CULTURAL HERITAGE (CONSERVATION) BILL 1997 No. 2 of 1997

L CULTURAL HERITAGE (CONSERVATION) BILL 1997 No. 2 of 1997

An Enactment to make provisions for the preservation, conservation and enhancement of cultural heritage and for matters incidental thereto.

ENACTED by the Legislature of State of Sabah as follows:

1. Short title and commencement.

This Enactment may be cited as the Cultural Heritage (Conservation) Enactment 1997 and shall come into force on such date as the Minister may, by notification in the Gazette, appoint.

2. Definition.

In this Enactment, unless the context otherwise requires--

"adaptation" means the process of modifying a cultural her tage or a conservation area to suit a proposed compatible use;

"ancient monument" has the same meaning assigned thereto under the Antiquities and Treasure Trove Enactment 1977;

"antiquity" has the same meaning assigned thereto under the Antiquities and Treasure Trove Enactment 1977;

"conservation" means the process of looking after a cultural heritage or a conservation area so as to retain its significance and includes maintenance, preservation, restoration, reconstruction, adaptation or a combination of two or more of these;

"conservation area" means an area declared as a conservation area under section 4(1);

"Council" means the State Cultural Heritage Council established under section 3;

"cultural heritage" includes any antiquity, historical object, historical site, site, area (whether on land or in the sea), fabric, building, structure, ethnographic matter, work of art, manuscript, coin, currency note, medal, badge, insignia, crest, flag, armour, vehicle, ship and tree, which has a significant and special architectural, aesthetic, historical, cultural, scientific, economic, environmental or any other interest or value and has been declared to be subject to preservation or conservation under section 4(1);

"historical object" means any artifact or other object to which religious, traditional, artistic or historic interest is attached and includes any-

(a)ethnographic material such as a household or agricultural implement, decorative article, personal ornament;

(b)work of art such as a carving, sculpture, painting, architecture, textile, musical instrument, weapon and any other handicraft;

(c)manuscript, coin, currency note, medal, badge, insignia, coat of arms, crest, flag, arms and armour; and

(d)vehicle, ship and boat, in part or in whole, whose production has been ceased;

"historical site" has the same meaning assigned thereto under the Antiquities and Treasure Trove Enactment 1977;

"maintenance" means the continuous protection and care of a cultural heritage or a conservation area as distinguished from repair which involves restoration or construction;

"member" includes the Chairman and the Deputy Chairman;

"Minister" means the Minister for the time being responsible for matters relating to cultural heritage;

"monument" has the same meaning assigned thereto under the Antiquities and Treasure Trove Enactment 1977;

"occupier" means any person in actual possession, management or control of any movable or immovable property;

"owner", in relation to any land, means the registered owner;

"preservation" means the process of maintaining a cultural heritage or a conservation area in its existing state or form and retarding deterioration;

"reconstruction" means the process of returning a cultural heritage or a conservation area as nearly as possible to an earlier known state or form by the introduction of new or old materials thereto;

"restoration" means the process of returning the existing cultural heritage or a conservation area to an earlier known state or form by removing accretion or by reassembling the existing repairs without the introduction of new materials;

"Secretary" means the Secretary of the Council.

3. Establishment of Council.

(1) For the purpose of this Enactment, there shall be established a council to be known as "the State Cultural Heritage Council" whose responsibility shall be to advise the State Government on matters of policy, administration and management of cultural heritage and conservation areas.

(2) The Council shall consist of--

(a)a Chairman, who shall be the person for the time being holding the office of the Minister;

(b)a Deputy Chairman appointed by the Yang di-Pertua Negeri;

(c)the Permanent Secretary of the Ministry of Tourism and Environmental Development or his authorised representative, who shall be the Secretary; (d)the Permanent Secretary of the Ministry of Culture, Youth and Sports or his authorised representative;

(e)the Secretary of National Resources or his authorised representative; (f)the Curator of the Sabah Museum or his authorised representative; (g)a representative of the Heritage Trust of Malaysia appointed by the Yang di-Pertua Negeri; and

(h)not more than five other persons who have wide experience and expertise in the field of preservation and conservation of cultural heritage appointed by the Yang di-Pertua Negeri.

(3) Any member of the Council appointed under subsection (2) shall, unless he sooner resigns his office or his appointment is sooner revoked, hold office for such period not exceeding three years as may be specified in his instrument of appointment and shall be eligible for reappointment.

(4) Any member of the Council who is not a member of the public service may be paid such allowances as the Minister may approve.

(5) The quorum necessary for the transaction of business of the Council shall be seven members.

