Aboriginal Objects, Defect in 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’ (including 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 as part of a ‘due diligence’ process to ensure Aboriginal sites are not accidentally damaged and those completing the work are not liable for prosecution. Similarly, the purchaser finding that property contains an aboriginal object may give the purchasers certain rights against the vendor. A development on property containing aboriginal artifacts ( if permission to carry out development is approved) will require additional expense. However, a purchaser may have the right to rescind a contract for the sale of land for a ‘defect in title’.

In a recent case following the exchange of contracts, the purchaser became aware that the land included a memorial stone and plaque recording the burial site of two Aboriginal elders of the Bundjalung tribe, Harry and Clara Bray. The reputed existence of such remains gave rise to a broader dispute as to whether there were any Aboriginal objects in or on the land, and if so, whether their existence constituted a defect in title.

The purchaser refused to settle without evidence that the aboriginal object, had been removed from the property as it was a ‘defect in title’. The vendor did not accept that the presence of the objects constituted a ‘defect in title.’ 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 ‘defects in title’ as they were never intended to be transferred to the purchaser. The vendor was able to transfer clean title of the land to the purchaser and the purchaser’s termination was invalid, with the deposit was forfeited to the vendor.

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. 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.

This decision has been appealed. With the vendor ordered to provide security in the sum of $40,000 for the purchaser’s costs of the appeal either by payment of that amount into Court or in such other form as agreed by the parties within 14 days.