A Western Australian man is facing nine months' jail and a $20,000 fine for building a creek crossing on his Toodyay property in an alleged breach of the state's Aboriginal Heritage Act.
Tony Maddox was charged last month following a visit from investigators from the WA Department of Planning, Lands and Heritage who told him his new culvert and driveway were illegal.
If found guilty, Mr Maddox could also lose his licence to sell homes and be forced to close down his business.
It is understood the charges came after a complaint from a neighbour.
Mr Maddox said he was completely blindsided by the charges.
"It's knocked the stuffing out of me," he said.
"I can't believe I'm charged with a criminal offence for [an Act] that I know nothing about. I just find that extraordinary."
Brook has cultural value
The Boyagerring Brook running through Mr Maddox's property is part of the Avon River catchment and is said to have mythological value to the traditional owners of the region.
According to the prosecution's statement of facts, the brook is the home of the Waugul — the rainbow serpent central to Noongar mythology.
It states that any alteration to the Waugul's home could scare it from the water, causing it to dry up and cause harm to the surrounding environment and people.
The waterway passes between Mr Maddox's front gate and his home and is prone to flooding in winter.
He said there had been a crossing at the site even before he moved in nine years ago, but that it was made of gravel instead of concrete.
After several years of winter rainfall washing away the gravel, Mr Maddox decided to hire contractors to install something more permanent.
"We laid a concrete bed right across the top of the bitumen, across the full length of the crossing," he said.
"That's had the effect of giving us an all-weather crossing.
"It doesn't matter how much the creek flows and how much it comes down, there's always the ability to access your house and your sheds."
He also pumped bore water into the creek, removed large amounts of silt, and constructed an artificial lake with a fountain.
The prosecution alleged the site was "significantly altered and damaged" by the works, and said Mr Maddox did not have consent from Aboriginal Affairs Minister Tony Buti or the Registrar of Aboriginal Sites.
Mr Maddox made full admissions to the work done during a recorded interview with investigators.
Local traditional owners from the Noongar Kaartdijin Aboriginal Corporation said they did not wish to comment while the matter was before the courts.
String of small-scale prosecutions since Juukan Gorge
WA's Aboriginal heritage laws have come under fire and have been subject to a substantive re-write in recent years following the destruction of significant cultural sites at Juukan Gorge by mining giant Rio Tinto in 2020.
But the nine prosecutions since 2020 have been largely smaller cases, with fines ranging from $5,000 to $12,050.
Three of the prosecutions involved waterways and other water-related sites, with an illegal dam on the Blackwood River incurring a $10,000 fine in 2021, and a core hole drilled at Pretty Pool near Port Hedland seeing the responsible party hit with a $7,020 penalty.
A spokesperson for the Department of Planning, Lands and Heritage declined to comment on Mr Maddox's case while it was before the courts.
The case will be heard in the Northam Magistrates Court on March 20, with a formal plea yet to be entered.
Mr Maddox said the outcome could have wide-ranging implications for landholders all over the state.
"If this goes through it will affect every single farmer in Western Australia," he said.
"Every farmer crosses creeks in their daily activities. There's going to be an awful lot of permission-seeking going on.
"I've got a duty of care to comply with the Act. Why haven't they got a duty of care to tell me the Act exists?"
