Contents

Chapter 6
Management and protection of places of burial

Maintenance

6.9 The question of maintenance, both of cemeteries as a whole and of individual gravesites, has been a concern for many decades and loomed large in our Local Authority Survey.229 Cemeteries involve a mixture of public and private interests, including those of local government, ratepayers, religious and voluntary groups, and private individuals. The rights and duties applying to each party are not always clear.

6.10Before discussing the issues raised with respect to maintenance and long-term protection of individual gravesites and memorials, we outline in more detail the key provisions that currently determine the rights and responsibilities of the various stakeholders.

The Legal Situation

6.11Section 9(d) of the Burial and Cremation Act 1964 (the Act) specifies that any person who has paid the prescribed fee and lawfully erected a monument or tablet in the cemetery, shall be entitled:

… to maintain such grave, vault, monument, or tablet according to the terms of such permission to and for the sole and separate use of such person and his representatives and successors in perpetuity, or for the time limited in such permission.

6.12Section 9(f) allows local authorities themselves to enter into agreements to maintain graves, either in perpetuity or for a specified period.

6.13Reflecting Parliament’s concerns in 1964 about the risk unstable monuments and tablets posed to workers and the public, section 9(h) requires local authorities to make the monument or tablet safe or take down or remove any structure that has become unstable.230
6.14Section 20 also provides local authorities with wide discretionary powers to clear, clean, tidy and repair any “closed or otherwise disused or derelict cemetery or other place of burial”.231 The manner in which local authorities are to exercise these powers is set out in the Burial and Cremation (Removal of Monuments and Tablets) Regulations 1967. The regulations require the authority to notify the person entitled to maintain monument or tablet providing them with an opportunity to undertake the remedial work themselves.232 If the person entitled to maintain the grave cannot be identified or found, or fails to undertake the work, the local authority must advertise their intention to carry out the task in a newspaper circulating in the area in which the cemetery is located.233
6.15In addition, any work relating to gravesites which pre-date 1900 is subject to the provisions of the Historic Places Act 1993. Under this Act, any place in New Zealand that was associated with human activity that occurred before 1900 is categorised as an “archaeological site”.234 It is unlawful for anyone who has not been granted a specific authority under the Act to:235

… destroy, damage, or modify, or cause to be destroyed, damaged, or modified, the whole or any part of any archaeological site, knowing or having reasonable cause to suspect that it is an archaeological site.

6.16Furthermore, section 45(2A) of the Act requires anyone proposing to clear monuments or tablets from a closed cemetery or burial ground to notify the New Zealand Historic Places Trust of their intention to do so.

Issues arisingTop

6.17 It is evident from our preliminary consultation and responses to our Local Authority Survey that not all stakeholders feel the existing legal framework is providing an effective mechanism for resolving the sometimes conflicting interests inherent in decisions about the maintenance of cemeteries and graves, and the preservation of historic sites.

6.18The most significant problem relates to the management and maintenance of cemeteries and burial grounds that have reached full capacity and have been closed for further burials or are only open for ash interments. These cemeteries and burial grounds contain some of the most historically significant gravesites in New Zealand.

6.19Once a cemetery or burial ground has reached its full capacity it ceases to generate income. Without access to alternative funding and resources, or an explicit legal obligation, disused cemeteries and burial grounds tend to deteriorate. Yet in almost all cases the landowners, be they a public or religious entity, have contracted to provide a “right to perpetual interment”.236 They may not disturb the remains or dispose of the land except in certain prescribed circumstances. In a preliminary submission the Historic Cemeteries Conservation Trust of New Zealand expressed concern at what it described as the “very variable” management of historic cemeteries, claiming most local authorities were “just doing the bare essentials, and no conservation work at all.”237

6.20On the one hand, this might suggest the need for more effective ways to protect our heritage burial sites, but equally it might suggest that as a society we are ambivalent about the value we place on the active preservation of land used for burial, particularly when it has direct fiscal implications for ratepayers.

6.21Depending on which of these perspectives best reflects the public’s attitude, the law may be required to ensure burial sites are actively maintained and their heritage and amenity values protected, or it might impose a much less onerous obligation to leave the land undisturbed and refrain from interfering with the monuments and graves.

6.22Eco-burials also challenge established ideas about the maintenance of cemetery land. In an eco-burial, individual gravesites are not maintained, and when the cemetery reaches capacity it becomes conservation land. The long-term protection of the land will arise as much from its conservation status as its cemetery status.

