Contents

Summary of recommendations

R1 The Burial and Cremation Act 1964 should be replaced by a new statute for burial, cremation and funerals to be administered by the Department of Internal Affairs. However, provisions relating to the determination of the cause of death should be transferred to a statute administered by the Ministry of Health.

Death Certification

Central responsibility for the cause of death certification system

R2 The Ministry of Health should have responsibility for the quality of outputs and outcomes from the death certification process.

An online process for Certifying cause of death

R3 There should be an online death certification process created and managed by the Ministry of Health.

R4 The online death certification process should have a section for verification of the identity of the body including the evidence for that verification.

R5 The statute should require that a deceased body may not be disposed of unless a doctor or other authorised person has certified that the identity of the deceased has been adequately determined. If the doctor or authorised person considers the body is not adequately identified, they must refer the death to the Police.

R6 The statute should require that a body may not be disposed of or embalmed unless a doctor has certified the cause of death of that person or the authorisation of the coroner is obtained.

R7 The Births, Deaths, Marriages, and Relationships Registration Act 1995 should be amended so that the doctor or coroner who determines the cause of death has a duty to provide preliminary notice of the death (and the cause of death) to the Registrar-General.

R8 The Births, Deaths, Marriages, and Relationships Registration Act 1995 should also be amended to make it clear that a person making decisions about disposal of the body has a duty to notify the Registrar-General of the death (in the manner prescribed by regulations made under that Act).

Statutory duties in determining the cause of death

R9 The statute should enable some nurses to certify death in some circumstances.

R10The statute should not require the attending doctor to view the body prior to determining the cause of death. It should be up to the doctor to determine whether an examination or viewing of the body is required. However, the statute should require that an alternative doctor who is certifying the cause of death views the body prior to making that determination.

R11The statute should require the doctor certifying the cause of death to determine that cause to the best of the doctor’s knowledge and belief.

R12The statute should state that the timeframe within which the attending doctor must determine the cause of death is “within 24 hours of learning of the death or as soon after that as is reasonably practicable”.

R13The statute should provide that a doctor who did not attend the deceased person during their illness may certify the cause of death if the attending doctor is unavailable. “Unavailable” should be given its usual meaning, which is broader than that currently in the Act.

R14The statute should provide that a person may not embalm or dispose of a body unless the cause of death has first been determined.

Auditing cause of death determinations

R15 The statute should create a statutory role of “cause of death reviewer” to be appointed by the Minister of Health.

R16 A function of cause of death reviewers should be to undertake a review of a random sample of all deaths (except deaths that occurred in hospital and deaths that have been referred to the coroner) for the purpose of:
  • detecting error in the determination of the cause of death;
  • detecting deaths that should have been referred to the coroner; and
  • providing education and support to doctors who certify the cause of death.
R17 Additional functions of cause of death reviewers should be to:
  • review deaths referred to them;
  • undertake targeted reviews of deaths; and
  • provide support and education for doctors who certify cause of death.
R18 The statute should provide that, when a cause of death reviewer detects an error in the determination of the cause of death, the reviewer must:
  • discuss the error with the certifying doctor with a view to reaching agreement (if necessary) about amending the certification of the cause of death; and
  • ​if agreement cannot be reached, refer the death to the coroner or to another authorised doctor for adjudication.
R19 If the reviewer detects evidence of criminal activity, the reviewer must report the death to the Police.

Cemeteries and CrematoriaTop

What land is cemetery land?

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.

Obligations on cemetery managers

R22 The statute should require a cemetery manager to ensure that the cemetery is registered with the local authority.

R23 A non-local authority cemetery manager must enter into a covenant in favour of the relevant local authority prohibiting the use of the land for any purpose that is inconsistent with the use of the land as a cemetery. The statute should allow a transition period of two years for these obligations. The covenant must be noted on the certificate of title of the land.

R24 If a non-local authority owner or manager of a cemetery wishes to use the land for a purpose inconsistent with the covenant, that person may apply to the local authority either to vary the covenant or for permission to disinter all of the bodies (in which case, the covenant would be removed).

R25 If the local authority agrees to vary or remove a covenant, this must be noted accordingly on the certificate of title.

R26 If the local authority grants permission for all the bodies to be disinterred, it should provide notice to that effect to the District Land Registrar who should, upon notice from the land owner that all the bodies have in fact been disinterred, remove the covenant from the title.

