Chapter 3
A brief history of our burial and cremation law

The Burial and Cremation Act 1964

The provision of cemeteries and burial grounds

3.29At the time of the introduction of the Burial and Cremation Bill in 1964 the then Minister of Health the Hon D McKay noted that many of the provisions of the existing statute, the Cemeteries Act 1908, had “stood unaltered from the form in which they were enacted in 1882”.85 But while there may have been a sense that the law needed to be modernised, records of Parliamentary debates indicate that, rather than significantly reforming the cemetery sector, the objectives of the new Act were to further entrench the responsibilities and powers of local authorities, to the exclusion of other providers (with the exception of religious groups).
3.30The Hon Mr McKay told his colleagues the objective of the new Bill was to “ensure that as far as possible burials should take place in cemeteries under the control of local authorities”.86 Under the old statute local authorities managed many cemeteries as trustees, appointed by the Governor-General. Under the new Act control and management of cemeteries was to be exercised in the local authorities’ own right.

3.31Most significantly, under the new law, it would no longer be possible for new public cemeteries to be established by other providers. Existing trustee-managed cemeteries would continue to function but mechanisms would be introduced to facilitate the transfer of these cemeteries to the management and control of local authorities over time. In practice, we know of no trustee-managed cemeteries established after the legislation was consolidated in 1908.

3.32Denominational burial grounds, which were intended to meet the needs of religious orders continued to be provided for under the new Act. A new provision was introduced allowing any denominational group that had been declined the right to establish a denominational area within a public cemetery to appeal the decision to a District Court Judge.87 In theory, this provision could be used to protect the interests of such groups if local authorities adopt plans or policies that do not support the concept of separate religious areas.88

Responsibility for maintenanceTop

3.33The Parliamentary debates on the Bill suggest the issues of most pressing concern at the time related primarily to maintenance and the extent to which the primary legislation should dictate to local authorities such matters as the style of cemetery and type of memorialisation made available to the public. At time of the Bill “lawn cemeteries”, which comprised large tracts of lawn with gravesites indicated by small inset plaques, were being promoted for their park-like qualities and the ease with which they could be maintained. Maintenance standards of cemeteries as a whole, and old monuments in particular, were a source of particular concern as noted in the following extract from the debate in the House during the Bill’s first reading:89

…over the years local authorities throughout New Zealand have been experiencing increasing difficulty in maintaining cemeteries in a tidy condition. For many local authorities it has become a major headache, and it will become increasingly so as the country becomes older and we have cemeteries with a large proportion of very old graves in them.

3.34These concerns were reflected in a number of new provisions in the Bill giving local authorities wide powers to tidy and clear closed or otherwise disused or derelict cemeteries or other places of burial. These powers extended to “renovating or removing and disposing of monuments and tablets.”90 The Minister was also able to close and approve the clearance of cemeteries and burial grounds, including the disposal or removal of monuments and tablets and the levelling and planting over of the area.91
3.35In addition to these discretionary powers, and in response to concerns about the risk unstable monuments posed to children playing in public cemeteries, a new provision was introduced requiring local authorities to make safe, take down or remove any monument or tablet which in its view posed “a danger to persons frequenting or working in the cemetery”.92 The Act does not specify how this is to occur, and some local authorities meet this obligation through fencing off unsafe monuments rather than undertaking repairs, examples of which can be seen in Wellington’s Karori cemetery.
3.36Alongside these largely operational changes, the Act also gave local authorities new powers to deal with graves that had been pre-purchased but where no burial had taken place. In such circumstances the council could either contract with the person who had purchased the right to burial to buy back the plot for an agreed sum or, if 60 years had passed since the sale was made and no burial had occurred, the right to burial would simply lapse.93

The Act’s structure and key provisionsTop

3.37The 1964 reforms did not amount to a first principles review of burial law. Except for the policy shift entrenching local authorities as the sole providers of public cemeteries, the structure, provisions and language of the 1964 Act bear strong similarities to the earlier statutes.

3.38Like earlier legislation, the Act preserves the historic distinctions between “cemeteries” and “burial grounds.” Urupā are explicitly excluded from the Act. While most of the provisions of the Act apply to both cemeteries and burial grounds, there continue to be significant differences in the legal obligations and constraints that are imposed on those managing denominational burial grounds as opposed to public cemeteries. One of the most significant of these, as we will discuss later, relates to the general prohibitions on the sale or alienation of land used for human burial.

3.39The Act also preserves the historic distinction between cemeteries owned and controlled by local authorities and those under the control of trustees and religious denominations. Again, while many of the powers and obligations created under the Act apply to all those in charge of places of burial, some apply only to trustees or burial ground managers. Part 3 of the Act, which deals with Trustees, contains a number of provisions designed to facilitate the transfer of cemeteries under the control of trusts to local authorities. We analyse these in chapter 6.

3.40In the following chapters we assess how well this legal framework is working after nearly half a century. In the next section, we provide a more detailed description of the key legal provisions before moving on to describe in chapter 4 how these provisions are operating from the perspective of the main providers of burial places in New Zealand.

85(22 October 1964) 340 NZPD 2908.
86At 2909.
87Burial and Cremation Act 1964, s 11(2).
88As we discuss in ch 4 this trend has in fact occurred but we are unaware of any case where a decision to decline an application to establish a denominational area within a public cemetery has been challenged in the District Court.
89(22 October 1964) 340 NZPD 2917.
90Burial and Cremation Act 1964, s 20
91Section 45.
92Section 9(h).
93Section 10(3) and (4).