6.23 Local authorities differ in their approach to the management of closed cemeteries. Some closed cemeteries are actively maintained as historical public reserves, while others are neglected. There is similar variation among trustee-managed cemeteries. This is primarily an issue of resourcing and priorities.238 The Act does not establish minimum standards of maintenance, and those responsible for cemetery management may have different views about the appropriate standards of care. In the absence of a statutory obligation, many local authorities choose not to prioritise cemetery maintenance, and some cemeteries receive no maintenance work at all.
6.24A good example of these issues can be seen in relation to the closed public and Jewish cemeteries on Symonds Street in Auckland. Local residents have long expressed concern that the Auckland Council has not given adequate attention to maintaining these cemeteries, despite their historical and cultural significance.239 In the reallocation of roles under the Super City structure, the Waitemata Local Board has argued that closed cemeteries should be managed as local parks. The Local Board Plan 2011 states that “[t]his historical treasure is falling into disrepair and we intend to restore it through an enhanced maintenance programme and revegetation.”240 While the financial burden of maintenance is common to many districts, it has become particularly acute for the Christchurch City Council in the aftermath of the series of earthquakes that have struck the region since September 2010. Tens of thousands of headstones and memorials were either broken or displaced by the earthquakes. At the time of writing, we were told that “make-safe” work within the council’s cemeteries has cost $450,000 to date and it was anticipated an additional $250,000 would be needed to complete the work.241
6.25The severity of damage to the historic Lyttelton cemetery is such that restoration is unlikely to be viable and the worst affected portion of the cemetery is likely to be closed off. Work is now underway to identify and scope damage to the most significant historic graves and sections of older cemeteries affected by the earthquakes and to prepare a plan for restoration over time. The council has allocated three million dollars over the next three years for the restoration of heritage graves and was working with a number of community groups interested in assisting in the restoration work in various ways.242
6.26It appears that in most parts of New Zealand, local authorities have adopted the position that the responsibility to maintain individual gravesites rests with the person who has paid for, and been granted permission, to make the grave and erect the memorial (or following their death, their relatives and successors). In other words the “entitlement” to maintain created by section 9(d) of the Act is interpreted as creating a duty rather than a right. We are aware that some local authorities believe they do not have the legal right to repair damaged graves (as distinct from making safe, or clearing) without the explicit permission of the person who has the entitlement under the Act.243 However, in many cases there are no known successors with an interest in the maintenance or restoration of these sites, potentially jeopardising the preservation and restoration of significant gravesites.244

6.27Without wishing to minimise the financial implications, we consider that many New Zealanders would agree that closed cemeteries should not be permitted to become derelict and semi-abandoned. Cemeteries have the potential to provide valuable open space, but this potential will not be realised if they are not properly maintained. In chapter 7 we invite submissions on the merits of establishing minimum maintenance standards for closed cemeteries, to address this issue. We also wish to see greater discussion of options for private sector and community involvement in the preservation of historic cemeteries and burial grounds, for example through more effective use of long-term maintenance contracts and arrangements with “Friends of Cemeteries” organisations.

Security and vandalismTop

6.28As mentioned in chapter 1, there have been occasions when cemeteries and individual graves have been targeted by vandals. The most recent case involved the desecration of graves in the Jewish section of Auckland’s Symonds Street Cemetery.245
6.29New Zealand does not have a specific offence of desecration of graves or damage within cemeteries. From 1877 to 1964, provisions of this sort were contained in the various pieces of legislation governing cemetery management. For example, the Cemeteries Management Act 1877 provided that any person who “wilfully or wantonly” destroyed a monument was guilty of a misdemeanour and liable to imprisonment for up to three months or a fine of up to 20 pounds.246 However, by the time the Burial and Cremation Act was drafted, Parliament had recently completed the revision of the criminal code, bringing together miscellaneous crimes into the Crimes Act 1961. Desecration provisions were not carried through to the new Burial and Cremation Act, although it would be possible for local authorities to impose fines for damage through a cemetery bylaw. We seek public feedback on whether current provisions are adequate.
229Law Commission “Survey of Local Authorities” (November–December 2010) [Local Authority Survey].
230These powers and responsibilities are supplemented by s 16, which affirms the local authorities’ own bylaw making powers which are used to further prescribe the rules by which a cemetery will operate and the penalties that will apply for breaches of these rules.
231 Cemetery trustees and managers of denominational burial grounds have the same powers over burial land under their control.
232Burial and Cremation (Removal of Monuments and Tablets) Regulations 1967, reg 3.
233Regulation 4.
234Historic Places Act 1993, s 2.
235Section 10.
236That is, the right for the body to remain in that gravesite forever.
237Preliminary submission of the Historic Cemeteries Conservation Trust of New Zealand (8 February 2011) at [1].
238Law Commission “Survey of Cemetery Trustees” (April 2012) [Cemetery Trustees Survey].
239See for example Brian Rudman “Historic cemetery deserves to be resurrected” The New Zealand Herald (online ed, Auckland, 16 July 2012).
240Waitemata Local Board, Auckland Council Local Board Plan 2011 (October 2011) <www.aucklandcouncil.govt.nz> at 28.
241Email from John Revell (Christchurch City Council) to Law Commission regarding monument repair costs (2 September 2013).
242Above n 241.
243In October 2002, the Timaru District Council’s Cemeteries Review Subcommittee sought clarification as to whether the council itself or volunteer groups were legally entitled to undertake repair work on damaged monuments. The opinion concluded that although initially purchased by the deceased person or their estates, the actual ownership of memorials vested in the Council by virtue of their becoming fixtures to the land once installed. It stated this view was supported by the wording of the Burial and Cremation Act 1964 which referred to an “entitlement to maintain” in s 9 as opposed to a right of ownership. It advised that the Council had the right and in some circumstances an obligation to undertake repairs.
244Grave maintenance is already a pressing problem and is likely to worsen as older concrete headstones become increasingly unstable and have not yet been restored. Once these graves are restored, it may be less of an issue in future, due to more modern modes of memorialisation and restrictions contained in most cemetery bylaws.
245Brendan Manning “‘Vile’ desecration of Jewish headstones” The New Zealand Herald (online ed, Auckland, 19 October 2012).
246Cemeteries Management Act 1877, s 26.