FEDERAL COURT OF AUSTRALIA

Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

MURPHY J:

1.    INTRODUCTION

1    The substantive proceeding is a native title determination application brought by Dr Carolyn Briggs AM and Ms Sylvia Fay Muir (the applicant) on behalf of the Boonwurrung People (Boonwurrung Application). These reasons concern separate questions set by the Court (Separate Questions), directed at deciding a dispute primarily between the applicant and the 12th to 16th respondents, the Bunurong Land Council Aboriginal Corporation (BLC), Ms Gail Dawson, Mr Robert Ogden, Ms Tasma Walton and Mr Jarrod West (the Bunurong respondents).

2    The Separate Questions centrally concern whether six named First Nations women who lived in the 1800s were members of the Boonwurrung People (also called the Bunurong People) who, at effective sovereignty in the mid-1830s to 1840s, held rights and interests under traditional laws and customs in the lands and waters covered by the claim area in the Boonwurrung Application (Boonwurrung claim area). The dispute is not just of historical interest. Behind it lies the fact that there are hundreds of contemporary descendants of the named women who, if the women are found to have been members of the Boonwurrung People, may be entitled to membership of the native title claim group in the Boonwurrung Application and able to share in the benefits of native title if the Boonwurrung Application is successful.

3    The evidence in the case reveals a shameful period in Australia’s history. It shows that from at least the early 1800s to the 1840s, a great number of Aboriginal girls and women were abducted by white sealers and others from coastal Victoria and Tasmania, then called Van Diemen’s Land (VDL), and from other parts. Some of the Aboriginal girls or women whom this case is about were abducted by sealers and taken to remote islands in Bass Strait between Victoria and VDL from where sealing was undertaken, and others were taken more than 3,000 kilometres away to islands off the coast of Albany, Western Australia. The sealers treated the women as slaves; they sold and traded them, they used them as free labour and for sex, and they had many children with them. Some of the women became the de-facto partners of the men.

4    The historical records are replete with evidence of this terrible period. George Augustus Robinson, then the Commandant of the Wybalena Aboriginal settlement on Flinders Island in Bass Strait (and soon to be Chief Protector of Aboriginals at the Port Phillip settlement) wrote the following in a 12 January 1837 report to the Colonial Secretary of VDL:

It is and [sic] indubitable fact that at Port Phillip, Portland Bay, Western Port, and other recently formed settlements; and indeed at every accessible spot where boats have visited along the south coast of New Holland, they, the Aboriginal Inhabitants have experienced a series of persecution, and have been harshly treated, not only be the sealing men who have forcibly taken their wives and children from them, and sent them to distant isles doomed to captivity, but also similar in addition to the sealers, similar aggressions have been perpetrated by whalers, barkers, stockmen, shepherds, and others….

5    NJB Plomley, who transcribed Robinson’s journals and reports, wrote the following:

The slaves of these men were aboriginal women of Van Diemen's Land and New Holland. The practice of using native women to help work the boats, to catch seal, kangaroo and mutton birds, and to tend the wants of their masters must have begun very early in the history of the straits, but one of the earliest references to it is the statement by James Kelly in 1816 that ‘the custom of the sealers in the Straits was that every man should have two to five of these native women for their own use and benefit, and to select any of them they thought proper to cohabit with as their wives, and a large number of children had been born as a consequence of these unions - a fine, active, hardy race. The males were good boatmen, kangaroo hunters, and sealers; the women extraordinarily clever assistants to them’. In fact, these women not only provided for the sexual life of their masters but were indispensable for the physical life they led: as James Munro remarked to Robinson, no white woman would have put up with the conditions of existence or would have worked as they did.

The sealers obtained their native women, largely if not entirely, by raiding. As Robinson states, a party of sealers would surprise a tribe of natives at an encampment and carry off the women.

(Emphasis added.)

: Plomley, NJB, Friendly Mission; the Tasmanian journals and papers of George Augustus Robinson, 1829-1834 (Tasmanian Historical Research Association, Hobart, 1966) p 1008.

6    The tragedy of the case is plain when for tens of thousands of years the Boonwurrung People occupied a huge swathe of fertile lands and abundant waters of southern coastal Victoria, stretching from around what is now Werribee to around Wilsons Promontory. The size of their traditional country and the abundance of available food and other resources means that it is likely they were a numerous people. Yet the evidence shows that now the only remaining members of the Boonwurrung People are the descendants of a handful of women who were abducted by sealers and taken in captivity to far away islands.

7    When the Separate Questions were set they primarily concerned whether the evidence is sufficient to establish that it is more likely than not that six named women were members of the Boonwurrung People at effective sovereignty. As the case proceeded two of the women were agreed by the parties to have been Boonwurrung, and the dispute then primarily concerned the remaining four women.

8    Somewhat surprisingly, the evidence is voluminous. It is plain that a great many girls and women were kidnapped and taken away from their country by sealers and others in the relevant period. But it is one thing to infer from archival records and ethnographic studies that many Aboriginal girls and women were abducted and taken away to island where they bore children to their abductor or to other men to whom they were traded, and another to establish that it is more likely than not that a particular woman was so taken, and that the abducted woman was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in Boonwurrung country under customary laws and practices.

9    Further, the central factual matters in dispute between the parties took place up to 190 years ago. There are limitations in the evidence including because of the effluxion of time, and that the historical records that exist are colonial records that are not focussed on issues of Aboriginal group identity. Other limitations can be traced to the devastating impact of European colonisation which resulted in the displacement and dispossession of the Boonwurrung People, a dramatic demographic decline through massacres and killings, the introduction of new diseases and practices, and profound damage to Boonwurrung culture and their capacity to transmit knowledge and culture by oral tradition.

10    The party which seeks an affirmative answer to each Separate Question has the onus to establish that on the evidence. The relevant standard is the balance of probabilities. As Mortimer J (as her Honour then was) explained in Drill v Western Australia [2020] FCA 1510 at [13], in a case like the present which involves a level of historical reconstruction, the Court’s task is not to decide what the ‘truth’ is in any absolute sense. The Court is not in that sense “the arbiter of history”. Instead, the Court must reach a decision as to whether the party which must prove the necessary facts has shown that the facts it contends for are more likely than not to have existed. That exercise is to be carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence, including to decide whether the available evidence is sufficient to enable a decision to be reached on the balance of probabilities. In short, the Court must assess what reasonably and rationally can be made of the evidence before it.

11    For the reasons I explain below, I consider the evidence is sufficient to reach the following findings on the Separate Questions:

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 agreed).

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 v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (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 People 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.

2.    THE PROCEEDING AND PROCEDURAL BACKGROUND

2.1    The proceeding

12    The applicant commenced this native title determination application (the Boonwurrung Application) on 1 June 2020. The application defines the native title claim group as the biological descendants of Louisa Briggs (circa 1832-1925) and Ann Munro (circa 1824-1884).

