A Victorian collector can keep an ancient artefact despite the Federal Court finding the item was part of Bolivia’s cultural heritage and was removed from that country unlawfully.
Melbourne company Palmanova applied for recovery of the artefact which was seized by Customs more than three years ago, successfully arguing the artwork was not liable to forfeiture under Section 14(1) of the Protection of Movable Cultural Heritage Act 1986 (Cth).
In his 113-page judgment yesterday, Justice Perram said the provenance of the artefact was the key issue, and this traversed matters of archaeology, and cultural and art history.
Palmanova bought the black basalt piece online for $US17,340 ($AU25,143) in June 2020 from the Artemis Gallery in Colorado, USA. When it was shipped to Australia three weeks later, the item was intercepted at Melbourne and seized by Customs officials.
Accompanying documentation suggested the artefact was pre-Columbian and from the ruins of Tiwanaku, an ancient city in Bolivia near Lake Titicaca.
In June 2021, Palmanova began proceedings for an order that the object was not liable to forfeiture under s 14, which states:
(a) a protected object of a foreign country has been exported from that country;
(b) the export was prohibited by a law of that country relating to cultural property; and
(c) the object is imported;
The Commonwealth argued the artefact was part of the movable cultural heritage of Bolivia and so, a “protected object of a foreign country”, and that it was removed unlawfully from Bolivia.
The Commonwealth relied on the artefact’s age, apparent method of manufacture, and its artistic depictions (iconography), and shape and form (morphology), to make a case that it was made by the Tiwanaku people at or near Tiwanaku, and so, was part of the movable cultural heritage of Bolivia.
Palmanova agreed the artefact was Tiwanaku, but suggested many possibilities for its removal from Bolivia, including that it could have been transported by caravans of llama to Peru or Chile in the course of the exchange of ritual goods or trade; exchanged with other cultures living in the area at the time; removed by another culture such as the Inca or Aztec; looted by treasure hunters following the Spanish Conquest; or removed by archaeologists during the 19th century.
“It will thus be seen that the case calls for findings not only about conventional facts such as the material from which the artefact is made and its age but also ancient and modern historical facts proved indirectly from circumstantial matters,” Justice Perram said.
“These are undoubtedly unusual facts to be traversed in a court case but they are to be assessed in the same manner as in any other civil trial.”
Justice Perram said hypotheses in the case spanned 1500 years of human history, and “across such a stretch of time, anything is possible”; and that the case involved “a consideration of detailed archaeological evidence of an essentially academic kind”.
“The point for present purposes is that academic debate is never definitively quelled and there is neither a person who corresponds with the function of a court to resolve debates definitively nor correlatively any such concept as the civil standard of proof to assist in that resolution,” he said.
The artefact had arrived at the Artemis Gallery in 2017 with a written guarantee from an antique dealer that the item was “consistent with a period of manufacture of 400-900AD and was a fine example of the craftsmanship and artistry of the Tiwanaku”.
After buying the item in an online auction, Palmanova had been provided with a certificate from the gallery founder and executive director which stated: “The above item is guaranteed to be of the time period and condition as described, has been exported legally and is legal to buy and sell under all international laws relating to cultural patrimony”.
The court heard evidence from several archaeologists as to the item’s age and authenticity, considering factors such as its patina, construction, and sculpted feline face – including the number of teeth and the position of the feline’s nostrils in relation to its mouth.
“One of the highlights of the trial was the concurrent evidence given about the location of the feline’s nostrils, which was certainly a pleasant break from the usual fare of the judges of this court,” Justice Perram mused.
He concluded the artefact had been removed from the Tiwanaku ruins either by an archaeologist in 1934 or by looters in or around 1950, and that the artefact had been exported from Bolivia by no later than the 1950s.
He stated that because Palmanova’s importation of it into Australia had no connection with the circumstances under which it made its way from Tiwanaku out of Bolivia, s 14 did not apply.
He ordered that the parties confer and provide an order within seven days.