Topic 4: Burials outside of proclaimed cemeteries

Background

The Cemeteries Act provides that a deceased person must be buried in a proclaimed cemetery that is not closed. However, under Section 12 of the Cemeteries Act, the Minister for Local Government or his/her delegate may authorise the burial of a dead body in a place other than a cemetery where the burial is to take place:

• on Crown land that is not a cemetery, where there is no conflict with the current land use, interests in the land or the allocated purpose; or
• in an area that is visibly set apart for and distinguishable as a burial place.
  

When making a decision whether a burial outside a proclaimed cemetery may take place, the Minister considers:

• the distance from the nearest proclaimed cemetery. If the family is not able to undertake the return trip to the nearest cemetery in a day, special consideration may be given
• whether there is a particularly significant association with the land. This is either:
  • historical — generally this will be considered to be where the person has a direct and continuous association to the land for at least three generations, and has resided on the land for at least 30 years, either as a landowner, lessee/licensee or employee
  • traditional or cultural — the person has a particularly significant traditional or cultural association to the land
  • immediate family members are already buried at the burial site
• whether there are cultural practices, such as those within Aboriginal communities.

Consideration is also given to whether the granting of the request will create a risk to health or other nuisance or cause reasonable offence to others. This may include requiring an environmental report to ensure any burial would not impact on a public water supply or unreasonably damage the land.

Land reserved under the Land Administration Act 1997 (LAA) for the purposes of burials includes those cemeteries that have been closed. In this situation, a person may request burial with other members of their family who are already buried at these sites.

Requirements of an application

The application must be accompanied by:

• A map and photographs or drawings clearly showing where the burial site is geographically located, and where in the existing burial ground that the grave is proposed to be dug and the Global Positioning System location, if possible. Any existing graves should be marked on the drawing.
• In the case of land reserved under the LAA for burials, written advice from the relevant management authority, usually the cemetery authority, stating that there is available space and that the land is suitable for the proposed burial.
• In the case of other Crown land, including reserves, Crown leases, pastoral leases, and unallocated Crown land:
  • death certificate or, where it is applicable, a Coroner's Order giving approval for the burial to take place
  • written consent of the next of kin to the burial
  • reasons for seeking the burial in that particular place, for example, details of the deceased's connection to and history with the land)
  • approval of all interest right holders referred to on the land title
  • approval of the Minister responsible for the Mining Act 1978, or his/her delegate
  • if applicable, written consent of all parties with claim over the land under the Native Title Act 1993.
• In the case of burials on ALT estate, approval of the ALT Board as well as from the local Aboriginal community/corporation with responsibility for the management of the land, and if there is Native Title over the area, from the Native Title Prescribed Body Corporate. If there are multiple Aboriginal bodies or corporations with interest in, or ownership of the land, it is important to gain consent from all parties involved to ensure that the burial has community support.
• Where the ALT is required to give its consent as the landholder in relation to an application, there are four key principles that will be considered:
  • Where the land is unleased and Native Title has been determined, then the ALT will defer to the Native Title Prescribed Body Corporate for consent
  • Where the land is leased and Native Title has been determined, then the applicants will need to seek the views of the leaseholder/s and the relevant Native Title Prescribed Body Corporate before seeking the consent of the ALT. In these circumstances, the ALT will not grant its consent unless it receives written confirmation from the leaseholder/s and the relevant Native Title Prescribed Body Corporate.
  • Where the land is leased and Native Title has not been determined, then the applicants will need to seek the leaseholder/s views prior to seeking the consent of the ALT.
  • Where the land is neither leased to an Aboriginal corporation nor has Native Title been determined, then the ALT will be guided by the views of the Aboriginal inhabitants of the land where the burial is proposed to take place.

