Contents

Chapter 5
The “right to a decent burial” in a modern, multicultural society

Burial outside of local authority cemeteries

Values-based burial choices

5.27One of the specific questions we have been asked to address is whether religious belief should be the only ground under which groups should be permitted to establish a private burial ground. Underpinning this question is recognition that other groups may also wish to establish their own burial places. As discussed earlier, BORA protects the rights of ethnic minorities to practise their culture.203 Section 15 of BORA also explicitly includes the “right to manifest” a belief in “observance” or “practice”. This is broader than merely a right to hold beliefs. Instead, it encompasses the right to act upon beliefs, whether or not based in religion. It is arguable, therefore, that those who hold strong values-based convictions about what should happen to their bodies after death should also be entitled to express these in their mode and place of burial.
5.28There is some evidence to suggest that the Ministry of Health is willing to adopt an expansive view of religious communities in assessing applications to establish denominational burial grounds. For example, in 1996 the Ministry of Health was asked to approve an application from a Marlborough-based trust to establish a denominational burial ground within its 50-hectare land holding in Wainui Bay. The applicants, the “Tui Educational and Spiritual Trust”, were concerned with promoting community and environmental sustainability. The Trust’s objectives included the promotion of “spiritual well-being within New Zealand through the unification of religious, cultural and other differences, in order to bring about renewal of love, creative energy and universal wisdom”.204
5.29The Ministry of Health’s legal advisors considered whether such a trust could fall within the Act’s definition of a religious denomination.205 They noted that while the Act did not precisely define the word “religion”, the fact that it explicitly stated that it could include “any church, sect or other subdivision of such adherents” suggested “an intention to include groups involved with both orthodox and unorthodox spiritual activities”.206

5.30The advisor pointed out that the Deed of Trust could be read as a “creedal statement” and was evidence of an organised and coherent community with articulated spiritual concerns. They concluded that the lack of any common belief in a god or deity was not “fatal to its status as a religion”. The application was approved.

5.31The fact that the Ministry was willing to approve this application suggests it may be willing to recognise what might be described as values-based or “ethical communities” as proxies for religious denominations. However, it is unclear where the boundaries lie. The Ministry addresses each application on a case-by-case basis. It seems possible that permission might be granted to a group committed to the environmental principles underpinning eco-burials, or possibly an ethnic community which lacks religious underpinnings. However, as a matter of principle, we consider that it is undesirable for these important policy decisions to be made by Ministerial officials. This review provides an opportunity to assess whether there is a genuine demand for private burial grounds by non-religious communities, and if so, what legal framework should best regulate the establishment of such burial grounds.

Case study: Natural Burials

5.32 Among the trends noted in our Local Authority Survey is a growing public interest in natural or eco-burials. No national standards currently govern natural burials, but typically they involve the burial of an un-embalmed body in a biodegradable casket or shroud in a relatively shallow plot to promote rapid aerobic decomposition of the body. In most cases the burial sites are marked by plantings rather than headstones or other non-biodegradable memorials.

5.33A national survey on burial and cremations preferences carried out by UMR Research found that approximately a third of New Zealanders would opt for a natural burial if it were available to them.207 Similarly, a poll on Stuff.co.nz showed that if given the choice 21.9 per cent would opt for a natural burial compared with 16.6 per cent who would prefer traditional burial. Participants were told a natural burial involved burying the body “in a shroud or biodegradable coffin in the ground” and that “a native tree is planted over the remains, in a regenerating bush location”.208
5.34Those opting for natural or eco burials are often motivated by a concern for the environment and a desire to have a closer personal involvement in the processes around death and burial. These twin drivers are evident in the mission statement of Natural Burials New Zealand Ltd, a company established in 1999 with the goal of establishing and operating natural cemeteries throughout New Zealand:209

Our fundamental premise is that in death people can make the ultimate gesture to the environment – by ensuring their death funds and nourishes the restoration of land to a more natural state.

The principle is part of a wider movement that aims to bring about a psychologically healthier social attitude to death.

5.35Initially the organisation sought to establish a natural burial site on privately owned land, but because of the current prohibition on private burial grounds (other than by religious groups) it instead entered into partnership with Wellington City Council to establish a natural burial area within the council-owned Makara cemetery. Since its establishment in 2007, there have been 85 burials in the area.210
5.36In the United Kingdom the natural burial movement gained momentum in the 1990s and over the past two decades there have been over 200 “woodland burial” sites established. In her comparative study of burial practices Sally Raudon suggests that lack of a statutory regime providing for cemeteries in Britain and the absence of restrictions on private burial may explain the rapid expansion of natural burial sites.211
5.37Our survey revealed that a significant number of local authorities, including Wellington, Hamilton, Blenheim, Whanganui, New Plymouth, Tasman, Kapiti, Christchurch and Marlborough have either established, or are planning to establish, natural burial sites in response to growing interest from their constituents.212
5.38However, Natural Burials founder Mark Blackham, who has provided advice to some local authorities, argues that there are compelling reasons for allowing other providers to develop sites on land expressly suited for the purpose of natural burial. The philosophy of natural burials is inextricably bound up with conservation values and it is not always feasible for local authorities to accommodate these values within the constraints imposed by existing cemetery locations:213

In some instances the natural burial area has been ‘tacked on’ to the conventional burial area. This offers limited potential for reforestation and the aesthetic and ecological values associated with natural burials.