13    The Boonwurrung claim area takes in the coastal land and waters around Melbourne, from the mouth of the Werribee River in the west, extending east along the coast of Port Phillip Bay taking in part of the Melbourne CBD and Greater Melbourne and including the waters of the bay, extending north to Melton, and following the coast east up to and including Wilsons Promontory and the adjacent waters, thus taking in the whole of the Mornington Peninsula, the coastal areas of Western Port and Phillip Island (and extending inland from the coast to the Dandenong ranges). The extent of Boonwurrung country is contested by neighbouring First Nations peoples, the Gunaikurnai, the Wurundjeri Woiwurrung and the Wadawurrung, and the Separate Questions are not directed to deciding the extent or boundaries of their respective countries. Reproduced below is a is a map showing the Boonwurrung claim area, and where it is overlapped by the competing claims of other First Nations peoples.

14    The active respondents in the Separate Questions hearing were:

(a)    the first respondent, the State of Victoria (State);

(b)    the second respondent, Commonwealth of Australia (Commonwealth);

(c)    the 12th to 16th respondents, the Bunurong respondents, who effectively represent the claimed contemporary descendants of Elizabeth Maynard, Eliza Nowan, Marjorie Munro and Jane Foster who are alleged to have been members of the Boonwurrung People who, at effective sovereignty, held rights and interests in the Boonwurrung claim area under traditional laws and customs;

(d)    the 17th to 19th respondents, Mr Ronald Jones, Mr Perry Wandin and the Wurundjeri Woiwurrung Cultural Heritage Aboriginal Corporation (the Wurundjeri respondents), who allege that they are members of the Wurundjeri Woiwurrung People who hold rights and interests in relation to the northern part of the Boonwurrung claim area under traditional laws and customs; and

(e)    the 20th and 21st respondents, Mr Troy McDonald and Mr Russell Mullett (the Gunaikurnai respondents), who allege that they are members of the Gunaikurnai People who hold rights and interests in relation to the land and coastal waters of Wilsons Promontory, and the 24th respondent, Ms Pauline Mullett, who alleges that she is a member of the Gunaikurnai People but asserts a larger area for Gunaikurnai country. On the basis that the Court would not make findings in relation to the boundaries or extent of Boonwurrung or Gunaikurnai country, the Gunaikurnai respondents took a limited role in the Separate Questions hearing. Ms Mullet took no role.

15    It is necessary to understand that the Boonwurrung and the Bunurong are not different First Nations peoples. They are the same people and the names “Boonwurrung” and “Bunurong” just reflect different preferred spellings and pronunciations. For clarity I generally use the “Boonwurrung” variation, except where the context indicates otherwise. That choice is not material to the decision.

16    Although the Boonwurrung and the Bunurong are the same people, the native title claim group in the Boonwurrung Application and the group ‘represented’ by the Bunurong respondents are different. The claim group in the Boonwurrung Application is limited to the descendants of Louisa Briggs and Ann Munro and does not include the descendants of Elizabeth Maynard, Eliza Nowan/Gamble or Jane Foster. The group ‘represented’ by the Bunurong respondents includes the descendants of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster, but not of Louisa Briggs and Ann Munro.

2.2    The Preservation Evidence hearing

17    Preservation evidence was heard ‘on country’ from 5 to 9 December 2022 (Preservation Evidence hearing). The evidence in that hearing related to issues going beyond the dispute between the applicant and Bunurong respondents and thus only some of it is relevant to the separate questions.

2.3    The Separate Questions

18    Following the Preservation Evidence hearing, efforts were made to resolve the overlapping claims by agreement. The Court was told that mediation regarding the correct boundaries of the overlapping claims was unlikely to be effective until the dispute between the applicant and the Bunurong respondents was resolved. All attempts directed at resolving the dispute between the applicant and the Bunurong respondents by negotiation or mediation failed.

19    The Court decided to set separate questions aimed at deciding the dispute between the applicant and the Bunurong respondents. By orders made on 7 March 2023, the Court set the following separate questions for decision (as amended on 19 June 2023, and amended again in relation to Separate Question 1(e) during the course of the hearing) (Separate Questions):

Boonwurrung / Bunurong Separate Questions

1.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the following questions (Separate Questions) are to be decided separately from any other question in native title determination application VID 363 of 2020 (Application):

(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 Application under traditional laws and customs?

(i)    Louisa Briggs;

(ii)    Ann Munrow;

(iii)    Elizabeth Maynard;

(iv)    Eliza Nowan, also known as Eliza Nowen;

(v)    Marjorie Munro, also known as Marjorie Munroe and Marjorie Munrow; and

(vi)    Jane Foster.

(b)    If the answer to 1(a)(iii) is yes, are Robert Ogden and Jarrod West the descendants of Elizabeth Maynard?

(c)    If the answer to 1(a)(iv) is yes, are Tasma Walton and/or Gail Dawson the descendant of Eliza Nowan?

(d)    If the answer to 1(a)(vi) is yes, is Sonia Murray the descendant of Jane Foster?

(e)    At sovereignty did membership of the Boonwurrung (also described as Bunurong) people require “mutual recognition” as described by Justice Brennan in Mabo v Queensland (No. 2) (1992) 175 CLR 1 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). It includes the question as to whether, as an issue of fact, membership of the Boonwurrung (also described as Bunurong) people requires “mutual recognition” as described by Justice Brennan.

20    The Separate Questions ask whether the named women were members of the Boonwurrung People at sovereignty, which was asserted in 1788. But it is common ground that the questions require to be answered at effective sovereignty. It is an agreed fact that effective sovereignty was asserted over the Boonwurrung claim area during the period from the mid-1830s to the 1840s.

21    By orders made on 7 March 2023 (March 2023 Orders) any respondent party who intended to actively participate in the hearing of the Separate Questions was required to file a notice indicating that they wished to do so, other than the State and the Bunurong respondents who had already indicated their participation. Following that process the participating parties were the applicant, the Bunurong respondents, the State, the Commonwealth, the Wurundjeri respondents, the Gunaikurnai respondents and Ms Mullet.

22    Pursuant to the March 2023 Orders, unless a participating party gave notice to other participating parties by 6 April 2023 that it intended to rely upon the evidence given by witnesses in the Preservation Evidence hearing, and that party identified the particular evidence upon which it intended to rely, the party was not permitted to adduce that evidence in relation to the Separate Questions.

23    Under the March 2023 Orders the applicant and the Bunurong respondents were directed to file and serve outlines of any further lay evidence they wished to adduce for the Separate Questions hearing (lay witness outlines) by no later than 2 June 2023. Only the Bunurong respondents served lay witness outlines. Any participating party that intended to respond to that evidence was directed to file responsive lay witness outlines by 9 June 2023. No other party put on responsive lay witness outlines. Thus the applicant relied on the lay witness evidence it adduced in the Preservation Evidence hearing.

