Toodyay property owner Tony Dennis Maddox on trial for breaching WA's Aboriginal Cultural Heritage Act

Toodyay farmer and property owner Tony Maddox.  (ABC News: Cason Ho)

A landholder accused of disrupting an Indigenous Rainbow Serpent dreaming site by constructing a waterway crossing on his property will argue he was only repairing an existing structure and the works returned the flow of water closer to its original state.

Tony Dennis Maddox, 71, is charged with damaging a protected heritage site of the Noongar people’s Wagyl dreaming, a rainbow serpent which is closely associated with the waterways in parts of south-western Western Australia, when he conducted works in 2022.

A tributary of the Avon River flows through his property near Toodyay, east of Perth.

Landmark test of amended act 

The WA government came under fire last year after its rewritten Aboriginal Cultural heritage laws drew extensive criticism from landholders and the Opposition.

The laws were scrapped after a few weeks, and the state reverted back to the Aboriginal Heritage Act 1972, with “simple and effective amendments drawn from feedback” last November.

This landmark test of WA’s Aboriginal heritage laws, heard in the Perth Magistrates Court, will hear arguments as to whether every change to the physical landscape constitutes damage to an Aboriginal spiritual site.

Prosecutor Lorraine Allen told the court contractors laid rocks, sand and metal over the Boyagerring Brook, a tributary of the Avon River.

They are alleged to have also pumped large quantities of bore water into the brook which created a large artificial lake.

Ms Allen told the court the Aboriginal Cultural Heritage Act which Mr Maddox is alleged to have breached “is not an act that is confined to the Aboriginal people of Australia” and rather exists to preserve these important sites for all Australians.

Mr Maddox’s lawyer Christian Porter — the former Attorney General of Australia — told the court he would argue the works were to repair a pre-existing culvert where prior property owners had installed a pipe.

“The essential evidence is that the structure doesn’t have a larger footprint than the pre-existing one,” Mr Porter said.

“It was a repair to the existing man-made structure which repaired the flow of the brook to what it previously was.”

Mr Porter told the court that with serpent sites, “completely core to their status is the flow of water … which will become an issue at this trial”.

Reliability of heritage database probed 

When cross-examining the trial’s first witness, former Aboriginal Cultural Material Committee chair and registrar Tanya Butler, Mr Porter also questioned the reliability of the state’s database of cultural sites, after a map of Mr Maddox’s property showed the watercourse ran outside of the heritage site boundaries.

He questioned whether the information provided by the department made it clear that the heritage protections also applied to tributaries of the watercourse associated with the Avon River.

The trial is set down for two days.