Chapter 21
A statutory framework for burial decisions

Values underpinning the new framework

21.4Death is universal, and new legislation in this area will have wide-ranging effects. We sought to get a sense of the values people think should be reflected in the law and, as far as possible, to work these into the design of a new statutory framework.

21.5In Issues Paper 34, we set out a range of relevant values, including:

21.6We asked submitters to comment on these values and, if possible, to rank them in order of importance. We also discussed them in public meetings with a range of different stakeholders. Some submitters said that it was not possible to rank the values. Some said all were equally important, while others said it depended on context or that each case is best taken on its own merits. For instance, the Palmerston North Women’s Health Collective said

[…] each family situation is different. A child or grandchild may be as significant as a surviving partner in decision-making.

21.7Some of those who ranked the values observed that they were influenced by their personal perspectives. The Tauranga Wesley Methodist Church Committee said that, “as a group of Pākehā”, they would rank three values as having equal importance: the needs of the surviving partner; the close relatives; and the wishes of the deceased. They noted that “other cultural or religious groups may rank this in a different order”.

The wishes of the deceased

21.8This value was often commented on and discussed by submitters. In particular, a number of individual submissions ranked this value highly, and a number of people in public meetings assumed or desired that they would have the final say over their burial arrangements. We think it is particularly significant that a large proportion of people currently expect that their wishes about how their body is to be handled after death will be given legal effect, though this is not the case.

21.9However, many submitters also acknowledged that there were times when it would be appropriate to depart from the wishes of the deceased. The New Zealand Law Society said that, if the deceased has given prior thought to conflict and has left clear wishes, these should be given more weight than the views of family members who wish to do otherwise. However, the deceased’s wishes should not be binding if, at the time of death, carrying out those wishes would be excessively costly or impractical. In consultation meetings, it was also noted that the passage of time and change in circumstances can affect whether the deceased’s wishes should be binding. The Federation of Islamic Associations of New Zealand (FIANZ) said that, in an Islamic context, the deceased’s wishes should be paramount “unless in breach of Islamic requirements”. A large proportion of submissions from the funeral sector gave a high ranking to the wishes of the deceased. However, others focused more on the needs of family at this time.

21.10One submitter commented on the place of the individual’s wishes in a tikanga context. They said there is an important distinction between the wishes of the individual as expressed before death and the desire of the wairua (spirit) of the individual after that person has died. While the living person may express a certain view, the wairua will always seek to rest in its ancestral lands.

Family and survivors of the deceasedTop

21.11A significant number of submitters commented on the role of family and survivors. Submitters from the funeral sector in particular commented on the role of the burial arrangements in helping the survivors through their grief:

A funeral service is ultimately a means for those left behind to honour the life of the deceased. It provides a focus for grieving, and allows family and friends to transition through those stages in a manner most fitting to them.

21.12One submitter from the funeral sector said that the needs of the bereaved were, in their view, more important than those of the deceased, although the needs of the bereaved and the dignity of the deceased cannot be separated because the process by which the bereaved make sense of the death is itself a form of honouring the deceased.

21.13One submitter made a distinction between mourning and burial in tikanga Māori. Mourning ceremonies are for the individual and for the whānau, but burial is for the ancestors of the deceased who require the deceased to be buried in ancestral land. Submitters from the Tangi Research Unit based in Waikato University suggested that burial disputes should be resolved not only with the immediate conflict in mind but also considering the long-term, inter-generational effects of the burial location on people, place and culture. The Māori Party and Te Rūnanga o Ngāti Whātua noted the primacy of the whānau unit, but they also said that, where an individual has specifically chosen someone to make decisions on their behalf, that choice should be given weight in the decision-making process.

Religious and cultural beliefsTop

21.14Culture exerts considerable influence over the way in which people respond to death and ascribe meaning to the process. Ruth McManus, a writer in the field, observes that cultural identity is always in the making and “never more so than in death”.435 Cultural and religious beliefs shape people’s views and are often taken for granted, forming a basis for views about what feels right. People may tend to see their own practices as simply “the way things are done” rather than as reflecting a particular set of cultural beliefs that are not universally held.

21.15In general, submitters did not emphasise the importance of culture. However, on the other hand, the way other values are discussed (such as the desire to carry out the wishes of the deceased) is itself influenced by culture. It is important to note that mainstream practices are influenced by a set of cultural norms, just as minority practices are. For example, in New Zealand, there is a strong norm that the funeral should be held within a few days of death, and it is rare for the funeral to be more than a week after death. This is not a universal norm across the globe, and in parts of Europe, it is considered appropriate to wait for weeks or even months if that is how long it takes for all the family to gather. Other examples of burial decisions that are likely to be influenced by cultural norms include the decisions of whether to embalm and whether to have an open casket and the choice between burial or cremation.

21.16Some submitters recognised that “culture” infuses this area. The New Zealand Nurses Organisation noted that cultural competence is part of health professional training and important when dealing with bereaved families.

21.17A handful of organisations rated cultural and religious beliefs very highly, such as FIANZ and the Muslim Working Together Group (MWTG). The MWTG provided us with a copy of the Islamic Code of Conduct for burial, a comprehensive document that provides that washing, shrouding and burial of the deceased is the responsibility of the family or, in their absence, the Muslim community. The MWTG also set out the three principles that inform how it approaches burial decisions: accommodating with consideration; communicating with respect; and exercising obligation with dignity.

Legal certaintyTop

21.18A number of submitters commented on the value of legal certainty—that is, the value of knowing what the law says so that people can arrange their affairs accordingly. A number of individual submitters said they wanted the law to be clearer. The desire for legal certainty was also particularly raised by submitters from the funeral sector for whom the question of authority to make burial decisions is central to the carrying out of their profession. For instance, funeral directors noted that it is difficult to know who has the authority to give them instructions if there is a dispute. If the law were clear on this point, it would make it easier for the funeral directors to know when it is appropriate to go ahead with burial arrangements. New Zealand Independent Funeral Homes submitted that legal clarification would help guide its members when they are dealing with disputes.


21.19In light of this consultation and our own research, we have concluded that the new statutory framework should have the following features:

435Ruth McManus Death in a global age (Palgrave Macmillan, Houndmills, Basingstoke, Hampshire: New York, 2013) at 122.