Contents

Chapter 12
Reform of places of burial

Cemetery managers’ powers

12.50Currently, there are a wide range of highly prescriptive powers for cemetery managers set out in the Act. We consider that this approach should not be replicated in a new statute because it is overly complicated and gives rise to uncertainty about the scope of the powers. Instead, we have considered whether a new power of general competence to manage cemeteries should be implemented.

12.51A statutory power is only required if there is a lack of power in the common law or legislation to do the thing required.214 Private bodies managing cemeteries have general rights of natural people to manage the land as they wish, subject to any restrictions in legislation or the common law. Public bodies managing cemeteries, such as local authorities, are in a different position because they must act within their powers or else their actions will be deemed to be ultra vires. However, the reforms in the Local Government Act 2002 gave local authorities full general powers to perform their role, subject to any statutory limitations.215 That power extends to functions under other statutes, such as managing cemeteries.216
12.52The position of the Crown when it owns land with cemeteries is more complicated because, for many of these entities, there may be no positive legislative power that covers management of cemeteries. However, there has been some judicial recognition that government bodies have powers to act even in the absence of legislative power or Crown prerogative, under a third source of power.217 This third source recognises that Parliament cannot have envisaged every circumstance that the Crown may face and provide positive powers for them all. This is particularly the case for management functions such as managing cemeteries. The theory holds that this third source of power provides authority for Crown action unless prohibited by other law.218 However, this is a still developing area of jurisprudence and is not universally accepted.219

12.53In light of these existing sources of power to manage cemeteries, we do not consider that a power of general competence for cemetery managers is necessary in the new statute. Specifically, cemetery managers do not need the powers currently contained in the Act to:

12.54These are all matters that come within a land owner’s decision-making powers, unless limited by law. We do not consider that there is a public interest in limiting these matters by law, although in relation to local authority cemeteries, we describe below that, in the interests of transparency, some matters should be the subject of public consultation and recorded in a publicly available policy document.

12.55Despite our conclusion that many of the existing powers do not need to be continued, a specific statutory power is still needed for cemetery managers to do things that may override the rights of other people but are required in the interests of good cemetery management. In light of this criterion, we have considered whether specific statutory powers are required in relation to:

12.56We also discuss below the need to recognise a power for cemetery managers to set aside separate areas for the burial of members of the armed forces.

Maintenance or removal of monuments

12.57The maintenance or lack of maintenance of old cemeteries can produce heated public debate.227 We have described above the statutory standard of maintenance of cemeteries that should be met by all cemetery managers. However, a key aspect of that obligation is that the actual standards that should be achieved in each cemetery should be decided by local communities as part of their general decision-making about the priority of expenditure.
12.58However, there is also some uncertainty about the power of cemetery managers to maintain, repair or remove broken or unsafe monuments. Most cemetery managers consider that responsibility for maintenance of the graves (as opposed to the cemetery) falls on the family of the deceased person and that cemetery managers lack the power to maintain or repair unless a grave is actually in a dangerous condition. The Act certainly supports the position that the successors of the deceased person have the right to maintain the grave.228 It is less clear to us that this means that the cemetery manager therefore lacks a power to maintain or repair when a grave cannot actually be described as dangerous.
12.59This issue is a particular problem for some very old cemeteries that require significant investment to restore old and decaying graves.229 ​It can also be a problem for cemeteries of any age that have deteriorated due to land subsidence or earthquake.230
12.60Currently, the Act gives local authorities a duty to make safe, take down or repair any monument or tablet that is, or in its opinion is, a danger to people frequenting or working in the cemetery.231 Also, there is a power for cemetery managers to apply to the Minister of Health for authority to remove all or any of the monuments and tablets of a closed cemetery.232

12.61We consider that the statute should make it clear that cemetery managers always have a power to maintain graves, despite any concurrent power or duty of maintenance falling on other people, including the relatives of the person buried (for example, under a contract for plot purchase or local authority bylaws). This should be a general power, not limited to when the grave is dangerous. Through the passage of time, it is common that graves eventually fail to be maintained by the relatives of the deceased. Cemetery managers should be able to step in to maintain a grave if it considers that is necessary to reach an acceptable standard.

12.62We also consider that any cemetery manager should have a statutory power to apply for permission to remove monuments or tablets from a whole cemetery or a part of a cemetery along similar lines to the power currently in section 45 of the Act. We can see no reason why this should not continue to be a legitimate method to manage older cemeteries in some limited circumstances.

12.63However, it should be for the local authority (or the Environment Court in the case of local authority cemeteries) to grant permission to do so rather than the Minister of Health because the relevant considerations are not health matters and are not significant enough to warrant Ministerial-level consideration.233 The local authority or Environment Court should have a power to grant permission to the proposal if it is satisfied that the interests of the community in retaining the monuments and tablets and in maintaining them to an acceptable standard do not warrant the resources required to do that. Determining that question will require an examination of:
12.64An issue arises in relation to graves that pre-date 1900. Such graves are defined as “archaeological sites” under the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPT Act) and may not be modified or destroyed unless authority is granted under that Act.234 In Issues Paper 34, we asked whether a power to remove unsafe monuments should override heritage protection provisions in the Historic Places Act (now found in the HNZPT Act).235 While submissions from local authorities and private individuals tended to favour protecting safety over heritage, the views of submitters representing the preservation of history held the opposite view.
12.65Our view is that the HNZPT Act must be allowed to serve its purpose, which is to promote the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand but not at the expense of public safety.236 Unmaintained monuments can fall and hurt visitors to cemeteries.237

12.66We recognise the difficulty here that a safety exception to the heritage protection provision could be used to circumvent the need for authority under the HNZPT Act in respect of a large number of old monuments around the country that have been slowly decaying for years. Ideally, cemetery managers should be aware of their obligations under the HNZPT Act and have long-term plans in place for the preservation of archaeological sites. In reality, there will be many older cemeteries that have not done this sort of planning. We consider that the statute should introduce an exception to section 42 of the HNZPT Act, such that cemetery managers may do work on a grave site for the purpose of ensuring that it is not a danger to any person working or visiting the cemetery but only to the extent that work is necessary for that purpose. That exception must also require cemetery managers to do the work in a way that minimises any negative effect on the historic value of the site.