R27 The statute should provide that local authority cemeteries must not be used in any way that does not recognise or respect the dignity of the deceased bodies buried there.

R28 A local authority cemetery owner or manager may apply to the Environment Court for approval to either use the land for a purpose that is inconsistent with R27 or to disinter the bodies.

R29 In deciding whether to allow alternative uses of the cemetery or to allow the bodies to be disinterred, the local authority or the Environment Court must:
  • consider the views of neighbours and users of the cemetery;
  • consider whether the public interest requires the disinterment of all the bodies; and
  • be satisfied that the interests of the community in retaining the land as a cemetery are outweighed by the interests of the community in using that land for the alternative purpose.
R30 There should not be specific statutory restrictions on the leasing, mortgaging or selling of cemetery land.

R31 Cemetery managers should have a statutory obligation to keep a record of every burial, including a description of the location of each grave and the identity of the person buried there, and to forward that information to the local authority at least once a year.

R32 The statute should provide that a cemetery manager is under a duty to maintain the cemetery in a reasonable condition, having regard to how the cemetery is used by the community.

Who is responsible for the management obligations?

R33 The statute should provide that, except as described below, the person who is the owner of the land on which bodies are buried is designated the cemetery manager and has responsibility for the management obligations under the statute. However, if, when the statute comes into force, a cemetery is managed by a group of people who are community managers of the cemetery and who do not have ownership of the cemetery land, that group is designated as the cemetery manager and has primary responsibility for the management obligations under the statute.

R34 “Community manager” should mean a person who makes most of the day-to-day decisions in respect of a cemetery such as the provision of burial plots, maintenance of the grounds and the keeping of burial records, whether under a formal or de facto delegation from the cemetery owner.

R35 Any person who or group which who is the current manager of a cemetery on land for which the certificate of title notes previous managers as owners may apply to the District Land Registrar to be listed as an owner on the certificate of title. The District Land Registrar may make the amendment if satisfied that:
  • the details in the application are, to the best of his or her knowledge, true and correct; and
  • the purpose of the application is to further the management of the cemetery.

Renouncing, delegating and transferring management responsibility

R36 The local authority must assume responsibility for the cemetery management if:
  • the current cemetery manager no longer wishes to manage the cemetery;
  • it is in the interests of the community that the local authority manages the cemetery; and
  • the local authority is able to fulfil the management obligations.
R37 The statute should provide that a person or group who is designated the cemetery manager under the exception described in R33 above, may renounce the role of cemetery manager by providing notice to that effect to the cemetery owner and to the local authority. The local authority must note in its cemetery register the fact that the role has been renounced.

R38 The statute should provide that any cemetery manager may delegate the role of cemetery manager, or any of the cemetery management powers and obligations, to any other person who provides consent.

R39 The statute should provide that the owner of cemetery land may transfer the ownership of the land, and therefore the cemetery management powers and obligations to any person, including to the local authority.

Cemetery managers’ powers

R40 A cemetery manager should have a statutory power to maintain any grave, memorial, vault or tablet, notwithstanding any power in any other person by virtue of a contract or bylaws.

R41 A cemetery manager that is not a local authority should have a power to apply to the local authority (and a cemetery manager that is a local authority should have a power to apply to the Environment Court) for permission to remove monuments or tablets from a whole cemetery or a part of a cemetery. In determining whether to grant permission, the local authority or Environment Court, as the case may be, must consider:
  • the projected costs of maintenance of the cemetery;
  • the availability of resources to perform the maintenance; and
  • the reasons for any views of the community both for removal of the monuments and objecting to removal of the monuments.
R42 The statute should provide an exception to section 42 of the Heritage New Zealand Pouhere Taonga Act 2014, such that cemetery managers may do work on a grave site for the purpose of ensuring that it is not a danger to any person working or visiting the cemetery, but only to the extent that such work is necessary for that purpose and only in a way that minimises the negative effect of the work on the historic value of the site.

R43 The statute should provide that unless a contract for purchase of a burial plot provides otherwise, the term of interment is in perpetuity.

R44 The statute should provide a power in cemetery managers to permanently set aside a portion of a cemetery for the burial of members of the armed forces and their spouses.

Extra obligations on local authority cemetery managers

R45 All cemeteries that were required before the commencement of the new statute to be open for the burial of all deceased persons should continue to be subject to that requirement, except when the cemetery management has determined that the cemetery has reached full capacity.

