Contents

Chapter 10
Current legislation

Burial

10.5Most of the Act is concerned with the provision of cemeteries and places of burial and, in particular, with classifying the various places where a body can be buried. It also contains a number of quite specific provisions about the control and management of places of burial and a number of provisions about their closure and clearance. It should be noted that it does not cover urupā that are set aside as burial grounds under Te Ture Whenua Māori Act 1993.

Different types of burial land

10.6The Act recognises a variety of different types of burial land, reflecting the various ways in which such land has developed over the years. Each of these types of burial land has different rules relating to its establishment and management. The types of burial land are:

Cemeteries

10.7A cemetery is defined in the Act as:99

Any land held, taken, purchased, acquired, set apart, dedicated, or reserved, under the provisions of any Act or before the commencement of this Act, exclusively for the burial of the dead generally, and, where the context so permits, includes a closed cemetery.

10.8The Act recognises two types of cemetery—those under the control and management of local authorities or of trustees. The Act states that a local authority has control and management over cemeteries that are:100

10.9We estimate that around 70–80 per cent of the cemeteries in New Zealand are local authority cemeteries. The majority of people who opt for burial are buried in local authority cemeteries. They range in size, with the largest local authority cemetery (and the largest cemetery in the country) in Waikumete, Auckland. That cemetery is controlled and managed by Auckland Council and has so far taken over 70,000 burials.

10.10However, the earliest establishers of public cemeteries in New Zealand were not local authorities. They were community-based groups, operating before any burial legislation had been passed. Early cemetery legislation deemed these pre-existing groups to be trustees of the cemeteries that they operated.101 Now, the Act continues to recognise these trustee cemeteries,102 so for example, a cemetery that is on land held by the local authority will nonetheless be a trustee cemetery if it was under the control and management of trustees before the commencement of the Act in 1964.
10.11Issues Paper 34 The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review recorded nearly 100 cemeteries operating as trustee cemeteries.103 However, it is difficult to state exact numbers because of ambiguity around the legal status of some cemeteries.104 Although many are small, they range in size and include, for example, Mangere Lawn Cemetery in South Auckland, which employs full-time staff and serves a large constituency. Some of these “trustees” are registered as a charitable trust or an incorporated society. Some refer to themselves as “cemetery committees” but may or may not have formal legal status.
10.12The Act sets out how trustees are appointed and removed.105 They can be removed at the discretion of the Governor-General, and the Governor-General is responsible for appointing new trustees if an existing trustee resigns, is absent from New Zealand for more than six consecutive months or is removed.
10.13If the trustees number less than three, the Governor-General can appoint a local authority to take over control and management of the cemetery, with the local authority’s consent.106 A notice in the Gazette of the appointment of a local authority to have the control and management of a cemetery has the effect of vesting the land comprising the cemetery in the local authority and must be registered by the District Land Registrar upon presentation of the notice.107 The Governor-General’s powers under these sections can be delegated to local authorities.108
10.14The Act states that trustees have all the rights, powers and duties that a local authority has in respect of cemeteries.109 Both types of cemetery are public in nature and must be open for interment of all deceased persons generally.110
10.15The Act provides for the establishment of new cemeteries by local authorities but not by trustees.111 It also provides that land may be taken for the purpose of a cemetery under the Public Works Act 1981.112 The Act currently does not contemplate the possibility of local authorities providing cemeteries jointly with, or of cemeteries being established by, regional councils. Land use consent under the Resource Management Act 1991 may be required for the establishment of a cemetery, depending on the requirements of the relevant district plan. Consent from the regional council for discharge to land may also be required.

Burial grounds

10.16The Act provides for two types of burial grounds—denominational and private. Denominational burial grounds are places of burial established as such under any Act by a religious denomination for burial of the adherents of that group.113 A religious denomination is defined in the Act as “the adherents of any religion and includes any church, sect, or other subdivision of such adherents”.114
10.17This broad definition makes it difficult to state the precise number of denominational burial grounds in New Zealand. A number were set aside by the Catholic, Anglican, Methodist and Presbyterian churches in the mid-19th century and served the needs of small, rural parishes. However, not all denominational burial grounds are associated with small churches. Purewa Cemetery in Auckland, which was established as an Anglican burial ground in the 1890s, is now operated by an Anglican diocese trust. It covers 45 acres of land and seeks to remain “the premier cemetery in Auckland”.115
10.18The owner of the land of a denominational burial ground is deemed to be the manager of the burial ground, although that person may appoint another person in lieu or in addition to them, or the Minister of Health may appoint a manager.116 A number of the specific powers and duties of trustees and local authorities apply also to these managers.117
10.19If members of a religious denomination wish to establish a new burial ground, they must first obtain the approval of the Minister of Health.118 The Minister must consider the position of the land, its suitability as a burial ground, its suitability for alternative uses and any other material matters.119 In practice, applications are reviewed by a health protection officer at the Public Health Unit. He or she carries out a site visit to assess the suitability of the land for burial of the dead. We noted in Issues Paper 34 that, at that time, six new denominational burial grounds had been approved for establishment since 1993.​120
10.20In addition to denominational burial grounds, the Cemeteries Amendment Act 1912 provided for the Governor to approve the creation of private burial grounds managed by a body corporate of trustees.121 Those trustees were to have the same rights, powers and duties as cemetery trustees.122 That Act placed no limits on the Governor’s power other than what he “thinks fit”, so in theory, this provision would have enabled groups other than religious denominations to create private burial grounds.
10.21That power was repealed by the 1964 Act, although it continues to provide for any private burial grounds already established.123 The Trustees of private burial grounds are subject to the same rights, powers and duties as the managers of denominational burial grounds with some exceptions relating to the alienation of the land, the proceedings of trustees, financial management and the requirement to register burials with the local authority.124

