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


5.1The preceding chapter provided a high level overview of New Zealand’s cemetery sector and foreshadowed some of the issues confronting providers. As well as looking at operational issues, the terms of reference for this review require us to assess how well the law is operating, not only for providers but for the public they serve. A key question is whether the current framework meets public expectations around burial choice.

5.2As discussed earlier, the current legal framework evolved as a pragmatic response to the haphazard provision of burial places in colonial New Zealand. Its primary focus was on protecting public health by ensuring all communities had access to a public cemetery and that burial took place in a controlled environment. It also sought to limit the proliferation of small cemeteries. The cultural and spiritual needs of individuals and groups with respect to burial practices and protecting the wider public interest in preserving our cultural heritage were to be managed within this framework.

5.3Although cremation is increasingly popular, the provision of places of burial continues to meet an important public need. For some, the decision as to burial location may reflect a strong relationship with a particular place, or a desire to be interred with other family members. For others, the decision to opt for burial rather than cremation represents a deliberate values-based choice. This may reflect cultural or spiritual imperatives,193 or strong personal convictions about the environment and sustainability. In some parts of the country, cremation services are either not available or are difficult to access.

5.4Our objective in this chapter is to examine how well the current legal and regulatory framework supports the diverse needs of New Zealanders who choose burial over cremation. Preliminary consultation and research have highlighted a number of potential problems with the current regulatory framework. These include the constraints on burial choice within public cemeteries and the wider constraints resulting from the current prohibition on the establishment of private burial grounds and burial on private land. In the following discussion we explain why these issues may be considered problematic, drawing on examples identified in the context of preliminary consultation.

5.5We begin by considering the extent to which the current legal framework accommodates the various human rights involved, including the right to a decent burial, and the right to religious freedom. We also consider what other drivers there may be for allowing greater diversity in burial choice, including the growing interest in “natural burials” (also known as “eco burials”), and the desire of some to be buried on private land.

5.6Finally, we consider a number of other issues concerning the responsiveness of local authorities to the wishes of their communities and constituents in the provision and management of cemeteries. Foremost among these is the question of memorialisation and the extent to which those who purchase the right to interment should be entitled to exercise choice in the way in which they commemorate the deceased within a public cemetery.

193See ch 2.