Editorial: Overhaul of burial law not needed

Legal advisers trying to fix something that still works

There were good reasons for imposing the local authority monopoly on cemeteries in 1964, and they remain today. Photo / Lynda Feringa
There were good reasons for imposing the local authority monopoly on cemeteries in 1964, and they remain today. Photo / Lynda Feringa

Understandably, the dispute that followed the death of James Takamore in 2007 has prompted debate about certain aspects of New Zealand's burial law. After his body was removed from Christchurch by members of his extended family and buried in the Bay of Plenty, contrary to the wishes of his long-term partner, the case went all the way to the Supreme Court. It found the "collective will" of Tuhoe could not be imposed upon the partner. That may have settled the issue of Mr Takamore's final resting place, but it left unanswered questions about the cultural and judicial context. Some also saw it as highlighting the need for a wider look at the burial law. That has led to a Law Commission review, which was released this month.

This recommends that such disputes should in future be dealt with by the Family Court or, when tangata whenua are involved, the Maori Land Court. This approach would be cheaper for those involved and guarantee quicker resolution. These forums, the commission says, are also more likely to deliver an acceptable compromise thanks to their greater emphasis on mediation and consensus.

As much is sensible and suggests a means of averting the further stealing of coffins. But the commission does not stop there. It ranges far and wide in recommending a drastic and largely unnecessary overhaul of the burial law.

It proposes, most notably, to allow private firms to run cemeteries and to let people be buried on family land, especially farms. These changes are predicated very much on the view that New Zealand "is now a very different place" from 1964, when the Burial and Cremation Act came into force. This leads to an assumption that a law which permits only local authorities to establish public cemeteries no longer suffices and must be changed. People, the commission says, should have greater choice over the location or type of cemetery in which they are buried.

It backs this up by suggesting the current lack of freedom is viewed increasingly as unacceptable. Councils, it says, are reporting growing interest in eco or natural burial grounds as people look for more environmentally friendly approaches to death. And those who wish to be buried on their own land or in a rural place of significance to them are also frustrated.

The commission overstates the appetite for change. There has not been the sort of outcry that suggests public cemeteries are failing to satisfy the needs of the vast majority of people. Just because a law is almost 50 years old does not mean most of its features are automatically inappropriate. Solid and well-crafted legislation endures and should not be tinkered with merely to satisfy the wishes of a small minority.

There were good reasons for imposing the local authority monopoly on cemeteries in 1964, and they remain today. They involve the orderliness of human burial, not least in terms of the risks to public health, along with issues of maintenance and accountability. There must also be practical reservations about burials on private land such as family farms. The commission says this would require prior local-authority consent based, presumably, on the family's contention that the land would be theirs for generations. That, however, is far harder to guarantee today, with farms being split and sold far more often than in the past.

In effect, the commission appears to be seeking to fix something that, by and large, is not broken. It may be that, in recognition of society's changing face, some public cemeteries need to provide for greater diversity and burial choice. Anything more drastic, however, smacks of change for the sake of change.

- NZ Herald

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