Recommendations

R40A cemetery manager should have a statutory power to maintain any grave, memorial, vault or tablet, notwithstanding any power in any other person by virtue of a contract or bylaws.

R41A cemetery manager that is not a local authority should have a power to apply to the local authority (and a cemetery manager that is a local authority should have a power to apply to the Environment Court) for permission to remove monuments or tablets from a whole cemetery or a part of a cemetery. In determining whether to grant permission, the local authority or Environment Court, as the case may be, must consider:
  • the projected costs of maintenance of the cemetery;
  • the availability of resources to perform the maintenance; and
  • the reasons for any views of the community both for removal of the monuments and objecting to removal of the monuments.
R42The statute should provide an exception to section 42 of the Heritage New Zealand Pouhere Taonga Act 2014, such that cemetery managers may do work on a grave site for the purpose of ensuring that it is not a danger to any person working or visiting the cemetery, but only to the extent that such work is necessary for that purpose and only in a way that minimises the negative effect of the work on the historic value of the site.

Limited tenure plotsTop

12.67We have also considered whether the statute should contain a power in cemetery managers to grant limited tenure plots. Currently, the Act allows a cemetery to sell burial plots “either in perpetuity or for a limited period”.238 Limited tenure plots are not uncommon in some overseas jurisdictions, but our survey of local authorities suggested that, in New Zealand, most cemeteries only offer contracts for perpetual interment. Limited tenure plots may become increasingly important as popular cemeteries face pressures on space and burial costs rise. They would allow a cemetery to offer plots at a lower price because they can be sold again in the future. In overseas countries where this occurs, one model of practice is to disinter the remains after 50 years and re-bury the bones at a greater depth, allowing for another interment above. While this idea might not appeal to some, others may consider it a good way to ensure that a full cemetery can maintain its currency and relevance to the community. We do not consider that the practice, by itself, would be disrespectful to the remains.

12.68We consider that it is unnecessary for a new statute to provide a specific power for cemetery managers to permit limited tenure burials. This is a power that the manager has as part of their general powers of control and ownership of the land. The term of interment and what should happen at the end of the term are matters that should be covered by any contract for interment. If the contract is silent on the term of interment, the statute should provide a default provision that it is in perpetuity.

Recommendation

R43The statute should provide that, unless a contract for purchase of a burial plot provides otherwise, the term of interment is in perpetuity.

Separate areas for members of the armed forcesTop

12.69While we consider that cemetery managers have a power to set aside areas of a cemetery for the burial of specific groups of people, even without a specific statutory power, there is perhaps a special case for continuing the power to set aside areas for members of the armed forces. Many cemeteries have in fact set such areas aside as a mark of respect for the service of those people. The new statute should continue to recognise this special category.

Recommendation

R44The statute should provide a power in cemetery managers to permanently set aside a portion of a cemetery for the burial of members of the armed forces and their spouses.

214Legislation Advisory Committee, above n 184, at ch 16, part 5.
215Local Government Act, s 12(2).
216Section 13.
217Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305; and Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588 (CA).
218BV Harris “Recent Judicial Recognition of the Third Source of Authority for Government Action” (2014) 26 NZULR 60.
219See the minority decision of Elias CJ in Quake Outcasts v Minister for Canterbury Earthquake Supreme Court.
220Burial and Cremation Act, s 7.
221Section 8.
222Section 9.
223Section 10.
224Section 11.
225Section 19.
226Section 20.
227“Forgotten gardens of stone” (10 January 2015) Stuff <www.stuff.co.nz>; Katasha McCullough “‘Terrible’ condition of Bayswater cemetery appalls resident” (31 May 2013) Stuff <www.stuff.co.nz>; Hannah Spyksma “Grave neglect” (16 September 2011) Stuff <www.stuff.co.nz>.
228Burial and Cremation Act, s 9.
229Spyksma, above n 227; and McCullough, above n 227.
230Olivia Carville “Damaged graves may not be repaired, expert says” (18 May 2011) Stuff <www.stuff.co.nz>; Claire Connell “Steep slope of Picton cemetery a problem” (26 January 2011) Stuff <www.stuff.co.nz>.
231Section 9(h).
232Section 45. Such applications must follow public notice of the proposal to remove monuments or tablets and notice to Heritage New Zealand. When monuments or tablets are removed, the cemetery manager must compile a list of the people buried in the relevant graves and make that list available for inspection, clear and level the area and sow it in grass or plant it with trees and shrubs and erect a memorial inscribed with the names of the people buried there.
233Local authorities should manage the conflict of interest arising in respect of such applications for local authority-managed cemeteries.
234Heritage New Zealand Pouhere Taonga Act, s 42.
235The Historic Places Act 1993 was repealed and replaced by the Heritage New Zealand Pouhere Taonga Act.
236Heritage New Zealand Pouhere Taonga Act, s 3.
237“Gravestone falls on pre-schooler” (1 January 2009) Stuff <www.stuff.co.nz>.
238Burial and Cremation Act, s 10(1).