Finders, keepers – right?

A story that made headlines recently was of a Bendigo man who found a gold nugget worth $35,000 while walking his dog with his daughters. Eureka! What luck! However, this incident was not the first time such an occurrence has happened - in fact, most of the world’s largest gold nuggets have been found in Australia. But reports such as these beg the question: when finding gold and other minerals, are they yours? Can you keep them?

Sadly, the answer is no. Gold and most other minerals are the property of the Crown, and therefore, unless you have an additional right to the gold or other mineral, you cannot keep it.

What if the gold was found in my backyard?

The answer remains the same. Most homeowners hold their land as a fee simple estate, which grants the holder the highest possible property rights capable of being held by individuals. This is how you can sell, lease and do a number of other things with your property. However, land in Australia is not able to be owned absolutely due to the operation of the doctrine of tenure. The doctrine provides that land, including fee simple estates, is held by grants of the Crown.

Accordingly, the Crown will always have the ultimate property rights and is therefore able to lay claim to any minerals or gemstones you may find on your property.

So disappointingly, unless you have any additional rights, such as a fossicking or mining license, finding a gold nugget in your backyard – or anywhere in Australia – will not necessarily convert to money in your bank account.

The acquisition of rights to gold or minerals, is governed by separate legislative frameworks in each State which consist of a grant by the Crown for prospecting purposes.

So what rights do I have?

The registered owner of property is considered to have indefeasible title, subject only to other registered interests. This means that unless someone else has registered an interest with the Land Title Registry, for example a mortgage, your interest in that property is protected. No one else can seek to overturn your registered ownership, unless there is a valid exception.

It goes without saying that documents, such as loan agreements or contracts, may include a security clause which provides the other contracting party with a mortgage or caveatable interest over property. Should the property owner default on the loan agreement, the other contracting party may enforce its security interest or right to recover payment under the respective contract.

How we can help

The laws pertaining to fossicking or prospecting are different in each State, so before you start sifting for gold, we recommend understanding what permits or rights you may need to obtain in order to stake a claim on any discovered gold or other minerals.

Further, it important to know your rights as a property owner and fully understand your entitlements and the effect of any contracts you may be a party to which could affect your rights.

Should you have any queries about fossicking, property rights or contracts generally, contact DSS Law on 1300 DSS Law.

Matthias Klepper 25/06/2019

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.