12.5As described earlier, currently, a person must determine what category of cemetery land a particular piece of burial land falls under before determining what the obligations are in respect of that land. In contrast, we propose that the new statute deems all land where bodies are buried to be cemeteries and therefore subject to the same management obligations described below.
12.6This means that the existing legal distinctions in the Burial and Cremation Act 1964 (the Act) between local authority and trustee cemeteries, burial grounds, private burial grounds and private burial places will be of historical interest only and would no longer be necessary to determine the rights and responsibilities of management. It means that all types of burial land will be subject to the cemetery management framework, whether or not they have been registered with the local authority, including pieces of burial land that currently have an uncertain status. Of particular note, it would mean that the large number of very small burial sites on private rural land would be subject to the framework, although as we describe below, the framework has sufficient flexibility to adapt its requirements to the wide range of circumstances.
12.7We have considered whether there should be any exceptions to the standard rule that all sites where bodies are buried are deemed to be cemeteries. First, urupā should be excepted because they are currently controlled under Te Ture Whenua Māori Act 1993 and therefore do not come within the terms of reference of this review. However, it is possible that aspects of the proposed framework for cemeteries would also be suitable for the management of urupā. Second, we are aware that there are a number of battle sites marked around the country in which it is known that bodies are buried but that are not currently treated as burial grounds. We consider that, if it is known that bodies are buried at these sites, they should be treated as cemeteries for the purposes of the new statute. We doubt that this would mean new obligations on the owners of the land (often the Crown), given that the duties of cemetery owners will be limited to maintaining a record of the burials; maintaining the land in a reasonable condition; and not using the land for other purposes.
R20The Act should deem all land in which bodies are buried to be a cemetery (except urupā set aside under Te Ture Whenua Māori Act 1993).
R21The owner of any land who has reasonable grounds to believe that a body or bodies are buried in the land should be required to notify that fact to the relevant local authority. Local authorities should have a power to undertake such investigations as are necessary and desirable, in order to determine whether a piece of land has a body or bodies in it and should be deemed to be a “cemetery” under the Act.