R46 The statute should require that local authority public cemetery managers must consider applications from denominational groups or any other group of people for a separate burial area within the cemetery. In considering such applications, managers must consider:
  • costs to the cemetery of providing a separate area (including, where appropriate, the applicant’s willingness to share those costs);
  • projected demand for the separate area; and
  • the effect of providing a separate area on the availability of land for burial within the cemetery and within the region.
R47 Local authority public cemetery managers should have a duty to create and maintain a policy for their cemetery, subject to public consultation, that covers at a minimum:
  • maintenance standards;
  • the provision of separate burial areas within the cemetery;
  • the opening hours of the cemetery and hours that burial services can be carried out;
  • the prices of plots and other fees for burial;
  • whether some plots may be sold for limited tenure; and
  • limitations on the rights of bereaved people to have memorials on the plot.

Local government’s role in relation to all cemeteries

R48The statute should provide that local authorities have a duty to provide facilities for the disposal of dead bodies if there are otherwise insufficient facilities available in its district.

R49The statute should provide that local authorities have a duty to dispose of the body of any person for whom there is no other person available to do so. The reasonable costs of such arrangements should be recoverable from the estate of the deceased person or, where appropriate, from the funeral grant from Work and Income New Zealand.

R50The statute should require local authorities to keep a register of all cemeteries in their region and to allow public searches of that register. That register should include the names and contact details of current cemetery managers and burial information forwarded by cemetery managers.

R51The statute should provide a power in an authorised employee of a local authority to enter and inspect any cemetery (including any building in the cemetery, but not a dwelling house or marae unless the occupier has consented or a warrant has been obtained), for the purpose of:
  • determining whether the requirements of the statute are being met; or
  • obtaining evidence that those requirements are not being met.
R52A local authority may provide notice to a cemetery manager of its intention to assume responsibility for the management of a cemetery if:
  • it considers that the cemetery manager is failing to fulfil any or all of the obligations of cemetery management in respect of a cemetery;
  • that failure is significant; and
  • it is in the public interest for the local authority to assume management of the cemetery.
R53If the cemetery obligations remain unfulfilled one year after notice was given, the local authority may assume responsibility for the cemetery management by providing a second notice to that effect to the original cemetery manager and noting the change on its cemetery register. Notice is not required if the cemetery manager is unable to be found despite reasonable attempts or is unavailable due to death or incompetency.

Disinterment

R54 It should be an offence to remove a body or remains of a body buried in any cemetery or place of burial (including urupā) without the permission of the cemetery manager, the local authority or a court (as described below).

R55 The permission of the Environment Court should be required for multiple disinterments from local authority cemeteries.

R56 The permission of the local authority should be required:
  • for multiple disinterment from cemeteries that are not local authority cemeteries;
  • when there are no more than 10 bodies buried in the cemetery (even if the application relates to fewer bodies); or
  • where the body has been buried illegally.
R57 The permission of the cemetery manager should be required in all other cases. However, it should be open to a person to apply directly to the High Court, the Family Court or the Māori Land Court for permission, if they choose.

R58When deciding whether to grant permission for single disinterment, the cemetery manager, local authority or court (as applicable) may consider any relevant matter. However, except when the body was buried contrary to law or the burial was for a limited tenure that has reached its end, permission may not be granted for single disinterment unless the cemetery manager, the local authority or court (as applicable) is satisfied that all interested relatives have been consulted and there are no objections expressed.

R59Permission for disinterment may be granted subject to any conditions the cemetery manager, local authority or court (as applicable) considers are appropriate.

R60The statute should provide that no civil or criminal liability attaches to a cemetery manager or local authority who approves a disinterment in accordance with the statutory requirements.

R61The statute should provide that regulations may be made for the purpose of providing procedures to be followed when disinterring a body; ensuring the dignity of the body disinterred; and reducing or managing any health risks in the disinterment.

Unlawful burial

R62It should be an offence to knowingly bury a body in any land that is not an approved cemetery.

R63It should be a defence to this offence if the defendant can show that it was impractical to transport the body to an approved cemetery and the body was buried respectfully in another place.

Approved cemeteries

R64The statute should provide that any cemetery recognised under the Burial and Cremation Act 1964 as a cemetery or other burial place and that is registered with the local authority should be an “approved cemetery” for the purposes of the offence of unlawful burial.

