Contents

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

Burial rights

Burial and human rights

5.7The dignity and autonomy of the individual are fundamental values of legal systems that seek to honour and uphold human rights. At death, the right to a decent burial can be seen as an instance of the right of all persons to be treated with dignity. The living benefit from this right through the peace of mind that arises from knowing one’s bodily remains will be treated with respect after death. In practical terms, there are many public policy reasons why dignified disposal of human remains should be universally available. Human remains must be disposed of somehow, and ideally this should occur promptly and before a nuisance is created.194 In areas of high population density, and particularly in cities, there is a strong public interest in providing places for the burial of the dead – both to ensure that these are available, and to control the location of burial.
5.8Historically, ecclesiastical law in the United Kingdom imposed a duty on churches to provide burial grounds, and individuals had a “right of sepulchre [burial] in the parish”. This right also required buried remains to be left undisturbed. While the “right of sepulchre” predates the modern human rights framework, it was itself underpinned by considerations of human dignity:195

All do not seem to hold the same opinion regarding the cause of the introduction of the custom that bodies should be covered with earth … nevertheless with good reason it seems foreign to the dignity of man’s nature that a human body should be trodden under foot and torn to pieces.

5.9 As we discussed in chapter 3, the burial law of the United Kingdom changed markedly in the 1800s. Prompted by concerns that the centuries-old framework was insufficient for mass urbanisation, the Metropolitan Interments Act 1850 imposed a duty on municipalities to make adequate provision for burials. In New Zealand, local authorities have had an obligation to provide cemeteries since the enactment of the Cemeteries Act 1882. Perhaps reflecting an underlying commitment to the right to a decent burial, the Burial and Cremation Act 1964 (the Act) also imposes a legal duty on local authorities and cremation authorities to bury or cremate the body of “any poor person” or the “body of any person from any hospital, prison, or other public institution, on the request of the person in charge of that institution” free of charge.196 In addition, Work and Income New Zealand provides funeral grants to help cover the costs of burial or cremation for those with insufficient assets.197
5.10Finally, our criminal law contains provisions that impose sanctions for anyone who “neglects to perform any duty imposed on him by law or undertaken by him with reference to the burial or cremation of any dead human body or human remains”; and anyone who “offers any indignity to any dead human body or human remains, whether buried or not.”198

5.11This range of measures reflects an enduring recognition of the universal right to have one’s remains decently disposed of, and a corresponding duty on the living to ensure that human remains are treated with dignity.

5.12Alongside this implied right to a decent burial, New Zealand law also explicitly recognises the rights of all citizens to practice their faith. Section 15 of the New Zealand Bill of Rights Act 1990 (BORA) states:

Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

5.13The right of individuals who belong to an “ethnic, religious, or linguistic minority in New Zealand” to “enjoy the culture” and “profess and practise” the religion of that minority is also expressly protected under BORA.199

5.14It is our view that these provisions encompass the rights of different religious and ethnic groups to carry out the various religious rituals and cultural practices observed at the time of death, an event universally imbued with religious and cultural significance.

5.15In theory, the Act provides a framework within which these fundamental human rights can be accommodated. It does so in two ways. First, as a matter of principle, section 6 requires that 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.” This principle is reinforced by sections 11 and 12, which give local authorities the power to set aside portions of a public cemetery for the exclusive use of denominational groups.

5.16Furthermore, as outlined in chapter 4, religious groups who feel their needs cannot be accommodated within a public cemetery can apply to the Minister of Health for permission to establish their own burial grounds on private land under section 31.

Adequacy of the provisions

5.17Taken together it would appear that these provisions go some way to ensure New Zealanders are able to carry out their religious and cultural observances for the preparation and burial of their deceased members. However, our preliminary view is that both sets of provisions present practical problems.

5.18First, as the law currently stands, local authorities are under no obligation to provide separate denominational areas, as the provision is almost entirely discretionary.200 Nor are there any specific guidelines to guide local authorities in determining whether to agree to the establishment of a denominational area. Those authorities that have developed a policy tend to take into account factors such as the present and projected size of the particular denominational group, the impact of any special requirements (such as a restriction on double-depth plots) on the capacity of the cemetery, future maintenance requirements and memorial expectations.
5.19 However, in the absence of any national guidelines, our Local Authority Survey shows inconsistency in how councils are responding to requests to set aside denominational areas.201 The survey also shows that while many cemetery managers are attempting to accommodate religious and ethnic needs within their existing cemetery management plans, there appears to be less willingness to formally designate different denominational areas for different religious and/or ethnic groups. As discussed in the previous chapter, from a local authority perspective, setting aside different areas complicates cemetery management, increases maintenance costs and, in particular, makes it more difficult to project future capacity.
5.20An example of the tension between community responsiveness and management efficiency for the local authority can be seen in relation to Waikumete Cemetery. Waikumete has an array of denominational areas, some of which are nearing full capacity, and some with capacity through to 2050. Many of the denominational areas in this cemetery are as old as the cemetery itself. For example, the Jewish section was established after the old Jewish cemetery on Symonds Street reached full capacity in 1886.202 Auckland Council is currently consulting on the future of Waikumete Cemetery, including expansion options as the cemetery is projected to reach full capacity in 2018.

