Contents

Summary and questions for public consultation

Overview of Part 2 – Burial and cremation: the adequacy of the legal framework

30The Burial and Cremation Act has been in force for almost half a century but its key provisions – and the language in which they are expressed – have remained largely unchanged since the first comprehensive burial law was passed in 1882.19 Unsurprisingly, the Act’s primary focus is on burial, as this was the most common practice at the time.

31New Zealand’s earliest cemeteries were developed in an ad hoc manner in response to the needs of small rural communities, and were managed by voluntary trustees. This mirrored the traditional Māori approach to urupā, which tended to be intimate and closely connected with a particular marae. Later, municipal authorities established cemeteries such as Wellington’s Bolton Street Cemetery and Auckland’s Symonds Street Cemetery to service the needs of the growing urban populations.

32The 1882 statute brought all land used for burial – except urupā – under a common legal structure irrespective of how the land had come to be set aside. It also made clear that it was the local authority’s responsibility to meet the community’s burial needs in cases where there was inadequate provision, although many cemeteries continued to be managed by trustees.20 The Act also made provision for portions of public cemeteries to be set aside for the exclusive use of different denominational groups and in that way allowed for religious diversity within the secular framework of a public cemetery.

33The reforms enacted in 1964 retained this basic structure but further entrenched the role of local authorities by extinguishing the right of other entities, such as trusts, to open new public cemeteries. The only exception is for religious groups, who are still entitled to apply to the Minister of Health for permission to set up burial grounds on private land for the exclusive burial of their members.

34Although the Act empowers local authorities to control most aspects of how cemeteries are managed, it reserves considerable decision-making power in the Minister of Health (the Minister), which in practice is delegated to officials. For example, decisions about the opening, closing, transfer of ownership and even the naming of cemeteries, and the construction and opening of crematoria all require the approval of the Minister. The Minister also has the power to make decisions about applications for burial in special places and the establishment of denominational burial grounds.

35Despite the Act’s strong emphasis on protecting public health (a particular concern at the time burial legislation was first enacted in England and New Zealand), most of the Act’s provisions are actually concerned with operational and land management issues.

What’s changed?

36New Zealand has undergone dramatic social change since the 1964 Act was passed. Our population is much more ethnically diverse and mobile than was the case in the 1960s. Our beliefs and attitudes towards death and the risks posed by human remains have also changed. An estimated 70 per cent of the urban population are now cremated rather than buried.21 Some suggest cremation has become so popular in New Zealand because it fits with the “no frills” mentality of Kiwis. It is also usually cheaper than burial and is increasingly offered as part of a package by funeral homes who either own or are in partnership with a local crematorium.

37However, convenience and price are not the only factors influencing decisions about these matters. Māori traditionally have placed great importance on returning the body of the deceased to the land. Traditionally the preference for burial has been shared by New Zealanders from many other ethnic and religious traditions including Pasifika, Jewish, Muslim and Catholic.

38Changes in our demographic make-up and approaches to death are reflected in some of the trends identified by the local authorities who took part in our survey.22 In some parts of the country, immigrant communities are looking for ways in which they can accommodate their beliefs and customs in public cemeteries and crematoria. Councils are also reporting a growing interest in eco or natural burial grounds as people look for more environmentally friendly approaches to death. Another notable trend is the desire of some to have a more direct involvement in the preparation of graves and the burial itself. And both local authorities and the Ministry of Health note the frustration of those New Zealanders who wish to be buried on their own land or in a rural place of special significance to them but are unable to do so under the current framework.

39At an operational level, local authorities also report grappling with the ripple effects of our increasingly complex family structures. This can lead to disputes over who has the right to be interred in family plots, or to inter ashes in an existing plot and what authority is required to disinter a body.

40Alongside these trends, our research revealed ongoing problems with the maintenance and preservation of cemeteries. This is a problem that is particularly acute in some of our oldest trustee-managed cemeteries and burial grounds, which are repositories of historic graves notionally protected under the Historic Places Act. In some cases attempts to transfer responsibility of such cemeteries to local authorities are frustrated by the obscure legal ownership and arcane management arrangements to which they are subject.