R65The statute should provide that any new cemetery is an approved cemetery if:
  • it has been approved by the local authority;
  • it has been registered as a cemetery on the local authority register; and
  • in respect of non-local authority cemeteries (including burial on private land), the certificate of title for the cemetery land provides a covenant indicating that bodies are buried in the land and restricting the use of the land.
R66The statute should permit any person or entity to apply to the local authority for approval to establish a new cemetery on any land, subject to the granting of permissions under the Resource Management Act 1991. (The process for approving burial on private land is set out in R71.)

R67In considering whether to grant approval for the establishment of a new cemetery, the local authority may consider any matter it considers relevant, including:
  • the relevant expertise and experience of the applicants;
  • the likely effect of the proposed cemetery on neighbours;
  • the likelihood that the cemetery can be maintained as cemetery land in perpetuity; and
  • the extent to which any risks raised by the proposed cemetery can be adequately mitigated.
R68If a local authority decides to grant approval for the establishment of a new cemetery, it may impose any conditions it considers necessary, including:
  • maintenance requirements in addition to those imposed by the statute;
  • the establishment of a fund (or a plan for the development of a fund) to provide for the maintenance of the cemetery land in perpetuity; and
  • the payment of a bond to cover the risk that the cemetery is not adequately managed into the future and the local authority would be required to take over management.
R69Any person may apply to the local authority 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.
R70The Resource Management Act 1991 should not apply to such applications for burial on private land.

R71The local authority must approve any application for burial on private land if it is satisfied that:
  • there is unlikely to be an adverse impact on any neighbouring land owners;
  • the land is suitable for use as a cemetery;
  • there is unlikely to be any adverse impact on surrounding land and waterways;
  • the applicant has a strong family connection with the site; and
  • there is an adequate plan for the perpetual maintenance of the site as a cemetery.
R72If a local authority decides to grant approval for burial on private land, it may impose any conditions on that approval as it considers desirable.

Cremation

R73Unless the prior permission of the local authority is obtained, it should be an offence to knowingly cremate or otherwise dispose of a body except in an approved cremator or approved other device.

R74The scattering of ashes should not be restricted under the statute.

R75The statute should not require approval before the construction or use of a new crematorium. Rather, relevant considerations should be addressed through processes under the Resource Management Act 1991.

R76Any person should be able to apply to the local authority for permission to cremate or otherwise dispose of a body other than in an approved cremator or approved other device.

R77The statute should provide that, when determining whether to grant permission to cremate or otherwise dispose of a body other than in an approved cremator or approved other device, the local authority may consider any matter it considers appropriate, but it must consider:
  • the reasons for applying for cremation other than in an approved cremator or approved other device;
  • any risks posed to public health or to the health of any individual;
  • ​any risks to the environment (including any fire bans or the need for resource consent); and
  • the views of any neighbours who may be adversely affected.
R78The local authority may grant permission for cremation or other disposal other than in an approved cremator or other approved device if it is satisfied that any risks are small or can be adequately mitigated. It may grant permission subject to any conditions it considers is appropriate.

Statutory duties in respect of the disposal of bodies

R79The statute should provide that every person must treat any dead human body or human remains with respect. The breach of this requirement should be an offence.

R80The statute should provide that the person who has the duty to dispose of the body must do so without undue delay, taking into account the mourning needs of the bereaved and any ceremonies to be performed. Knowingly breaching this requirement without reasonable excuse should be an offence.

The Funeral SectorTop

Registration of funeral service providers

R81The statute should require that no person may carry on the business of providing funeral services unless that person is registered or is acting under the direct supervision of a registered person.

R82Registration should be a function of central government.

R83An applicant for registration must be registered if they pay the prescribed fee and demonstrate:
  • the absence of convictions for offences described in R84;
  • the absence of disqualifying conditions described in R85; and
  • that the person holds the qualification required by regulations made under the statute to be held for the relevant type of funeral service or passes an approved examination.
R84The criminal convictions that should preclude a person from registration are:
  • a conviction for an offence under the Burial and Cremation Act 1964 or the new statute;
  • a conviction for an offence against section 150 of the Crimes Act 1961;
  • a conviction for dishonesty (as defined in the Crimes Act 1961) within the previous 10 years;
  • a conviction for an offence under Part 1 (relating to unfair conduct) or subparts 1 or 2 of Part 4 (relating to layby sales and uninvited direct sales) of the Fair Trading Act 1986 within the previous 10 years;
  • a conviction resulting in the imposition of a term of imprisonment of three years or more; or
  • a conviction within the previous five years resulting in the imposition of a term of imprisonment of six months or more.
R85The conditions that would disqualify a person from registration should be that the person:
  • is under 18 years of age;
  • is an undischarged bankrupt;
  • has already had their licence cancelled under the Burial and Cremation Act 1964 or the new statute;
  • has been prohibited from being a director, promoter or manager of a company;
  • is subject to a property order under the Protection of Personal and Property Rights Act 1988;
  • is a person in respect of whom a personal order has been made under the Protection of Personal and Property Rights Act 1988; or
  • is subject to a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
R86The statute should provide that a person is deemed to hold the relevant qualification if that person has been providing the relevant funeral service for a period of five years prior to the application for registration.

