12.104In our view, the assessment of these matters does not justify Ministerial-level permission for disinterment. Neither should the assessment be made by a health entity because the health considerations are very small. The main considerations are land use matters and whether there is consensus amongst the family. We consider that, instead, cemetery managers are well placed to consider those matters and to provide the permission required by statute in relation to applications for disinterment of single graves.
12.105However, the situation is different for small family cemeteries on private land. Under our proposed framework, the land owners of these small cemeteries are designated the managers of these cemeteries and are responsible for the cemetery management obligations. We consider that the local authority, rather than the cemetery manager, should be required to provide permission for the disinterment of single graves when the cemetery is very small. This is because there is potential for a cemetery manager of a very small cemetery to use the power to permit disinterment to circumvent the rules restricting the use of burial land. For example, multiple single disinterments could be carried out over a period of time so that, when all the bodies have been removed, the covenant over the certificate of title can be lifted and the land used for other purposes.
12.107If disinterment of multiple graves is sought for the purposes of using the land for alternative purposes, the permission of the local authority must be obtained or, for local authority cemeteries, the permission of the Environment Court. We described above procedures for obtaining permission to use cemetery land for alternative purposes.
12.108We described above the matters that the local authority must consider before granting permission for the disinterment of multiple graves when the land owner wishes to use the land for other purposes.
12.109In respect of disinterment of single graves, cemetery managers or the local authority (whichever applies) should be able to consider any matters that they consider appropriate, including whether there are any health risks in the disinterment that cannot be adequately moderated and whether the disinterment may create a cemetery management problem, for example, due to subsidence of the land or maintenance of surrounding graves. However, we also consider that there is also a public interest in ensuring that disinterment of single graves should only be permitted if all interested relatives and friends have been consulted and there are no objections expressed.
12.110Currently, applications for disinterment are most commonly refused because there is no consensus between the relatives of the deceased person. We have considered the extent to which consensus should continue to be required for disinterment under a new statute. In Part 4, we propose a new framework for decisions about burial or cremation after a death. Under that framework, decisions about disposal of the body may be made by a personal representative, the executor or the family (depending upon the circumstances). While consensus is obviously ideal, it is not required under that framework.
12.111We consider that disinterment applications are a different type of decision than those made immediately after death. They may be made many years after death, and so there will usually be no urgency. Close relatives may have died in the intervening period, and so the relative weight of views of different people may vary. Perhaps most importantly, there is a presumption that, once a person is buried, that person should remain undisturbed unless there is good reason. In our view, it would require a very significant reason for disinterment to be justified where there are objections raised amongst surviving relatives and friends.
12.112Consequently, the statute should require the applicant for disinterment to provide documentation establishing the applicant’s connection to the deceased person, the extent of consultation with interested relatives and friends and the existence of any objections to disinterment from them. A cemetery manager or local authority may only provide permission for disinterment of single graves if satisfied that there has been such consultation and no substantial objections are raised. If objections exist amongst the relatives, it should be open to the person to apply to a court for directions. We discuss the procedure for court determinations of burial decisions in Part 4.
12.113Where a body has been buried illegally, the views of the family should be a relevant consideration for a local authority determining whether or not a body should be disinterred, but the existence of objections to disinterment should be balanced against the views of the land owner and any other matters the local authority considers are relevant.
12.114We have received advice on practices that should be followed when disinterring a body to ensure the dignity of the body is maintained and any health risks are minimised. For example:
12.115These are matters of specific practice that are beyond the scope of this project. However, we propose that the new statute should enable regulations to be made for the purpose of providing procedures to be followed when disinterring a body; ensuring the dignity of the deceased person is maintained; and reducing or managing any health risks.