Tony Dennis Maddox on trial for alleged breach of Aboriginal Heritage Act says he didn't know the laws existed

Tony Maddox, seen outside court on Friday, denies breaching WA’s Aboriginal Cultural Heritage Act. (ABC News: Kenith Png)

A West Australian landholder accused of breaching the state’s Aboriginal heritage laws wants cultural sites recorded on property titles alongside other conditions to alert owners to their existence.

Tony Maddox has been charged with damaging a site associated with the Rainbow Serpent, known as a Wagyl to the region’s Noongar people, when he built a crossing over a tributary of the Avon River on his property near Toodyay, east of Perth.

The 71-year-old could be jailed for nine months or face a $20,000 fine if convicted.

During his trial in the Perth Magistrates Court this week, Mr Maddox said he bought the property in 2013 and checked all conditions on the property with the shire, through a settlement agent, and on the property title.

“Your honour, in all these years I’ve never been convicted of anything in my entire life,” he said.

He told the trial “never in [his] entire life” had he heard of the Aboriginal  Heritage Act, which he is accused of breaching.

“If you exist and have any rights on my property at all, surely you would put a notification on my certificate of title,” he said.

During cross examination, prosecutor for the Department of Planning, Lands and Heritage Lorraine Allen asked Mr Maddox: “Is your opinion Aboriginal heritage is not on your title because it’s not important?”

Mr Maddox appeared upset by the question.

“Aboriginal heritage is important, it’s very important. That’s why it should be on the title,” he said.

Works created ‘wildlife sanctuary’ 

Mr Maddox told the court there was already a “pretty typical farmers crossing” on the stream when he bought the property in 2013 made of gravel, rocks, sand and bits of concrete which was gradually causing flooding and erosion.

In 2014 he installed a pipe trying to allow the water to flow more freely, creating something known as a “culvert” crossing, but there was a subsequent major build-up of silt.

At the time he did not seek planning approval because it was his understanding that was not required for simple culvert crossings.

After building a home on the 35-acre property in 2019, he started needing to cross the creek daily rather than only during cropping and seeding.

He tried repairing it in 2020 with bitumen but a flooding event damaged it further.

Mr Maddox then brought in a contractor to help concrete the crossing and remove the build-up of debris.

“It’s become a wildlife sanctuary…. because of the water I pumped in, there’s 120 ducks that live on my creek, prior to that, nothing,” Mr Maddox said.

“It’s created a complete sanctuary for birds, turtles, fish, frogs, ducks you name it, even a kangaroo and we haven’t had a kangaroo in years.”

Ms Allen put to Mr Maddox that it did not matter whether the crossing had improved the environment, but that it had altered the course of the waterway.

“The issue is not whether or not your crossing is a nice crossing, or if it’s beneficial, it’s whether you had permission to do so,” she said.

It came after traditional custodian Rod Garlett told the trial that changes to the waterway could disturb the Wagyl, also known as the Rainbow Serpent, which could curse his people, leading to sickness and even death.

Move to scrap the trial fails

Mr Maddox’s lawyer, former federal attorney general Christian Porter earlier failed to have the case thrown out on the grounds the state had failed to demonstrate enough evidence.

Mr Porter submitted that maps from the state’s heritage survey database which records sacred sites, and which the Department of Planning, Lands and Heritage tendered to the court, were inaccurate.

This was something a former department registrar conceded in her evidence was the case.

Mr Porter argued that the database could therefore not be relied upon to establish whether Mr Maddox had breached the Aboriginal Heritage Act.

But Magistrate Andrew Matthews said even if evidence is “tenuous or weak” it was capable of supporting a guilty verdict and rejected Mr Porter’s application.

The trial is due to recommence on March 6.