When your home is on an archaeological site

Have you ever wondered what secrets could lie beneath your home? The land your house sits on could, by some quirk of historical humour, have a hidden archaeological site.

Malaysia has listed around 12 notable archaeological sites discovered so far, including the remains of South-East Asia’s oldest civilisation in Kedah.

The recent discovery of a religious statue predating Cambodia’s Angkor Wat further reinforces the possibility of discovering a hidden world beneath our homes. The process after is lengthy yet exciting but how often can someone say their house stands atop a possible civilisation centuries past?

Discovery obligations

The National Heritage Act 2005 defines a site to include any land with a building, garden, tree or archaeological reserve.

The act states that any person who discovers an object believed to have cultural heritage significance, including archaeological finds, is obliged to notify the heritage commissioner, authorised officers or the district officer of the district where it was discovered. Upon delivery of the information or even heritage objects, the authority will provide a written acknowledgement.

Failure to provide notification is considered an offence, punishable by a fine not exceeding RM50,000 or imprisonment for up to five years or both.

Ownership and compensation for discoveries present additional considerations. Any find is the absolute property of the federal government but special provisions apply when discoveries occur on alienated land.

Alienated land refers to state land that has been transferred to an individual or entity, granting them ownership rights.

The official transfer is formalised through what is called land alienation, a process where the state authorities dispose of state land typically for a specific period or as freehold.

Like most land transfer processes, it involves applying for the land, receiving approval from the state authority, payment of land revenue, both premium and rent, followed by registration of the title. Alienation is the primary method of state land disposal under the National Land Code 1965.

Apart from the land itself, since simply discovering an object on the land is more than enough to deem it a potential heritage site, this is where a heritage valuer appointed by the commissioner comes in. They will determine the value for compensation and their decision is usually final.

Returning to the issue of compensation, while the law establishes that the discovery is the property of the federal government, it also provides for compensation to be paid to the landowner.

This compensation is intended to cover the value of the object or find and can also include reimbursement for any loss or damage suffered due to such entry (as outlined in Section 48(2) of the Act).

It is important to note that the Act differentiates between compensation for a heritage object and a heritage site.

For a heritage object, the compensation is based on its value as determined by the commissioner’s appointed valuer. In the case of a heritage site, the commissioner may opt to purchase or lease the land from the owner or acquire it for a public purpose.

In these cases, the compensation would be governed by the specific terms of the sale, lease, or the Land Acquisition Act 1960.

Any dispute regarding the amount of compensation can be referred to the Tourism Minister for a final decision.

Protection of the site

The commissioner has the full authority to designate any site, including land with buildings and archaeological reserves, that has natural or cultural heritage significance as a heritage site.

Land owners will have to let the commissioner inspect, survey and investigate a site to determine if it should be designated, providing at least seven days’ notice to the owner or occupier.

Yes, obstruction is an offence.

However, before designating a site, the commissioner must provide a written notice of intention to the owner at least 60 days in advance and also publish it in the Gazette (a federal or state government official notification) and a local newspaper.

On the other hand, the owner may actually object to the designation within 30 days of the publication, leading to a hearing for their objections.

Additionally, the commissioner must also obtain the consent of the state authority before designation. Once approved, the commissioner can finally designate the site as a heritage site and record it in the National Heritage Register managed by the Department of National Heritage (JWN).

In the event of it being necessary to conserve and preserve, there is an official order called the Interim Protection Order that can be made on a site. This order will take effect upon service and can impose conditions on permitted works. Undermining and contravening this order is considered an offence as well. For monuments in danger of dilapidation, demolition, destruction, damage or alteration, a Monument Preservation Order will be served to the owner as well.

Management of sites

The commissioner, after consulting with the state authority, may make arrangements with the owner or occupier for the inspection, maintenance, conservation and preservation of the heritage site. This includes the option for the commissioner to purchase or lease the heritage site or acquire it under the laws for public purposes.

Additionally, the commissioner may contribute to the costs of repair or conservation works on the site. To facilitate these efforts, the owner or occupier must permit the commissioner or authorised officers to enter the site for inspection and conservation work, provided they receive prior notice. They can claim compensation for any loss or damage suffered due to such entry.

Furthermore, the owner of a heritage site acts as the custodian and has to ensure it remains in good repair. If the owner fails to take reasonable steps for preservation, the commissioner may carry out necessary repair works after giving notice and in this case, the owner will be liable to reimburse the costs incurred.

The discovery of an archaeological site beneath a residential property not only uncovers a significant piece of history but also involves a complex legal framework regarding obligation, ownership and compensation.

Under the National Heritage Act 2005, such findings are managed with care, balancing the interests of landowners with the preservation of cultural heritage.