Contents

Chapter 12
Reform of places of burial

Disinterment

Offence

12.102It is currently an offence to remove a body (or the remains of a body) buried in a cemetery, Māori burial ground or other burial ground or place of burial without the permission of the Minister of Health.243 We consider that this offence should be continued in a new statute. A cemetery owner will have rights in respect of a person who disinters a body without their permission (due to that being a disturbance of their ownership rights). However, we consider there is a strong interest in sending a clear signal through legislation that digging up dead human bodies must be done in a controlled and limited way so as to respect the dignity of the deceased.

Who should provide permission for disinterment?Top

12.103We do not consider that the Minister of Health is the appropriate person to provide permission for disinterment. Currently, when assessing applications for disinterment of single graves, Ministry of Health officers consider the death certificate and assess whether next of kin have been notified (or a broader kinship group where the deceased person is Māori) and, if so, whether they have provided written consent to the disinterment. Most applications are granted unless there is a lack of consensus among relatives. Another relevant matter is whether it would have an adverse impact on cemetery management (for example, if it would cause subsidence or problems for the maintenance of surrounding graves). We are told that there may be health considerations in very rare cases, for example, where the body had been recently buried and the person died with a disease that remains contagious after death.244

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.

12.106In addition, where a body has been buried other than in an approved cemetery, it should be for the local authority to grant permission for the disinterment, not the land owner.245 Also, we consider that it should be open for an applicant to apply directly to the court for permission to disinter a single grave. This would obviously be a more complex and expensive process but may be warranted where the applicant thought that the cemetery manager may not be impartial. This situation may arise where the body was buried against the instructions of the executor or deceased’s representative in a family-managed cemetery or urupā.246

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.

Matters that must be considered Top

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.

Minimum standards for carrying out disintermentsTop

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.

Recommendations

R54 It should be an offence to remove a body or remains of a body buried in any cemetery or place of burial (including urupā) without the permission of the cemetery manager, the local authority or a court (as described below).

R55 The permission of the Environment Court should be required for multiple disinterments from local authority cemeteries.

R56 The permission of the local authority should be required:
  • for multiple disinterment from cemeteries that are not local authority cemeteries;
  • when there are no more than 10 bodies buried in the cemetery (even if the application relates to fewer bodies); or
  • where the body has been buried illegally.
R57 The permission of the cemetery manager should be required in all other cases. However, it should be open to a person to apply directly to the High Court, the Family Court or the Māori Land Court for permission, if they choose.

R58 When deciding whether to grant permission for single disinterment, the cemetery manager, local authority or court (as applicable) may consider any relevant matter. However, except when the body was buried contrary to law or the burial was for a limited tenure that has reached its end, permission may not be granted for single disinterment unless the cemetery manager, the local authority or court (as applicable) is satisfied that all interested relatives have been consulted and there are no objections expressed.

R59 Permission for disinterment may be granted subject to any conditions the cemetery manager, local authority or court (as applicable) considers are appropriate.

R60 The statute should provide that no civil or criminal liability attaches to a cemetery manager or local authority who approves a disinterment in accordance with the statutory requirements.

R61 The statute should provide that regulations may be made for the purpose of providing procedures to be followed when disinterring a body; ensuring the dignity of the body disinterred; and reducing or managing any health risks in the disinterment.
243Burial and Cremation Act, s 51.
244For example, the deceased person had Ebola. See “WHO | Ebola virus disease” WHO <www.who.int>.
245We discuss the procedure where a body is buried illegally in Chapter 13.
246A decision as to disinterment of a single grave is not a land use issue, so the relevant court is not the Environment Court. Rather, applications should be made to the High Court, Family Court or Māori Land Court as we describe in Chapter 24.