Aboriginal Objects, Defective title, Security for costs

In New South Wales Aboriginal objects are the property of the Crown, under s 5(1) of the  National Parks and Wildlife Act 1974 (NSW), (”the Act”) an “Aboriginal object” includes Aboriginal remains which would also be the property of the Crown (s 83). The Act imposes offences on individuals who ‘harm’ (which includes moving) these objects. The penalties for harming an Aboriginal site are up to $275,000 and one year’s imprisonment for individuals and $1.1 million for corporations.

A review of potential Aboriginal heritage issues should form part of a ‘due diligence process’ to ensure that Aboriginal sites are not damaged. Similarly, a purchaser finding that the property contains an aboriginal object may give them certain rights against the vendor including the right to rescind a contract for the sale of land for a ‘defect in title’.

The Case

A recent case involved the sale of land and a business near Byron Bay for a purchase price of $3 million. Following the exchange of contracts, the purchaser became aware of the Aboriginal significance of the land the subject of the sale, being the burial site of two Aboriginal elders of the Bundjalung tribe, Harry and Clara Bray. The Arakwal people of the Bundjalung Nation, are the custodians of Byron Bay. Archeological evidence suggests that Indigenous Australians have been living on the north coast of NSW for over 20,000 years. Harry Bray, the son of “King Bobby” of the Bumberline Tribe and the direct descendant of the Arakwal people, was a prominent Indigenous leader.

The reputed existence of the burial site gave rise to a broader dispute as to whether there were Aboriginal objects in or on the land, and if so, whether their existence constituted a defect in title. The vendor did not accept that there was a defect in title. However, the purchaser terminated the contract by notice on 25 September 2015. On 6 October 2015, the vendors responded, alleging that the purchasers’ notice repudiated the contract. The property was subsequently resold by the vendor on 29 November 2015 for $2.525 million.

At first instance, the Court held that ownership of the objects was never vested in the vendor therefore the presence of aboriginal objects on the land did not amount to a ‘defect in title’ as they were never intended to be transferred to the purchaser. The vendor was able to transfer clear title of the land to the purchaser, therfore the purchaser’s termination was invalid, and the purchasers deposit was forfeited to the vendor.

The Appeal

In allowing the appeal the Court found that there were “Aboriginal objects” on the land (in particular, the remains of two Aboriginal elders, Harry and Clara Bray, known as the King and Queen of the Bundjalung tribe; and a memorial stone and plaque recording their burial near the location); and that the presence of those objects was capable of constituting a defect in title. In those circumstances, the refusal of the vendors to address the purchasers’ objections constituted repudiation.

Alternatively, the vendor’s insistence on completion based on an invalid notice to complete, coupled with an invalid claim for default interest, would have also constituted repudiation.

Security for Costs

This decision has been appealed. With the vendor ordered to provide security in the sum of $40,000 for the purcaser’s costs of the appeal either by payment of that amount into Court or in such other form as the parties agree.

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