(6) Questions arising at any meeting of the Council shall be decided by the votes of the majority of members present thereat and voting thereon and in case of an equality of votes the Chairman or other person presiding thereat shall have a second or casting vote.

(7) Subject to the provisions of this section, the Council shall have power to make standing orders to regulate its own proceedings.

4. Power to declare.

(1) The Yang di-Pertua Negeri may on the recommendation of the Council, by notification in the Gazette, declare -

(a)any cultural heritage the character or appearance of which it is desirable to preserve or conserve, to enhance or to be subject to preservation or conservation; and

(b)any area as conservation area to be preserved or conserved as a cultural heritage.

(2) Any person who has in his possession any cultural heritage which for the time being has not been declared under subsection (1) may apply in the prescribed form to the Council for such declaration. The Council shall process the application and make recommendation to the Yang di-Pertua Negeri.

(3) The Yang di-Pertua Negeri may from time to time on the recommendation of the Council revoke or amend any declaration made under subsection (1):

Provided no such declaration shall be revoked or amended without the prior approval of the State Legislative Assembly given by way of a resolution.

(4) The Secretary shall serve a notice in the prescribed form on the owner thereof as soon as may be after such declaration, notifying that his cultural heritage or area is subject to preservation or conservation.

5. Jurisdiction for control etc. of cultural heritage and conservation areas . The jurisdiction for the control, enforcement, development, preservation or conservation of every cultural heritage and conservation area shall be vested in the State Government.

6. Register.

(1) There shall be a register maintained by the Secret in which all cultural heritage or conservation areas which have been declared to be subject to preservation or conservation shall be registered.

(2) The Secretary shall keep a register open for inspection during the official working hours free of charge. Copies of the entries made therein may be supplied to any interested person upon request on payment of a prescribed fee. 7. Proposals and programmes for preservation or conservation . (1) It shall be the duty of the Secretary from time to time to formulate and publish, as directed by the Council, proposals and programmes for the preservation or conservation and enhancement of cultural heritage or conservation areas.

(2) The Secretary shall publish or cause to be published such proposal or programme in any form whatsoever so as to render every information pertaining thereto readily accessible to any interested party.

(3) The owner of any cultural heritage or the conservation area shall within a time to be prescribed by the Council implement the proposal or the programme.

(4) Notwithstanding the provision of subsection (1), the Secretary may require the owner of a cultural heritage or conservation area to submit proposals to the Council within a prescribed time for the preservation or conservation and enhancement of his cultural heritage or conservation area. The Council may with or without modification approve the proposal and thereafter the owner shall within a prescribed time implement the proposals as approved.

8. Power of authorised officer.

(1) Any officer of the State Government authorised in writing in that behalf by the Council may--

(a)at all reasonable times, inspect any cultural heritage or conservation area in the possession of any person;

(b)either orally or in writing, require any person to supply him any information relating to anything he believes or has reasonable ground to believe to be a cultural heritage or area which may be declared under section 4(1) to be subject to preservation or conservation.

(2) It shall be the duty of every person who is in possession of a cultural heritage or conservation area to permit such inspection and to give reasonable facility and assistance for such officer in the performance of his duties.

(3) The owner of a cultural heritage or conservation area shall at all reasonable times permit such officer to enter upon a site for inspection and to carry out any study or work necessary for restoration, repair, alteration, maintenance, preservation or conservation thereof which appears to him to be expedient or necessary:

Provided that the liability imposed by this section shall arise only if such owner has been notified within fourteen days in writing of the proposed entry:

Provided further that if any person objects to such entry or execution of such work on religious grounds, such entry or work shall not be effected or executed except with the permission in writing of the Council.

9. Restriction of planning permission.

(1) No person shall in the case of any cultural heritage without the consent in writing of the Council and except in the manner and in accordance with such conditions as it may impose therein--

(a)demolish, disturb, modify, mark, pull down or remove the heritage or any part thereof; or

(b)make alteration, addition, repair, renovation, restoration, construction, reconstruction, remodelling and adaptation to the heritage; or

(c)erect any building or wall abutting upon the heritage; or

(d)make any change including painting to the exterior of the heritage.

(2) No person shall in the case of any conservation area without the consent in writing of the Council and except in the manner and in accordance with such conditions as it may impose therein--

(a)erect any building or structure on such area; fell or otherwise destroy any tree standing in such area; or

(b)otherwise encroach on such area; or

(c)clear or break up for cultivation or cultivate any part of such area; or

(d)dig, excavate, quarry, irrigate, deposit earth or refuse, carry out reclamation work, or otherwise disturb the landscaping and physical features of such area.

