65Despite the great diversity in how we approach death, those of us making final arrangements for a family member or close friend share a common motivation – simply to “do the right thing” by the dead. Usually this will include acknowledging their lives, the importance of their relationships and preserving a sense of connection between them and ourselves and the family members who have gone before us.
66But the cultural lens through which we view death can lead us to quite different conclusions about what is, in fact, the right thing to do. For those with deep religious convictions it will often be important to perform certain rituals and ceremonies after death; for others it will be important to affirm connections between the deceased and the places and people who have been particularly significant in their lives; others still may prefer to forgo all public ceremonies and memorials in favour of a private cremation and scattering the ashes.
67Because this is a first principles review of the law, the cultural values and expectations informing our different views of death must be clearly articulated. For example, some may consider that honouring the deceased creates a moral obligation to ensure the final arrangements reflect what the deceased would have wanted – even perhaps when this conflicts with the values and beliefs of those responsible for carrying out the instructions. Others, however, may think that death engages much wider family and community interests and obligations than simply enacting the wishes of the deceased – in other words, that the dead must accommodate the needs of the living.
68Despite the potential complexities, good will and the pragmatic need to make final arrangements usually result in a relatively straightforward decision-making process. However, our preliminary consultation suggests that New Zealand’s increasing ethnic diversity and the complex family structures associated with separation and re-partnering combine to create an environment in which disputes may become increasingly common about what should occur at the time of death and who should have decision-making authority. Long-standing personal conflict between individuals or different branches of a family may sometimes come to the surface in times of stress and grief. Funeral directors have signalled their unease at finding themselves caught in the middle of such disputes and may feel ill-equipped to deal with the complex cultural and interpersonal dynamics which can come into play. In the most extreme cases a body may be forcibly removed and buried before there has been an opportunity to resolve the dispute. Aggrieved parties may then be faced with the emotionally and procedurally difficult issue of applying for an order for disinterment.
69In Part 4 of the Issues Paper we discuss how the law should respond when relatives of the deceased find themselves locked in dispute about what is the right thing to do following a loved one’s death.
70One of the fundamental roles the courts play in society is providing a forum for the peaceful resolution of disputes according to the law. For burial disputes, the forum is currently the High Court. The rules and principles the Court will apply in a burial dispute are derived solely from case law (that is, the body of law formed by legal precedents set down by judges deciding cases brought before them.) The rules set down in those cases are not found in any modern statute enacted by Parliament, but instead form part of the common law. The leading New Zealand authority is the case of Takamore v Clarke but many historical English cases will also be relevant.
71The key common law rule applied by the courts in burial disputes, and upheld in New Zealand in Takamore , is the “executor rule.” Under this rule, which originates in 19th century English common law, the executor of the deceased’s estate has the legal right and duty to both make funeral arrangements and to decide how and where a person is to be buried. In this sense, the executor’s decision-making power over burial arrangements can be seen as an extension of their duty to carry out the deceased’s instructions with respect to the disposal of their personal property. If there is no will, and/or no executor, the court can appoint another person to make these decisions – typically the deceased’s partner or a close adult relative. However, in Takamore the executor rule was confirmed by a majority of only three out of five members of the Supreme Court, with two members concluding it did not form part of New Zealand’s common law. This indicates that there may be different views about the continued appropriateness of this rule in burial disputes in modern circumstances.
72As well as the common law, Māori custom law or tikanga must also be taken into account. While there is ongoing debate and discussion as to the precise status of tikanga within the New Zealand legal system, there is no doubt that consideration of tikanga and its underlying values will be taken into account by the courts when adjudicating disputes involving a Māori deceased or Māori custom. Rules and customary practices based in tikanga have also evolved over hundreds of years and give expression to the fundamental principles, values and beliefs which underpin Māori culture.
