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

Summary and preliminary conclusions

5.63As this chapter illustrates, the right to a decent burial has different meanings for different people and the extent to which the law currently accommodates these differences raises a range of policy questions. These questions invite us to consider not just where it should be permissible to bury human remains but how interment takes place and how the deceased is memorialised. Some of these questions involve matters of fundamental principle which may require a legislative response. Others might be considered operational and might be most appropriately addressed through the adoption of nationally consistent guidelines or the development of model contracts.

Human rights

5.64Based on our research and initial consultation we have reached the preliminary view that the legal framework within which burial is provided for in New Zealand has become unnecessarily inflexible in how it meets the full range of policy objectives that arise. Most significantly, it can be argued that the Act does not currently provide scope for individuals and groups to meet their own burial needs, whether based on cultural or ethical imperatives. The general prohibition on burial on private land combined with the effective monopoly local authorities have on the provision of cemeteries mean New Zealanders who wish to be buried rather than cremated have limited choice as to where or how they will be buried.

5.65While we accept there are legitimate practical, fiscal and health and safety rationales for placing limits around how religious, cultural and ethical beliefs are expressed in a public cemetery, our preliminary view is that it is not appropriate for local authorities to have complete discretion to determine where those boundaries lie. For those with deep religious convictions about death and the afterlife, it is imperative that the proper burial rites are observed. It is not acceptable for cemetery managers to dismiss these requests on the basis that they are merely preferences, which are difficult to accommodate.

5.66There is no culturally neutral style of burial, and what is normal for one community may be anathema to another. Local authorities provide an essential public service in operating cemeteries. In an increasingly multicultural society, it is important that this service does not implicitly discriminate against some sectors of the community through a “one size fits all” approach that limits the ability of some groups to give effect to their particular burial requirements. For example, a cemetery that is not open for burials on Sundays disadvantages Jewish and Muslim residents, who generally require burials to occur the day after death and for whom Sunday is not a day of rest. Similarly, a prohibition on decorating graves is likely to disproportionately affect the Pasifika community, as in many Pacific Island cultures decorating the grave is an important mark of respect towards the deceased and an integral part of mourning practices.

5.67As we discussed, it is currently possible for religious groups who do not feel their needs are being met within a public cemetery to establish their own burial grounds on private land. However, this is not a simple or cheap process and in our view does not adequately mitigate the problem of lack of choice within the public cemetery sector. Efficient use of land is an important policy goal, especially in urban centres. As our burial law has recognised since 1874, some level of public provision is therefore desirable to avoid a proliferation of cemeteries. This is not to suggest that every public cemetery around the country should be required to meet the burial requirements of every different ethnic or religious group in their community, but rather that local authorities should be required to consider these needs in their overall planning and development of places for burial within their geographic area. We also note that any additional costs associated with the establishment and maintenance of such areas may be recovered through differential plot fees.

5.68As we have seen, religious conviction is not the only driver for change in our approach to burial choice. Local authorities are reporting increasing public interest in natural or eco-burials. In other jurisdictions, including the United Kingdom and some Australian states, registered charitable trusts and other entities are able to establish such alternative burial sites because there is no general prohibition on burial on private land. However, in New Zealand the public is largely dependent on local authorities to develop such alternatives.

5.69Similarly, individuals who wish to be buried on land to which they have a strong personal connection are unlikely to be able to do so lawfully under the current regulatory framework unless they have a whakapapa connection to a particular urupā, or are able to meet the restrictive criteria for “burial in a special place”.224

5.70In our preliminary view, there is a case to examine for opening up the sector to other providers and adopting a more flexible approach to allowing burial on private land (such as family farms). This would represent a return to the past when there was a mix of public, charitable and religious providers. Determining whether this would be in the public interest requires a careful assessment of the risks and benefits.

5.71In chapter 7 we put forward our preliminary proposals for reform and explain how the risks associated with liberalising the sector might be mitigated.

Rights of plot holdersTop

5.72In the past considerable debate has taken place about what role, if any, primary legislation should play in determining the parameters within which individuals and groups may exercise choices about memorialisation.225 Some may regard these matters as purely “operational” and best dealt with in cemetery bylaws226 and management plans. However, it is arguable this approach may not give sufficient weight to the rights of minority and religious groups and to the individual burial right-holders.

5.73We think there is a case for ensuring adequate consultation with the public before local authorities impose restrictions on the type of monument that can be erected in a public cemetery. While there must clearly be minimum standards required to ensure a memorial does not pose a risk, cause offence or infringe on the rights of other plot holders, it is not clear why administrative simplicity or maintenance concerns should be the only criteria determining these matters.

5.74In our view, there is also a significant administrative law issue if bylaws retrospectively restrict rights granted through the contract of plot sale. We are also concerned that stringent general rules restricting decorations are unlikely to match public expectations. Using bylaws to impose these restrictions may be straightforward for the local authority, but there is a real risk that the people affected will not appreciate the significance of cemetery bylaws for issues such as these, and so will not take the opportunity to submit. The rules need to be understood, but they should also be consistent with reasonable expectations. When rules are unnecessarily restrictive, heavy-handed enforcement may well be considered an egregiously insensitive response. Therefore, we consider there may be merit in providing greater clarity about the respective rights and duties of plot holders and cemetery managers. We explore this further in chapter 7.

224Under s 48 of the Burial and Cremation Act 1964.
225See, for example, the record of the Parliamentary debates concerning cemetery styles which took place during the Committee stage of the Burial and Cremation Act (22 October 1964) 340 NZPD 2908–2922.
226A form of delegated legislation usually made by local authorities.