R87Registration should be renewed every three years.

R88The registration authority should have the power to investigate and prosecute any breach of the registration requirements and to cancel the registration of a person if it is satisfied that one of the conditions for registration ceases to exist.

R89A person may appeal any decision of the registration authority to the District Court. Any appeal from such a decision of the District Court should be on questions of law only.

R90The statute should provide that carrying on business as a funeral director in breach of the requirement in R81 is an offence.

Duties on providers of funeral services

R91The statute should provide that every owner or manager of a funeral service business is under a duty to ensure that:
  • records are kept in respect of every human dead body in its custody;
  • the identity of a body is maintained while it is in the custody of the business;
  • all unregistered employees are directly supervised; and
  • unclaimed or disputed ashes are held for at least 10 years.
R92A funeral service business should have a power to inter or scatter ashes in an appropriate location if:
  • at least 10 years have elapsed since cremation;
  • the ashes remain unclaimed;
  • notice has been sent to the last known address of the applicant for cremation; and
  • the ashes remain unclaimed or in dispute six months after the date of the notice.
R93The statute should provide that:
  • if a deceased person appointed a deceased’s representative, that person has the right to custody of the ashes after the body has been cremated and to decide how they will be dealt with; and
  • if a deceased’s representative has not been appointed, the family (as is defined in Part 4) has the right of custody of the ashes.
R94The statute should provide that a breach of the duties in R91 is an offence for which the owner, manager or the business itself may be liable.

Inspection of premises

R95The statute should provide that any authorised employee of a local authority or Police officer may at all reasonable times enter and inspect any land or building used for the provision of funeral services and seize records for the purpose of determining compliance with the statute or any regulations made under the statute.

Disclosure of component prices

R96The department administering the new statute should develop and maintain a website providing consumer information to assist consumers making decisions after a death, particularly decisions about purchasing funeral services.

R97The statute should require that funeral service providers must publish and make available a price list of all the funeral goods and services it provides, including:
  • a description and total price of funeral goods and services offered;
  • a list of any service fees charged by the funeral service provider;
  • the maximum price that a funeral service provider charges for funeral goods and services; and
  • any particular items required by regulations made under the new statute.
R98The statute should require that, prior to entering an agreement for the supply of funeral goods or services, the funeral service provider must give the consumer a statement of the costs of the funeral. A breach of this requirement should be an offence.

R99That statement of costs must set out:
  • the cost of each of the goods and services to be supplied;
  • the cost of any disbursements;
  • the cost of any service fees;
  • if the goods and services to be supplied is a package, the description of each item in the package and a total cost of the package; and
  • how the consumer may make a complaint.
R100Each item on the statement of costs (except disbursements) must correspond with an item on the published price list.

R101If the funeral service provider does not know the cost of any disbursements at the time of providing the statement of costs, the funeral service provider must provide a reasonable estimation of the cost and a statement of the actual disbursement cost with the final invoice.

R102A service fee may only cover services for which the cost is not able to be ascertained at the time of providing the statement of costs.

R103The statute should provide that a breach of these requirements is an offence.

Burial DecisionsTop

The executor

R104The statute should provide that, in the event that the family is unable to agree on the funeral arrangements or disposal of the body or any remains, the executor should have the right to make these decisions and should have a duty to dispose of the body. This right and duty is subject to the right and duty of the deceased’s representative, if one is appointed.

The deceased’s representative

R105The statute should provide that before their death, a person may appoint a deceased’s representative.

R106Upon the death of the appointer, a deceased’s representative should have a power to make decisions, in preference to all others including the executor, as to:
  • funeral arrangements;
  • how the body will be disposed of; and
  • how any remains of the body should be dealt with.
R107A deceased’s representative should have a duty to dispose of the body of the appointer after death.

