Aboriginal Heritage Act 1988
— Clearance for Explorers
in South Australia

What the Act Actually Protects

Section 3 of the Aboriginal Heritage Act 1988 (SA) defines three categories of protected heritage:

• Aboriginal sites — areas of land of significance according to Aboriginal tradition, archaeology, anthropology, or history
• Aboriginal objects — objects of the same categories of significance
• Aboriginal remains — skeletal or other human remains of Aboriginal people

"Aboriginal tradition" is defined to include beliefs and observances that pre-date European colonisation as well as those that have evolved since. The definition is deliberately broad. It captures registered sites, unregistered sites known to Traditional Owners, sites not yet identified to anyone, and the broader cultural landscape in which those sites sit.

For an exploration programme, three practical points follow. First, the definition extends well beyond the kind of archaeological feature that shows up in a desktop search. Second, registration is not a precondition for protection — the Act applies equally to sites that have never been recorded. Third, the operator is the one carrying the legal exposure, not the consultant who runs the survey.

The Three Obligations That Apply to Every Programme

Section 23 — Authorisation Before Impact

Section 23 makes it an offence to damage, disturb, or interfere with an Aboriginal site, object, or remains without an authorisation from the Minister for Aboriginal Affairs. The Legal Services Commission SA summarises the penalty structure set by the 2017 amendments:

• Intentional or reckless damage — up to $2 million for a corporation, or $250,000 and/or two years' imprisonment for an individual
• Strict liability (any other case) — up to $50,000 for a corporation, or $10,000 and/or six months' imprisonment for an individual

For exploration, the s23 authorisation is required where any activity is likely to impact heritage. The goal is almost always to design the programme so that a s23 authorisation is not required — heritage is avoided, and the section never engages. A s23 application is the fallback where avoidance is not practicable.

Section 20 — Reporting What You Find

Section 20 obliges an owner or occupier of private land — which for the purposes of an exploration tenement includes the tenement holder — to report any Aboriginal site, object, or remains discovered on the land to the Minister as soon as practicable. Failure to report attracts the same $500,000 corporate penalty as unauthorised damage.

In operational terms this means a discovery protocol, written into the programme management plan, that triggers an immediate stop-work, site flagging, and notification the same day. Reporting is not a matter for the end of the field season.

Section 21 — Authorisation to Excavate

Section 21 authorisations are less often relevant to exploration programmes but can become material where ground-disturbing work is specifically intended to uncover or investigate a potential site. A section 21 and section 23 pair is the standard combined application where a development is expected to encounter heritage.

The Central Archive and the 5-Kilometre Search

The Aboriginal Heritage Act requires three registers to be maintained under the Act — the Register of Recognised Aboriginal Representative Bodies, the Register of Aboriginal Sites and Objects, and the Register of Agreements. These are held within the Central Archive, administered by Aboriginal Affairs and Reconciliation (AAR) within the SA Attorney-General's Department.

Access to the Central Archive is by application. AAR returns a report identifying any registered sites within a specified radius — typically 5 kilometres from a point of interest, though larger buffers are commonly requested for linear features and larger tenement parcels. Four practical points about that report:

• The site indicator on the map does not reflect the actual site extent — sites are often much larger than the point implies
• AAR's archive is not a complete record — sites may exist in the area even if the archive does not list them
• Land within 200 metres of a watercourse is expressly flagged as an elevated-likelihood zone — rivers, creeks, and ephemeral drainage lines included
• Information released from the Central Archive is confidential under sections 10 and 35 of the Act and must be handled under a restricted-use agreement

The Central Archive search is the first formal step in a heritage clearance process, but it is explicitly not the last. Treating it as determinative is the most common source of heritage incidents on exploration programmes.

The Field Survey — Where the Timeline Is Decided

Where a Central Archive search returns a nil result, or where it identifies sites that cannot be wholly avoided by desktop design, a field heritage clearance survey is the next step. The survey is typically conducted with:

• A registered Aboriginal Representative Body or native title body for the area, where one exists
• Traditional Owners nominated by that body to speak for the country
• An experienced heritage consultant or archaeologist engaged by the proponent

The survey walks the proposed work areas — drill pads, access tracks, camp footprints, water points — and identifies any sites or objects, registered or not. The output is a clearance report that records what was found, what was avoided, and what conditions apply to the work. That report is the document that underpins any subsequent EPEPR condition reference and any compliance response in the event of a later query.

