Contents

Chapter 12
Reform of places of burial

What land is subject to the cemetery management framework?

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.

12.8Management obligations should no longer apply to land that is currently designated as cemetery or burial ground but that in fact has never been used for burial.204 Nor should they apply to land previously used for burial but from which all the bodies have been disinterred. The reason for the special obligations on managers of cemeteries is because of the public interest in controlling the use of land in which people are buried. If there are in fact no burials on the land, that public interest does not exist. If restrictions on the management of this land were still required, it should be covered by other legislation, for example, the Reserves Act 1977.
12.9There may be land in respect of which it is uncertain whether or not it has been used for burial. Similarly, bodies may be buried in land without the land owner’s or local authority’s permission. The statute should impose a duty on any land owner who has reasonable grounds to believe there is a body or bodies buried in the land to notify the local authority. The local authority should then have a power to undertake further investigations or inquiries as necessary. That power would be exercised in line with the Local Government Act 2002.205 If it was determined that there is a body or bodies buried there, a decision must be made whether to disinter the body and move it to an approved cemetery or to leave the body where it is. If the body is left there, the land will be deemed to be a cemetery and the subject of cemetery obligations.

Recommendations

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.

204We have come across examples of cemeteries or burial grounds that have never been used, yet the owners were facing difficulty in reusing or selling the land because of its restricted legal status. For example, in 1995, the Ministry of Health received legal advice on whether a piece of land in the town of Lawrence was a cemetery or a burial ground. It was unclear whether or not a miner had been buried in the land in 1860. Ultimately, because the land had indeed been set aside and known as a cemetery, it fell within the legal definition of cemetery, whether or not any burial had taken place there.
205Part 8 of that Act sets out the regulatory, enforcement and coercive powers of local authorities. Under s 171, local authorities have a general power of entry to any land or building for the purpose of doing anything that the local authority is empowered to do under any Act.