Contents

Chapter 12
Reform of places of burial

Local government’s role in relation to all cemeteries

12.81In addition to their duties as managers of the cemeteries on local authority-owned land and of any other cemeteries they have assumed responsibility for, we consider that local authorities should have some general obligations in relation to all the cemeteries within their district and the management of dead bodies.

Duty to provide cemeteries or crematoria

12.82Currently, local authorities have a duty to establish and maintain cemeteries where sufficient provision for burial is not otherwise made within its district.240 We consider that this is an appropriate role for local authorities and should continue because there is obviously a strong public interest in ensuring that facilities are provided for dealing appropriately with dead bodies. Cemeteries and crematoria require large capital investment and can encounter challenges such as objections from neighbours. Consequently, it is unrealistic to consider that the supply of such facilities can be provided by the private sector alone.

12.83However, we do not consider that the law should necessarily require local authorities to provide both cemeteries and crematoria. It may be that a community’s need can be met by the provision of one of those methods. This should be determined by community consultation and normal local authority decision-making mechanisms. The public interest rests in the effective management of dead bodies rather than in disposal by one particular method.

12.84It has been suggested to us that local authorities should be required to provide cemeteries in case they are needed in the event of a natural disaster. On balance, we do not think that this emergency need by itself justifies the provision of cemeteries because other public land could be made available for burial in the event of a natural disaster. Also, bodies buried after natural disasters may need to be later disinterred and reburied or cremated in any event.

12.85Finally, we think it should be possible for local authorities to satisfy this requirement by negotiating to use the facilities of a neighbouring local authority. This is particularly relevant in regions where local authorities are closer and service higher-density populations.

Recommendation

R48The statute should provide that local authorities have a duty to provide facilities for the disposal of dead bodies if there are otherwise insufficient facilities available in its district.

Duty to dispose of the bodyTop

12.86Currently, local authorities must allow the bodies of any poor person or person from a hospital, prison or other public institution to be buried in their cemeteries free of charge.241 That obligation extends also to the free provision of cremation by any person who has control or management of a crematorium. We have been told that some privately operated crematoria have been asked by local authorities to provide cremation services free of charge under this provision. We consider that there should continue to be a residual duty on local authorities to take responsibility for the disposal of dead bodies where there is no other person available to do so. This duty should not extend to private operators of cemeteries or crematoria, but it would be open to local authorities to contract with private operators for the provision of this service.

12.87In Part 4 we describe a new framework for determining who should make decisions about dead bodies. In particular, we propose that a person may appoint a trusted person to be their personal representative and make those decisions on their behalf. If a personal representative is not appointed, the executor should continue to have that role. In the absence of a personal representative or an executor, the duty should fall on the family.

12.88However, there will sometimes be circumstances where there is no executor, personal representative or family member to make funeral arrangements and dispose of the body. In those circumstances, there is a public interest in someone stepping in to dispose of the body in a respectful manner. Local authorities are concerned that this provision could be over-used—that they could become the default provider where families do not wish to pay for the funeral. We consider this risk is small. The Police tell us that they go to considerable effort to identify family or extended family members and that, in the vast majority of cases, someone steps up to organise a funeral, even if it is the most basic funeral covered by the funeral grant from Work and Income New Zealand. When the deceased person identified with a particular cultural or ethnic group, unrelated people from that group will often agree to organise a simple funeral if there is no local family. In addition, we recommend in Part 4 that the statute makes it clear that the family has a legal duty to dispose of the body where there is no executor or deceased’s representative. While enforcement of that duty may be difficult, it is hoped that the statutory duty will send a clear message of this societal expectation.

12.89When a local authority is performing this duty, it should not be considered to be acting as a personal representative with the obligations of that role (as we describe in Part 4). Rather, it is simply making such arrangements as it considers appropriate in the circumstances and as shows respect for the deceased person. As when family or friends make funeral arrangements, the reasonable costs incurred should be able to be recovered from the estate or, where appropriate, from the funeral grant from Work and Income New Zealand.

Recommendation

R49The statute should provide that local authorities have a duty to dispose of the body of any person for whom there is no other person available to do so. The reasonable costs of such arrangements should be recoverable from the estate of the deceased person or, where appropriate, from the funeral grant from Work and Income New Zealand.

Duty to keep records of cemeteries and burialsTop

12.90At present, most local authorities report having complete records of burials in their own cemeteries, but most said they did not have complete records of the trustee cemeteries and denominational burial grounds scattered throughout their region. We consider that local authorities should be required to maintain a register of all cemeteries and all burials in their region. This is an essential element of the new framework for burial because it is the means of identifying the land and people subject to the cemetery management powers and obligations.

