TOODYAY real estate agent Tony Maddox is likely to plead ignorance of State Aboriginal heritage law when he next appears in court on April 17 to face a charge which carries a maximum penalty of up to nine months’ jail and a $20,000 fine for altering a creek crossing on his Nunile property.
And in a startling new development, the Shire of Toodyay says it also did not know if the same law applied when it upgraded a similar crossing over the same creek near Toodyay District High School.
Toodyay Shire CEO Suzie Haslehurst said the shire’s planning department was seeking further advice from the State Government.
Mr Maddox rebuilt a culvert crossing on Boyagerring Brook which passes between his front gate and country home.
He said an earlier creek crossing flooded in winter, preventing safe vehicle access.
Mr Maddox also installed a bore-fed fountain and scenic pond to attract birdlife when the waterway runs dry in summer.
He said silt was a problem.
Mr Maddox told two State investigators who interviewed him at the site in February that he did not know Boyagerring Brook was protected by Aboriginal heritage law.
Mr Maddox was later charged under WA’s Aboriginal Heritage Act 1972.
The State alleges that Mr Maddox “altered and/or damaged Avon River Heritage Site ID 15979 without either the authorisation of the Registrar of Aboriginal Sites or the consent of the Minister”.
The Aboriginal heritage site includes tributaries such as Boyagerring Brook.
A prosecution “statement of facts” describes the site as “having mythological value and is the Waugal’s home”.
“The Waugal is a mythical serpent,” the prosecution said.
“It is believed that any alteration to the Waugal’s home could scare it from the water, causing the water to dry up and cause harm to the surrounding environment and people.”
However, Section 62 of the Act states that “it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known that the place or object to which the charge relates was a place or object to which this Act applies.”
Mr Maddox has claimed repeatedly that he did not know that Boyagerring Brook was covered by Aboriginal heritage law.
There was standing room only at the back of the Northam Magistrate’s Court at 10am on Monday March 20 when Mr Maddox was summoned to appear before the bench.
The public gallery was filled with about 25 of Mr Maddox’s Toodyay supporters, including staff from his real estate business.
He earlier told The Herald that a conviction could bar him from selling real estate and put seven people out of work.
Magistrate Donna Webb said she disliked seeing such a big crowd in her court and moved the case to near the top of a long list to enable her to deal with it quickly.
Mr Maddox was represented by Northam lawyer Bernadine Heiderich who sought an adjournment to enable her client to get further legal advice before entering a plea.
Magistrate Webb adjourned the case to Monday April 17 after a WA Heritage Department lawyer agreed to the new hearing date via audio link from Perth.
After the brief hearing, Mr Maddox was joined by a big crowd of supporters outside the court for an interview with an ABC Wheatbelt radio news reporter.
Mr Maddox repeated his claim that he did not know that Boyaggering Brook was protected by Aboriginal heritage law when he built the creek crossing, fountain and pond on his property.
