25Currently, it is unlawful to bury a body in any land that is not a cemetery, a denominational burial ground, a private burial ground or a Māori burial ground if there is such a place within 32 kilometres of the place of death or place where the body has been taken for burial. We consider that the strong public interest in the controlled development of burial land requires the continuation of this requirement. However, the 32 kilometre exception should be replaced by a defence under which the defendant is not liable if he or she can show both that it was impractical to transport the body to an approved cemetery and the body was buried respectfully in another place.
26The current prohibition on cremation elsewhere than in an approved crematorium should be continued but modernised to reflect the possibility of alternative methods of cremation or other means of disposing of bodies that may become popular in the future. We discuss outdoor cremations below.
27We found that it is sometimes very difficult for cemetery managers to know what their statutory obligations are because the current rules are complicated and overly prescriptive. We recommend that the new statute replaces the current rules with a simple set of basic obligations that covers all managers of land in which bodies are buried, no matter what category of cemetery is in question. Those obligations should be to:
28The first obligation, to ensure that cemetery land is not used for other purposes, will also require the manager to register the cemetery with the local authority, enter into a covenant with the local authority prohibiting the use of the land for any purpose that is inconsistent with the use of the land as cemetery and ensure that covenant is noted on the certificate of title. If the cemetery manager wishes to use the land for other purposes, the manager may apply to the local authority either to vary the covenant or for permission to disinter all of the bodies. What uses of the land are considered to be “inconsistent with cemetery use” should be determined by local authorities taking into account their own circumstances and the views of their communities.
29In order to avoid the need to determine which category of cemetery a particular cemetery falls into, we recommend that all land in which bodies are buried should be deemed to be a cemetery. However, urupā set aside as a reserve under the Te Ture Whenua Māori Act 1993 should be excluded because they are covered by that Act.
30We also recommend that the owner of cemetery land should generally be deemed to be the manager and therefore under the obligations of cemetery managers described above. However, we recommend an exception to this rule to recognise the managers of existing trustee cemeteries (we suggest they be known as community cemeteries).
31The Act currently has a wide range of very prescriptive powers for cemetery managers. This approach should not be replicated in a new statute because it is hard to understand and unnecessary. Cemetery managers generally do not need specific powers to manage and maintain cemeteries. They only require specific statutory powers to do things that may override the rights of other people. On that basis, we recommend that the statute should provide a specific power in cemetery managers to maintain any grave, memorial, vault or tablet. This power should operate despite any bylaw or contractual provision giving the bereaved family duties and rights to maintain these things.
32We also consider that cemetery managers should have specific powers to approve the disinterment of single graves. We discuss this further below.
33Most cemeteries are currently managed by local authorities, and that is likely to continue due to the large amount of land that must be tied up in perpetuity for cemeteries. In addition to the standard obligations on cemetery managers described above, we recommend that local authority cemetery managers should have some additional obligations in respect of those cemeteries as follows.
34We described above that one of the key issues with the current law is that it does not adequately cater to the diverse needs of New Zealand’s increasingly culturally diverse population. In response to this problem, we recommend that local authority cemetery managers must consider applications from any group of people for separate burial areas within the cemetery. Currently, they are only required to consider applications from religious denominational groups.
35We also recommend that local authority cemetery managers must create and maintain a cemetery policy that will provide certainty and transparency for the population it serves about policy choices it is making in relation to the management of cemeteries. Key amongst these policy choices is the level of maintenance to be provided for various cemeteries under its responsibility and the provision of separate burial areas for minority groups.
36In addition to specific extra obligations on local authority cemetery managers, we consider that there is a public interest in local authorities having a number of duties in relation to all the cemeteries within its region.
37Currently, local authorities have an obligation to provide cemeteries if there is otherwise insufficient provision for burial in its district. We recommend that this obligation should continue, but given the strong growth in cremation in recent decades and the high cost of land required to establish a cemetery, we recommend that the obligation should only require facilities for the disposal of bodies rather than cemeteries specifically.
38We recommend below a new framework to describe who has the power and the duty to make post-death decisions, particularly about disposing of the body. Despite the clarity that this framework will bring, there will still be cases where there is no family member or other person to take responsibility for disposing of a deceased body. In these cases, we consider that there is a public interest in the local authority having a duty to dispose of the body. We expect that they should perform this task with the minimum of cost required to provide dignity to the body. Costs should be recoverable from the estate or, if that is insufficient, from the funeral grant from Work and Income New Zealand.
