Contents

Chapter 12
Reform of places of burial

Obligations on cemetery managers

12.10Clear statutory obligations on cemetery managers are important so that they know what they are required to do. This will help ensure that minimum standards are met and that appropriate action can be taken if they are not. In later sections, we discuss what land should be deemed to be a cemetery and who is deemed to be the manager.

12.11Our proposed obligations fall into the categories of:

Not using cemetery land for other purposes

12.12The Act currently states that a cemetery manager may not make use of cemetery land for any purpose not authorised by that Act.206 This means that, in general, the land may only be used for burial. This restriction reflects the special status that is given to cemeteries due to the need to accord dignity to the deceased, the need to respect the grief processes of the bereaved and the importance of maintaining the heritage characteristics of such land.
12.13We have considered whether this restriction should continue in the new statute and, if so, the best mechanism for reflecting the policy goal. The law should only interfere with the rights of land owners (whether public or private owners) to use their property where there is strong public interest in doing so. However, the special status of land that is used for burial came through very strongly in submissions on Issues Paper 34, and many submitters thought that cemeteries should never be used for other purposes. Respecting the dignity of deceased bodies reflects our respect of humanity just as much as it does when we grant rights to dignity to living individuals.207

12.14Consequently, we consider that there should be some mechanisms to ensure that land used for burial cannot be used for incompatible purposes. We have considered different ways to achieve this. We recommend requiring non-local authority cemetery managers (including owners of land used for private burial) to ensure that the cemetery is registered with the local authority and that a covenant in favour of the relevant local authority is registered against the certificate of title. The local authority would then have powers to enforce the land owner’s obligation not to use the site for purposes incompatible with burial.

12.15However, a different mechanism is needed to provide independent enforcement and ensure accountability for cemeteries managed by local authorities. Consequently, we recommend that local authority cemeteries be subject to a statutory restriction that prohibits the cemetery being used for inconsistent purposes.

Covenants for protection of non-local authority cemeteries

12.16A protective covenant over non-local authority cemeteries would require that the land owner does not use the land for purposes “inconsistent with its use as a cemetery”. This covenant would bind both current and future owners of the land and will give fair warning to prospective purchasers of the land that there are limits on the way the land can be used. It would, in theory, be possible for the covenant to cover only the particular part of a block of land that is actually being used for burial and for that part to be extended (and the description of the land on the covenant amended) as more land within the block is required for burials. The covenant may include a diagram to define the part of a piece of land to which the restrictions on use apply.

12.17The statute should allow a transition period of two years to allow cemetery managers to register cemeteries with the local authority and ensure that the covenant restricting use is noted on the certificate of title.

12.18The phrase “inconsistent with its use as a cemetery” is open to varied interpretations. To some people, any commercial enterprise within a cemetery would be unacceptable, whereas others may embrace the idea of an onsite café or walking tour venture, for example. Indeed, some regions may welcome certain commercial ventures as a means of funding the maintenance of a cemetery when it approaches full capacity.

12.19We do not consider that the statute should provide a definitive definition for the phrase “inconsistent with its use as a cemetery”. Instead, this is a concept that should be determined based on that community’s needs, priorities and cultural expectations. It would be open to the land owner and the local authority to agree on modified wording of a covenant to give effect to specific restrictions if these were thought to be appropriate. One advantage of a covenant is that it can provide a greater level of responsiveness to the different circumstances of each cemetery. For example, in respect of an eco-burial ground, it would be possible for the covenant to state that the land must remain forested forever. A covenant could also give effect to particular management requirements of religious or cultural groups that establish cemeteries for the use of their community.

12.20While ideally, cemetery land should only ever be used in a way that is consistent with burial and respects the dignity of the bodies buried there, there will be rare occasions when the use of the land will need to change to meet the needs of the living. On those occasions, the land owner would have two options—obtain the approval of the local authority to vary the covenant or obtain the approval of the local authority for the disinterment of all the bodies. If all the bodies were disinterred, the restrictions on the use of the land would no longer apply, and the covenant could be removed from the certificate of title.208

12.21In granting either of these options, the local authority must consult with neighbouring land owners and other people from the community who may have an interest in the cemetery—such as regular visitors and users of the cemetery and the relatives of deceased people buried there. It should consider in every case whether all the bodies should be disinterred and relocated to another cemetery. It should only agree to vary the covenant or remove it and allow the disinterment of all the bodies if satisfied that the interests of the community in retaining the land as a cemetery are outweighed by the community’s interest in using the land for the alternative purpose. The land owner should have a right to appeal the local authority’s decision to the Environment Court.