The case for changeTop

41The first question we ask is whether the existing law adequately protects the public interest in ensuring that burial and cremation take place in a manner that is lawful, respectful and which does not cause offence.

42Our preliminary view, based on research, is that the current framework meets these basic interests, although a number of problems arise because of the age of the legislation. However, as a first principles review, we are required to look beyond these basic requirements to ask whether the legal framework itself remains fit for purpose given the changes that have taken place in New Zealand over the last half century. Specifically, we ask whether and to what extent the law should also:

43These two questions involve value judgments and the weighing of different public interests. For example, while some may regard the current prohibition against burial on private land as an unjustifiable limitation on personal freedom, others may be concerned that the proliferation of private burials presents a risk to the sustainable management of land. Similarly, while some may wish to see a more permissive approach to how and when burials take place in public cemeteries, others may be concerned about the impact on other cemetery users and the potential health and safety risks. And while some are concerned at the failure to adequately maintain and preserve our historic cemeteries, others may prefer to see public funds directed at providing better amenities for the living rather than memorials for the dead. These are all matters on which we look forward to receiving public feedback.

Preliminary conclusionsTop

Cemeteries

44Overall, our preliminary view is that the legal framework within which burial is provided for in New Zealand has become unnecessarily inflexible, and too narrowly focused on perceived public health risks and the operational needs of providers rather than the needs of the community. While we accept that there are legitimate practical, fiscal and health and safety rationales for continuing to regulate human burial, we do not believe these justify the current restrictions on where and how New Zealanders are buried.

45In our view the current Act places insufficient weight on the various human rights engaged at the time of death. As a society we are increasingly concerned with protecting the autonomy and dignity of the individual and the rights to freedom of expression, including freedom of religious practice and freedom of belief. As discussed earlier, the different ways in which we approach death form a vital part of our culture and ethnicity. At the very least, we believe the law should only interfere with the expression of such beliefs at the time of death to the extent required to protect other clear public interests, such as public health and safety.23

46We also think a new framework for establishing and managing cemeteries is required and that there is a case for ensuring land used for human burial is better protected than is often the case under the present regime. Most importantly, in our view the Resource Management Act 1991 now provides a much more suitable framework and tool kit for dealing with the mix of planning, environmental and cultural issues engaged in the establishment and long-term management of cemeteries, burial grounds and crematoria.

Cremation

47The cremation sector has some unique policy drivers. Alongside the universal requirement to ensure the deceased and their remains are treated with dignity and respect, both during and after the cremation process, there is also the need to ensure cremation is not used to destroy evidence of crime or other wrong-doing such as abuse or neglect.

48Because cremation generally takes place in a private place without the presence of families or other witnesses it is particularly important that the regulatory processes are robust. Processes are already in place to ensure no one is cremated before their identity and cause of death have been confirmed by an independent medical practitioner. In an earlier Issues Paper we put forward options to reform this certification process and make it both simpler and more effective.24

49However, our initial consultation and review of cremation regulations in other comparable countries has led us to the preliminary conclusion that the controls on how and where crematoria are established, and by whom, are not sufficiently robust. In particular we are concerned at inadequate or inconsistent public consultation on the establishment of new crematoria, the lack of industry-wide standards and quality assurance systems and the lack of any systematic auditing other than in an environmental/air quality context. While we have no evidence that the weaknesses in the current system are leading to bad practice or illegality, the lack of any systematic oversight (other than from an emissions perspective) reduces the chance of such breaches being detected.

Preliminary reform options for cemetery and cremation sectorTop

50We suggest devolving decision-making power and regulatory oversight for cemeteries and crematoria from central government to local authorities, and replacing the land management scheme set out in the Act with the Resource Management framework. We propose a National Environmental Standard be developed to ensure a consistent approach to the establishment, management and long-term maintenance of all cemeteries in New Zealand.

51Within this broad framework we suggest the following specific options for reform:25
52Under these reform proposals local authorities would continue to play a central role in the provision of cemeteries but they should not have a monopoly over the sector. Instead, the cemetery sector would be opened to a range of “independent cemetery providers” operating within the framework of the Resource Management Act.26 Independent cemeteries could, for example, establish special purpose eco-burial grounds on private land. A protective covenant under the Resource Management Act would run with the land and bind potential successors of title.

