-religious in character. Rather, with no established church, the New Zealand cemetery was capable of expressing religious affiliation and diversity in a way in which the exclusively Anglican churchyards of Britain never were [could]. Ethnicity and religion were closely connected, which meant sectarian divisions could often roughly equate to ethnic divisions.

3.23For example, by 1851 Wellington’s Bolton Street Cemetery was in effect operating as three distinct cemeteries, allowing for a choice between interment in consecrated or un-consecrated land. One area was reserved for Church of England burials, one for “non-conformists” and a third for the Jewish community.79 Catholics were buried in consecrated ground in the Mount Street Cemetery. This duality between secularism and religious affiliation went on to be enshrined in our early cemeteries legislation and, indeed, continues as a defining feature of the current law.

CremationTop

3.24 The Burial-Ground Closing Act 1874 established the right of any person “by will or deed duly executed, to direct that his or her body shall be disposed of by burning the same to ashes instead of by burial in the earth”.80 However, it was not until 1895 that the Cemeteries Act was amended to give the trustees of any cemetery, including those established by local authorities, the power to make provision for cremation and to build crematoria.81
3.25At the turn of the century advocates of cremation organised themselves into cremation societies to lobby for better public and political acceptance of cremation as an alternative to burial. In 1903 the Dunedin Cremation Society published a tract making the case for cremation over traditional interment. They argued that cremation removed the public health risks associated with the interment of those whose deaths resulted from infectious diseases such as measles, scarlet fever and typhoid.82

3.26Wellington was the first local authority to respond to the public demand for crematoria and make use of its power to establish a crematorium. In 1909 the City Council opened New Zealand’s first crematorium in the grounds of the city’s new public cemetery, which the council had established in 1891 on the outskirts of the city in Karori. However, it was another four or five decades before other local authorities around the country began investing in building crematoria. In contrast to cemeteries, which local authorities were required to provide, there was (and is) no obligation to provide crematoria; nor has there ever been a prohibition on private crematoria, though until relatively recently cost barriers have significantly limited private provision.

3.27Acceptance of cremation as an alternative to burial increased gradually throughout the 20th century, although it remains unpopular for some religious and ethnic groups. As discussed, the early burial laws made explicit provision for a person to elect cremation. However, the law also recognised the risks created by a means of disposal that rendered the human body to ash, so special regulations were introduced setting out the approvals and processes that were required before a cremation could be authorised.

3.28 The Cremation Regulations were first introduced in 1928 pursuant to the Cemeteries Act 1908.83 The regulations established a system of medical referees who were required to audit the application for cremation and the accompanying medical certificate to ensure there was nothing suspicious about the death. As noted in our earlier Issues Paper on death and cremation certification, the regulations governing cremation have been amended in only superficial ways since these 1928 regulations came into force.84
70Jock Phillips “Further information - British and Irish immigration” (20 December 2012) New Zealand History Online <www.nzhistory.net.nz> at ch 3.
71Deed, above n 66, at [87].
72A legal commentary on the Act written by London barrister St William Cunningham Glen Esq. The Metropolitan Interments Act 1850: Introduction, Notes and Appendix (Shaw and Sons, London, 1860) described the circumstances which gave rise to the new statute in the following passage: 
The injurious effects, moral and physical, produced by the practice of interring the bodies of the dead in burial grounds surrounded by the habitations of the living, as well as in churches and chapels, and the scenes of revolting desecration and profanation of the graves and remains of the dead which were frequently witnessed in the crowded burial grounds of London …
73Cemeteries Act 1882, s 38.
74Section 28.
75See for example, Cemeteries Act 1882, ss 23-27.
76Section 6.
77For example, on 9 October 1886 it was reported in The Colonist that a public meeting had been held and trustees nominated for a new public cemetery at Stoke, with the names to be forwarded to the Government for approval and Gazetting. See “Public Meeting at Stoke” Colonist (Nelson, 9 October 1886) at 5. For the article, see <www.paperspast.natlib.govt.nz>.
78Deed, above n 66, at 72.
79At 72.
80Burial Ground Closing Act 1874, s 14.
81Amendment (Cremation) Act 1895.
82Deed, above n 66, at 106.
83This Act consolidated amendments to the Cemeteries Act 1882.
84The reform of certification was considered in an earlier Issues Paper: Law Commission Final Words: Death and Cremation Certification in New Zealand (NZLC IP23, 2011).