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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]).