FEDERAL COURT OF AUSTRALIA
Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279
File number(s): VID 363 of 2020 Judgment of: MURPHY J Date of judgment: 31 March 2025 Catchwords: NATIVE TITLE –whether six named First Nations women living in the 1800s were members of the Boonwurrung People who, at effective sovereignty, held rights and interests in the Boonwurrung claim area under traditional laws and customs – whether five named persons are contemporary descendants of some of the named First Nations women living in the 1800s – evidentiary issues regarding onus and standard of proof, inferential reasoning, primacy of Aboriginal lay witness evidence, and the weight appropriate to be given to conflicting expert evidence – whether Justice Brennan’s dicta in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 70 regarding “mutual recognition” is an element of native title law, either under common law or under the Native Title Act 1993 (Cth) – whether, as a question of fact, at sovereignty, membership of the Boonwurrung People required “mutual recognition” as described by Brennan J in Mabo v Queensland (No 2). Legislation: Evidence Act 1995 (Cth) ss 60(1), 73(1)(d), 79(1), 140
Native Title Act 1993 (Cth) ss 61, 86, 223, 253
Cases cited: AB (deceased) on behalf of the Ngarla People v Western Australia (No 4) [2012] FCA 1268; 300 ALR 193
Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; 207 ALR 539
Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625
Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1
ASIC v Big Star Energy Ltd (No 3) [2020] FCA 1442; 389 ALR 17
Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466
Dempsey v State of Queensland (No 2) [2014] FCA 528; 317 ALR 432
Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496
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- AGLC
- Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279
- Case
- [2025] FCA 279
- Decision Date
CaseChat Overview and Summary
The court considered whether certain named women were members of the Boonwurrung group at the time of sovereignty and if specific individuals were their descendants. The court also had to determine if membership of the Boonwurrung People required "mutual recognition" as a matter of fact or law. In reaching its decision, the court assessed the lay witness evidence, expert opinions, and historical records. The court found that while the evidence did not support the inference that mutual recognition was a requisite for membership at sovereignty, there were circumstances under which it applied. The court ultimately concluded that patrilineal descent was the default method for determining membership in the Boonwurrung group, but in certain situations, elders or others with traditional authority could decide on membership for those not born into the group.
The court's reasoning led to specific findings on the membership and descendants of the women in question, with some deemed members of the Boonwurrung People and others not. The court also concluded that while mutual recognition played a role in certain circumstances, it was not a universal requirement for membership. The final orders of the court addressed the separate questions posed, providing clarity on the membership status and descent lines of the individuals involved.
Orders
Orders of the court
1. The separate questions be answered as follows:
Question 1(a): Were each of the following persons members of a group comprising Boonwurrung (also described as Bunurong) People who, at sovereignty, held rights and interests in any part of the land and waters covered by the Boonwurrung Application under traditional laws and customs?
(i) Louisa Briggs;
Answer: Yes. (This is an agreed fact).
(ii) Ann Munro;
Answer: No.
(iii) Elizabeth Maynard;
Answer: Yes.
(iv) Eliza Nowan (also known as Eliza Nowen);
Answer: Yes.
(v) Marjorie Munro (also known as Marjorie Munroe and Marjorie Munrow);
Answer: Yes. (This is an agreed fact).
(vi) Jane Foster;
Answer: No.
Question 1(b): If the answer to Question 1(a)(iii) is yes, are Robert Ogden and Jarrod West the descendants of Elizabeth Maynard?
Answer: Yes. (This is an agreed fact).
Question 1(c): If the answer to Question 1(a)(iv) is yes, are Tasma Walton and/or Gail Dawson the descendants of Eliza Nowan?
Answer: Yes.
Question 1(d): If the answer to Question 1(a)(vi) is yes, is Sonia Murray the descendant of Jane Foster?
Answer: Unnecessary to decide.
Question 1(e): At sovereignty did membership of the Boonwurrung (also described as Bunurong) People require “mutual recognition” as described by Justice Brennan in Mabo No 2 at 70? For the avoidance of doubt, this question is not limited to a legal question as to whether Justice Brennan’s dicta regarding “mutual recognition” is an element of native title law, either under common law or under the Native Title Act 1993 (Cth) (NTA). It includes the question as to whether, as an issue of fact, membership of the Boonwurrung (also described as Bunurong) claim group requires “mutual recognition” as described by Brennan J.