(3) In granting the consent under this section, the Council may impose conditions with respect to--

(a)preserving or conserving particular features of the cultural heritage or the conservation area or part of it or severance therefrom;

(b)making good, after the works are completed, of any damage caused to the cultural heritage by the works; and

(c)in the case of building, the reconstruction of it or any part of it following the execution of works, with the use of original material so far as practicable and that such alteration to the interior of the building may be specified in the permission.

10. Responsibility to acquire.

(1) In the case of a cultural heritage in the nature of a building or a conservation area, whenever by reason of the refusal to grant consent under section 9(1) or 9(2), the building or the area is incapable of reasonable beneficial use by the owner or the occupier, the owner may serve on the Council a purchase notice in the prescribed form requiring his building or area to be purchased in accordance with this section.

(2) There shall be served with the purchase notice a statement of the facts and the reasons to justify the claim in the notice together with the copies of any available documents, including affidavit which may provide proof of the facts and the reasons.

(3) The Council shall investigate the claim made in the purchase notice and if satisfied that the building or the area is incapable of easonable beneficial use by reason of the said refusal, the Council shall initiate steps towards the acquisition of the area or the building in accordance with the provisions of the Land Acquisition Ordinance.

(4) For the purpose of the Land Acquisition Ordinance, any area or building intended to be acquired pursuant to this section shall be deemed to be acquired for a public purpose.

11. Inquiry by owner Any person who proposes to carry out any work in respect of a cultural heritage or conservation area, or to make any change in the use of the area may apply to the Council to have it determined whether the work or the change of use requires consent in respect thereof under section 9.

12. Repair of cultural heritage

(1) Whenever a cultural heritage in the nature of a building, whether occupied or otherwise, requires urgent work or repair to be carried out, the Council may make arrangement with the owner or the occupier, as the case may be, for the work or the repair to be executed and for such purpose may make contribution towards the cost thereof.

(2) Where the building has not been declared to be subject to preservation or conservation but is located in a conservation area and requires urgent work or repair to be carried out necessary for the purpose of preservation or conservation so as to maintain the harmonious character or appearance of the conservation area, the Council may make arrangement with the owner or the occupier, as the case may be, for the work or the repair to be carried out and may for such purpose make contribution towards the cost thereof.

(3) Where the Council has made contribution towards the cost of carrying out the work or the repair under this section, such work or repair shall be carried out in accordance with such direction as the Council may give.

(4) Where it appears to the Council that the owner or the occupier of the building, as the case may be, has refused to enter into such arrangement, the Council may execute the work or the repair after giving the owner or the occupier of the building not less than fourteen days notice in writing of its intention to do so.

(5) The Council may give notice to the owner of the building requiring him to pay for the expenses of the work or repair executed under subsection (4), and, if such notice is given, the amount specified therein shall, subject to subsection (6), be recoverable from the owner.

(6) Within fourteen days of the date of notice, the owner may make an objection in the prescribed form to the Council--

(a)that the amount specified in the notice is unreasonable; or

(b)that some or all of works are unnecessary for the preservation or conservation of the heritage or the area.

(7) The Council shall decide on the objection and thereafter serve on the owner notice of such decision including the amount, if any, which is recoverable from him.

(8) In the event the owner is dissatisfied with the determination of the Council, he shall within fourteen days from the date of service of such notice make an appeal in a prescribed form to the Yang di-Pertua Negeri whose decision on the appeal shall be final.

13. Power to make private arrangement and removal.

(1) In the case of any cultural heritage or conservation area, which in the opinion of the Council is of exceptional importance to the State and which is situated on a private property, the Council may direct the Secretary--

(a)to make arrangement to purchase or lease by agreement or acquire the same in accordance with the provisions of the Land Acquisition Ordinance; or

(b)to remove the whole or any part thereof, making good any damage done to the heritage or to the area pursuant to such removal and paying compensation therefor, provided that the amount of such compensation shall be settled by agreement or, in case of dispute, shall be submitted to the Yang di-Pertua Negeri whose decision shall be final.

(2) Any person who is aggrieved by the decision of the Council to acquire any cultural heritage or conservation area under subsection (1)(a) or to remove the whole or part thereof under subsection (1)(b) shall have the right of appeal against such decision to the High Court within thirty days from the date he was informed of the decision.

14. Establishment of the Fund.

(1) For the purpose of this Enactment, there shall be established a fund known as "the Cultural Heritage Fund".

(2) The Fund shall consist of-- (a)such sums as may be provided by the State Legislative Assembly from time to time;

(b)grants from the Federal Government;

(c)donations and contributions paid into the Fund by any statutory body, body corporate, association or individual person; and

(d)collections from the public

(3) The Fund shall be operated in accordance with the Financial Procedure Act 1957 and any subsidiary legislation made thereunder.

