Chapter 9

9.1New Zealand had no national burial legislation until well after the arrival of British settlers. The first attempt at legislation to manage cemeteries was passed in 1877, but the Cemeteries Act 1882 was more comprehensive, seeking to impose some order on the disparate places of burial that had emerged to serve the settler communities. Since then, amendment legislation has tinkered at the edges, addressing the immediate burial demands of New Zealand as they arose. The Burial and Cremation Act 1964 (the Act) is the latest iteration of that legislation. It retains many of the original provisions and the framework of the 1882 Act. It has been amended several times, but it is now well overdue for a thorough and principled review.

9.2The establishment and management of facilities for burial and cremation raise a number of important values. Chief among these is the value of showing respect for the dignity of dead bodies.94 In general, it is considered appropriate and respectful to dispose of bodies after death by burial or cremation. Therefore, there is a need to provide adequate facilities for burial and cremation. The role of the law is to facilitate the provision of those facilities and to promote appropriate and respectful behaviour in respect of the disposal of bodies.

9.3In achieving these goals, there are a number of values that should be recognised. For example, it is expected that places used to bury the dead are maintained to an acceptable standard. As the final resting place of former members of the community and as a place where surviving family and friends go to mourn, the cemetery is a focal point of community and social identity. They should be maintained to a standard that is acceptable to the communities they serve.

9.4It is also important to recognise the value of individual commemoration of the deceased and of rituals for farewelling the deceased. The marking of the burial place with a gravestone or other monument serves as a physical memorial that brings comfort to the families of the deceased. The burial process for farewelling the deceased is ritualised and heavily influenced by cultural and religious beliefs. The families of the deceased are well served if those beliefs are respected, not only because this has positive social effects, in that it facilitates the mourning process, but also because section 15 of the New Zealand Bill of Rights Act 1990 guarantees the right to manifest one’s religion or belief.

9.5Finally, places of burial are repositories of community and national history and places of cultural enrichment. They are, according to one study of New Zealand’s places of burial, “valuable and fragile pieces of our national heritage, providing valuable links to our past, commemorating the lives of ordinary, and not so ordinary, people”.95 Therefore, there is an interest in their preservation and protection.

9.6In Chapter 10 we review the current legislative and policy landscape for the provision and management of facilities for the disposal of dead bodies by both burial and cremation. We also describe the current statutory obligations in relation to disposing of bodies. The Burial and Cremation Act 1964 is the key Act, but a number of other Acts are also relevant, dealing with resource management, heritage protection, land protection and health. Local authorities also have applicable bylaws and policies.

9.7In Chapter 11 we examine the problems with the law:

9.8In Chapter 12 we set out our recommendations for legal reform to address these problems. We propose a new statutory framework that will clarify the status of land used for burial and the rights and responsibilities that attach to that land.

9.9Chapter 13 examines the current legal and policy framework for providing choice and responsiveness in places of burial. We have considered whether the Act takes an overly restrictive approach towards bodies being buried on private land and whether it would be possible for entities other than local authorities to establish new cemeteries. That chapter makes recommendations to increase public choice as to burial as much as possible within the existing resource management framework.

94While deceased bodies do not have a right to dignity (because dead bodies cannot hold rights), it can be said that we nevertheless have an inherent duty to treat dead bodies with dignity. That duty rests on the notion that humans should be treated as ends not as means. See GP Fletcher “Human Dignity as a Constitutional Value” (1984) 22 University of Western Ontario Law Review 171 for a discussion about the duty to respect human dignity in the dead.
95Stephen Deed “Unearthly Landscapes: The Development of the Cemetery in Nineteenth Century New Zealand” (Master of Arts, Otago, 2004) at 1.