73Under tikanga, the primary consideration to be taken into account when determining where a person should be buried is how best to restore or preserve that person’s connections to their tribal land, their ancestors and their surviving whānau. Returning the deceased to the land that nurtured them and cementing their ancestral ties is important not only for the deceased but also for the health and mana of the whānau and iwi. Often the deceased’s whakapapa (genealogy) will give rise to a number of competing claims for their body to be repatriated to different tribal areas. One of the important functions of the tangihanga is to provide a structured forum in which these sometimes robust debates can be resolved. The force and length of discussions often reflect the mana of the deceased and are an important way of honouring them in death. Those who are unfamiliar with the values and principles underpinning these processes might be confused or distressed by the sometimes intense and forceful nature of the discussions.
74As can be seen from this brief description, the rules and decision-making processes under tikanga and the common law differ significantly. Under common law the burial decision is made by a single person, the executor. Judges have tended to actively discourage “unseemly” disputes, emphasising the need and desirability for cases to be decided swiftly. In contrast, Māori customary law facilitates and encourages discussion and argument over the place of burial. The emphasis is on collective discussion and debate in deciding where the deceased will lie.
75There are, nonetheless, commonalities between tikanga Māori and common law. In both cases the views of the deceased are relevant but not treated as binding. And in both cases there is a requirement for consultation – and often compromise. For example, the executor’s powers are qualified under the common law and cannot be exercised in a high-handed or arbitrary manner. If a Court is called upon to review their decision they should, according to Takamore v Clarke, assess whether the executor gave appropriate weight to the views of the deceased and the deceased’s family and friends, including any cultural, spiritual and religious requirements that should have been taken into account. Discussion and debate, whether it occurs within tikanga, or a Court-based forum, may illustrate the esteem in which the deceased is held and their importance in the lives of the living.
76It is also important to note that not all disputes arise from cross-cultural conflict. In some cases the source of the dispute might arise from conflicting religious affiliations within a family, or may reflect competing claims for control between former partners, siblings or offspring.
77Whatever the source of the dispute, the High Court is intended to act as a circuit breaker or final arbiter, allowing the burial to proceed if it has not already taken place, and attempting to find an acceptable remedy or compromise in cases where a disputed burial has already occurred.
78For the law in this area to be effective it has to be principled, accessible (known and understood by the citizens who are subject to it) and capable of providing speedy resolution of disputes so that the grieving process is not unduly interrupted or the deceased’s dignity compromised. When a dispute escalates or some precipitous action is taken, such as the removal of a body, law enforcement agencies need to respond consistently and speedy access is needed to a neutral forum with the authority to make a binding decision and provide a meaningful remedy.
79In our view the current situation does not meet these criteria. The common law executor rule is not widely known or understood. Moreover, it will have little practical application where the executor is unknown at the time these decisions are being made, or there is no executor and no other person has been appointed to fill that role. Even after Takamore, questions and issues about executor rule remain – including the appropriateness of the rule, given that its original purpose was to clarify the executor’s financial obligation to meet the funeral and burial costs, rather than because they had some moral authority to make decisions about what was appropriate.
80As discussed, tikanga provides its own framework for decision making in the context of death but it requires all parties to be willing – and able – to operate effectively within this system. This will not always be the case and as we saw in Takamore difficult issues can arise when either or both parties are faced with a decision-making process they do not fully understand or feel comfortable with, and which results in an outcome they consider to be inappropriate or even harmful.
81In Takamore the Supreme Court clarified that the High Court should approach future cases by considering each on its own merits and reaching its own conclusion about the appropriateness of the executor’s decision. Where relevant, tikanga and its underpinning values will be considered alongside the views of the deceased, when known, and the views and needs of any spouse, parents, children and other near relations, and any other significant relationships. The difficulty, however, is that for most people the High Court is a very public and expensive machinery to engage in such a personal and urgent matter.
82We are aware that any proposals for statutory reform will inevitably have to grapple with the intersecting values and interests we have discussed above. We also believe any statutory framework should draw on the best of both legal traditions – providing certainty and clarity about what the law is and at the same time putting in place a mechanism for the speedy resolution of disputes through a consultative process that respects and balances the values of both the deceased and their kinship group. At the same time, that single legal system must accommodate New Zealand’s increasing ethnic diversity.