39We propose above that all land in which bodies are buried should be subject to restrictions on the future inconsistent use of that land. However, our research found that there is no formal record of all cemeteries in New Zealand, so it could be difficult to know when land is cemetery land. We make a number of proposals to address this problem, but one proposal is that all cemetery land should be recorded on a central register or registers. We recommend that these registers should be kept by local authorities, rather than nationally, so that local authorities can provide oversight for cemeteries in their regions, can project demand for new cemeteries and can offer support to the managers of older cemeteries who may be failing to meet their obligations.
40Currently, the power in the Act for health protection officers to inspect cemeteries is rarely exercised. This probably reflects the view that problems with cemeteries are not significant enough to warrant the expenditure of resources on regular inspections. We would agree with that conclusion. However, while a duty to inspect cannot be justified, a power to inspect is required for the rare occasions in which a local authority needs to take enforcement action against cemetery managers who are failing to fulfil the cemetery obligations.
41Finally, we have described above that cemeteries should be maintained to at least a minimum standard. However, our research found that there are a number of small rural cemeteries run by community groups that may not be able to fulfil even this minimum requirement due to a lack of financial resources or volunteers. We recommend that, when such a cemetery fails, the local authority should be required to take over its management. The local authority could then decide on the level of maintenance required, but it should be open to it to decide to provide only a minimum level of maintenance.
42We consider that providing dignity to deceased bodies and human remains requires that any interference with a body once it is buried should be done under strict controls. Consequently, it should continue to be an offence to disinter a body or remains without the appropriate consent.
43Currently, a family wishing to disinter remains to relocate them to be closer to other family members must first obtain the permission of the Minister of Health. There are usually very limited health concerns in disinterment, and so we propose that applications for single disinterment should be simplified by requiring only the permission of the cemetery manager. When making those decisions, the cemetery manager must be satisfied that all interested relatives have been consulted and no objections have been expressed.
44Sometimes, people wish to disinter multiple remains for the purpose of using the land for another purpose (a purpose that is inconsistent with burial). In those cases, we consider that the local authority should be the entity to provide permission unless the cemetery is a local authority cemetery, in which case, the permission should come from the Environment Court. We make recommendations for the matters that must be considered when making these decisions.
45Another key recommendation to address our finding that the current burial framework does not adequately cater to New Zealand’s increasingly diverse cultural needs is that the new statute should reduce the restrictions on the types of new cemeteries. Specifically, any person or group should be able to apply to the local authority to establish a cemetery. We envisage that this option may be taken up by people wishing to establish eco-burial grounds. Also, any person should be able to apply for burial on private land if the land in question is rural land and the cemetery is intended for the burial of no more than five bodies.
46However, we also recognise that opening up the provision of cemeteries to private providers presents significant challenges for local authorities. In particular, it requires them to determine whether or not the land in question may be required for other purposes in the future, and if the cemeteries fail to fulfil their statutory obligations in the future, the local authority would be required to take over. Consequently, we also recommend that, in addition to relevant considerations under the Resource Management Act, a local authority should have powers to decline applications for other good reasons. In particular, it may consider:
47There is currently a cumbersome process for establishing a crematorium under which, in addition to any resource consent, two approvals of the Minister of Health are required. We consider that the Minister’s approvals add very little to the process and should be abolished. It should be for local authorities to approve crematoria through the ordinary planning and resource consent processes.
48Continuing to have a mechanism to approve outdoor cremations is an important aspect of recognising the diversity of burial needs in New Zealand. However, we consider that this option should not be limited to religious denominations—rather, it should be the sincerity of the application that is relevant. It should be for local authorities to approve outdoor cremations, rather than the Ministry of Health, because this is largely a land use issue and the health concerns are small.
49Section 150(2) of the Crimes Act 1961 provides an offence of improperly or indecently interfering with or offering an indignity to any dead human body or human remains. We have found that there is a range of behaviour that is disrespectful to deceased bodies or remains, but that is not prosecuted under s 150(2), probably because the penalty for that offence is a maximum term of imprisonment of two years. Such behaviour includes treating a body in a way that is designed to cause cultural offence or the inappropriate storage of bodies.
50We consider that the new statute should create a new duty in every person to treat any dead human body or human remains with respect. That duty should be supported by an offence punishable by a maximum fine of $10,000. This offence is designed to capture lower-level offending than is prosecuted under s 150(2) of the Crimes Act.
51There is currently a requirement in the Act to dispose of a body within a reasonable time. However, it is not necessarily clear on whom that obligation falls or what amounts to “a reasonable time”. We propose that the requirement should be continued, but the obligation should fall on the person who has the duty to dispose of the body. We describe below our proposals for clarifying where that duty should lie. Furthermore, the requirement should be to dispose of the body “without undue delay, taking into account the mourning needs of the bereaved and any ceremonies to be performed”. This timeframe should provide more clarity yet sufficient flexibility to accommodate the different cultural needs of the bereaved family.