We recently reviewed the Aboriginal Heritage Act 1988 (“Act”) (and the Aboriginal Heritage Regulations 2017) which governs the identification, protection and preservation of Aboriginal sites and objects in the State of South Australia.
- Register of Aboriginal Sites and Objects
- What is the impact of being included on the Register?
- Is it possible for a parcel of land to be removed from the Register?
Register of Aboriginal Sites and Objects
The Act establishes central archives that contain a “Register of Aboriginal Sites and Objects” (“Register”). The Act also establishes an Aboriginal Heritage Committee (“Committee”) consisting of Aboriginal persons appointed from all parts of the State by the Minister/(Department of Premier and Cabinet (Aboriginal Affairs and Reconciliation) (“Department”), to perform the functions under the Act and represent the interests of the Aboriginal people in the State for the protection and preservation of Aboriginal heritage.
The Committee has a number of functions, one of which is, in consultation with traditional owners, to advise the Minister with respect to the making of entries in the central archives and the removal of any such entry, identifying sites and objects as Aboriginal sites and objects.
We found it interesting that there appears to be no notice requirements detailed in the Act for the Minister to notify any owners of parcels of land to advise if their land has been entered onto the Register. This prompted us to consider implications for landowners when they might not even be aware that their land is on the Register. It is only through the appropriate searches that this information is brought to the attention of the landowner.
The Minister must keep central archives relating to Aboriginal heritage and the Register must contain entries describing with sufficient particularity to enable them to be readily identified, sites of objects determined by the Minister to be Aboriginal sites or objects.
In addition, the Act requires the Minister to undertake an extensive consultation process before making a determination or giving an authorisation or before a site or object is declared by regulation to be an Aboriginal site or object or is excluded from the ambit of the definition of Aboriginal site or object. Further, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.
The parties with which the Minister must consult are:
- the Committee; and
- any Aboriginal organisation that has a particular interest in the matter; and
- any traditional owners; and
- other Aboriginal persons, that have a particular interest in the matter.
What is the impact of being included on the Register?
The short answer is very little unless there is development planned on the land in question. However, if there is development activity planned and that activity will damage, disturb or interfere with the sites identified, an “Application for Authorisation under sections 21, 23 and 29 of the Aboriginal Heritage Act 1988” (“Application”) must be lodged with the Minister. Section 23 of the Act states that a person must not, without the authority of the Minister, amongst other things, “damage, disturb or interfere with any Aboriginal site”.
If the owner of the land intends to build on the land noted on the Register, they will need to complete the Application only when they have progressed to the point of knowing what they want to develop and have detailed building plans. The cost to lodge an Application with the Department is currently $279 and it must contain full details of the proposed build. It is worth noting, and probably not surprising giving the breadth of consultation required, that this process can take anywhere between 6 – 12 months.
If the Minister provides an authorisation for development of the land to proceed, it may set out specific conditions and directions in the authorisation that must be followed by the applicant.
If the owner of the land decided to proceed to develop the land without lodging an Application, they will be in breach of the Act and penalties will apply. The maximum penalty is $50,000 (body corporate) and $10,000 or 6 months imprisonment (in any other case).
Is it possible for a parcel of land to be removed from the Register?
There is a possibility for the owner’s land to be removed from the Register by the Minister, however, the Minister must not remove an entry from the Register unless the Minister determines that the site or object to which the entry relates is not an Aboriginal site or object (section 9(3) of Act). This might occur after the approval of an Application for authorisation.
If the Minister provides an authorisation confirming the parcel of land can be developed with certain directions specified in the authorisation, the entry that was on the Register may then be removed from the Register by the Minister/Department regarding that particular parcel of land.