2.4    The Agreed Facts

24    The participating parties filed a Statement of Agreed Facts and Issues dated 4 July 2023 (SOAFI), centrally based on parts of the Report of Conference of Experts in this proceeding convened on 20 and 21 June 2023 in which the participating expert witnesses, Dr Timothy Pilbrow, Dr Jacqueline D’Arcy, Dr Ian Clark and Mr Ray Wood provided their opinions (BW Joint Experts’ Report).

25    The SOAFI relevantly provides:

Agreed Facts

Boonwurrung/Bunurong people at Sovereignty and Effective Sovereignty:

1.    ‘Boonwurrung’ and ‘Bunurong’, and names spelled a variety of other ways are contemporary names used for the group that inhabited at least part of the area of the land and waters covered by the Boonwurrung Application (claim area) under traditional laws and customs.

2.    Those parts of the claim area that were inhabited by Boonwurrung at sovereignty and effective sovereignty included coastal land and waters from Mordialloc Creek to the western shore of Anderson Inlet.

3.    ‘Boonwurrung’ refers to the group that existed as part of the larger Eastern Kulin Nation at the time of effective sovereignty of the British Crown in the Boonwurrung claim area.

4.    British sovereignty was asserted over the claim area in 1788.

5.    Effective sovereignty was asserted over the claim area during the period from the mid-1830s to the 1840s.

6.    At effective sovereignty, the systems of laws and customs of the Boonwurrung and other peoples that make up the Eastern Kulin Nation governing the distribution of rights and interests in land and waters were the same in all their essential features as they were at sovereignty.

7.    At effective sovereignty Eastern Kulin (which included the Boonwurrung) recognised patrilineal descent as the principle by which primary rights in land and waters were acquired.

8.    In addition, Eastern Kulin recognised secondary matrifilial rights held by people in their mother's country that were the complement of patrilineal primary rights.

9.    At effective sovereignty, Eastern Kulin customary title was communal, inalienable, and perpetually transmitted by descent. It was inclusive of all classes of use and access rights, to the exclusion of all other people. In so far as there were distinctions between different classes of rights and interests, these were genealogically determined within the group, pivoting in particular on the distinction between the rights of matrifilial and patrifilial kin.

10.    At effective sovereignty, due to prevailing exogamous marriage practices of the Eastern Kulin Nation, if an Aboriginal girl or woman present on Boonwurrung country was married to a Boonwurrung man, such a girl or woman may not have been Boonwurrung by descent.

11.    At effective sovereignty, if a child's father was not Aboriginal, they would take their Aboriginal cultural identity from or through their mother and her kin relationships.

12.    At effective sovereignty, Boonwurrung law and custom was regulated by male elders within the local group and by male elders collectively in larger gatherings. Such headmen were referred to as ‘ngurangaeta’ or ‘ngarweet’ or ‘arweet’.

13.    There is no evidence in the historical record that, at effective sovereignty, a particular headman or elder had authority, or the sole role to decide whether an Aboriginal person was a member of the Boonwurrung or not.

14.    At effective sovereignty, Boonwurrung law and custom extended to relationships with other Aboriginal people and included conceptions of Aboriginal people as kin (such as kin relations with neighbouring groups) or as strangers/foreigners (such as persons they encountered from lengthy geographic and social distance).

Marjorie Munro

15.     At effective sovereignty, the woman known as Marjorie Munro (also known as Marjorie Munroe and Marjorie Munrow) was a member of the group comprising Boonwurrung people who, at effective sovereignty, held rights and interests in any part of the claim area, under traditional laws and customs.

Eliza Gamble

18.     Tasma Walton and Gail Dawson are descendants of Eliza Gamble.

26    As is apparent, it was agreed in the SOAFI that Marjorie Munro was a member of the Boonwurrung People at effective sovereignty.

2.5    Separate Questions hearing

27    The hearing of the Separate Questions took place from 10 July 2023 to 14 July 2023.

28    On the fourth day of the hearing, the parties agreed that Louisa Briggs was a member of the Boonwurrung People at effective sovereignty.

2.6    The application to adduce further expert evidence

29    Following the close of the Separate Questions hearing, and after written closing submissions had been filed, the applicant brought an interlocutory application dated 22 February 2024 seeking leave to adduce an additional expert witness report in relation to the Separate Questions. I refused that application: see Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288. The applicant sought leave to appeal that decision but subsequently discontinued that application.

3.    THE EVIDENCE

3.1    The lay evidence

30    In the Preservation Evidence hearing the Boonwurrung applicant relied on the following lay witness affidavits:

(a)    the Amended Affidavit of Dr Carolyn Maria Briggs dated 10 November 2022, and further affidavits dated 1 December 2022 and 2 December 2022. After the Preservation Evidence hearing the applicant filed a further affidavit dated 28 July 2023. (Respectively, the first, second, third and fourth Briggs affidavits);

(b)    the Amended Affidavit of Ms Sylvia Fay Muir dated 10 November 2022;

(c)    the Amended Affidavit of Ms Elsie May Anderson dated 15 November 2022; and

(d)    the Amended Affidavit of Ms Beryl Dorothy Nellie Philp (née Carmichael) dated 2 December 2022.

Each gave evidence and was cross-examined in that hearing. Pursuant to the March 2023 Orders their evidence is evidence in relation to the Separate Questions.

31    For the Preservation Evidence hearing the Wurundjeri respondents relied on a lay witness affidavit by Ms Joyce Enid Murphy AO dated 4 November 2022. She gave evidence and was cross-examined in that hearing. Pursuant to the March 2023 Orders her evidence is evidence in relation to the Separate Questions.

32    The Bunurong respondents relied on the following lay witness outlines for the Separate Questions hearing:

(a)    Ms Dyan Summers dated 2 June 2023;

(b)    Mr Jarrod West dated 2 June 2023;

(c)    Mr Robert Ogden dated 2 June 2023;

(d)    Ms Tasma Walton dated 4 June 2023; and

(e)    Ms Gail Dawson dated 7 June 2023.

Each gave evidence in the Separate Questions hearing and was cross-examined. The Bunurong respondents also relied upon [13] to [15] of Ms Murphy’s affidavit filed by the Wurundjeri respondents, and parts of her evidence in the Preservation Evidence hearing.

33    Under the March 2023 Orders the parties were directed to identify the evidence from the Preservation Evidence hearing which they wished to rely on in the Separate Questions hearing. The parties identified various parts of the evidence from the Preservation Evidence hearing.

