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

Meeting public expectations in the management of places for burial

5.47The preceding discussion addressed fundamental questions about whether the current legal framework is sufficiently responsive to the different values and beliefs of those who wish to be buried. Alongside questions about where burial is permitted in New Zealand, our Local Authority Survey and preliminary consultation have highlighted a number of other issues concerning how local authorities respond to the expectations of their constituents as to what should be permitted in public cemeteries.

Interment of stillborn babies

5.48The premature end of a pregnancy or the death of a baby before birth or soon after is a traumatic event requiring particular sensitivity from those responsible for providing burial and cremation services. At law, a stillborn child means a dead foetus that was born after the 20th week of pregnancy, or born weighing more than 400 grams.219 The births of stillborn babies must be registered, and the probable cause of death must be established.220 Dead foetuses that are born outside of the parameters of this definition are not registered as births under the Births, Deaths, Marriages, and Relationships Registration Act 1995, and there are no legal restrictions regarding the burial of the remains.

5.49Many local authorities have set aside areas for the burial of stillborn babies, often at minimal cost. However, while the law is clear about the point at which a foetus is regarded as a “stillborn”, such definitions can be seen as arbitrary and insensitive to the needs of those who experience loss at an earlier stage in a pregnancy. For some, the burial or cremation of the pre-term foetus is an important part of the grieving process.

5.50Our Local Authority Survey found that the lack of clear guidelines relating to the burial of stillborn babies or pre-term foetuses was a concern for some councils. For example, some cemetery managers were concerned that burials of very premature babies or pre-term foetuses sometimes took place without any authorisation and in unmarked graves. Some had been notified of unlawful burials of stillborn babies on private land.

5.51While some questioned whether this required any legal response, others were concerned about the potential for cultural offence arising from such unregulated burials and saw a need for clearer and more consistent guidelines. In our view, new legislation should provide that cemetery managers must allow the burial of pre-term foetuses in the same area of the cemetery as stillborn babies, on the request of the parents or family. However, given the distinction in law between a stillborn baby and a pre-term foetus, we suggest that it should continue to be permitted to bury a pre-term foetus on land that is not generally approved for human burial, provided of course that land owner consent is obtained.

Direct burialsTop

5.52Among the most commonly cited trends noted by local authorities was a desire for more direct involvement by families and communities in the interment of their loved ones. This included requests to hand dig and/or fill in the graves and to lower the body into the grave. In some circumstances these requests were driven by religious imperatives. In other cases, it might reflect a commitment to natural burial practices.

5.53A number of councils also noted an increasing trend for families to dispense with the services of a funeral director, purchasing a plot directly from the council and dealing directly with cemetery staff. This might be driven by financial constraints or simply a family’s preference to manage the burial themselves.

5.54The extent to which local authorities were able to accommodate these requests for greater flexibility in the approach to interment varied considerably. We are aware of only one local authority (Gisborne) that allowed families to prepare the grave themselves, but many permitted mourners to either carry out, or assist in, the back-filling of the grave. Most cited safety concerns and the requirements of the Health and Safety in Employment Act 1992 as the reason for declining requests to prepare and fill graves.221 Some reported that their staff were not comfortable assisting with the interment of bodies without a coffin.

5.55While there are no legal impediments to families conducting their own funeral arrangements, some local authorities were concerned that bypassing funeral directors meant the risks and administrative burden were being transferred to council staff. In particular, some expressed concern about whether staff would be required to check that deaths had been appropriately registered, the medical certificate of cause of death obtained and the identity of the deceased confirmed. By convention, these compliance issues are typically undertaken by funeral directors.

Choice in memorialisationTop

5.56As we discussed in chapter 2, the different religious and cultural customs and practices associated with death frequently extend beyond the point of committal. Ceremonies and offerings in honour of the deceased may be made at the grave in the period immediately following burial and on anniversaries and special days set aside for the commemoration of the dead. The unveiling of a memorial is also frequently a significant occasion.

5.57The extent to which local authorities permit diversity in memorialisation varies significantly both within regions and between regions. For example, so-called lawn cemeteries conform to a specific layout that typically allows for little ornamentation or individualisation. In other cemeteries, such as Mangere Memorial Gardens, different memorial styles have been permitted to evolve in different sections of the cemetery.

5.58 As discussed above, a right to a plot does not confer ownership and control of the underlying land. Instead, section 9 of the Act provides local authorities with extensive discretionary powers to dictate the type of memorialisation they will accept within public cemeteries, and most have developed prescriptive rules covering matters such as size, height, materials and placement.222

5.59The use of gang insignia on headstones has prompted some councils to implement policies to clarify what is regarded as acceptable inscriptions in a public cemetery. For example, the Porirua Cemeteries Management Plan adopted in 2012 includes a provision stating “no individual monument shall cause offence or unfairly overwhelm adjacent areas either by design, wording or other mark.”

5.60The Act is silent on the decoration of graves. In the absence of any statutory provisions many local authorities have established bylaws that restrict the allowable decorations, and some will include limits on decorations within contracts for the sale of a plot. Some go so far as to prohibit all decorations except flowers placed directly into a receptacle affixed to the monument. The response to noncomplying decorations varies from turning a blind eye to periodic removal.223

5.61Recently this issue has come to the fore because of the clearance of decorations from the graves of stillborn babies at the “stillborn sanctuary” in Waikumete Cemetery. For many years, families had operated under the assumption that they had the right to decorate the entire plot area. It was common for families to erect low fences around a plot so that toys and other mementos could be placed on the grave. As a result, the stillborn sanctuary had a much more colourful and personal appearance than the rest of the cemetery, with unique decorations on most of the graves. In February 2013, contractors for the Auckland Council bulldozed the decorated areas in front of several rows of graves in the sanctuary. Around two thirds of the graves were affected.

5.62Before the demolition, cemetery management had placed signs in the area noting that decorations would be removed and the area tidied. Unsurprisingly, the families affected do not consider that the signs provided sufficient warning, and vigorously challenged the rationale for clearance. The Council has acknowledged that the communication process could have been greatly improved. They have formally apologised and held public meetings. At the time of writing, decorations were in the process of being retrieved from a rubbish skip, so the affected families could reclaim them. However, comments made on a Facebook support page, “Victims of Waikumete desecration by council”, suggest that the Council has a long way to go to repair the emotional damage and restore the sense of sacredness of the area. A particularly prominent concern of the families involved is that the intention to clear decorations was in itself insensitive and unnecessary, regardless of the process used.

219Births, Deaths, Marriages, and Relationships Registration Act 1995, s 2.
220Burial and Cremation Act 1964, s 46A.
221There are indeed serious health and safety concerns involved. For example, if the sides of the graves are not dug out at the correct angle they may collapse while the grave is still being dug or before the coffin is fully lowered.
222However, under s 13 of the Act, the acts of a local authority cannot interfere with the inscriptions on monuments in denominational areas.
223The Wellington Consolidated Bylaws 2008 (bylaws 27.2 and 27.3) stipulate that
The Council may from time to time set the specifications for memorial hardware and structures that can be installed on plots. Any memorial items, hardware or structures that do not comply with the Council's specifications or that have fallen into a state of decay or become broken or pose a hazard may, at any time, be removed from the cemetery by the Council.