- In short:Tony Dennis Maddox has pleaded not guilty to damaging a protected heritage site on his property near Toodyay.
- The trial underway in Perth Magistrates Court is a test of Western Australia's Aboriginal Cultural Heritage Act 1972.
- What's next? The trial is expected to run for two days.
A landholder accused of disrupting an Indigenous Rainbow Serpent dreaming site by constructing a waterway crossing on his property will argue he was only repairing an existing structure and the works returned the flow of water closer to its original state.
Tony Dennis Maddox, 71, is charged with damaging a protected heritage site of the Noongar people's Wagyl dreaming, a rainbow serpent which is closely associated with the waterways in parts of south-western Western Australia, when he conducted works in 2022.
A tributary of the Avon River flows through his property near Toodyay, east of Perth.
Test of heritage act
The WA government came under fire last year after its rewritten Aboriginal Cultural heritage laws drew extensive criticism from landholders and the Opposition.
The laws were scrapped after a few weeks, and the state reverted back to the Aboriginal Heritage Act 1972, with "simple and effective amendments drawn from feedback" last November.
Mr Maddox is being prosecuted under the old Aboriginal Cultural Heritage Act.
This test of WA's cultural heritage laws, heard in the Perth Magistrates Court, will hear arguments as to whether every change to the physical landscape constitutes damage to an Aboriginal spiritual site.
Mr Maddox has pleaded not guilty to the charges. (ABC News: Cason Ho)
Prosecutor Lorraine Allen told the court contractors laid rocks, sand and metal over the Boyagerring Brook, a tributary of the Avon River.
They are alleged to have also pumped large quantities of bore water into the brook which created a large artificial lake.
Ms Allen told the court the Aboriginal Cultural Heritage Act which Mr Maddox is alleged to have breached "is not an act that is confined to the Aboriginal people of Australia" and rather exists to preserve these important sites for all Australians.
Mr Maddox's lawyer Christian Porter — the former Attorney General of Australia — told the court he would argue the works were to repair a pre-existing culvert where prior property owners had installed a pipe.
"The essential evidence is that the structure doesn't have a larger footprint than the pre-existing one," Mr Porter said.
"It was a repair to the existing man-made structure which repaired the flow of the brook to what it previously was."
Mr Porter told the court that with serpent sites, "completely core to their status is the flow of water … which will become an issue at this trial".
Reliability of heritage database probed
When cross-examining the trial's first witness, former Aboriginal Cultural Material Committee chair and registrar Tanya Butler, Mr Porter also questioned the reliability of the state's database of cultural sites, after a map of Mr Maddox's property showed the watercourse ran outside of the heritage site boundaries.
He questioned whether the information provided by the department made it clear that the heritage protections also applied to tributaries of the watercourse associated with the Avon River.
Cultural significance explained
Ballardong man Rod Garlett told the trial the river's tributaries were like veins in a human body, providing life to the land.
"If your vein is blocked you become sick, your body doesn't work," he said.
"That slow water that comes from tributaries are places where mothers would give birth to children … they are places for ceremony."
He said the waterway was linked to the Wagyl, highly significant in his cultural beliefs.
"He was our creator … today our people are snake people for the river land for my mother's people," Mr Garlett said.
Tony Maddox and his lawyer Christian Porter arrive at court. (ABC News: Rebecca Trigger )
He said it was difficult to separate the different categories of sites, such as ceremonial and spiritual, as they are delineated by the existing Aboriginal Cultural Heritage Act.
"They are all connected, and they have been for 65,000 years," he said.
"It's about life, it's about mother earth. It's about a living, breathing entity that we live on today."
While Mr Garlett was giving this evidence, a woman in the public gallery muttered "rubbish".
Mr Garlett said the usual process was for landowners to consult with traditional custodians, and developments had previously gone ahead with relevant elders' blessing.
But he said the current heritage protection system in WA was not taken seriously.
"I don't believe that anyone takes it seriously," he said.
"It has no teeth and Aboriginal culture is not a priority in this state," he said.
The trial is set down for two days.
