Contents

Chapter 6
Management and protection of places of burial

Introduction

6.1In chapter 5 we focused on the rights of individuals and groups with respect to the place and mode of burial. In this chapter our focus turns to the wider public and private interests in the control and preservation of land used for human burial. These interests span the day-to-day management of operational cemeteries and the intergenerational interests in protecting and preserving the heritage values associated with places of human burial.

6.2We anticipate that as a matter of principle most New Zealanders would consider human remains to be sacrosanct, or tapu, and would hold the corresponding view that for cultural, spiritual and sentimental reasons places of burial should be protected. As long as this attitude remains, we consider that the law should reflect the societal importance of long-term protection of burial grounds and cemetery land.

6.3Cemeteries are also a unique form of public amenity, and are not only a resting place for human remains, but also repositories of our history. The Local Government Act 2002 includes cemeteries under the rubric of “sanitary services”,227 but they also have elements in common with parks, public monuments, and amenities such as libraries, art galleries and museums. Their role in providing open space is particularly important. For example, the Draft Management Plan for Waikumete Cemetery notes that:228

The cemetery is the largest area of public open space within the urban area of west Auckland and one of the largest areas for passive recreation in the urban area of Auckland. The cemetery is increasingly popular for passive recreation activities such as dog walking, and hosts approximately 10,000 visitors a year. ‘Friends of Waikumete’ undertake guided walks, historical research and restoration projects.

6.4However, it is also widely recognised that there may be occasions when other land uses compete with the perpetual protection of cemeteries. In some circumstances Parliament has decided the dead must give way to the living. In both Auckland and Wellington, a historic cemetery has been bisected by a motorway. More recently, an extension of Auckland Airport necessitated the removal of remains from a Methodist church burial ground.

6.5While it is rare for cemeteries and graves to be disturbed in this manner, it is quite common for individual memorials, and in some cases whole cemeteries and burial grounds, to become neglected over time. In some of our older cemeteries, many headstones are in varying states of disrepair and the graves are no longer tended. Visiting a grave may bring comfort to mourners and a memorial may be seen as an important tribute to the dead, but the impetus to maintain individual graves may fade over time as relatives of the deceased die or move away from the area.

6.6Our objective in this chapter is to provide a context for public consultation by explaining the issues that emerge under the existing law and practice. Together these determine the rights and duties of those who own and manage land used for human burial, and the rights and duties of the individuals who enter into contracts for burial or ash interment with these entities.

6.7At its most fundamental level these laws must provide a robust framework for identifying and protecting land used for human burial. Beyond that they must strike the appropriate balance between sustainable management and the protection of heritage values, and competing priorities for the use of limited council funds. They must also provide cemetery users with clarity about their rights and obligations.

6.8In this chapter we examine issues relating to the management and preservation of land used for burial, focusing on the following problems that have emerged in the course of our research and preliminary consultation:

227Through a roundabout route, s 124 of the Local Government Act 2002 provides that “sanitary services” has the same meaning as “sanitary works” in the Health Act 1956. Cemeteries and crematoria are included in this definition under s 25(1)(h) and s 25(1)(i) of the Health Act.
228Auckland Council “Waikumete Cemetery Management Plan Review - Discussion Document” (1 November 2012) <www.aucklandcouncil.govt.nz>.