3.2    The expert evidence

34    The applicant relied on:

(a)    two reports prepared for the proceeding by Dr Clark, a historical geographer, titled Expert Report on Boonwurrung / Bunurong Separate Questions dated 29 May 2023 (Clark 2023) and Genealogical Report on Ms Sonia Murray dated 14 June 2023 (Supplementary Clark 2023);

(b)    two earlier reports by Dr Clark, titled An Assessment of Boonwurrung Interests from Genealogical and Territorial Perspectives dated 11 September 2002 (Clark 2002), and An Assessment of Boonwurrung Interests from Genealogical and Territorial Perspectives: Supplementary Report (2003) (Clark 2003), upon which Dr Clark drew in Clark 2023; and

(c)    a report prepared for the proceeding by Mr Wood, an anthropologist and linguist, titled Anthropology Report on Pre-Sovereignty Laws and Customs relating to the Boonwurrung Native Title Application VID 363/2020 dated 1 June 2023 (Wood 2023).

35    The Bunurong respondents relied on:

(a)    two reports prepared for the proceeding by Dr Pilbrow, an anthropologist, titled Bunurong Ancestral Connections and Group Membership dated 2 June 2023 (Pilbrow 2023) and Responsive Report dated 8 June 2023 (Pilbrow Response);

(b)    two reports prepared for the proceeding by Dr D’Arcy, a historian, titled Report on Separate Questions regarding Jane Foster and Louisa Briggs dated 1 June 2023 (D’Arcy 2023) and Dr Jacqueline D’Arcy Response to ‘Expert Report on Boonwurrung / Bunurong Separate Questions’ Dr Ian D Clark, filed 1 June 2023 dated 8 June 2023 (D’Arcy Response); and

(c)    three earlier reports by Dr D’Arcy, titled Bunurong Land Council Historical and Genealogical Report dated 14 October 2005 (D’Arcy 2005), An Historical Study Prepared for the Bunurong People dated 8 September 2006 (D’Arcy 2006) which is an attachment to D’Arcy 2023, and Genealogies of Senior Bunurong Elders Descended from Apical Ancestors Marjorie Munroe, Jane Foster and Elizabeth Maynard dated 26 June 2007 (D’Arcy 2007), upon which Dr Darcy drew in D’Arcy 2023.

36    No other participating party filed expert evidence for the Separate Questions hearing.

37    A conference of the Boonwurrung and Bunurong expert witnesses was convened on 20 and 21 June 2023 (BW Joint Experts’ Conference). Each of Dr Clark, Mr Wood, Dr Pilbrow and Dr D’Arcy participated in that conference, which produced the BW Joint Experts’ Report.

38    Dr Clark, Mr Wood, Dr Pilbrow and Dr D’Arcy gave evidence in the Separate Questions hearing, doing so in concurrent session on 13 and 14 July 2023. Each was cross-examined.

3.3    The documentary evidence

39    The documentary evidence is voluminous. Pursuant to the March 2023 Orders each participating party was directed to file and serve a copy of any document which it proposed should be received as evidence in relation to the Separate Questions, including in accordance with s 86 of the NTA. Following a procedure for the notification and resolution of any objections to evidence between the parties, Order 18 provided that the documents or parts of the documents that are not identified as objected to may be received as evidence (emphasis added). The notified objections were to be considered by the Court at the commencement of the Separate Questions hearing.

40    Order 38 directed the Boonwurrung applicant to file and serve a draft index for the hearing book for the Separate Questions hearing (Hearing Book), including, amongst other things, the documentary evidence which was likely to be regularly referred to. Unfortunately, the parties took the approach that if a document might be referred to it should be included in the Hearing Book. That resulted in a Hearing Book comprising 23 volumes, taking up approximately 12 lever arch binders, which was completely unsatisfactory.

41    Order 42, however, provided that a document included in the Hearing Book:

(a)    shall not form part of the evidence at the trial unless specifically tendered and admitted into evidence; and

(b)    shall be treated as tendered and admitted if relied on at the trial (including in written or oral submissions) and no objection is taken.

In circumstances where the parties had taken an overly expansive view of the documents likely to be relied on, Order 42 at least provided for some restriction on the documents required to be considered by the Court.

42    After the Separate Questions hearing, upon the Court’s urging, the parties agreed on a reduced set of documents which comprised five lever binder folders, the Consolidated Hearing Book. Although the Consolidated Hearing Book does not include all of the documents which were admitted into evidence in the Preservation Evidence hearing, or through the process under Order 42, it is appropriate to infer that it comprises the documents the parties consider to be the most salient.

43    Without seeking to exhaustively list all the documents tendered into evidence and included in the Consolidated Hearing Book, they comprise several broad categories.

44    First, reports and writings by anthropologists, ethnographers and historians, including:

(a)    a publication by Dr Marie Fels, an anthropologist, titled I Succeeded Once: The Aboriginal Protectorate on the Mornington Peninsula, 1839-1840 (ANU E Press, Canberra, 2011);

(b)    Dr Pilbrow’s field notes documenting an interview with Nanette Shaw on 3 March 2023;

(c)    three joint experts’ reports from Court-convened joint experts’ conferences in another native title proceeding, Gunaikurnai People v State of Victoria VID737/2014 (the Gunaikurnai proceeding). Some of those joint experts’ conferences and reports involved some of the same expert witnesses as this proceeding and touch upon some of the same issues:

(i)    a joint experts’ report dated 7 September 2018 from a conference of experts convened on 3 and 4 September 2018, setting out the opinions of anthropologists Dr Mahnaz Alimardanian, Ms Kathleen Lothian, Dr Suzi Hutchings, Dr Valerie Cooms, Mr Wood and Mr James Annand (First GK Joint Experts’ Report);

(ii)    a joint experts’ report dated 31 May 2019 from a conference of experts convened on 24 and 25 May 2019, setting out the opinions of anthropologists Dr Pilbrow, Ms Lothian, Dr Hutchings, Dr Cooms, Mr Wood, Dr Deane Fergie and Mr Annand (Second GK Joint Experts’ Report); and

(iii)    a joint experts’ report dated 31 May 2019 from a conference of experts convened on 27 and 28 May 2019, setting out the opinions of anthropologists Dr Pilbrow, Mr Wood, Mr Annand, Ms Lothian, Dr Hutchings, Dr Cooms and Dr Fergie (Third GK Joint Experts’ Report);

(d)    a report by Mr James Annand, an anthropologist, prepared for the Gunaikurnai proceeding, titled GunaiKurnai Native Title Claim (VID737/2014) Research Report: Ancestry, Genealogy, and Connection to Wilsons Promontory dated April 2019 (Annand 2019);

(e)    extracts from the reports prepared by anthropologists and ethnographers Mr Norman Tindale and Mr Joseph Birdsell from the Harvard-Adelaide Universities Anthropological Expedition 1938-39 to Cape Barren Island Station, 19-29 January 1939 (Tindale 1939);

(f)    extracts from a publication by Tindale titled Growth of a People: Formation and Development of a Hybrid Aboriginal and White Stock on the Islands of Bass Strait, Tasmania, 1815-1949 (Records of the Queen Victoria Museum, Launceston, 1953) (Tindale 1953);

(g)    excerpts from genealogical research conducted by anthropologists Mr Bill Mollison and Ms Carol Everitt regarding the Bass Strait islands, The Tasmanian Aborigines and their Descendants (Chronology, Genealogies and Social Data) (Hobart, 1978) (Mollison and Everitt); and

(h)    a 1985 essay by the anthropologist Dr Dianne Barwick about Louisa Briggs, titled “This Most Resolute Lady: A Biographical Puzzle” in Reay M and Beckett J, Metaphors of Interpretation: Essays in Honour of W.E.H Stanner (Australian National University Press, Canberra, 1985) (Barwick 1985).

