Introduction & Forward
In Canada, cemetery and crematorium law is, primarily, provincial law. The source and final authority are contained in either the statutes and regulations of the various provinces, or in judicial interpretations, or in a combination of the above. Federal law enters the picture infrequently and incidentally, if at all.
The source of power for a cemetery or crematorium to make rules or bylaws is quite easily identified. Statutes, with accompanying “regulations”, have been enacted which grant this power, specifically to cemeteries and crematoria or generally to corporations and societies which may be the owners of the respective facilities.
In British Columbia, cemeteries and crematoria have been and are being operated by municipalities, including cities, towns, villages, districts, or combinations of the above, as well as by private companies, religious denominations and fraternal organizations.
As in other jurisdictions, once land is set aside for cemetery purposes, or has been used for the interment of the dead, a “trust” is imposed on the owner to maintain the land for such purposes. In British Columbia, to further protect these lands, a restriction is registered in the Land Title office which prevents transfer of title except on the specific notice of the Registrar responsible for cemeteries. A modified restriction applies to a crematorium, if a columbarium exists.
Another approach used by courts to identify this source of power is through an analysis of the property interest sold to the lot holder, and that retained by the cemetery. Generally, the certificate of easement. or other document [sometimes even (mistakenly?) referred to as a "deed"] will indicate a person has purchased a “right of burial” or a “right of interment”. Actually, other rights are also conferred – called “ancillary rights” – which include access to the lot for visitation by the lot holder, the relatives or others, purchase and installation of approved memorialization, quiet possession of the lot, and maintenance of the cemetery, mausoleum or columbarium in a manner consistent with a sacred respect for the dead.
But the lot holder’s interest is certainly limited; the balance of full title remains with the cemetery, mausoleum or columbarium. Retention of full title, with the concomitant grant of limited interest to the lot holder, provides the cemetery, mausoleum or columbarium owner the basic power to pass reasonable rules or bylaws, adopted in good faith and uniformly applied, to control the use, the maintenance and the operation of the facilities. In British Columbia, the rules or bylaws of a cemetery, mausoleum, columbarium or crematorium must be filed with the government regulatory authority; they become effective if not in conflict with applicable law and regulations or objected to by the Registrar as “unjust, unreasonable, unduly restrictive or discriminatory.”
PREAMBLE
Historically, the cemeteries and crematoria of British Columbia have served a necessary, most particular and valuable social function. Numerous public, private, religious and fraternal facilities (over 800 in all) exist in the province; as a group, they recognize their obligation and have a strong commitment to fulfilling their very important social function. The cemeteries and crematoria enjoy a good image and serve the needs of the citizens under proper legislative requirements.
In addition to the requirements of civil law affecting cemeteries and crematoria, the rules and bylaws formulated by these entities themselves must regulate their operations and their relationships with lot holders, suppliers, and the public.
The importance of enlightened self-regulation by cemeteries and crematoria themselves cannot be over emphasized. From the perspective of cemeteries and crematoria, they are governed best by minimum legislation.
Within the accepted standards of modern day consumerism, cemeteries and crematoria need reasonable freedom to operate constructively, and in a fiscally responsible manner.
That this philosophy imposes the stern responsibility of self-regulation is a determinant of the Cemetery and Crematorium Association of British Columbia.
In addition, cemeteries and other related facilities of a religious character are subject to the canons or other laws of their respective denominations. Catholic, Jews, Anglicans and Lutherans, among others, have specific regulations and liturgical requirements for the interment of their dead.
The passage of time, the mobility and growth of the population, together with other obvious factors, have transformed the cemetery and crematorium into a modern service agency that demands advanced management planning and effective operational techniques.
Often in the past, the cemetery was administered by a solitary grave digger whose badge of office was his shovel; the forlorn grave digger of Hamlet’s time has been replaced today by skilled cemetery and crematorium workers and educated executive personnel, versed in modern business practices and procedures. Progress is never instantaneous. Applied to daily cemetery or crematorium work, it is the capacity to plan constructively for the future, while doing today’s task a little better, more effectively, more efficiently, and at less cost.
The nature of its function and the volume of needs it must serve give the cemetery, or the crematorium. a social and economic factor; but the principal purpose remains one of profound reverence for the dead, respect for the human or cremated remains, and sustaining sympathy for the survivors.