Chapter 11
Problems with the current legislative scheme for burial and cremation

Unclear legal status of places of burial

11.9As described in the previous chapter, the Act makes distinctions between different categories of burial place, such as those that were originally created for burial of religious adherents and those that were open to the public generally. It is the last in a line of successive Acts that have sought to impose some order on the disparate collection of burial places existing in New Zealand.

11.10Today, however, it is sometimes impossible to state with certainty whether a particular place of burial is a denominational burial ground, a trustee cemetery or some other category. This makes it difficult to know what powers, duties and statutory restrictions apply to the burial place. The Ministry of Health has sought legal advice on a number of occasions where the status of land under the Act and restrictions on its use was unclear.175 Getting legal advice is a costly and lengthy process.

11.11The confusion arises in a number of ways. For example, the Act states that Part 3 (relating to trustees) applies to “cemeteries which immediately before the commencement of this Act were under the maintenance and care of trustees other than a local authority”. Knowing whether a cemetery falls into this category requires examination of historical documents, which may have been lost over the years.

11.12Another example of ambiguity is in the distinction in the Act between “trustee cemeteries” and “local authority cemeteries”. Although a cemetery is on local authority land, it may still be a trustee cemetery under the definition set down by the Act. For instance, according to Otago District Council, most of the trustee cemeteries in that district are on land owned by the Council. Thus, determining what is a trustee cemetery and what is a local authority cemetery cannot be discerned from the title. It requires tracing the historical control and management arrangements of a cemetery that is often a small, informally run cemetery and that may not have kept records of changes in control and management arrangements over the years.

11.13The Act’s definition of trustee cemetery leads to an ambiguous legal relationship between the trustees and the local authority. A number of local authorities are aware of this but have not researched or clarified the legal position.176 In a survey circulated to trustee cemeteries, 15 respondents provided their certificate of title for the land, six said the land was owned by the local council, five said it was owned by the Department of Conservation, one defined itself as an urupā, eight simply stated “cemetery trust” and six were unsure.
11.14Also, it is not always clear whether a place of burial is a denominational burial ground or a cemetery. This causes problems because the reuse restrictions in the Act differ for each. A closed cemetery cannot be sold, leased or otherwise disposed of or diverted to any other purpose.177 A closed burial ground is subject to the same statutory restriction, but the Minister can exempt it from that restriction.178 Thus, when airport extensions were proposed over the Mangere Methodist Cemetery, the solicitors acting for the group proposing the extension claimed that it was a burial ground, not a cemetery. The Ministry of Health had to take legal advice on the matter. That advice concluded that it was unclear whether it was a cemetery or burial ground. The only information held by the Ministry was a description of the ground as the “Mangere Methodist Cemetery” or the “Westney Street Cemetery”.
11.15In addition, many places that started out as denominational burial grounds are today open for burial of all people.179 This raises the question of whether those places should now fall within the legal category of “cemeteries”, which are open to all.
11.16A good illustration of these issues is captured in the status of the Pauatahanui Burial Ground in Porirua. It was set aside as a place of burial by the Stace family in 1856, prior to the passing of any national burial legislation. It was then managed by trustees as a public cemetery for almost 150 years. When it came time to close the cemetery after all the available plot space was filled, Porirua City Council realised that the trustees appointed under the Act had never been recorded on the certificate of title. In the notice giving effect to its closure in 2004, it was referred to as a denominational burial ground. Finally, a private Act of Parliament was passed in 2007 vesting the title in Porirua City Council and confirming Council control and management.180

11.17Any area where bodies are buried demands some form of management and protection, regardless of its formal legal status. In a similar vein, the distinction in the Act between a “private burial ground” and a “private burial place” is of historical interest only, since both places have bodies buried in the land and should therefore be dealt with consistently. We make recommendations in Chapter 12 for a single, cohesive framework that will apply to any piece of land that has a body or bodies buried in it.

175Examples include the process for reusing a piece of land forming part of the Oakura Cemetery in Taranaki; whether the Mangere Methodist Cemetery was a cemetery or a burial ground under the Act; whether a cemetery in Lawrence was or was not under the restrictions in the Act given there might be no-one buried in it; and the legal status of the Pauatahanui Burial Ground.
176For instance, Dunedin City Council noted the lack of clarity. However, no research into the position has been undertaken, and legal actions “remain uncompleted”.
177Burial and Cremation Act, s 43(2).
178Section 44(4).
179One example is Purewa Cemetery in Auckland.
180Porirua City Council (Pauatahanui Burial Ground) Act 2007.