6.30In the following discussion we consider whether the current legislative framework provides the clarity required to ensure effective long-term management of our places of burial as circumstances change over time. We begin with the issues that arise over the legal status of the land on which burials have taken place, and the implications for the differences for long-term management and possibilities of alternative use. We then consider the particular issues that arise for trustee-managed cemeteries when trustees wish to transfer control to local authorities, given the particular heritage value of these cemeteries and the idiosyncratic management arrangements under which they operate.
6.32Respondents to our Local Authority Survey were not always able to provide comprehensive information about the underlying legal designation of land used for cemeteries in their districts. Often the land had been classified as cemetery reserve and is subject to the Reserves Act 1977. In other cases land may have been donated by the Crown or obtained under the Public Works Act 1981 or the Local Government Act 1974. One of the ramifications is that cemetery status is not always noted on the title and is not noted in a consistent form when it is recorded.
6.34The ambiguous, unusual, and complex legal status of land used for burial does not necessarily cause day-to-day management problems. However, the different legal classification of the land, or in some cases the lack of clarity as to the land’s status, causes problems and potential conflicts between different statutory regimes in a number of areas. The lack of clarity as to the legal status of land used for burial can also create more serious problems when decisions are being made to either transfer the ownership and/or management of such land to another party, or to divert unused portions for another purpose.
6.37On the rare occasions when a cemetery or burial ground is cleared for alternative use, it is the practice in New Zealand to disinter all remains and rebury them in another cemetery. This may often be the preference of the families of the deceased, but in addition it is usually necessary because of planned earthworks. A recent example is the clearance of the Westney Road Methodist burial ground to provide for an extension of Auckland Airport. In 2005, a notice was issued closing the burial ground and exempting it from the restrictions on alienation, with the condition that tablets, monuments and remains were cleared. After the burial ground was closed, the Airport worked with the descendants of persons buried to arrange for disinterment and reburial elsewhere, mostly in the nearby Mangere Lawn Cemetery. If this had been a public cemetery, and not a burial ground, legislation would have been required to authorise the change in use.
6.38The Act sets out a complex and multi-layered process for dealing with cemeteries and burial grounds that cannot accommodate further burials, or that need to be closed for other reasons. The process begins when the Minister of Health issues a “closing order” for the cemetery or burial ground. As part of this closing order, or at a later date, the Minister can vest the control and management of the cemetery or burial ground in a local authority or any other individual or body corporate for the purpose of ensuring it is “maintained in good order” and remains accessible to the public. The Minister also has the power to order the removal of monuments and tablets in a closed cemetery or burial ground. If this occurs, the initiator of the action, whether a local authority or a body corporate, must give public notice of the clearance and must send a copy of the notice to the Historic Places Trust.
6.42These examples demonstrate a number of issues. As seen in the clearance of the Westney Road burial ground, the apparently strong statutory restrictions on the alienation of burial grounds can be overridden by an exemption from the Minister of Health. The process for receiving an exemption is not transparent and does not provide for a public hearing. The sale of unused cemetery land at Waikumete demonstrates the pitfalls of the current law for local authorities seeking to manage their cemetery assets, which can include land adjacent to a cemetery but not yet used for burial.
6.43In addition, the various attempts to sell land used for burial in conjunction with church property illustrates the difficulties in both applying and enforcing the existing legislation when there is a lack of clarity as to the status of the underlying land and the historic decisions which have been taken over its control and management.
6.47Section 53 addresses the issue of vesting the underlying title. Neither section 53 nor section 23 provides any guidance to trustees or local authorities wishing to transfer management. In addition, consent of the local authority is required, which could pose an obstacle to effective transfer in some cases. The risk is that the lack of effective transfer provisions will result in cemeteries that have no responsible manager, for example if trustees die without appointing replacements. There is also a risk that the cemetery management will be informally transferred but outstanding issues such as caveats or undissolved trusts will remain a barrier to full transfer and effective management.
6.48This scenario occurred for the Pauatahanui Burial Ground in Porirua and was ultimately resolved only through a local bill promoted by the Porirua City Council. The Pauatahanui Burial Ground was set aside as a cemetery by the Stace family in 1856. The first burial occurred in 1860, and the cemetery was managed by trustees as a public cemetery for almost 150 years . In the notice giving effect to its closure in 2004, it is referred to as a denominational burial ground.
6.50An additional example is Puhoi Cemetery. We have been advised by the Ministry of Health that the trustees wish to transfer the management of the cemetery, but there are difficulties in doing so because it is located on Crown land and is subject to the Reserves Act. Many still operative trustee-managed cemeteries are likely to have similar issues, suggesting a strong argument in favour of “cleaning up” the underlying title to better enable future transfer of control, when trustees so choose.
6.51Section 22(3) of the Act provides a simpler process for the transfer of control of trustee-managed cemeteries that are on land vested in the local authority. Under this section, if due to resignation, death, or absence of trustees “there is at any time no person holding the office of trustee in respect of that cemetery”, the local authority will take over control of the cemetery.
6.52A further issue relates to the relationship between trustee-managed cemeteries and local authorities. It is quite clear that most trustee-managed cemeteries charge less for a plot than local authority cemeteries. As long as trustees and other members of the community are able to donate time to maintain the grounds and manage burials, this seems to meet the preference of the community. The difficulty arises at the point of transfer of management, if and when this occurs. The local authority will be bound to honour agreements for the pre-sale of plots, and although an interment fee can be charged, there is a risk that many trustee-managed cemeteries will end up becoming a liability for ratepayers. To some extent this is unavoidable, and a natural consequence of the way trustee-managed cemeteries were historically created. However, there may be a case for requiring improved accountability by local authorities to pre-empt problems arising with financial liabilities in relation to future transfers.
[i]f the trustees of a cemetery to which this Part applies at any time number less than 3 the Governor-General may, instead of appointing trustees under this section, with the consent of a local authority, appoint that local authority to have the control and management of the cemetery as from a date to be specified, which date may be before or after the date of the making of the appointment.