5.39Mark Blackham suggests that existing burial laws were enacted at a time when the cultural mindset was restrictive and when the body was regarded as a source of potential contamination:214

We have learned so much more about death from a mental, cultural, physical and health perspective (ie closer to death is better for grieving, for bonding, and dead people do not present a health risk). Those who framed the old laws did not know or think these things.

5.40Natural Burials receives regular inquiries from individuals and groups with land in rural or semi-rural areas who are committed to the regeneration of native forests and who wish to establish natural burial sites within them but are unable to do so because of the current prohibition on private burial grounds.

Individual burials on private landTop

5.41Not everyone who wishes to be buried on private land is motivated by religious or ethical convictions. Some simply have a strong desire to be buried in a particular place. However, in New Zealand, unless the deceased has connections with an urupā on Māori land, that option is not currently available other than in exceptional circumstances.

5.42As discussed in chapter 3, at present there are very few situations in which it is lawful for an individual to be buried anywhere other than in a public cemetery or burial ground. The first provision is designed to address public health concerns and allows burial to occur somewhere other than a cemetery or burial ground if a death occurs in a remote location.215 The second is a limited provision which allows for burial in a place used for burial before the Act came into force.216
5.43The third, and arguably most significant provision, allows for “burial in a special place,” other than a cemetery or urupā, but is dependent upon the Minister being “satisfied that there are exceptional circumstances which make the burial of that body in that place particularly appropriate.”217 However, this is a particularly high standard and authorisation is rarely granted.
5.44As discussed above, determined applicants have sometimes found alternative routes to allow burial on private land. In at least one case it would also appear that an applicant who was initially refused permission to be buried on their farmland under section 48 was subsequently granted permission to establish a denominational burial ground on the same site.218 We are also aware of one situation in which a sympathetic local authority agreed to establish a cemetery on donated land, which was then set aside for the exclusive use of the family who donated the land.

5.45In addition to those who have made formal applications to the Ministry for permission to be buried on private land, a number of local authorities serving rural and semi-rural populations noted that some constituents opposed the current restrictions on burial on private land. In some instances, they noted that they were aware unlawful burials had taken place on privately owned rural land.

5.46The local authority most concerned by the current prohibition on burial on private land is the Chatham Island Council. There are no cremation facilities on the Chatham Islands but the Islanders have access to two council-owned cemeteries, two urupā and two denominational burial grounds. However, the Council’s general manager reported that it was common practice for Islanders to be buried in family plots on their own land. Sixty-five per cent of the Islands’ population is of either Moriori or Māori decent and although the land used for burials has not typically been legally designated as an urupā, it is land that has a strong ancestral connection with the deceased. Graves are usually prepared by family members with assistance from iwi. Although the Council encourages landowners to demarcate the land used for burial on the Certificate of Title and to register a covenant to ensure future protection, this is not often done. The Chatham Island Council believes this customary practice should be a legitimate option for communities with enduring connections with the land. Due to the very small population, this is unlikely to cause significant land use pressures; in 2011, there were only two deaths on the Islands.

203New Zealand Bill of Rights Act 1990, s 20.
204Ministry of Health Denominational Burial Grounds (Internal memo, PH05-06, May 1996), Appendix: The Objectives of the Tui Educational and Spiritual Trust.
205Section 2 of the Burial and Cremation Act 1964 defines a “religious denomination” as “the adherents of any religion and includes any church, sect, or other subdivision of such adherents.”
206Ministry of Health Denominational Burial Grounds (Internal memo, PH05-06, May 1996) at [3].
207The 2002 survey involved a representative sample of 752 New Zealanders aged 18.
208The poll had 11,448 votes as at 21 December 2012. The remainder of participants chose cremation or were undecided. See Michelle Cooke “Natural burials the way to go” (20 April 2012) Stuff <www.stuff.co.nz>.
209Natural Burials “Organisation Description” (November 2003) <www.naturalburials.co.nz>.
210See <www.naturalburials.co.nz>.
211Sally Raudon “Contemporary funerals and mourning practices: An investigation of five secular countries” (paper reporting on research undertaken with the support of a 2010 Churchill Fellowship, New Zealand, December 2011).
212According to Natural Burials, “approved” natural burial sites have been established in Wellington, Kapiti and New Plymouth to date. It notes that sites have also been established within local authority cemeteries in other districts but that these do not necessarily fulfil all the criteria as natural burial sites. The website notes that eight more sites are under active consideration. See Natural Burials “Natural Cemeteries in New Zealand” (September 2012) <www.naturalburials.co.nz>.
213See <www.naturalburials.co.nz>.
214Email from Mark Blackham (Founder and Director of Natural Burials) to Law Commission regarding natural burials (19 September 2012).
215Burial and Cremation Act 1964, s 46.
216Section 47.
217Section 48.
218See ch 4 at [4.82].