45    Second, three compilations of records of births, deaths and marriages and genealogies relating to the ancestry of Ms Walton, Ms Dawson, Mr West, Ms Summers, Mr Ogden and Ms Murray, being:

(a)    Compilation of Relevant Birth, Death and Marriage Certificates in relation to the Descent Line of Eliza Nowan (Gamble Compilation);

(b)    Compilation of Relevant Birth, Death and Marriage Certificates in relation to the Descent Line of Elizabeth Maynard (Maynard Compilation); and

(c)    Compilation of Relevant Birth, Death and Marriage Certificates in Relation to the Descent Line of Jane Foster (Foster Compilation).

46    Third, historical journals and reports and early relevant writings, including:

(a)    extracts from the journals and reports of George Augustus Robinson, the Commandant of the Wybalena Aboriginal settlement on Flinders Island in Bass Strait in the relevant period, and his report to the Colonial Secretary of Van Diemen’s Land titled Report on Port Phillip Women dated 12 January 1837 (Robinson’s Report);

(b)    extracts from the journal of Mr William Thomas, Assistant Protector of the Aborigines of Port Phillip & Guardian of the Aborigines of Victoria 1839 to 1867, some from Stephens, M, (ed) The Journal of William Thomas, Assistant Protector of the Aborigines of Port Phillip & Guardian of the Aborigines of Victoria 1839 to 1867 (Vol 1, Victorian Aboriginal Corporation for Languages, 2014), and others from secondary sources;

(c)    extracts from Rosenman, H, (ed) An Account in Two Volumes of Two Voyages to the South Seas by Captain (later Rear Admiral) Jules S-C Dumont D 'Urville of the French Navy to Australia, New Zealand, Oceania 1826-1829 in the Corvette Astrolabe and to the Straits of Magellan, Chile, Oceania, South East Asia, Australia, Antarctica, New Zealand and Torres Strait 1837-1840 in the Corvettes Astrolabe and Zelee (Melbourne University Press, 1987);

(d)    correspondence from Mr John Helder Wedge of Port Phillip to John Montagu, Colonial Secretary, in 1836, which is recorded in Fels, M, I Succeeded Once;

(e)    an article from the Perth Gazette and Western Australian Journal dated 8 October 1842, titled “Remarks respecting the Islands on the Coast of S.W. Australia”;

(f)    extracts from Mr John Lort Stokes, Discoveries in Australia (Vol 2, T. & W. Boone, London, 1846);

(g)    extracts from a book by Mr Robert Brough Smythe, first secretary of the Board for the Protection of Aborigines, titled The Aborigines of Victoria (Vol 1, John Ferres, Government Printer, Melbourne, 1878) at pp 94-95;

(h)    extracts from a book by Mr James Backhouse from his tour of the Australian colonies between 1832 and 1838, titled A Narrative of a Visit to the Australian Colonies, 1853 (Facsimile Edition, 1967);

(i)    extracts from the Minutes of Evidence taken before the 1881 Colonial Board of Inquiry into the Condition of the Aboriginal Station at Coranderrk (Coranderrk Inquiry);

(j)    extracts from a book by Commander Crawford Pasco, titled, A Roving Commission - Naval Reminiscences (London, 1897);

(k)    extracts from the book by NJB Plomley, titled Weep In Silence: A History of the Flinders Island Aboriginal Settlement (Blubber Head Press, Hobart, 1987) which includes extracts from Robinson’s journal, Robinson’s Report, and from James Backhouse’s journal from his tour of the Australian colonies between 1832 and 1838; and

(l)    excerpt from Mr Pat MacWhirter, Harewood, Western Port (Hilaka Press, Notting Hill, Victoria, 2016).

47    The parties filed comprehensive written closing submissions with detailed references to the evidence. Early in the process of preparing these reasons I reached the view that if a document admitted into evidence was not important enough for a party to rely on it in closing submissions, then the Court should not be required to consider it. I raised that view with the parties and all parties other than the applicant agreed to that course. The applicant contended that the proposed approach would be “inappropriate and misplaced”, including because the closing submissions were subject to a page limit which it said “precluded explicitly identifying all evidence which pertains to the separate questions”. I do not accept that when the applicant’s written closing submissions comprised 58 pages, but in light of the applicant’s position I did not proceed with that approach. It was therefore necessary for me to consider documents which I ultimately concluded had little significance. The fact that I have not referred to a document should not be taken to indicate that I have not considered it.

48    I apologise for my use of the regrettable terms “full blood” and “half-caste” Aboriginal in the reasons which follow. Their use cannot be avoided as the evidence is replete with those terms.

4.    EVIDENTIARY ISSUES

4.1    Onus and standard of proof

49    The Separate Questions are centrally questions of fact. The party who asserts those facts has the onus to establish them on the evidence.

50    The standard of proof required of a party under the NTA is the civil standard under s 140(1) of the Evidence Act 1995 (Cth) (Evidence Act), being the balance of probabilities. Section 140(2) provides that when determining the degree of persuasion required for it to be satisfied that a party has proved its case on the balance of probabilities, the Court is to take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.

51    Section 140(2) does not only relate to issues of proof regarding the entire case of a party; it also applies to individual elements of the case: Leslie v Graham [2002] FCA 32 at [57] (Branson J). The section recognises that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and the circumstances in which it is sought to be proved: Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [139] (Branson J). It reflects Dixon J’s guidance in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362 where his Honour explained (although speaking of the common law position) that the gravity of the consequences flowing from a particular finding is a consideration which must affect the answer to the question as to whether the issue has been proved.

52    The parties disagree as to the significance of the mandatory considerations under s 140(2) in the circumstances of this case. That provision reflects a legislative intention that courts must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strengths and weaknesses of the evidence before reaching a conclusion on that evidence: 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 at [30] (Weinberg, Bennett and Rares JJ) (CEPSU v ACCC).

