Problems with the current legislative scheme for burial and cremation
Cumbersome process for transferring control of trustee cemeteries
11.18Another issue is the method by which legal control over a cemetery is passed from a group of trustees to the local authority. This may be required if the trustees dwindle in number or are otherwise unable to manage the cemetery. Currently, the Governor-General may transfer control to a local authority by way of a notice in the Gazette. Such a notice has the effect of vesting the land in the local authority, and on the production of a copy of the notice, the District Land Registrar must issue a certificate of title to the local authority.
11.19However, if there is no Gazette notice, there is nothing to vest the legal property and no express provision for the District Land Registrar to issue a new certificate of title. We know of at least one example where there was no Gazette notice issued upon vesting of the land in the local authority and, thus, no certificate of title for the land. The Ministry of Health received legal advice in October 2003 on the legal status of Oakura Cemetery in Taranaki. An Oakura Cemetery Order, dated 8 March 1960, had appointed Taranaki County Council as the trustee of the cemetery. Under the operative legislation at the time, the legal estate in cemetery land became vested in a trustee “immediately upon their appointment”. Therefore, the legal estate in the land became vested in Taranaki County Council, but because there was no Gazette notice and nothing else in the Act providing for it, no title to the cemetery had ever been issued.
11.20The legal process for transferring control and management to the local authority is cumbersome. For example, Blacks Cemetery (also known as Omakau Cemetery) was maintained by trustees since the 1890s, but the title to the land always remained with Otago District Council. The trustees were in their 60s and 70s and could not find anyone to continue their role. They approached the Council asking that control of Blacks Cemetery pass to the Council under section 23 of the Act, but the Council was unsure whether any formal process was required because the Council held the title to the land. Staff we spoke to resolved this matter through agreement but considered there was a pressing need for the process of transfer of control to be improved.