Chapter 3
A brief history of our burial and cremation law

The legal framework

Key provisions

3.41Other than in exceptional circumstances, the Act prohibits the burial of human remains in any place other than a “cemetery or a denominational burial ground or a private burial ground or a Māori burial ground if there is a cemetery or any such burial ground within 32 kilometres of the place where the death has occurred.”94

3.42The Act’s provisions focus chiefly on providing a legal framework within which local authorities and others who are in control of cemeteries or burial grounds must work in order to protect key public interests, including:

3.43As discussed in chapter 2, except for the general prohibition on burial in private land, the primary legislation places very few constraints on the manner in which bodies are to be interred.95 However, in practice, a raft of bylaws and rules govern every aspect of burial in New Zealand: from the cost and time of internment to who may prepare and in-fill a grave, and the type of memorialisation permitted.
3.44Some of these constraints are a result of other legislation, including for example the Health and Safety in Employment Act 1992, which creates obligations on councils (and others) to ensure the safety of all those entering council-controlled premises.96 However, many of the constraints derive from council bylaws and rules made pursuant to either the Local Government Act 2002 or the Burial and Cremation Act itself. The Act gives local authorities wide discretionary powers over and responsibilities for its cemeteries, including:

3.45Alongside these rights and responsibilities the Act also places certain constraints on how local authorities exercise their powers, most notably with respect to the management of cemetery finances and any activities that involve clearing, closing and disposing of land that has been set aside for the burial of the dead. Most significantly, section 21 of the Act forbids local authorities from selling or making use of any land comprised in a cemetery for any other purpose.

3.46Section 11(1) of the Act gives local authorities the power to permanently set aside a portion of a public cemetery for the exclusive use of “any religious denomination.” The Act also provides for the development of such an area at the expense of the religious denomination and confers broadly defined rights on ministers and practitioners of the religion to regulate the “performance of any religious ceremony in the burial of the dead” and the “inscriptions on any monuments.”104

3.47Section 31 of the Act allows privately owned land to be set aside for the exclusive burial of members of a religious denomination. As well as satisfying public health requirements and any applicable planning consent, applicants must provide evidence that not less than 25 of the adult adherents of the religious denomination support the establishment of the burial ground. Section 31 also allows managers of denominational burial grounds to permit the burial of any other person that they see fit.

3.48The Act also establishes a range of activities that require Ministerial authority before they can be undertaken by either local authorities or other entities with the control and management of cemeteries and burial grounds. The powers of authorisation have been delegated to ministerial officials. These activities include:

3.49The Act sets out a parallel set of rights and responsibilities for cemeteries under the control of trustees. Many of the provisions mirror those that apply to local authorities, such as setting out how trustees are to conduct their business, including their finances. It also creates strict controls over the appointment and removal of trustees and establishes mechanisms whereby the management of trustee-managed cemeteries can be transferred to local authorities.

3.50Part 5 of the Act deals with the establishment of crematoria and outlines the powers and responsibilities of crematorium authorities, which may be a local authority or a private individual, with respect to the operation of crematoria.

3.51Finally, the Act describes the legal obligations on those responsible for arranging the burial, cremation, or disinterment of a deceased person, including:

Other enactments and regulations

3.52Two sets of regulations have been made under the Act: the Cremation Regulations 1973 and the Burial and Cremation (Removal of Monuments and Tablets) Regulations 1967.

3.53The first of these, the Cremation Regulations, describes the obligations on those operating crematoria, including the certification and approval regime that must be complied with before cremation can take place. These regulations also cover the disposal of human ashes.

3.54The objective of the regulations regarding the removal of monuments is to ensure authorities follow a suitably open process and, in particular, that appropriate efforts are made to notify interested parties, including the relatives of anyone whose grave may be affected by removal work.

3.55Over and above these two sets of regulations a significant number of other statutes either interface with the Act, or, in some cases, duplicate provisions contained in the Act. The most significant of these are:

3.56An important issue highlighted in our terms of reference was to consider the extent to which the provisions of the Act are either in conflict with, are duplicated in, or have been eclipsed by provisions in these statues and regulations, many of which have been enacted since the Act was passed in 1964.

3.57Allied to this, we must also consider whether the Ministry of Health remains the most appropriate ministry to administer the Act given the very significant number of non-health related provisions in the Act. These provisions include very many relating to land use and the cultural and historic interests in the preservation of sites used for burial.

3.58We return to these issues in subsequent chapters, but we now turn to describing how the sector is currently operating, beginning with an overview of the main providers and then turning to some of the emerging issues. As mentioned earlier, although local authorities dominate the sector, a range of providers continues to be involved, including trusts that run cemeteries and some residual church involvement in the provision of places for burial.

94Burial and Cremation Act 1964, s 46. Under clause 80(1) of the Cemeteries Act 1908 the prescribed distance was five miles. Over time the distance has been updated but it is unclear whether there is any empirical basis to the 32 kilometre rule or what percentage of the population could satisfy this criterion, with respect to the distance of their private dwelling from a public cemetery.
95Burial and Cremation Act 1964, s 6 states “[s]ubject to the provisions of this Act, every cemetery shall be open for the interment of all deceased persons, to be buried with such religious or other ceremony, or without any ceremony, as the friends of the deceased think proper.”
96Health and Safety in Employment Act 1992, s 16.
97Burial and Cremation Act 1964, s 5.
98Section 9.
99Section 10.
100Section 12.
101Section 15.
102Section 49.
103Section 16. We also note that Standards New Zealand has prepared a model cemeteries bylaw, see New Zealand Standards Council NZS 9201.14 (1999).
104Section 13(2). Under s 13(3) local authorities are specifically prohibited from making any bylaws or taking any other action which interferes directly or indirectly with these rights.
105Section 7(2).
106Section 41.
107Section 45.
108Section 45(3)(a). Note that in contrast, a closed cemetery cannot be sold or diverted in any way.
109Section 38(2).
110Section 45A.
111Section 48.
112Section 31.
113Section 46AA
114Section 46E.
115Section 50.
116Section 51.