Chapter 7
Reform options: a modern approach to cemetery management

Overview of key reforms

7.6Our most significant reform proposal is to remove current restrictions on the establishment of new public cemeteries by providers other than local authorities. Our provisional view is that the local authority monopoly on cemetery provision can no longer be justified. There is no longer any obvious benefit or policy rationale for current restrictions that prevent communities of common interest from establishing cemeteries that would meet their burial needs. We therefore suggest that the legislation should provide for a new category of “independent cemeteries”, and a new management framework for these cemeteries.

7.7We also propose that burial on private land in rural areas should be accommodated to a greater extent, subject to resource consenting. This appears to be an area in which the present restrictions do not align with reasonable public expectations. If our proposed reforms are supported in principle, it would then become necessary to consider the consequential changes to the framework for cemetery management.

7.8In addition to opening up the sector, we suggest that local authorities should be under an explicit obligation to make all reasonable efforts to accommodate requests for separate areas in public cemeteries, subject to capacity constraints. It is our further view that local authority bylaws should not pre-emptively rule out or unduly restrict the ability to provide separate areas in public cemeteries for religious or cultural groups. There is a strong argument that bylaws purporting to establish such restrictions are ultra vires, and we consider that this should be placed beyond doubt.

7.9The remainder of our proposed reforms would realign the balance of roles between central and local government in the context of the burial law framework. This includes creating a new framework for trustee-managed cemeteries, moving the oversight role from central to local government. We consider that this is consistent with the role of local government under the Local Government Act262 and would be a more efficient option.

Legal tools to support new policies

7.10 To give effect to these policy changes and the underlying objectives, we propose a range of legal tools. Foremost amongst these is the development of a National Environmental Standard on the use of land for the burial of human remains. Section 43 of the Resource Management Act 1991 allows for the creation of these national environmental regulations, which can impose restrictions on the use of land. A National Environmental Standard would provide national consistency on matters such as minimum burial depth, burial on private land, and the assessment criteria for the establishment of new cemeteries including those that adopt the philosophy of “natural burial”.263 It could provide that the burial of human remains other than in an area approved for human burial is a prohibited activity, engaging the offence provisions of the Resource Management Act. It could also provide that local authorities must identify areas within their region where establishing a cemetery is a prohibited, non-complying, or discretionary activity, and that an application for resource consent to establish a cemetery must be publicly notified.

7.11In addition to a National Environmental Standard, existing resource management tools could be employed to impose land management restrictions on new cemeteries, supporting the proposal to allow greater flexibility in permitting alternative providers. In particular, consenting authorities could make use of the provisions in sections 108 and 108A of the Resource Management Act, which enable them to require a covenant and a bond as part of the resource consenting process. These could be used to support consent conditions requiring long-term maintenance and/or protection of land used for burial.

7.12To mitigate any potential financial risks of introducing alternative new providers to the sector, we propose that independent cemeteries should be required to prepare independently audited financial statements, and must make these available to people wishing to purchase a plot.

7.13In chapter 3, we identified some concerns relating to record keeping. This review provides an opportunity to address these concerns. We suggest that the cemetery status of land should be noted on the certificate of title for all cemeteries, and that local authorities should be required to review and update the Reserves Act 1977 classification of existing unclassified cemeteries. Cemetery managers would also be required to pass on records to the Department of Internal Affairs, in keeping with their role as the repository of records of births, deaths, and marriages.

7.14Finally, we assess whether the expansive use of bylaws is appropriate. Bylaws are the chief tool currently adopted by local authorities to manage cemetery assets. It would appear that there is presently some inefficiency with different local authorities creating substantially similar bylaws, and we are also concerned that bylaws may at times be unnecessarily expansive and thereby interfere with plot holder rights. We also propose clearer statutory defaults giving greater detail about the legal rights that attach to a burial plot, together with a model contract for plot purchase.

7.15We begin by explaining how our proposals to widen the burial options available to New Zealanders would work in practice, and the legal requirements and safeguards that would apply to different types of providers under our proposed new legal framework.

7.16We then set out how the resource management framework and associated tools could be used to better protect land used for burial, including our historic cemeteries and gravesites. Finally, we address a number of legal and contractual issues that arise in the context of purchasing a right to interment.

262Local Government Act 2002, ss 10 and 11.
263As explored in ch 5, there is increasing interest in this style of burial, which involves burial of un-embalmed bodies in shallow plots, with trees planted directly on top of the grave.