Acknowledgement of Country

We acknowledge the traditional custodians of the land on which Antunes Lawyers rests, the Cammeraygal people of the Eora Nation. We pay our respects to elders past, present and emerging.

australian bush

Did you know?

In New South Wales, it is an offence to harm or desecrate an Aboriginal object or site under the National Parks and Wildlife Act 1974 (‘NPW Act’).

What is an Aboriginal Object?

The Environmental Defenders Office (EDO) states that Aboriginal objects are “deposits, objects or material evidence relating to Aboriginal habitation” and include items such as “stone tools, art sites, burial grounds and Aboriginal remains”.

How does this affect you?

Penalties

When purchasing a property, particularly if you are purchasing vacant land with the intention of erecting a building or development on the property, it is important that you are aware of the potential impact Aboriginal sites and artefacts may have on your property.

Harming or desecrating an Aboriginal object or site is a strict liability offence. The NPW Act imposes heavy penalties for individuals, including fines of up to $550,000 and even imprisonment. Corporations can be fined up to $1,100,000.

Importantly, it not a defence to claim that you were unaware that the site or artefact was an Aboriginal place or object at the time that the offence occurred, although this may reduce the severity of the penalties imposed for the offence.

Development restrictions

The Chief Executive reserves the power to issue ‘stop work’ orders to any person, including property owners and developers. This has the effect of restraining any action specified in the order and it is at the discretion of the Chief Executive as to which activities will be the subject of the order. This may include any activity which poses a risk to an Aboriginal object or place of cultural significance or any activity which seeks to relocate the object to another area.

This presents a considerable problem for land owners hoping to build their new home, developers seeking to construct commercial premises or other projects, and for property owners hoping to renovate or sell in the future.

Your rights as a purchaser under a contract

In Mehmet v Carter, the NSW Supreme Court held that the presence of Aboriginal objects or sites on a property may amount to a defect in title which can, in some circumstances, grant the purchaser a right to rescission (i.e. the right to be released from the contract without penalty). Whether the presence of Aboriginal sites or objects on the property will be considered a defect in title, or merely a factor affecting the value of the property, will turn upon the facts of each individual case.

What are your responsibilities as a current or prospective property owner?

The vendor has an obligation to disclose any latent defects in title in response to a requisition made by the purchaser. However the vendor does not have an obligation to disclose patent defects in title, being defects which are obvious or discoverable upon inspection. The burden therefore falls upon the purchaser to make appropriate enquiries into the property to ensure that the property is fit for its intended purpose and use.

Furthermore, in the event that an Aboriginal site or object is discovered (by way of visual inspection of the property, a desktop assessment or otherwise), and the relevant authorities are not aware of its existence, the person who discovers the site or object must bring it to the attention of the Chief Executive within a reasonable amount of time. Failure to do so can result in fines of up to $11,000 for individuals and $220,000 for corporations, and additional fines are imposed for each day that the Chief Executive is not notified.

How can I be protected as a current or prospective property owner? 

The NPW Act 1974 establishes two defences to the strict liability offence: due diligence and Aboriginal Heritage Impact Permit.

Due Diligence

To satisfy the due diligence requirement under the Act, purchasers, developers and property owners seeking to renovate or build upon their land must conduct the proper searches and enquiries with the relevant authorities. For example, this can include a visual inspection of the property, raising requisitions on title, and a search of the Heritage NSW Portal. It is prudent for a purchaser (or the purchaser’s solicitor) to perform these searches and enquiries prior to settlement to ensure that they are aware of any defects in title or defects in quality of the property which may affect its use, enjoyment or value.

AHI Permit

An application for an Aboriginal Heritage Impact Permit will need to be submitted to the Chief Executive for review. It is to the discretion of the Chief Executive, in accordance with relevant considerations as required by the Act, as to whether a permit will be granted or refused. However, it should be noted that obtaining an AHIP can be a complicated and time-consuming procedure. The NSW Supreme Court has described the process of obtaining an AHIP as being “onerous”, with extensive statutory requirements and uncertainty in the likelihood of an application bring approved.

We’re here to help

Speak to our Antunes Property Team today to learn about which searches you will need to obtain for your current or prospective property.

 

Interactive Resources

You can use the following interactive ‘State Heritage Inventory’ map to see if any Aboriginal sites have been registered in your area. Please note that this resource does not provide an exhaustive list of locations for Aboriginal sites and objects. This resource should be used as a general guide only and should not be relied upon in place of proper due diligence enquiries.

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The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.