12.22If a land owner uses land for purposes inconsistent with the purposes of a cemetery in breach of the covenant registered on the title to the land, the land owner may be served with an abatement notice under section 322(1)(a)(ii) of the Resource Management Act 1991. Alternatively, the local authority could apply to the Environment Court for an enforcement order under section 314(1)(a)(ii). Breaching an abatement notice or an enforcement order is an offence punishable with a conviction and term of imprisonment of up to two years or a fine up to $300,000 for an individual or up to $600,000 in other cases.209

Statutory requirement for protection of local authority cemeteries

12.23Because local authorities cannot make covenants with themselves, we recommend that local authority cemeteries should instead be subject to a statutory provision preventing those cemeteries from being used for any purpose that does not recognise or respect the dignity of the deceased bodies buried there. This requirement would send a clear message to local authority cemetery managers that there are strict limits on how they may use cemetery land because deceased bodies must be accorded respect and dignity.

12.24Of course, there would remain some uncertainty within this provision as to what alternative uses of cemetery land would fail to recognise or respect the dignity of the deceased bodies. We do not think that the statute should attempt to define this concept further and that any question as to what uses would fail this test should be answered in light of local circumstances. Similar to the discussion of covenants above, restrictions on the use of local authority cemetery land should be determined by the community’s needs, priorities and cultural expectations.

12.25The statute must provide an alternative mechanism for approval in the rare event that a local authority wishes to use cemetery land for an alternative purpose that is inconsistent with the statutory provision. The local authority should be able to apply for either an order to allow an alternative use of the land or an order allowing the buried remains to be disinterred. We recommend that the decision-maker in these circumstances should be the Environment Court. The provision of a separate decision-maker for this purpose would provide a transparent and independent decision-making process. In making these decisions, the Environment Court must consider the same matters that must be considered by local authorities when considering applications for alternative uses from non-local authority cemetery managers, described above.

​Recommendations

R22The statute should require a cemetery manager to ensure that the cemetery is registered with the local authority.

R23A non-local authority cemetery manager must enter into a covenant in favour of the relevant local authority prohibiting the use of the land for any purpose that is inconsistent with the use of the land as a cemetery. The statute should allow a transition period of two years for these obligations. The covenant must be noted on the certificate of title of the land.

R24If a non-local authority owner or manager of a cemetery wishes to use the land for a purpose inconsistent with the covenant, that person may apply to the local authority either to vary the covenant or for permission to disinter all of the bodies (in which case, the covenant would be removed).

R25If the local authority agrees to vary or remove a covenant, this must be noted accordingly on the certificate of title.

R26If the local authority grants permission for all the bodies to be disinterred, it should provide notice to that effect to the District Land Registrar who should, upon notice from the land owner that all the bodies have in fact been disinterred, remove the covenant from the title.

R27The statute should provide that local authority cemeteries must not be used in any way that does not recognise or respect the dignity of the deceased bodies buried there.

R28A local authority cemetery owner or manager may apply to the Environment Court for approval to either use the land for a purpose that is inconsistent with R27 or to disinter the bodies.

R29In deciding whether to allow alternative uses of the cemetery or to allow the bodies to be disinterred, the local authority or the Environment Court must:
  • consider the views of neighbours and users of the cemetery;
  • consider whether the public interest requires the disinterment of all the bodies; and
  • be satisfied that the interests of the community in retaining the land as a cemetery are outweighed by the interests of the community in using that land for the alternative purpose.

Dealing with the land—leases, mortgages and saleTop

12.26Currently, the Act contains very specific provisions as to leasing, mortgaging and selling cemetery land. Cemetery and burial ground managers may grant a lease of any unused portion of a cemetery for up to five years, and they may only mortgage or sell the land in accordance with the Act.210 Cemetery land that is not required for cemetery purposes may be disposed of, but only with the permission of the Minister of Health. If it is disposed of, it ceases to be a cemetery.211 Local authorities may dispose of cemetery land to other local authorities if it will continue to be used for cemetery purposes.212

12.27As we mentioned earlier, the law should only interfere with the rights of land owners to use their property where there is strong public interest in doing so. We consider that such rules on leasing, mortgaging or selling cemetery land are not necessary if the law already protects the land in perpetuity (as we propose above). The fact that the use of the land is severely restricted will probably have an effect on the value of the land by way of lease, mortgage or sale, but there is no public interest in preventing those dealing with the land per se.