53    Authoritative judicial statements have often been made to the effect that “clear or cogent or strict proof” is necessary before so serious a matter as, for example, fraud is to be found. But as Gageler J (as his Honour then was) explained in Henderson v Queensland [2014] HCA 52; 255 CLR 1 at [91] (citing Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 171 per Mason CJ, Brennan, Deane and Gaudron JJ, those statements should not be understood as directed to the standard of proof; rather they reflect the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct, and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. Thus, the standard of proof remains the balance of probabilities.

54    The applicant submitted that a finding that any of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster were, at effective sovereignty, members of the Boonwurrung People will result in additional apical ancestors in the Boonwurrung Application and an expansion of the Boonwurrung native title claim group. It contended that the question of membership of a native title claim group goes to the heart of the existence of native title and the practical operation of the native title regime. On the applicant’s argument, given the seriousness of the consequences of the findings sought by the Bunurong respondents, s 140(2) of the Evidence Act requires that there be cogent or coherent proof before the Court can be satisfied on the balance of probabilities that those findings should be made.

55    I do not accept that the findings the Bunurong respondents seek have such gravity that the mandatory considerations under s 140(2) have work to do. While the operation of the s 140(2) is not limited to such cases, it is relevant that the case does not involve allegations of fraud, criminal conduct, civil penalties or the like. If any of the named women are found to have been members of the Boonwurrung People at effective sovereignty, that may confer a range of rights and privileges under the NTA upon their contemporary and future descendants, but it will not remove the rights and privileges available to existing members of the Boonwurrung native title claim group, as presently defined. In my opinion the nature of the case, the questions of group membership and descent that arise in the case, and the broad circumstances of the case brought as it is under the auspices of an application for a determination of native title under the NTA, do not impose a requirement for clear, cogent or strict proof pursuant to s 140(2) before a state of satisfaction on the relevant issues can be reached on the balance of probabilities.

56    For their part, the Bunurong respondents and the State submitted that findings that any of the four named women were not, at effective sovereignty, members of the Boonwurrung People is likely to have grave consequences for any contemporary descendants of those women, including the Bunurong respondents themselves. They said, and I accept, that there is no evidence that would tie any of the named women (with the possible exception of Ann Munro) to any particular Aboriginal group outside of the Boonwurrung People, and if they are not found on the evidence to have been Boonwurrung then their Aboriginal group identity is unknowable and is likely lost to history.

57    They contended that the serious consequences of an order which would effectively operate to exclude from membership of the Boonwurrung People current and future generations of Aboriginal people who trace their ancestry back to the named women, means that having regard to s 140(2) the Court should not lightly reach such findings. They submitted that the Court should carefully scrutinise the opinion and documentary evidence put forward by the applicant to rebut an inference that the named women were Boonwurrung.

58    They cited Shaw v Wolf [1998] FCA 389; 83 FCR 113 at 124C) (Merkel J) as support for this argument. In that case the applicant petitioners for an electoral challenge had the onus to prove that 11 candidates in regional council elections for the Aboriginal and Torres Strait Islander Commission were not Aboriginal. Under the relevant legislation a person that asserted that they were Aboriginal was taken to be Aboriginal unless proved otherwise. His Honour found (at 125) that:

…given the serious consequences for the defending respondents of an adverse finding, in the present case, good conscience and principle require that the Court should not lightly make a finding on the balance of probabilities, that any of those respondents is not an Aboriginal person as defined in the Act.

(Emphasis in original.)

59    It is plain from the evidence of the Boonwurrung and Bunurong lay witnesses that they hold a strong conviction that they are members of the Boonwurrung (or Bunurong) People, and that they each have a connection to their asserted country. In different ways they have each strived to be recognised and accepted as Boonwurrung. I am persuaded that their Boonwurrung/Bunurong identity is of real importance to them. I accept that a finding that their claimed ancestors were not members of the Boonwurrung People, and therefore that they are not Boonwurrung by descent, is likely to have a deleterious impact on their cultural identity and/or their relationships with their family and community who identify as Boonwurrung. Such a finding would also mean they may be excluded from enjoying the rights, privileges and legal recognition and identity that group membership carries under the NTA, and also under Victorian legislation such as the Aboriginal Heritage Act 2006 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).

60    Even so, I do not accept that the findings that the Bunurong respondents and the State seek mean that the mandatory considerations under s 140(2) have work to do. Again, while the operation of s 140(2) is not limited to such cases, it is relevant that the case does not involve allegations of fraud, criminal conduct, civil penalties or the like. The nature of the case, the questions of group membership and descent that arise in the case, and the broad circumstances of Separate Questions to be decided in a native title determination application, do not indicate a requirement for clear, cogent or strict proof before a state of satisfaction may be reached on the balance of probabilities in relation to the relevant issues.

61    Further, the Bunurong respondents have the onus to establish that Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster were, at effective sovereignty, members of the Boonwurrung People. The serious consequences to which the Bunurong respondents and the State point only arise if the Bunurong respondents fail to meet their onus. And the Bunurong respondents did not contend that s 140(2) requires that they must adduce clear, cogent or strict proof to establish the claimed Boonwurrung identity of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster. On their argument, the section only indicates such a requirement in relation to the applicant’s evidence aimed at rebutting the inferences the Bunurong respondents seek. I do not accept that the applicant faces a more stringent standard than that faced by the Bunurong respondents. The decision in Shaw can be distinguished from the present case because it involved a reverse onus of proof, which is not the position here.

4.2    Inferential reasoning

62    The Separate Questions are centrally focused upon facts identifiable at effective sovereignty in the mid-1830s to 1840s. They fall to be answered by reference to factual findings based in lay evidence, historical records and expert evidence, including inferences that can reasonably be drawn from facts found. The Court’s task involves a level of historical reconstruction from limited evidence, and from inferences that can reasonably be drawn from that evidence. As earlier noted, in Drill Mortimer J explained that in such cases the Court is not “the arbiter of history” and it does not decide what the truth is in any absolute sense. Rather, the Court must reach a view about what, on the evidence before it, are more likely than not to be the facts.

63    In approaching its task, and in drawing inferences from the evidence, the Court must first be satisfied that there is evidence of some fact, the existence of which is sufficient to justify the drawing of an inference. An inference is not drawn by conjecture or hypothesis if there is no evidence of basal facts. But an inference that is reasonably available on the evidence ought not be discounted because of conjecture about competing explanations of the evidence, unless there is evidence of facts supporting that contrary explanation. In a case like this the paucity of historical information, and conjecture about alternative possibilities that cannot be proved or disproved on the evidence, should not stand in the way of the Court drawing reasonable and rational inferences from the evidence that is available.

64    As Gageler J explained in Henderson at [89], [91]:

[89]    Generally speaking … a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:

‘One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.’