Lead Times

Heritage clearance surveys are the single most common cause of schedule compression on exploration programmes, and for structural reasons rather than administrative ones:

• Surveys must be scheduled with Traditional Owner availability, which is driven by cultural obligations, weather, and the competing demands of other programmes
• The country itself dictates access windows — wet weather closes tracks, hot weather closes field days, and some areas have seasonal restrictions
• Smaller heritage bodies may have a single qualified survey coordinator supporting multiple proponents at once
• Post-survey report writing and review takes weeks, not days, particularly where sites are identified and avoidance design is iterative

A realistic planning assumption, on country where the proponent has not previously worked, is four to eight weeks from initial approach to a cleared work plan. On country with existing relationships and standing protocols, the timeframe can be substantially shorter. On country without either, it can be considerably longer.

How It Interacts with Native Title and Land Access

The Aboriginal Heritage Act runs in parallel with — but does not replace — the native title and land access processes. Three points stand out.

The heritage clearance survey and the native title agreement are often conducted with the same body — the Registered Native Title Body Corporate or its equivalent will frequently be the natural point of contact for both. However, they address different risks under different Acts, and the documentation is not interchangeable. An ILUA that grants consent under the Native Title Act does not substitute for a s23 authorisation under the Heritage Act. A heritage clearance does not discharge a landholder notice-of-entry obligation.

What the Programme Plan Should Actually Say

A defensible heritage work plan, integrated into the EPEPR and the programme management documentation, typically addresses the following:

• A desktop summary of the Central Archive search — date of the search, radius covered, number of registered sites identified, status of each
• A summary of the heritage clearance survey — who attended, what ground was walked, what was identified, what avoidance applies
• Explicit avoidance zones shown on the work plan map, with no-go buffers around each site
• A discovery protocol — what happens if an unexpected site, object, or remains is identified during work, including stop-work triggers and the s20 reporting pathway
• Heritage monitor arrangements for any work in sensitive areas — who, when, and under what engagement
• Induction content for all site personnel, including contractors, covering the basics of the Act, the on-site protocols, and the consequences of non-compliance
• A consultation record that captures every interaction with the heritage body, survey, and monitoring arrangement

Where Programmes Typically Stall

The patterns of incident are consistent:

• Reliance on the Central Archive search alone, on the incorrect basis that a nil return means a clear tenement
• Heritage survey booked late and surveyed in haste, leaving no time to redesign around identified sites
• Contractors mobilised before the clearance is documented in writing, with verbal advice treated as authorisation
• Access tracks and water points excluded from the surveyed footprint, and then expanded during the programme
• Discovery protocols drafted but not inducted — site personnel do not know what to do when something is uncovered
• Consultation records maintained as scattered emails rather than a structured log, creating evidentiary problems in the event of a query or incident
• Confidential Central Archive information circulated outside the authorised-use circle, triggering s10/s35 breach issues

Where Sceptre Strategic Can Help

Aboriginal heritage clearance is the area of the SA regulatory stack where inexperience is most costly and where the legal exposure is heaviest. It is also an area where established relationships and a consistent process significantly reduce both the timeline and the risk.

Sceptre Strategic supports exploration companies through the full heritage clearance cycle:

• Central Archive access requests and desktop heritage sensitivity reporting
• Coordination of field clearance surveys with Aboriginal Representative Bodies and Traditional Owners
• Drafting of heritage work plans, discovery protocols, and induction materials
• Integration of heritage conditions into EPEPR lodgements and programme documentation
• Section 23 authorisation applications where avoidance is not practicable
• Consultation record management for ongoing programmes
• Retained compliance officer services covering the full heritage, land access, and tenement stack

We operate across all Australian jurisdictions. Travis Sickerdick, our principal, can be appointed as registered agent for exploration licences in any Australian state or territory.