Recommendation

R30There should not be specific statutory restrictions on the leasing, mortgaging or selling of cemetery land.

Record-keeping Top

12.28The Act currently requires that burials within every type of cemetery and burial ground are registered in a local authority register of burials.213 We recommend this provision be retained but modernised.

12.29Burial records serve several purposes:

12.30We have considered whether there should be a national (rather than local) burial register. Unlike the registration of funeral directors (which we recommend in Chapter 18 becomes a national register), we cannot see sufficient justification for this in respect of burials. A local register of burials would be sufficient for each of the purposes of registration listed above, apart from genealogical research. A national register would require significant resources and cannot be justified for this limited purpose. In any event, information on the date and place of burial or cremation of the body is currently given on the Notification of Death for Registration form for the Registrar-General of Births, Deaths and Marriages, so is collected nationally.

12.31Accordingly, we consider that records of burials should be kept at the local authority level and at the cemetery level. The statute should require cemetery managers to keep records of every burial within the cemetery, including the identity of the person buried, the name and contact details of the person authorising burial, the date of burial and descriptions of the location of the burial plot and the depth of the burial. It should also require them to forward details of all burials within their cemetery to the local authority at least once a year. Below, we also propose a duty on local authorities to keep records of all burials in their district.

Recommendation

R31Cemetery managers should have a statutory obligation to keep a record of every burial, including a description of the location of each grave and the identity of the person buried there, and to forward that information to the local authority at least once a year.

Duty of maintenance of cemeteriesTop

12.32Setting statutory requirements as to maintenance duties in respect of cemeteries is complicated by the wide range of circumstances within cemeteries in New Zealand. For example, the maintenance needs of a large old cemetery that has reached full capacity might be quite different from a smaller, new cemetery still open for burials. Cemeteries with graves subject to the Heritage New Zealand Pouhere Taonga Act 2014 and cemeteries catering only to eco-burials both have different needs.

12.33In Issues Paper 34, we suggested that maintenance standards should be addressed in a National Environmental Standard (NES) on burial of human remains, made under the Resource Management Act 1993. While we would continue to support the development of such an NES, we have concluded that a new statute on burial should contain its own standard for maintenance of cemeteries.

12.34Consistent with our other proposals, we consider that, while there should be a general statutory obligation to maintain cemeteries in a reasonable condition, the actual standards that should be achieved in each cemetery should be determined at a local level, based on the needs and priorities of that community. Consequently, the statute should provide that a cemetery manager is under a duty to maintain the cemetery in a reasonable condition, having regard to how the cemetery is used by the community. That obligation should extend to the land, the landscaping and graves, including any monument or tablet on the graves. The maintenance of graves is somewhat controversial (and we discuss powers to maintain monuments and tablets further below), but we consider that it should be included within the general maintenance duty because separating out the maintenance of graves from the rest of the cemetery is, in reality, an artificial distinction.

12.35Below, we discuss the requirement for local authority cemetery managers to prepare a cemetery policy after consultation with the community. That document should establish the standards of maintenance required by the community for particular cemeteries, or parts of cemeteries, over and above the statutory minimum requirement.

Recommendation

R32The statute should provide that a cemetery manager is under a duty to maintain the cemetery in a reasonable condition, having regard to how the cemetery is used by the community.

206Burial and Cremation Act, s 21(1).
207​Fletcher, above n 94.
208Later in this chapter, we discuss permission for the disinterment of single graves and standards for carrying out all disinterments.
209Resource Management Act 1991, ss 338(1)(b) and (c) and 339(1).
210Burial and Cremation Act, s 21. Cemetery land held in trust may be sold with Ministerial approval if it is not required for cemetery purposes. Cemetery land not held in trust nor subject to the provisions of any enactment may be sold if it is not required for cemetery purposes. A local authority may sell a cemetery to another local authority if it is to continue to be used for cemetery purposes.
211Section 21(4).
212Section 21(7).
213Burial and Cremation Act, s 50.