5.21If the cemetery is not expanded, the council faces the management challenge of operating a cemetery that is open for new burials in some areas only. This is primarily a financial issue. The denominational areas will effectively become small cemeteries within the main cemetery and so will be more expensive to operate on a per-burial basis, as economies of scale will no longer apply. This mismatch is partially due to an increasing predominance of people with no religious affiliation, or who prefer to be buried in an area for the public generally rather than a denominational area.

Denominational Burial Grounds

5.22On the face of it, the ability of religious groups to establish their own private burial grounds should mitigate any failures of the public cemetery sector to provide for religious diversity. However, the Ministry of Health has only approved six new denominational burial grounds since 1995. While this low number could suggest that to date most groups have been able to find acceptable solutions within the public cemetery system, an alternative explanation may be that the cost and complexity of establishing a private burial ground under the current provisions are simply too great for most religious groups to contemplate.

Responsiveness to changing beliefsTop

5.23As discussed in chapter 2, the religious affiliation of New Zealanders has changed markedly since the Act was passed. While Pākehā religious affiliation has been in gradual decline for a number of decades, affiliation with Christian churches remains high among Māori and Pasifika communities. Religious affiliation is also high within many more recent migrants groups, and for these communities the observation of customary burial rituals remains a vital part of the cultural fabric of their communities.

5.24In the course of our preliminary consultation and research, we heard from a number of ethnic groups looking for ways in which the current legal framework can accommodate their particular burial rites and customs. For example, we met with representatives of Wellington and Auckland’s Hindu community who are seeking ways to better fulfil their specific cremation rituals, including physically placing the coffin into the cremator, and releasing the ashes into fresh flowing water.

5.25We also received a submission from the New Zealand Buddhist Council highlighting some of the issues of concern to adherents of their faith regarding the laws and practices regulating cremation in this country. The Council wished to see simpler and more transparent processes introduced to allow traditional cremation on an outdoor pyre to occur in specially designated private places.

5.26We are also aware that in some parts of New Zealand representatives of the Muslim community have entered into arrangements with cemetery managers to ensure that local adherents of Islam can be properly buried within a public cemetery. The specific requirements include placing the shrouded body in a sealed wooden chamber in the earth with the body lying to face Mecca. While the body is not in a coffin, the wooden chamber created in the burial pit ensures that no soil comes into contact with the shrouded body. It is important under Islam that the mourners actively assist in all aspects of the burial. In addition, burial must occur as soon as possible after death, generally within 24 hours. As noted earlier, not all cemeteries are necessarily able to accommodate these requirements, and many have an additional charge for burial on weekends or outside the council’s normal operating hours.

194This policy driver is reflected in s 86 of the Health Act 1956, which provides for the Medical Officer of Health to order that a burial occur within a certain time, and imposes obligations on local authorities to carry out this order if no-one else is willing or able to do so. Regulation 35 of the Health (Burial) Regulations 1946 also requires bodies to be disposed of “before a nuisance is created by decomposition”.
195Hugo Grotius The Law of War and Peace (1625) at ch 2 “On the Right of Sepulchre”.
196Burial and Cremation Act 1964, s 49. The person requesting free burial or cremation must produce an order signed by a Justice of the Peace attesting that the deceased’s estate cannot meet the costs of burial or cremation.
197Work and Income “Funeral Grant” <www.workandincome.govt.nz>.
198Crimes Act 1961, s 150.
199New Zealand Bill of Rights Act 1990, s 20.
200Under s 11(2) of the Burial and Cremation Act 1964 a denominational group declined permission to establish a separate burial area within a public cemetery may appeal the decision to a District Court Judge in the relevant jurisdiction.
201Law Commission “Survey of Local Authorities” (November–December 2010) [Local Authority Survey].
202Members of the Jewish community in Auckland have informed us that there is a strong desire to retain a Jewish burial section that would allow for community control over burial rites and maintenance of graves.