Contents

Chapter 4
Burial in New Zealand today: an overview of the current practice

Introduction

4.1As illustrated in the previous chapter, local authorities in New Zealand have been responsible for providing public cemeteries for well over a century. By the early 20th century, it had become the norm for most burials to take place in council-controlled cemeteries (or for Māori, in urupā). The Burial and Cremation Act 1964 further entrenched the local authority role.

4.2 However, while the Act specifically excludes all but religious groups from establishing new burial grounds, a large number of trustee-managed cemeteries, which were established early last century, remain. While many of these are closed for new burials, approximately 100 trustee-managed cemeteries are still serving communities around New Zealand.137

4.3The Act attempts to provide a legal framework that can operate across this mix of public and charitable providers, protecting a wide range of public and private interests. It imposes certain legal obligations on both public and religious providers, but also confers on these providers wide powers allowing them to control and manage most aspects of cemetery provision. However, it reserves for the Crown (through the Minister of Health or his/her delegate) significant control and decision-making authority over matters that were perceived to present a risk to public health, or which could see land used for human burial disturbed or diverted for another purpose.

4.4The object of this chapter is to describe how, in practice, the sector is functioning. We also highlight some of the issues our research and preliminary consultation suggest may need to be addressed in any future reforms.

4.5In the following section we provide an overview of the burial options available to New Zealanders and detail some of the planning, management and operational practices arising under the different frameworks that apply to these different providers. We deal with the following:

Information gathering

4.6 Because each local authority provides cemetery services independently of central government, and of each other, national data about the sector is very limited.138 To help fill this void we asked New Zealand’s 67 territorial authorities to complete a comprehensive survey designed to provide both a snap shot of the public cemetery sector and an initial indication of some of the issues and challenges local authorities were encountering within the current regulatory environment.139 We refer to this survey as the Local Authority Survey.

4.7The survey sought information on a wide range of issues including the existing and future financial burden on ratepayers for the provision and maintenance of cemeteries, the level of community consultation councils engage in when planning new cemeteries, and the extent to which local authorities are responding to the changing social, cultural and spiritual requirements of their communities for the place and manner of interment. We draw extensively on the information provided to us through this survey during this discussion.

4.8 One of the critical issues we address in this review is the adequacy of the current law for managing and protecting historic cemeteries and burial grounds. An important first step in this process has been endeavouring to establish the legal status and management or ownership structure of these historic trustee-managed cemeteries. To this end, in November 2011, we wrote to the trustees of nearly 100 trustee-managed cemeteries around the country asking them to provide basic information about the cemeteries under their control. This request included whether the cemetery remained open for burial, the underlying legal status of the land, and the succession plans (if any) they had for the management and maintenance of the cemeteries if it became impossible to retain the legal minimum number of trustees.140

4.9In this chapter we report the findings of this research and highlight the issues raised by providers. As will become evident, these issues range from questions of policy and law through to what might best be described as operational issues relating to the day-to-day management of cemeteries and burial grounds. In the following chapters we analyse these issues in greater depth before putting forward some preliminary proposals for reform in chapter 7.

137The precise number of trustee-managed cemeteries is unknown. In 1998, the Office of the Auditor General (OAG) reported that it had audited the records of 131 trustees in the past year. The second OAG report on the sector was in 2005/2006, at which point the number of trustees submitting audit records had fallen to 97. Since then a few trustees have transferred management to local authorities, though not all have completely formalised this process. In addition, we have identified from local authority records a small number of trustee-managed cemeteries that are unknown to the OAG. It is possible that there are others which we have not identified. See Report of The Controller and Auditor-General on Public Consultation and Decision-making in Local Government (Office of the Auditor-General, Parliamentary Paper B 29[98a], December 1998); and Controller and Auditor-General Local government: Results of the 2005/06 audits (Office of the Auditor-General, Parliamentary Paper B29[07b], June 2007).
138For example, we do not have a central register of all cemeteries and burial grounds and at present there is no legal requirement for land used for burial to be formally designated. Nor is there any national database recording where an individual was either cremated or buried. However, many local authorities have amassed a wealth of information about cemeteries and burial grounds in New Zealand’s various districts. Thanks to the effort of local authorities, libraries and genealogists, much of this information is now available online. These databases include not only the open council-owned and managed cemeteries but many of the historic cemeteries and denominational burial grounds that have served New Zealand communities for more than 100 years.
139Law Commission “Survey of Local Authorities” (November–December 2010) [Local Authority Survey]. Completed surveys were received from 43 local authorities.
140Law Commission “Survey of Cemetery Trustees” (April 2012) [Cemetery Trustees Survey].