12.91Above, we propose a duty on all cemetery managers to keep records of all burials and to send those records to the local authority at least once a year. The local authority should be under a corresponding duty to maintain a register searchable by the public of all the cemeteries in their region and the names and contact details for the managers of those cemeteries. The registers should also contain the burial information provided by the cemetery managers, but local authorities should not be responsible for the accuracy of that information nor to fill any gaps in burial information for individual cemeteries.

12.92Local authorities may find it efficient to establish electronic registers to ease the reporting requirements for cemetery managers and to make searching the register easier. However, given the range of sizes and resources for local authorities across New Zealand, we do not consider this should be a mandatory requirement. These registers will contribute to maintaining a coherent, durable, rational framework of all places of burial in New Zealand. They will facilitate access to and use of important historical, cultural and social information about burial locations and practices. They will also address the risk of records held by the cemetery itself being lost or damaged.

Recommendation

R50The statute should require local authorities to keep a register of all cemeteries in their region and to allow public searches of that register. That register should include the names and contact details of current cemetery managers and burial information forwarded by cemetery managers.

Inspections and oversightTop

12.93We have described above a simplified framework of obligations on cemetery managers and have considered who should be responsible for ensuring the obligations of cemetery managers are fulfilled and how that should be done. Currently, the Act confers a power on health protection officers or other public service employees to inspect cemeteries, but we are told that is seldom done.

12.94As we have described, the problems in this sector are largely confined to the way that the legislative requirements are structured, making it difficult to ascertain what rights and obligations apply in different circumstances. We have not encountered widespread problems with the standards of cemetery management itself. Consequently, we do not consider there is a need for an intensive or even proactive enforcement regime for cemetery management. Instead, the statute should provide a power that enables a public official to act on information or complaints it may receive. The statute should contain a power to enter and inspect cemeteries (both local authority cemeteries and non-local authority cemeteries) for the purpose of determining whether the requirements of the statute are being met.

12.95This inspection power should include any buildings on the cemetery that are part of the business of the cemetery (including any crematorium). It should not extend to any dwelling house or marae unless the consent of an occupier or a warrant is obtained. Any inspection under these provisions should comply with the relevant provisions of the Search and Surveillance Act 2012.

12.96This power should be able to be exercised by an authorised employee of the relevant local authority. We envisage that it will usually be the local authorities’ environmental health officer (if one exists) who is best placed to exercise this power if required.

Recommendation

R51The statute should provide a power in an authorised employee of a local authority to enter and inspect any cemetery (including any building in the cemetery, but not a dwelling house or marae unless the occupier has consented or a warrant has been obtained), for the purpose of:
  • determining whether the requirements of the statute are being met; or
  • obtaining evidence that those requirements are not being met.

Power to assume management responsibilities of a cemeteryTop

12.97Above, we recommend that cemetery managers that are struggling to effectively manage cemeteries should have powers to renounce, delegate or transfer the cemetery management functions to the local authority. However, there may be circumstances where cemetery managers are absent or unable to initiate transfer or where there is disagreement among the managers as to whether there should be a transfer. In these circumstances, local authorities should have a power to assume management responsibilities for a cemetery, if that is in the public interest.

12.98Consequently, the statute should provide that a local authority may provide notice to the cemetery manager of its intention to take over cemetery management if:

12.99If any or all of the obligations of cemetery management remain unfulfilled one year after notice was given, the local authority may designate itself as cemetery manager by giving notice of that fact to the previous cemetery manager and noting the change on its cemetery register.

12.100However, if notice of the local authority’s intention to take over management of the cemetery cannot be given because the cemetery manager is unable to be found or served with notice and reasonable attempts to provide notice have been made,242 the local authority may designate itself manager of the cemetery without notice.

12.101The statute should provide the local authority with powers it may need for the purpose of performing the powers and obligations of cemetery manager (that are not already provided in Part 8 of the Local Government Act 2002).

Recommendations

​R52A local authority may provide notice to a cemetery manager of its intention to assume responsibility for the management of a cemetery if:
  • it considers that the cemetery manager is failing to fulfil any or all of the obligations of cemetery management in respect of a cemetery;
  • that failure is significant; and
  • it is in the public interest for the local authority to assume management of the cemetery.
R53If the cemetery obligations remain unfulfilled one year after notice was given, the local authority may assume responsibility for the cemetery management by providing a second notice to that effect to the original cemetery manager and noting the change on its cemetery register. Notice is not required if the cemetery manager is unable to be found despite reasonable attempts or is unavailable due to death or incompetency.
240Burial and Cremation Act, s 4(1).
241Burial and Cremation Act, s 49.
242Reasonable attempts could include posting a notice at the cemetery gates.