10.22It is difficult to know whether this provision for private burial grounds was widely taken up. However, we have found two prominent uses of the provision. First, in 1923, burial ground on the outskirts of the Bolton Street cemetery in Wellington was declared to be a private burial ground for Richard John Seddon, former Prime Minister of New Zealand, his wife and their descendants. Doubts then arose as to whether the power could be exercised in respect of land within the boundaries of a city, and his widow, Louise Jane Seddon, also applied to further limit the class of people who could be buried there to herself and any son or daughter of her and her husband’s marriage. A special Act was passed, the Seddon Family Burial-Ground Act 1924, to validate the warrant and limit the burial ground. That Act remains on the statute book.

10.23Second, land at Point Halswell in Wellington was declared to be a private burial ground for the Right Honourable William Ferguson Massey and his widow. An Act was passed, the Massey Burial-Ground Act 1925, to reserve the land as a burial ground and memorial, vest it in the Crown and limit the persons who could be buried there to William Massey and his widow. That Act also remains on the statute book.

Other places of burial

10.24The Act recognises two more categories of place in which it is legal to bury a body, although it does not make provision for the management of those places.

10.25First, a body may be buried in a “private burial place”, which is a place that was used for private burial before the commencement of the Act. However, the sanction of a District Court Judge (and, in some circumstances, the additional sanction of the Mayor or Councillors) must first be obtained.125 That sanction can only be refused if such burial would be prejudicial to public health or decency. Ministry of Health officials can recall this provision being discussed in relation to only one piece of land.
10.26Second, a person can be buried in a “special place” with a certificate from the Minister of Health (and, in some circumstances, with the additional sanction of the Mayor or Councillors).126 The Minister may provide that certificate if satisfied that there are exceptional circumstances that make the burial of the body in that place particularly appropriate. According to parliamentary speeches, this new provision was designed for “burial in special places of honour”.127 The Ministry of Health views the provision as being intended to provide for the burial of public notables whose deeds were of national significance.128

10.27Applicants for burial in a special place must provide:

10.28From approximately 60 applications for burial in a special place since 1982, few were approved that relied purely on the deceased person’s connection with the land. Examples of declined applications include:

10.29Examples of granted applications are:

Management powers and dutiesTop

10.30The Act provides a range of very specific powers and duties on local authorities and trustees managing cemeteries.130 These include the power to:

10.31The management duties on local authorities and trustees include to:

10.32In addition, trustees have duties in respect to accounting records and preparing financial records (including having them audited).142
10.33There are other statutes that place obligations on local authorities and trustees managing cemeteries. In particular, the Reserves Act 1977 contains a broad definition of “reserve” as “any land set apart for any public purpose”.143 That definition would appear to include cemeteries. That Act requires local authorities to classify its reserves according to its primary purpose (cemeteries are likely to be either local-purpose reserves or historic reserves).
10.34The Heritage New Zealand Pouhere Taonga Act 2014 (the HNZPT Act) protects “archaeological sites”, which are defined as any place (including any building or structure) that was associated with human activity before 1900. Many cemeteries and burial grounds are therefore archaeological sites under this Act and may not be modified or destroyed without obtaining prior authority from Heritage New Zealand Pouhere Taonga (HNZPT). This is the case whether or not the archaeological site is registered under the New Zealand Heritage List/Rārangi Kōrero or the Landmarks List.144

10.35Section 45 of the HNZPT Act sets out the process for applying for authority to modify or destroy an archaeological site, which includes the need for HNZPT to be satisfied that the applicant “has sufficient skill and competency, is fully capable of ensuring that the proposed activity is carried out to the satisfaction of HNZPT, and has access to appropriate institutional and professional support and resources”.