(4) The Fund shall be expended for the purpose of--

(a)maintenance, preservation, conservation and enhancement of any cultural heritage or conservation area;

(b)acquiring any cultural heritage or conservation area of exceptional importance to the State;

(c)carrying out any other projects or activities sponsored by the State Government such as the publication and exhibition of any cultural heritage or conservation area:

(d)carrying out and organising campaign for the protection of cultural heritage or conservation area; and

(e)paying any cost or expense lawfully incurred by the Council or the Secretary for the enforcement or carrying out into effect the provisions of this Enactment.

15. Financial incentives.

Any person who has in his ownership or possession a cultural heritage or conservation area may apply to the State Government for financial assistance which includes grant, aid, loan, reduction of rates and rents and any other financial assistance which is necessary for the maintenance, preservation, conservation and enhancement of the heritage or the area.

16. Levy of charges.

Any person who has in his ownership or possession a cultural heritage or conservation area may with the approval of the Council levy entrance charges into the cultural heritage or the conservation area, or any other charges.

17. Penalty.

Any person who contravenes any provision of this Enactment shall be guilty of an offence and shall be liable on conviction to a fine not exceeding fifty thousand ringgit or to a term imprisonment not exceeding five years or to both.

18. Immunity from legal action.

No action shall be brought against the State Government, the Council, the Secretary or any officer of the State Government authorised in writing by the Council or the Secretary in respect of anything done or omitted to be done by him in good faith in the execution of his functions under this Enactment.

19. Power to delegate.

The Council or the Secretary may in writing generally or specifically authorise the exercise, performance or discharge of its or his powers or duties, as the case may be, under this Enactment or any regulations made thereunder by any officer of the State Government.

20. Compounding of offences

(1) The Minister may compound any offence under this Enactment or any regulations made thereunder by making a written offer to such person to compound the offence upon payment to the State Government of such amount not exceeding the maximum fine for that offence within such time as may be specified in the offer.

(2) The offence which may be compounded under subsection (1) shall only be in respect of an offence committed for the first time.

(3) An offer under subsection (1) may be made at any time after the offence has been committed but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer or within such extended period as may be granted by the Minister, prosecution for the offence may be instituted at any time thereafter against the person to whom the offer was made.

(4) Where the amount specified in the offer is paid up within the time specified in the offer or within such extended period as may be granted by the Minister, no prosecution shall thereafter be instituted in respect of such offence against the person to whom the offer to compound was made.

21. Power to prosecute.

Prosecution in respect of any offence committed under this Enactment may be conducted by the State Attorney-General, a legally qualified member of his Chambers or the Secretary.

22. Provisions this Enactment to prevail. Enactment No. 11 of 1977.

In the event if any conflict between the provisions of this Enactment and the provisions of the Antiquities and Treasure Trove Enactment 1977, the provisions of this Enactment shall prevail over and supersede the inconsistent provisions of the said Enactment.

23. Power to make regulations.

The Yang di-Pertua Negeri may make regulations specifically or generally for the purpose of maintenance, preservation or conservation and enhancement of any cultural heritage or conservation area and for the implementation of the provisions of this Enactment and, without prejudice to the generality of the foregoing, such regulations may provide for any of the following matters:

(a)to prescribe criteria for any cultural heritage to be declared subject to preservation or conservation;

(b)to prescribe conditions to be observed by the planning authority in granting planning permission;

(c)to regulate or prohibit the activities in any conservation area;

(d)to prescribe conditions and procedure of application for any work or repair in respect of any cultural, heritage or conservation area;

(e)to prescribe offences and penalties for offences not exceeding fifty thousand ringgit or to a term of imprisonment not exceeding five years or to both;

(f)to provide for such other measures as are necessary or of expedient nature to ensure the maintenance, preservation or conservation and enhancement of any cultural heritage or conservation area;

(g)to promote, regulate and carry out exhibition or publication in respect of any cultural heritage or conservation area;

(h)to prescribe conditions and restrictions including the amount of fees chargeable to members of the public for access to any the cultural heritage or conservation area; and

(i)to prescribe fees or regulate any other matters required to be prescribed under this Enactment.

CERTIFIED by me to be a true copy of the Bill passed by the Legislative Assembly on Thursday, the 19th day of June, 1997.

DATUK FRANCIS T.N. YAP,

Deputy Speaker,

State Legislative Assembly.

(MYSBH) CULTURAL HERITAGE (CONSERVATION) BILL 1997