    …

[91]    The process of inferential reasoning involved in drawing inferences from facts proved by evidence adduced in a civil proceeding cannot be reduced to a formula. The process when undertaken judicially is nevertheless informed by principles of long standing which reflect systemic values and experience. One such principle, forming ‘a fundamental precept of the adversarial system of justice’, is that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’. Another such principle, ‘reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’, is that ‘a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct’.

(Citations omitted.)

65    In drawing an inference the Court must be persuaded that it is more probable than not that the particular fact or state of affairs exists, and it cannot choose or elect between competing possibilities, that is, rival facts that are equally plausible on the evidence. In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 at [94] Crennan J said:

Whilst ‘a more probable inference’ may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable.

66    All of the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved. The standard of proof is not met if the circumstances appearing in the evidence do not give rise to “a reasonable and definite inference”, but at most give rise to “conflicting inferences of equal degree of probability, so that the choice between them is a mere matter of conjecture”: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198 at [20] (Giles JA with whom Handley and Tobias JJ agreed), citing Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 (Dixon, Fullagar and Kitto JJ); CEPSU v ACCC at [38] (Weinberg, Bennett and Rares JJ).

4.3    The lay evidence

67    The evidence of the Boonwurrung and the Bunurong lay witnesses appeared to be given candidly and to reflect their genuinely held beliefs. In cross-examination no party attacked the credit of any of the lay witnesses or suggested that they were not telling the truth. On most issues the evidence of each Boonwurrung witness was broadly corroborative of other Boonwurrung witnesses, and the same was true of the Bunurong witnesses. Even so, their evidence cannot just be uncritically accepted. I will set out my view of each witness’s evidence when I deal with it.

68    I will, however, raise Ms Walton’s testimony at this point because, regrettably, she was the subject of adverse online commentary following her testimony, including some abuse and implicit threats. Ms Walton has a public profile as an Australian actor and she gave evidence during a period of heightened interest in indigenous issues in the lead up to the Voice referendum. Because of the online commentary and abuse, posted by keyboard warriors who did not have the courage to put their name to it, Ms Walton gave consideration to withdrawing as a party, but did not ultimately do so.

69    I am sorry that Ms Walton was forced to endure that commentary. I found her to be an honest witness who gave evidence which reflected her genuinely held beliefs. I gave directions for a Judicial Registrar to review the online commentary and report as to whether, in the Registrar’s view, it was appropriate to institute proceedings for contempt of Court. The Registrar did not recommend commencement of a contempt proceeding.

70    The proof of events in relation to allegedly abducted Aboriginal women born around 200 years ago, and of the asserted genealogical connection to people living today, may not be readily established by reference to official records. In the early 1800s the births and deaths of Aboriginal people were not officially recorded, but as that century progressed they were. There are some relevant official records but other evidence regarding Aboriginal descent is based in lay evidence of family histories passed down over the generations, by oral tradition. Both the Boonwurrung and the Bunurong parties relied on the testimony of Aboriginal witnesses based in oral histories they had received from parents, grandparents, uncles/aunties and “old people”. There was no objection to that evidence, and in any event hearsay nature of the lay witness evidence as to their family history attracts the exception in s 73(1)(d) of the Evidence Act relating to evidence of reputation concerning family history or a family relationship. Such evidence is prima facie admissible: see e.g. Yarmirr v Northern Territory (No 2) [1998] FCA 771; 82 FCR 533 at 544E-F (Olney J).

71    In some instances the lay witness evidence can be said to be inconsistent with historical records, but the authorities are clear that the Court should be cautious in relying on historical records to disprove a version of ancestry, history or customary law and practice based on oral history. In the present case some parts of the lay evidence were concerned with traditional laws and customs, some parts were concerned with stories allegedly passed down regarding family history, and some parts concerned relatively contemporary events. The authorities provide that Aboriginal evidence regarding their traditional laws and customs is of the utmost importance (see Sampi v State of Western Australia [2005] FCA 777 at [48] per French J at first instance) and I can see no reason in principle why the same does not apply to family histories passed down by oral tradition.

72    In Narrier v Western Australia [2016] FCA 1519 at [318], Mortimer J (as her Honour then was) cited the Full Court’s remarks in De Rose v South Australia [2003] FCAFC 286; 133 FCR 325 at [264]-[265] (Wilcox, Sackville and Merkel JJ) and explained as follows:

There is no difficulty in a Court preferring, as more reliable and persuasive, the evidence of Aboriginal witnesses over the evidence of anthropologists or anthropological sources. In De Rose at [264]-[265], the Full Court said:

‘As the primary Judge made clear at several points in the judgment, it was because of the testimony of the Aboriginal witnesses that he was prepared to find that the four-fold test for determining Nguraritja was acknowledged by the traditional laws and customs of the Western Desert Bloc. He plainly regarded that evidence as more cogent and persuasive than the writings of Professor Berndt on this particular issue.

His Honour took this view notwithstanding that he was by no means uncritical of the evidence of Aboriginal witnesses. As we have noted, he rejected the evidence of certain witnesses on important issues. His Honour’s acceptance of their evidence as to the ways of becoming Nguraritja plainly took account of his assessment of their reliability and understanding of the questions. His Honour must also have taken into account the fact that they were recounting elements of an oral tradition.’

73    Not only is there no reason to privilege documentary evidence or expert evidence over the evidence of Aboriginal witnesses derived from oral tradition, there are reasons to regard such lay evidence in native title proceedings as the most important evidence: see Commonwealth v Yarmirr [1999] FCA 1668; 101 FCR 171 at [348]-[351] (Merkel J); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 at [63] (Gleeson CJ, Gummow and Hayne JJ); De Rose Hill v South Australia [2002] FCA 1342 at [351] (O’Loughlin J); Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [386] (Lindgren J); Daniel v State of Western Australia [2003] FCA 666 at [149] (Nicholson J); Sampi at [48] (French J); Dempsey v State of Queensland (No 2) [2014] FCA 528; 317 ALR 432 at [298]-[300] (Mortimer J as her Honour then was); Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776; 255 FCR 228 at [69] (Mansfield J); Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308; 369 ALR 1 at [108]-[110] (Bromberg J).

74    In Dempsey at [298] Mortimer J cited the remarks in Yarmirr, Daniel and Shaw with approval, and observed that:

Care must always be taken when relying upon historical records in native title cases. In Anglo-Australian culture, greater value has traditionally been placed on written material than on oral accounts: Commonwealth v Yarmirr (2000) 101 FCR 171; 168 ALR 426; [1999] FCA 1668 at [348] (Yarmirr) per Merkel J. Certainly, oral accounts may fill the ‘silences’ in the historical records (see Daniel v Western Australia [2003] FCA 666 at [149] (Daniel) per RD Nicholson J), but they may do more than that. It may be oral accounts which provide the only continuous narrative. Oral accounts may explain or give context to any historical records and, in some cases, may qualify or rebut them.

