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ARTICLE · 30 SEPTEMBER 2019

Inside track: Local Government - Are Aboriginal objects on land potentially a defect in title?

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Local governments should consider the issue of Aboriginal objects or cultural heritage in any sale or purchase of land.

AustraliaGovernment, Public Sector
Jenny Humphris
Jenny Humphris
Peter Nugent
Peter Nugent
Vanessa Scrivener
Vanessa Scrivener
Clara Klemski-Edwards
Clara Klemski-Edwards
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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.

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This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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