The consent of all parties with claim over the land area is required. In the case of Aboriginal burials in remote Aboriginal communities, this will be by the local Aboriginal bodies/corporations with responsibility for the management of the land. In addition, consent from Native Title Claim Groups, pastoral lease holders, ALT, Registrar of Aboriginal Sites, and the DPLH will also be required. It is important to gain consent from all parties involved to ensure that the burial has community support.

For burials in a closed cemetery, written consent from the relevant cemetery authority is required, stating that they support the proposed burial, and that the cemetery has the capacity for the burial. An exemption from the WA Governor may also be required.

Although the burial must be in an area that is visibly set apart for and distinguishable as a burial place, approval is not conditional on the grave itself being marked.

Burial records

Currently, burial records generally are maintained by the individual landowners or managing authorities of the unproclaimed cemetery. There is no legislative requirement under the Cemeteries Act to keep a central register of all burials which occur outside of proclaimed cemeteries.

When applications are received by the Minister for Local Government, DLGSC will record each application in an internal record keeping system. This includes the application form and supporting documents as required by DLGSC’s Burials Outside a Proclaimed Cemetery Policy (Policy). The Minister’s decision is also stored on the database.

DPLH also records some limited information regarding burial applications received by DLGSC which requires consent by DPLH. Such applications generally relate to Crown land, ALT estate or Aboriginal Heritage Sites land. An online mapping tool and Western Australian Planning Commission Layout Plans are also available on the DPLH’s website for those who are seeking further information regarding the land tenure of Aboriginal communities and cemeteries.

In some cases, there are limited records on historical burials, particularly those that have occurred without the knowledge of DLGSC. In the past, Aboriginal community members have approached DLGSC to express their concerns regarding the lack of records and unmarked graves within their community cemetery. The lack of records can cause difficulty in obtaining details about proposed burial locations, which may result in delays on processing applications for burials. While applications are progressed as quickly as possible, any delays often result in community frustration and concern regarding the timeframe and approval process.

Other jurisdictions

Burials outside of proclaimed cemeteries are permitted in limited circumstances in most Australian jurisdictions, subject to approval from relevant authorities. The conditions of approval are often prescribed in legislation or provided for in a guideline or policy document.

The VIC Act specifies that approval may be granted subject to conditions such as the zoning of the land, the existing arrangements for the care of the proposed burial site and the connection of the deceased to the land. Under the SA Act and Tasmania’s Burial and Cremation Act 2019 (TAS Act), the approval is subject to consideration and approval by the relevant council or local government authority that administers and manages the area. While there is no specific Queensland legislation that precludes burials outside of proclaimed cemeteries, a local government may have a local law that allows these types of burials. In Queensland, the Department of Environment and Resource Management has developed a policy in relation to burials on land administered under the Land Act 1994 (QLD). While the policy states that burials outside recognised burial places are not generally supported, approval may be given in limited circumstances for burial on leasehold or land subject to an occupation licence, where there is evidence of existing grave sites on that land⁵.

Recording of the details of these burials occurs in various ways but is generally separate from interment information held for cemeteries. For instance, in Victoria, an approval for a burial outside of a public cemetery must be lodged with the Victorian Register of Titles. These burial approvals are then registered on the folio to which the land title relates, so that people are aware of the burial ground and its location⁶. The South Australia Outback Communities Authority maintains a public register which was developed in consultation with the State Register of Births, Deaths and Marriages.⁷ Under the TAS Act, the relevant council records the burial site and request that the burial site be recorded on the land title.

Under the Northern Territory’s Burial and Cremation Bill 2019 (withdrawn in 2019), it was proposed that a register of burials outside of a cemetery be established and maintained by the Department of Local Government, Housing and Community Development. The Bill was originally introduced with the intention to reflect the current practices and wishes of the NT community which supports traditional burials, allow Aboriginal organisations and landowners to manage their own cemeteries, formalising kinship and cultural decision making and ensuring record keeping for future generations. However, due to cultural sensitivities and concerns on the proposed imposition of penalties, the Bill was withdrawn⁸.