Are Aboriginal objects on land potentially a defect in title?
This question was discussed by the NSW Court of Appeal in Mehmet v Carter. And the short answer is: Yes, Aboriginal objects on land may be a defect in title where they are protected from disturbance under a law.
The case concerned a contract for sale of a land and business near Byron Bay. There was rock on the land that bore a plaque stating that Harry and Clara Bray, Tribal Elders of the Bunjalung people were buried near the site in the late 1800s. The purchaser claimed that this was a defect in title and refused to complete. The contract was terminated and the vendor brought an action for damages. The Primary Judge held that there was no defect in title on the limited grounds that the Aboriginal objects belonged to the Crown and were not included in the property sold.
On appeal, the purchaser argued that the defect in title arises from the legal protection of the objects that applies under the National Parks and Wildlife Act 1974 (NPWA). Essentially, the development and use of the land containing Aboriginal objects was substantially constrained by laws designed to preserve and protect the objects including the need for a permit to disturb the objects.
The case is a little unusual, because the decision of the Court was that the particular question should not have been asked in the circumstances presented in the case, however some compelling comments were made by the Court of Appeal.
President Beazley of the Court of Appeal included a reasonably extensive discussion of the rule in Flight v Booth and subsequent cases. Chief Justice Bathurst and Justice McColl both agreed with the reasoning of Beazley P. Essentially they said there could be a defect in title and the question of rights will depend on both whether the contract excludes that risk and the actual nature of the affectation.
Based on the authorities discussed in the Judgement, it is clear that the presence of Aboriginal cultural heritage, including protected objects, may be a defect in title because the NPWA:
- confirms Crown ownership of Aboriginal objects
- requires a permit to remove Aboriginal objects from land and the process for obtaining that is difficult
- creates offences for harming Aboriginal objects.
The Judges also found there was merit in the purchasers' argument that the necessity to obtain a permit, if they were to develop the land, would likely significantly impact the use they could make of the land.
As the owner and/or purchaser of large tracts of land, local governments should consider the question of potential Aboriginal objects or cultural heritage in any sale or purchase of land that may contain those.
The purchaser's rights can be excluded by clear provisions in the contract excluding any right to claim that the existence of Aboriginal objects or cultural heritage is a defect in title or otherwise creates any right of rescission or termination or entitlement to compensation.
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