24.27In the following sections, we outline how we think the jurisdiction should operate in the courts.
24.28We deal with the following:
24.29We also consider cultural advisers to assist the court.
24.30We do not support imposing strict preconditions on a person’s standing to bring proceedings in this jurisdiction. A wide range of people could be interested in and affected by the burial arrangements of a deceased person. However, the courts should have the ability to dismiss proceedings that are frivolous, vexatious or an abuse of procedure as the Family Court is currently able to do under section 140(b) of the Care of Children Act 2004.
24.31In Chapter 22 we proposed that a person may appoint a decision-maker to make decisions about funeral arrangements after the appointer has died; whether and how the body should be buried or cremated; and how any remains of the body should be dealt with. We consider that the statute should provide for the courts to have jurisdiction to consider any dispute that may arise in relation to those decisions. In particular, it should have jurisdiction to determine who should make these decisions or, if they have already been made, whether the decisions are reasonable in the circumstances. Alternatively, a person may ask the court to make the particular decision itself.
24.34In addition to the criteria above, the court should also be required to consider the practicality, cost and timeliness of any proposed burial arrangements, having regard both to the need to uphold the dignity of the deceased and the interests of those who had a relationship with the deceased. These may be useful factors particularly in cases where the competing interests are very finely balanced. For instance, the court may ultimately favour a burial location that most people can visit easily, or it may take into account whether certain arrangements would exhaust the estate, particularly where there are contemporaneous family maintenance claims.
24.35It has been emphasised to us that the court jurisdiction serves little purpose if people have acted pre-emptively to take the body and bury or cremate it before court proceedings can be instigated. For instance, we were told that, sometimes, substantive Family Court proceedings (those not concerning vulnerable parties) are not finally determined until several months after they first go before the Court. Obviously, this will not be appropriate for burial disputes where the burial or cremation of the deceased is in question.
24.36We believe there is sufficient justification for the courts to prioritise burial dispute proceedings. These concern deeply significant decisions for those involved and turn on questions of culture and belief. They should not be prioritised ahead of matters where personal safety is at risk (for instance, domestic violence order applications), but they do have a special character that warrants a speedy process. We therefore recommend that, where the Court receives an application in this jurisdiction, it should be required to determine the case within 10 working days.
24.37In Issues Paper 34, we suggested that parties coming before the Māori Land Court might need to be comfortable with lengthier timeframes, but the Māori Land Court submission said that, in its opinion, it is well placed to deal with substantive proceedings in an efficient and timely manner.
24.39The scope of the powers attaching to that order would also be for the judge to decide. For example, they may include a power to shift the body to a secure location or to remain with the body.
24.40A small number of submitters suggested that Police should have statutory powers to seize a body so as to prevent people from burying or cremating it before the court can hear the proceeding. At present, if a body is taken, Police legally have no power to seize custody of the body and tend to be wary of intervening in case of exacerbating the dispute.
24.41We do not support conferring a specific statutory power on Police to seize a body. We think that, if such a power is necessary in a certain case, a court application must first be made. Therefore, if a body is in someone’s custody and the court is satisfied there is an imminent risk of it being buried or cremated before the court can deal with the substance of the proceedings, the court should have the power to issue a warrant allowing Police to take custody of the body for the purpose of returning it to the legal decision-maker or for the purpose of enforcing the court’s orders.
24.42We consider that, if a body has been buried in breach of the rights of a deceased’s representative or executor, the court should have a statutory power to order its disinterment. In Chapter 12, we discussed disinterment in other circumstances—where the family are not in dispute but wish to move the body closer to other relatives; or where a property developer wishes to use the burial land for other purposes. In that section, we emphasised the strong public view expressed in submissions on Issues Paper 34 that a body, once buried, should not be disinterred without significant reasons. We proposed there that the cemetery manager should have the power to grant permission for a single disinterment if satisfied that all interested relatives have been consulted and there are no objections expressed.
24.43In contrast, where a body has been buried in breach of the rights of the deceased’s representative or executor and a court has been asked to determine questions in relation to the body, it should have a power to order the disinterment of the body. In making that decision, it must consider the standard matters described above for its burial jurisdiction. If it orders disinterment, it would also consider alternative disposal of the body or how that decision should be made.
24.44Given the significance and potential finality of these decisions, a right to appeal is important to correct error and to supervise and improve decision-making. However, this needs to be balanced against the need for speed and certainty.
24.45We have concluded that claimants in the Family Court should be able to bring an appeal as of right to the High Court, and the appeal should be conducted by way of rehearing. After considering the matter, we have concluded that appeals should be limited to questions of law. Allowing an appeal on both fact and law increases the risk of delay caused by re-litigating factual decisions made in the court below. However, we are satisfied that a person should be able to appeal if they are of the view that errors were made in how the law was applied to their particular situation.
24.46Claimants in the Māori Land Court should be able to appeal to the Māori Appellate Court under the existing appeal procedure in the Te Ture Whenua Māori Act 1993.