Toodyay real estate veteran Tony Maddox in agonising wait for alleged Aboriginal Heritage Act breach verdict

The long wait for a verdict in the case of a Toodyay farm owner’s alleged Aboriginal Heritage Act breach has had a chilling effect on other landholders’ property plans, amid uncertainty about the law. If the magistrate hands down his reserved decision in February as scheduled, it will have been a year since Tony Maddox stood trial — and in the meantime, he’s been diagnosed with cancer. The 72-year-old real estate business owner says his doctor is convinced the stress of the court battle, already costing him more than $100,000 in legal fees, has been a key factor in his ill health. “And now I’m in Royal Perth Hospital having chemo,” Mr Maddox told The Sunday Times. “Last two months, I’ve been crook as flaming crook, and the colour all greyed out of my skin. “I literally haven’t sold a property for the last 12 months. “It just distresses you. My wife said ‘You’re a different person’.” Mr Maddox said he has been brought to the end of his tether enduring eight adjournments, with the “complexity” of the case given as the reason for the latest rescheduling. The Department of Planning, Lands and Heritage action accuses him of damaging or altering a tributary of the Avon River — a brook that runs through his farm — without first seeking registrar or ministerial consent. He admits he didn’t seek consent. But he argues that he simply could not have been reasonably expected to have known the Avon River’s Aboriginal heritage-registered status extended that far. It emerged at Mr Maddox’s two-day Perth Magistrates Court trial that the Aboriginal Cultural Material Committee had added at least some of the tributaries of the river — which as the home of the Waugal or rainbow serpent is a sacred site in Noongar mythology — to the register of protected sites. Mr Maddox’s lawyer, former attorney-general Christian Porter, pressed the department’s former registrar of Aboriginal sites, Tania Butler, about the ability of landowners to obtain information about the sites. Ms Butler testified that the department did not directly advise them of their obligations but it did publish public notices. “And then with questioning, we found out, no, they didn’t advertise it in the papers,” Mr Maddox said. Ms Butler then pointed to an online database showing significant site boundaries — and could not confirm whether the department’s website reflected the additions. That meant Mr Maddox could have fallen foul of the laws even if he had checked it. The additions came after Rio Tinto blew up the ancient Juukan Gorge caves in the Pilbara, which prompted the WA Government to write a colossal update to the original 1972 Act. The rewrite sparked outrage from landowners who struggled to understand the complex new rules, forcing an embarrassing reversion to the 52-year-old laws last year. Mr Maddox says he has massive respect for Aboriginal heritage and maintains, as he argued at trial, that he only altered an existing, 70-year-old crossing over Boyagerring Brook because it kept eroding during the rainy season. When he bought the land in 2014, the crossing was comprised of just sand and rocks, so he concreted the top surface, given it provides crucial access to his house. Mr Maddox also pumped in bore water, removed silt and aerated the water to create a large artificial lake that he says has become an animal sanctuary. “So in the meantime, over at Julimar Road, a guy bulldozed the Malkup Creek,” he said. “He got his dozer in and pushed all these rocks and trees out, and made a great big, wide firebreak so he can get his header in — he uses some pretty big gear, this farmer. “He’s made a hell of a mess of an Aboriginal heritage site. “What they did to this guy? They gave him a warning.” Opposition Leader Shane Love said the case had significant implications and would set a precedent for landowners across WA. “A lot of people are now uncertain about what will happen with the waterways that run on their property,” Mr Love said. “They are genuinely anxiously waiting to see what the future holds for them. “We had concerns that were raised during the Aboriginal Cultural Heritage debacle, but it appears that the aftermath of that is still playing out in Western Australia, with cases like this. “It is essential that this case is resolved in a timely manner.” The department confirmed just 18 prosecutions had been concluded under the 52-year-old Act, with Mr Maddox’s case among an additional three that are underway. Mr Love predicted “a lot more cases”, due to increased awareness of Aboriginal heritage “and the inclusion of whole of landscape, things like songlines and riverways” into the regulatory regime. He said the Maddox case appeared, to some extent, to be making “an example”. “I’m not having it. For putting a crossing across a creek? “I just find it quite flabbergasting. I just don’t get it.” Mr Maddox faces the prospect of a maximum penalty of nine months in jail as well as a $20,000 fine if convicted. A spokeswoman for WA courts declined to comment.