A TOODYAY real estate agent has been threatened with nine months’ jail and a $20,000 fine for building a culvert and crossing over a winter creek on his property to reach his home during the wet season.
A conviction would cost Tony Maddox his licence to sell real estate, force his business to close and put seven people out of work.
Mr Maddox also faces a daily penalty of $400 for work he did last year that he says is commonly done by other local rural land owners without seeking permission.
It follows a visit last month by two investigators from the WA Department of Planning, Lands and Heritage who told Mr Maddox that his new culvert and driveway across Boyagerring Brook breached Aboriginal heritage laws.
They were acting on a complaint from a neighbour who does not own property through which the winter creek passes.
The waterway – normally dry in summer – passes between Mr Maddox’s front gate and his home and floods in winter, making vehicle access impossible.
Mr Maddox also built a bore-fed fountain in the creek bed to form a summer pool to attract birdlife and prevent a stagnant pond.
He was told that all this is illegal because he failed to get permission from the WA Registrar of Aboriginal sites or State Aboriginal Affairs Minister Tony Buti to alter a waterway on an Aboriginal heritage site.
The investigators said the State had no power to grant retrospective approval.
The prosecution says the Avon River and its tributaries – including Boyagerring Brook – are protected by Aboriginal heritage law.
“The river and its tributaries are “described as having mythological value and is the Waugal’s home,” the prosecution’s “statement of facts” said.
“The Waugal is a mythical serpent.
“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.”
The prosecution alleges that between March and April last year, Mr Maddox hired contractors to “repair a creek crossing across Boyagerring Brook on his property”.
“The repair work involved contractors laying rocks, large quantities of sand, metal reinforcement and concrete over the brook,” a prosecution statement of facts said.
“Further, between last June and January 9 this year, the accused pumped large quantities of bore water into Boyagerring Brook at the creek crossing.
“As a result of the construction of the crossing and the removal by the accused of large quantities of silt/sand, an artificial lake was created on the site.
“The site was significantly altered and damaged by these works.
“The accused participated in a recorded interview and made full admissions about the work.
“He stated that he was unaware that Boyagerring Brook was an Aboriginal heritage site or that approvals in the form of ministerial consent and permits from the Registrar of Aboriginal Sites were required.”
Mr Maddox was charged last month and ordered to appear in the Northam Magistrate’s Court on Monday March 20.
He received a court summons which shows a penalty of “$20,000 and nine months’ imprisonment” for conviction and a “daily penalty of $400”.
The summons does not provide for any lesser penalties for “this offence” and says Mr Maddox may also have to pay costs for the court and the prosecutor if found guilty.
Mr Maddox said he was “flabbergasted”.
“I didn’t apply to the shire for development approval because everyone knows you don’t need permission to build a culvert on your own property,” he said.
“The previous crossing was no good – I couldn’t reach my house in winter when the creek running through my property flooded.”
“I have worked in real estate for 33 years and nobody has ever told me that creeks on private property are Aboriginal heritage sites that need permission for any work to be done,” Mr Maddox said.
“I’ll bet most other Toodyay property owners don’t know that either.
“The shire doesn’t inform ratepayers about it, and why would anyone think to go to a government website to find out if they can build a culvert crossing on their property?
“A conviction means I will have to close my business, sack seven staff and lose my livelihood.
“Plus I have to pay for a barrister to represent me in court, pay a fine, maybe go to jail and perhaps also pay to demolish my crossing and lose winter access to my home.
“This is going to cost me thousands and a conviction will ruin me financially – I’m not able to sleep at night worrying about it.”
A spokesperson for the WA Department of Planning, Lands and Heritage said there had been no similar prosecutions anywhere else in the Avon Valley.
Convictions and fines of up to $10,000 had been imposed in other parts of WA.
The department did not actively inform land owners that creeks on private property were protected by Aboriginal heritage law.
Toodyay Shire CEO Suzie Haslehurst said ratepayers were informed of their heritage obligations if there was an inquiry but there were no other alerts, such as on a certificate of title.
In this particular case, the shire received a complaint which it referred to the Department of Planning, Lands and Heritage and others as a routine matter for feedback.