Answer: At sovereignty, Boonwurrung traditional laws and customs had the following relevant normative elements:
(a) membership of the Boonwurrung group was, by default, automatic based on patrifiliation. Primary and secondary rights in the group were derived from that patrilineal system governing the transmission of rights;
(b) once patrilineal descent was established, no more was needed to be a member of the Boonwurrung group. That is, if a person was born to a Boonwurrung father, that person was a member of the Boonwurrung group and no further step was required to activate membership;
(c) rights of membership of the Boonwurrung group were not lost even if the person was absent from Boonwurrung country for an extended period. Provided, upon the person’s return, he or she was remembered the person was accepted as Boonwurrung;
(d) in particular circumstances, a person who did not hold primary rights and interests in Boonwurrung country by patrilineal descent may be accepted into the Boonwurrung group and in such circumstances elders or others with traditional authority had authority to decide issues of membership. Any such decision involved collective decision-making guided by elders of local Boonwurrung groups, and it would not be a decision for a single elder; and
(e) there is, however, no evidence that elders or others with traditional authority had authority to exclude a person from membership of the Boonwurrung group where the person was Boonwurrung by patrilineal descent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
1 INTRODUCTION
[1]
2 THE PROCEEDING AND PROCEDURAL BACKGROUND
[12]
2.1 The proceeding
[12]
2.2 The Preservation Evidence hearing
[17]
2.3 The Separate Questions
[18]
2.4 The Agreed Facts
[24]
2.5 Separate Questions hearing
[27]
2.6 The application to adduce further expert evidence
[29]
3 THE EVIDENCE
[30]
3.1 The lay evidence
[30]
3.2 The expert evidence
[34]
3.3 The documentary evidence
[39]
4 EVIDENTIARY ISSUES
[49]
4.1 Onus and standard of proof
[49]
4.2 Inferential reasoning
[62]
4.3 The lay evidence
[67]
4.4 The expert evidence
[77]
4.4.1 Dr Clark
[83]
4.4.2 Dr D’Arcy
[86]
4.4.3 Mr Wood
[90]
4.4.4 Dr Pilbrow
[132]
4.4.5 Other expert opinions
[134]
5 ELIZABETH MAYNARD - SEPARATE QUESTION 1(a)(iii)
[143]
5.1 The parties’ positions
[146]
5.2 The locations
[148]
5.3 The historical records and secondary sources
[150]
5.3.1 Abduction related records
[151]
5.3.2 Other records
[191]
5.4 The lay evidence
[212]
5.4.1 Ms Dyan Summers
[213]
5.4.2 Mr Robert Odgen
[233]
5.4.3 Mr Jarrod West
[241]
5.5 The expert evidence
[250]
5.5.1 Dr Clark
[250]
5.5.2 Mr Wood
[303]
5.5.3 Dr Pilbrow
[308]
5.5.4 Dr D’Arcy
[325]
5.6 The applicant’s submissions
[332]
5.7 Consideration regarding Elizabeth Maynard
[376]
5.7.1 The Meredith Abduction
[382]
5.7.2 Whether Richard Maynard’s unnamed “Port Phillip” Aboriginal female partner in January 1837 was one of the abductees in the Meredith abduction
[384]
5.7.3 Whether Richard Maynard’s “Port Phillip” Aboriginal female partner in January 1837 was the woman later known as Elizabeth Maynard also known as “Granny Betty”)
[395]
5.7.4 Whether Elizabeth Maynard was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in the Boonwurrung claim area under traditional laws and customs
[431]
6 MARJORIE MUNRO - SEPARATE QUESTION 1(a)(v)
[502]
7 LOUISA BRIGGS - SEPARATE QUESTION 1(a)(i)
[504]
8 ANN MUNRO - SEPARATE QUESTION 1(a)(ii)
[515]
8.1 The parties’ positions
[517]
8.2 The pleadings
[523]
8.3 The historical records and secondary sources
[526]
8.4 The lay evidence
[559]
8.5 The expert evidence
[564]
8.5.1 Dr Clark
[564]
8.5.2 Mr Wood
[611]
8.5.3 Dr Pilbrow
[615]
8.5.4 Dr D’Arcy
[627]
8.6 Consideration regarding Ann Munro
[630]
8.6.1 Whether the evidence is sufficient to show that Ann Munro was Marjorie Munro’s daughter
[630]
8.6.2 The Wurundjeri respondents’ contention that Ann Munro was a Boonwurrung woman with rights and interests in Boonwurrung country
[661]
8.6.3 The Wurundjeri respondents’ contention that Ann Munro should be found not to have been a Woiwurrung woman
[666]
8.6.4 Whether Ann Munro’s cognatic descendants are Boonwurrung People
[671]
9 ELIZA NOWAN - SEPARATE QUESTION 1(a)(iv)
[673]
9.1 The parties’ positions
[675]
9.2 The historical records and secondary sources
[678]
9.3 The lay evidence
[693]
9.3.1 Ms Tasma Walton
[694]
9.3.2 Ms Gail Dawson
[710]
9.4 The expert evidence
[720]
9.4.1 Dr Clark
[720]
9.4.2 Mr Wood
[748]
9.4.3 Dr Pilbrow
[754]
9.4.4 Dr D’Arcy
[772]
9.5 The applicant’s submissions
[773]
9.6 Consideration regarding Eliza Nowan/Gamble
[784]
10 JANE FOSTER - SEPARATE QUESTION 1(a)(vi)
[823]
10.1 The parties’ positions
[825]
10.2 The historical records and secondary sources
[828]
10.3 The lay evidence
[837]
10.4 The expert evidence
[841]
10.4.1 Dr D’Arcy
[842]
10.4.2 Dr Clark
[857]
10.4.3 Mr Wood
[868]
10.4.4 Dr Pilbrow
[873]
10.5 The Bunurong respondents’ submissions
[882]
10.6 Consideration regarding Jane Foster
[887]
11 ROBERT ODGEN AND JARROD WEST - SEPARATE QUESTION 1(b)
[915]
12 TASMA WALTON AND GAIL DAWSON - SEPARATE QUESTION 1(c)
[917]
13 SONIA MURRAY - SEPARATE QUESTION 1(d)
[919]
14 MUTUAL RECOGNITION - SEPARATE QUESTION 1(e)
[921]
14.1 Whether Justice Brennan’s dicta regarding “mutual recognition” is an element of native title law either at common law or under the NTA
[922]
14.1.1 The applicant’s submissions
[924]
14.1.2 Consideration regarding mutual recognition as a question of law
[931]
14.2 Whether Justice Brennan’s dicta regarding “mutual recognition” applied at sovereignty as an issue of fact
[956]
14.2.1 The Boonwurrung lay evidence
[957]
14.2.2 The Bunurong lay evidence
[1027]
14.2.3 The expert evidence
[1049]
14.2.4 The applicant’s submissions
[1110]
14.2.5 Consideration regarding mutual recognition as an issue of fact
[1131]
15 CONCLUSION
[1199]
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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