R108A deceased’s representative (or the executor if there is no such representative or if the representative fails to act) should have a right to custody of the body of the appointer when he or she dies. That right can be exercised for the limited purposes of exercising the rights and duties in respect of funeral arrangements and disposal of the body. The right to custody of the body must be subject to other applicable laws, such as the right of Police to take custody of a body under the Coroners Act 2006.

Other powers and duties

R109The statute should provide that every member of the deceased person’s family should have all powers necessary to make decisions about funeral arrangements, disposal of the body or how to deal with any remains and should have a duty to dispose of the body of the deceased person in the event that:
  • there is no deceased’s representative or executor or that person fails to fulfil their role;
  • it is reasonably practicable for that family member to do so;
  • it is appropriate with regard to the relationship between the deceased and that family member; and
  • there is no other reason why that family member should be exempt from the duty.
R110The statute should provide that any person has the power to make decisions about funeral arrangements, disposal of the body or how remains of the body should be dealt with if there is no executor, deceased’s representative or family member who is doing so.

R111The statute should provide that funeral service providers should not be liable for any deficiency in the authority of the person with whom they are contracting for the provision of funeral services if they have no reason to consider that there is a deficiency in that authority.

R112The statute should provide that the estate of the deceased person should be liable for the reasonable costs of funeral arrangements and disposal of the body. What is “reasonable” should depend upon the size of the estate left by the deceased and the deceased’s position and circumstances in life.

R113Decision-makers should be liable for any costs incurred by them in relation to funeral arrangements and disposal of the body to the extent that the costs are not reasonable or cannot be covered by the estate.

Factors to be taken into account when making burial decisions

R114The statute should require that where a deceased person has expressed in writing his or her wishes relating to funeral arrangements, disposal of their body or handling of their remains, the person making the decisions about those matters must give effect to those wishes unless satisfied that there is a compelling reason not to do so.

R115Where a deceased person has expressed such wishes but not in writing, they must be taken into account by the person making the relevant decisions.

R116A person making decisions relating to funeral arrangements, disposal of the body or how any remains should be dealt with must take account of any views of the family. In particular, that person must seek out the views of family members to the extent that he or she considers is practicable in the time available, giving particular priority to obtaining the view of any spouse. That person must give preference to the views of those people closest to the deceased person, particularly any spouse.

R117A person making decisions relating to funeral arrangements, disposal of the body or how any remains should be dealt with must take account (where appropriate) of tikanga Māori, and any religious, cultural and ethical beliefs or practices of the deceased or their family.

R118A person making decisions relating to funeral arrangements, disposal of the body or how any remains should be dealt with must take account of the likely size of the estate and its ability to cover the costs of the decisions relating to funeral arrangements, disposal of the body and dealing with any remains.

The Role of the Courts

R119The statute should enable applications to be made to the High Court, the Family Court or the Māori Land Court for determination of post-death disputes in relation to funeral arrangements, disposal of the body or how any remains should be dealt with.

R120If the parties cannot agree on which court should hear the proceedings, the matter should be heard in the High Court.

R121In relation to such an application, the court should have power to:
  • appoint a person to make a decision;
  • determine whether a decision that has been made is reasonable in the circumstances;
  • make a decision about funeral arrangements, disposal of the body or how any remains should be dealt with;
  • make an interim order to secure the position of the body, including a power to order that the body be moved to a new location and a power to appoint someone to act as custodian of the body; and
  • order disinterment of a body buried in breach of the rights of an executor or deceased’s representative.

R122When exercising this jurisdiction, a court should be required to take account of:
  • the deceased’s wishes;
  • the views of members of the deceased’s family group (with the specific weighting we describe above in R116);
  • relevant cultural considerations, including tikanga Māori;
  • the practicality, cost and timeliness of any proposed burial arrangements; and
  • any other factors the court thinks are relevant.

R123The statute should require the court to determine applications in this jurisdiction with expediency.

R124A court order made by the Family Court should be able to be appealed as of right to the High Court and should be heard by way of rehearing on matters of law only.

R125A court order made by the Māori Land Court should be subject to existing appeal processes to the Māori Appellate Court as set down in the Te Ture Whenua Māori Act 1993.

R126The statute should require that before proceedings are commenced under the burial dispute jurisdiction, the parties must file a genuine steps statement, outlining the steps they have taken, if any, to resolve the issues.

R127The court may take account of the genuine steps statement or any failure to file a genuine steps statement when exercising any of its powers or functions under the burial disputes jurisdiction and when considering costs.