53The laws prohibiting burial on private land would be repealed. Under our proposed reforms a person wishing to be buried on private land would still need prior approval, but decisions would be made at a local authority level in accordance with the relevant district or regional plans, rather than by central government officials under the current “exceptional circumstances” criteria.

54Local authorities would also be required to provide a greater range of choice for separate burial areas within cemeteries subject to certain criteria. They would also be required to proactively consider the different burial preferences of their communities when establishing new cemeteries or developing new areas within existing cemeteries.27 Local authorities would be legally obliged to maintain public cemeteries in a dignified and pleasant manner and to undertake appropriate work to protect and enhance heritage and amenity values as funding priorities permit.

55In addition to these specific reform proposals we also seek public feedback on whether a legal or regulatory response to the following two issues is needed.

56First, when the Act was drafted burial was the norm in New Zealand and it was therefore logical that it should focus on the provision of public cemeteries. Today a significant majority of New Zealanders opt to be cremated but local authorities are not specifically required to provide their communities with access to publicly funded crematoria. We are interested to know whether there are issues with access to cremation services in some parts of the country and whether, for example, in areas where there is sufficient demand there may be a case for local authorities making provision either themselves or in partnership with a private provider.28

57Second, at present there are no specific regulations governing the scattering or disposal of human ashes. In some cases the bereaved choose to inter ashes in a cemetery; in other cases they may be buried or scattered in a public or private place of personal significance. In some instances they may not be recovered from the crematorium. These different scenarios can create problems. For example, in some cultures the release of ashes into flowing water is an important cultural and religious ritual, but it can cause cultural offence to others. Many Māori regard human ashes as tapu and intermingling ash with waters used for food gathering or recreation is culturally offensive. Similarly, failure to collect ashes from crematoria can create real dilemmas, such as how long they should be retained and what should be done with them after that point, for those who operate these facilities.

Consultation questions for Part 2: cemetery and cremation sector

Q1 Would you support opening the provision of cemeteries up to independent providers, such as those providing cemeteries for “eco” or “natural burials”, complementing the public cemeteries provided by local authorities? (see chapter 7 at [7.42] – [7.52]).
Q2 If so, do you think those establishing independent cemeteries should be limited to registered charities? Should independent cemeteries be allowed to make a profit? (see chapter 7 at [7.45]).
Q3 Should it be lawful for someone to be buried on private land, provided the necessary consents have been obtained? (see chapter 7 at [7.67] – [7.69]).
Q4 Where practically possible, should local authorities be required to provide separate burial areas within public cemeteries for groups with specific religious or cultural burial requirements? (see chapter 7 at [7.28] – [7.31]).
Q5 Do you think the law should establish minimum standards for the maintenance of cemeteries? (see chapter 7 at [7.22]).
Q6 Do you think there should be stronger legal provisions for the protection of historic cemeteries and grave sites? (see chapter 7 at [7.88]).
Q7 Do you think those who operate crematoria should be licensed? Please give reasons. (see chapter 9 at [9.21] – [9.28]).
Q8 Do you think resource consents should be required for all new crematoria and should they be publicly notified under the Resource Management Act? (see chapter 9 at [9.39]).
Q9 Do you think there should be stronger regulatory controls over the operation of crematoria and the handling of human ashes by crematoria? (see chapter 9 at [9.9] – [ 9.14]).
Q10 Do you think there is a problem with the availability of cremation services in any particular area of New Zealand? (see chapter 8 at [8.78] – [ 8.87]).

19Cemeteries Act 1882.
20Around 100 of these trustee-managed cemeteries continue to exist today and are discussed in Part 2.
21See ch 8.
22See ch 4 for discussion of the Local Authority Survey findings.
23See ch 2 at [2.40].
24Final Words: Death and Cremation Certification in New Zealand, above n 11.
25See chs 7 and 9.
26See ch 7 at [7.42] – [7.57].
27See ch 7 at [7.28]–[7.30].
28See chs 7 and 8.