After some months of waiting for a substantive reply from the Minister of Health, Annette King, we have at last received it. Mrs King describes the attempts of the Clutha District Council to "regularise" the position regarding the Read house on the Waipori Cemetery. Documents requested under the Official Information Act were included with Mrs King's letter.

On the 11th August, chief executive Ciaran Keogh wrote to the Commisioner of Crown Lands, Mr D Gullen outlining the council's position regarding the Read house. He included background information, and asked if the Commissioner would indicate whether he would support the council's wish to have the land already surveyed off around Read's house revoked as cemetery reserve land, have council assume control of it, and lease it to Mr Read to give him legal tenure. This letter was referred to the Otago Conservancy, and Ken Stewart replied to the council on 4th September.

Mr Stewart brought up the original letter (1984) from Mr Cleave, assistant commissioner to the Tuapeka County Council stating that the two racemen's huts which were on the reserve land were to be removed 'at an opportune time'. The critical section of Mr Stewart's letter is as follows:

"While the ability to change the purpose of local purpose rests with council, as does the power to grant a lease, for the reason outlined in the Commissioner's letter of 30.11.1984, this would in my view be ultra vires (outside the law) and inappropriate."

That was the first hurdle to overcome if the council continued to want Mr Read to keep his house there. Not only would they have to get the terms of Mr Cleave's 1984 letter revoked or superceded; they would have to prove that the land concerned was no longer appropriate for use as a cemetery. Then if they were successful in having the cemetery reserve status revoked (through a public notification process, allowing objections to be heard) they would have to comply with Public Works Act requirements and then hope that when the land was offered to Ngai Tahu first, they would decline to take it up.

Not only that, but they would have to be granted control and management of the cemetery as the "administrating body". They lost this control when they lost two of the three trustees who resigned, and when they sacked the remaining one - Graeme Cotton, without notifying him in writing. The Department of Health has so far since refused to grant the council control and management of the cemetery.

Ken Stewart concludes his letter by suggesting the council contact the Ministry of Health to see if there would be any Burials and Cremation Act issues to be dealt with. We understand that all councillors were given copies of Ciaran Keogh's letter to the Department of Conservation and Ken Stewart's reply, prior to the full council meeting of 14th September. Regardless of the clear message from Ken Stewart that revoking the reserve status of the land in question would be "ultra vires", the full council (with about two objections) approved the way the council was handling the matter and re-affirmed the presence of the Read house on the cemetery.

The council had already written to the Health Department on 6th September asking when the department was going to let the council assume control and management of the cemetery. They attached a copy of the ground penetrating radar survey (costing ratepayers in excess of $4,000), presumably trying to show that the land had never been used as cemetery land despite a mass of evidence sitting in the Tuapeka County Council files indicating the contrary. Whether there had been burials there or not actually wasn't the issue.

On the 15th September, a day after the meeting of the full council of the CDC, council wrote to the Ministry of Health stating that the council was going to go ahead with getting the status of the cemetery reserve land revoked so that Mr Read's house could remain there. A letter to Ken Stewart, DOC, Dunedin confirms the council's decision of the day before, to revoke the reserve classification so that Mr Read's house could remain. It asks if DOC could confirm the process under Section 24 of the Reserves Act. The Health Department is not even mentioned in this letter.

Then we come to the letter from the Minister of Health to us dated 24th October. Mrs King states that a question of prosecution (presumably against the Clutha District Council and/or Mr Read) is a matter for the Ministry of Health to decide. The Ministry advised the council by phone on 28th September not to proceed with having the reserve status revoked until the Ministry advised the council on a number of points. In addition council officers were advised by the Ministry of two key points in the matter:

1. if a revocation order was sought, part of the land in question

is currently part of Waipori Cemetery. While there is provision in the

Burial and Cremation Act 1964 (the Act) for the Minister of Health

to close a cemetery if burials in the cemetery are to be wholly

discontinued, there is no provision to close part of a cemetery.

Accordingly, the whole cemetery would have to be closed under

Section 41 of the Act.
2. The Act does not allow for cemetery land (whether in an open or

closed cemetery) to be diverted for any other purpose.

This would seem to be the end of the matter. Our interpretation is that if council insists (through whatever means) that the house stays where it is on cemetery land, a prosecution is sure to follow.

In addition, the Chief Ombudsman will be reporting back to us on his formal investigation into the process adopted by the council in pursuing its course of allowing the house to be built there in the first place, and the defence of its actions in allowing it to be completed (septic tank installed 16th September, two days after the 14th September meeting of the full council allowing the house to remain). He will also be looking into the quality and amount of advice given by staff to councillors and as to whether they have been properly informed or not. Also the question about secrecy will be looked at – whether it was proper to keep all council deliberations about this public cemetery and their attempt to pass some of it on to private use, was appropriate. The Ombudsman tells us that only on very rare occasions are their recommendations ignored – only one, in his memory.

One worrying aspect of the council's process so far in seeking to satisfy Mr Read is the cost to ratepayers. The two surveys done; one, separating off the land around Mr Read's house and the other for the Ground Penetrating Radar survey to check whether there were graves there. Then there was the cost of the legal advice which we have seen, despite it being kept secret. Some estimates are putting the overall cost at over $30,000. Mr Read is not even a ratepayer so presumably he won't be contributing to that. The council have told us that they will resort to "litigation" to collect it, but haven't told us from whom.

But the most worrying aspect of this saga is the meeting of the full council on 26th October. The problems of the Read house was not on the agenda at all. From secrecy to silence, now. In fact many elected councillors still do not know about the Ombudsman's formal inquiry into the matter.

In our opinion, it would be impossible to have that cemetery reserve land revoked and turned into leasehold for Mr Read's benefit. We think that a special act of Parliament would have to be passed for this to happen. The only precedent for this kind of action would be the Clyde Dam Empowering Act which successfully overturned the legal processes that saw resource consent for the Clyde Dam in 1981, refused. We do not think there would be the political will to legislate especially for Mr Read. Interestingly, probably the principal factor that sank the Tuapeka Dam project was the Burial and Cremation Act that would not allow the Beaumont Cemetery to be inundated without special legislation being passed.

The implications of the fate of Mr Read's house are clear. In the Clutha district things are done "differently" from the rest of the country, we are told. Where the council thinks the laws of the land are not "practical" they simply break them. Here, there are critical matters of land tenure that concern many councillors and their friends. Issues such as cribs on marginal strips, reserve land, and even trees that are grown on reserve land may come up for some sharp focus if (or when) the Read house is ordered to be removed. Watch this space.