10.36The HNZPT Act also allows HNZPT or any other person to apply to put a place on the New Zealand Heritage List/Rārangi Kōrero.145 According to HNZPT, of the approximately 5,600 historic sites included in the New Zealand Heritage List/Rārangi Kōrero, 41 are cemeteries. More than 500 churches are registered, 20 of which specifically include burial grounds.
10.37In respect of a historic area entered on the New Zealand Heritage List/Rārangi Kōrero, HNZPT may make recommendations to the local authorities that have jurisdiction in that area as to the measures they should take to assist in the conservation and protection of that historic area.146 In doing so, HNZPT must recognise the interests of any owner in the historic area as far as they are known. Local authorities must have particular regard to the recommendations.147

Ministerial powersTop

10.38As we described in Chapter 1, one of the main drivers behind the reform of the Act is that it provides for a great deal of control over burial and cremation by the Minister and Ministry of Health, despite more modern thinking recognising that the health concerns in this area are very limited. In particular, the Act gives powers to the Minister of Health, despite them being mainly concerned with the use of land rather than health issues, that entail:

10.39In relation to the provision of a licence to disinter a body, while the primary concerns are around land use and the management of cemetery resources, there may be some health concerns, particularly where the body has not been buried for a long period of time. Most applications for disinterment to the Minister are made on family or personal grounds, for instance, to relocate the body of the deceased closer to family members, either in the same or a different cemetery. Approximately 40 licences for disinterment are issued by the Ministry each year, and about three applications are declined on the basis of “non-agreement”.

10.40Ministry policy requires the disinterment itself to be supervised by a health protection officer, and the licence itself has a standard condition to this effect, although this is not required by the Act. Usually, the cemetery sexton will also be present at the disinterment.

Special local authority dutiesTop

10.41In addition to their powers and duties in respect of the management of their own cemeteries, local authorities have two special but more general obligations in relation to cemeteries. First, they must permit the bodies of any poor person or of any person from a hospital, prison or other public institution to be buried or cremated free of charge.154 Second, they must establish and maintain cemeteries where sufficient provision for burial is not otherwise available within its district.155

Power of health protection officersTop

10.42The Act gives a power to health protection officers (or other employees of the public service appointed by the Minister for the purpose) to inspect any cemetery to ascertain its state and condition, examine the accounts and ascertain whether bylaws and regulations are being complied with.156 Health protection officers are appointed by the Director-General of Health and are employed by District Health Boards’ public health units.
99Burial and Cremation Act, s 2.
100Section 5(1). This is subject to Part 3, which applies to any cemetery that, immediately before the commencement of the Act, was “under the maintenance and care of trustees other than a local authority”: s 22(1).
101Cemeteries Act 1882, s 5.
102Burial and Cremation Act, s 22.
103However, records of the Auditor-General refer to auditing a greater number of trustee cemeteries, so figures are not exact.
104We describe this ambiguity further in Chapter 11.
105Burial and Cremation Act, ss 22 and 23.
106Section 23(3).
107Section 53(1).
108Section 24.
109Section 25(2), except the duty in section 4 to provide cemeteries and the power in section 20 to clear disused cemeteries.
110Section 6.
111Section 4.
112Section 4(3).
113Section 2.
114As above.
115Purewa Cemetery & Crematorium “Purewa Cemetery and Crematorium Offers Bereaved Families and Relatives” (2015) <www.purewa.co.nz>.
116Burial and Cremation Act, s 32.
117Section 36(1).
118Section 31(1).
119Section 31(2).
120Law Commission, above n 8, at n 184. Note that this includes an application in 2012 by a Taupo-based couple to establish a Jewish burial ground on a portion of their farm. This application followed the rejection of an application under section 48 of the Act for burial in a special place.
121Cemeteries Amendment Act 1912, s 2.
122Section 9.
123Burial and Cremation Act 1964, ss 33-36.
124Section 36(2).
125Section 47.
126Section 48. The Minister’s power to approve burial in a special place has been delegated to the Director of Public Health.
127(22 October 1964) 340 NZPD 2910.
128Ministry of Health Environmental Health Protection Manual version 7 (2015). See Appendix 1.
129“Bishop Pompallier’s remains to be buried on Hokianga shore” New Zealand Herald (19 April 2002) www.nzherald.co.nz.
130Burial and Cremation Act, s 36, sets out the extent to which those powers and duties also apply to the managers of denominational burial grounds and the trustees of private burial grounds.
131Section 7.
132Section 8.
133Section 9.
134Section 10.
135Sections 11 and 15.
136Section 16.
137Section 19.
138Section 20. This power does not apply to trustees.
139Section 21(2).
140Section 18.
141Section 21(1).
142Sections 29, 29A and 29B.
143Reserves Act 1977, s 2.
144Heritage New Zealand Pouhere Taonga Act, s 42.
145Section 67.
146Heritage New Zealand Pouhere Taonga Act, s 74(1).
147Section 74(3).
148Burial and Cremation Act, s 7.
149Section 31.
150Section 51.
151Section 41. The Minister may also vest the control and management of a closed cemetery or burial ground in any person (s 43 and s 44); reopen any closed cemetery or burial ground (s 45A); or vest control and management of any reopened cemetery or burial ground in any person (s 45B).
152Section 41(2) and (3).
153Section 45.
154Section 49.
155Section 4.
156Section 52.