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.
5.11This 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.
5.14It 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.
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.
5.21If 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.
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.
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.