83One possible option is to replace the common law executor rule with new statutory provisions, to render the law more accessible and effective for anyone in a burial dispute and to introduce greater clarity and certainty into the law. In chapter 15 we explain our rationale for putting forward this option. In essence it is based on our view that the status quo fails to provide citizens with sufficient guidance as to their respective rights and obligations in these matters, and fails to provide an effective and accessible method of dispute resolution when they find themselves in conflict.
84In chapter 16 we set out some of the different ways in which such a statutory regime might be designed and the values that might underpin it. For example, should it place the responsibility for making these decisions on a person, or group of persons, specifically nominated for the role by the deceased? Or, in cases where the deceased has not expressed a clear view, should the statute establish a hierarchy of people entitled to make the decision based on their kinship relationship with the deceased? Or should we move away from the idea of having a single individual with the authority to take control and instead attempt to design a statute which facilitates a more collective approach – and is therefore more in tune with how these decisions are actually made in most circumstances?
85Irrespective of which decision-making model – or combination of models – we opt for, we also need to decide what weight the decision maker/s would be required to place on the various interests and values involved. For example, should the views of the deceased have greater legal force? How should the views of the wider family and cultural requirements be accommodated? Should the views of close friends have some place alongside those of family?
86Even with clear statutory guidance as to who has the right to decide and what factors they must take into account when making a decision, it is inevitable that there will be times when the decision will be disputed. In such cases we believe an independent and authoritative forum is needed for attempting to resolve the dispute, and failing that, to make a binding and enforceable ruling.
87At present that role is assigned to the High Court. However, for reasons we outline in chapter 17 we believe the High Court is not necessarily best suited to deal with burial disputes. Instead, we ask whether the following options may be preferable:
88In our view there are good policy and practical reasons in favour of transferring primary jurisdiction from the High Court to the Family Court. The Family Court is more accessible (physically and financially), it is used to moving swiftly and with relative informality and, most significantly, it is used to dealing with the type of emotionally charged relational and cultural issues that often underpin burial disputes.
89By referring cases to the Māori Land Court when appropriate, it would also be possible to draw on the Māori Land Court’s knowledge and expertise of tikanga when interpreting and applying any new statutory provisions.
90In chapter 18 we conclude our review with a discussion of aspects of what we describe as “secondary decision-making” that families can face after burial or cremation has taken place. Here we assess the adequacy of the legal tools and mechanisms available to resolve disputes which may arise in these different contexts. We think that the specific issues of memorialisation and the custody of ashes may warrant Family Court dispute resolution processes being available to disputing parties where necessary and appropriate.
91We also examine the issue of scattering or burying human ashes on public land. We outline the issues and current lack of consistency in local authority policy. We welcome feedback on the nature and extent of the problem in any particular part of the country and the nature and extent of any desired reform.
92The collective whakapapa of New Zealanders is rich and diverse and includes Māori, European, Pasifika and Asian traditions. These cultures and their burial traditions should provide strength and flexibility to our approach to the question of resolving burial disputes.
93From a legal perspective, New Zealand has a deserved reputation internationally for innovative approaches to many socio-legal problems, including pioneering models based on the principles of restorative justice and collective problem solving in forums such as family group conferences.
94We hope that the public debate on these issues will be able to draw on these strengths and allow for a constructive and informative discussion of the possible reforms. In particular, we are keen to hear from New Zealanders of all ethnic origins and backgrounds about the principles and values they think should underpin our reforms, and how best the law and the courts can help resolve serious disputes when they arise.
95Any new statutory regime must be flexible, but it must also provide guidance on three key questions: who, if anyone, should have the right to make the final decision when there is a burial dispute; what factors must the decider/s take into account when making a decision; and what role should the courts play when the decision that has been reached is strongly opposed by one or more parties? There are no easy or right answers to these questions but to help design any new decision-making model it will be helpful to know the most important values New Zealanders think should underpin any new decision-making framework.
Consultation questions for part 4:
Facilitating decision making and managing disagreement