75    Other jurisdictions required to grapple with evidence based in indigenous oral histories have taken similar approaches. In the Canadian decision of Mitchell v MNR [2001] 1 SCR 911 at [37]-[39], McLaughlin CJ (with whom Gonthier, Iacobucci, Arbour and LeBel JJ agreed) explained that the oral testimony of indigenous witnesses should not be devalued or deprived of its evidential force merely on the basis that the account is not verifiable by reference to a documentary record.

76    It is accepted that taking proper account of the oral testimony of Aboriginal lay witnesses provides a basis for drawing inferences about traditional laws and customs at or near effective sovereignty: see e.g., Gumana v Northern Territory [2005] FCA 50; 141 FCR 457 at [194]-[201] (Selway J); AB (deceased) on behalf of the Ngarla People v Western Australia (No 4) [2012] FCA 1268; 300 ALR 193 at [724] (Bennett J); Narrier at [314]-[318] (Mortimer J); Dempsey at [802] (Mortimer J).

4.4    The expert evidence

77    The fact that the evidence of Aboriginal lay witnesses regarding their traditional laws and customs is of the utmost importance does not mean that expert evidence is unimportant to the determination of issues in native title claims: see Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229 at [474] (Jagot J). Anthropological evidence may, for example, provide a framework for understanding the primary evidence of Aboriginal witnesses in respect to traditional laws, customs and practices; and make use of historical literature and anthropological material to compare traditional laws and traditional customs and interpret the similarities or differences: Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; 207 ALR 539 at [89] (Mansfield J). It is commonly the case, as in this case, that Aboriginal parties adduce anthropological evidence to establish the link between current laws and customs and the laws and customs alleged to have been acknowledged and observed by the claimants’ ancestors at effective sovereignty: see Jango v Northern Territory of Australia [2006] FCA 318; 152 FCR 150 at [462] (Sackville J).

78    Some of the expert evidence in this case is, however, of a different character. Much of the evidence of the expert witnesses in relation to the four named women involved their reading and construing the meaning of historical records. For example, journal entries made in the 1800s recording contemporaneous accounts, books which were written closer to the relevant period but nevertheless not contemporaneous, and early ethnographic and anthropological writings. It is not always the position, but in many instances the Court is in as good a position as the expert witnesses to discern what was meant by the author of those writings. However, even in those circumstances the expert evidence was useful in gathering together all the relevant primary source material, and providing competing interpretations as to what the author is likely to have meant.

79    The Court is not, of course, bound by the opinions of expert witnesses even where that evidence is uncontradicted, particularly where the evidence is upon an ultimate issue: Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [124] per Rangiah J citing Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [355] (Callinan J), and [218] per White and Stewart JJ. Here, the expert’s opinions on the claimed Boonwurrung identity of each of the named women and in relation to ‘mutual” recognition” was on the ultimate issue in respect to the relevant Separate Question.

80    The Court heard expert evidence from two anthropologists, Dr Pilbrow and Mr Wood, one historian, Dr D’Arcy, and one historical geographer, Dr Clark. Their evidence was conventional opinion evidence based on their interpretation of relevant historical sources and their expression of opinions wholly or substantially based in their specialised training, study or experience: Evidence Act s 79(1). Their evidence stands to be evaluated as conventional expert opinion evidence.

81    There was no challenge to the admissibility of the opinions of any of Dr Pilbrow, Mr Wood, Dr D’Arcy or Dr Clark.

82    I now turn to explain my views as to the weight properly to be given to the opinions of each expert.

4.4.1    Dr Clark

83    Dr Clark is an experienced historical geographer. His 2002, 2003, 2023 and 2023 supplementary reports are in evidence and he was cross-examined. His reports are comprehensive and thoughtful, and they provide a detailed discussion of the salient primary sources coupled with some considered analysis. In his oral testimony he was apparently candid, and prepared to make appropriate concessions, and I found him to be an honest witness.

84    I found much Dr Clark’s evidence to be reliable but I was concerned by a number of aspects of it, including that:

(a)    he generally applied his inferential reasoning more strictly in relation to the claims of Boonwurrung identity by the Bunurong respondents than he did in relation to the claims of Boonwurrung by the applicant. For example, he treated the evidence adduced by the Bunurong respondents directed to showing that their ancestors were abducted from “Port Phillip” as too general or geographically imprecise when some of the references to places such as “Port Phillip” also incorporated other more specific references.Dr Clark treated such evidence as too general in relation to the claimed Bunurong apical ancestors, but gave weight to similarly general or limited evidence relied on by the applicant in relation to Ann Munro and Louisa Briggs;

(b)    he concluded in his 2002 report that Ann Munro was Marjorie Munro’s daughter and “probably” Boonwurrung. Then in his 2003 report, following what he called a “major rethink” he changed his view and opined that the evidence was insufficient to show that Ann Munro was Marjorie Munro’s daughter, and he said that “presumably” she was “one of the Kulin children abducted by sealers from Western Port Bay or Port Phillip Bay in the 1830s” and that she may have come to use the Munro surname because she became part of James Munro’s household. Then, in his 2023 report, notwithstanding that he relied on materially the same primary source material as in 2003, he returned to his 2002 opinion that Ann Munro was Marjorie Munro’s daughter;

(c)    he opined that Robinson’s references to the “Port Philip tribe”, “Port Philip natives” and to “Port Philip” women in his journals, and in Robinson’s Report were geographically imprecise and may have meant either: (i) the Port Phillip settlement, which developed into the town and city of Melbourne; (ii) Port Phillip Bay itself (or any section of its coastline); or (iii) the administrative Port Phillip District which extended well to the north, west and east of Melbourne and subsequently became the Colony of Victoria. I do not accept that is so when Robinson’s and Thomas’ journal entries are read in context;

(d)    in his oral testimony he did not accept that Robinson went to the Bass Strait islands to repatriate Aboriginal women and girls who had been abducted by a white sealer, George Meredith from near Point Nepean in circa 1833, when that was obvious from Robinson’s journals. Indeed, Dr Clark himself recognised that purpose by noting Robinson’s regret at being “unable to accomplish his mission - that of the repatriation of the stolen women and children”: Clark 2002, p 105;

(e)    his opinions were sometimes speculative. For example, he said that one reason why he did not consider that Richard Maynard’s “Port Philip” Aboriginal female partner was abducted by Meredith was that Richard Maynard was “blame-shifting” when he said that “he knew she was taken from her country by G Meredith”; that is, he was endeavouring to shift the blame for the abductions to Meredith who could not then be punished as he was by then deceased. Dr Clark eventually accepted that that was just speculation;

(f)    he dismissed the lay evidence of Ms Summers, Mr Ogden and Mr West as to the knowledge or belief passed down to them by oral tradition without having proper reasons to do so. He testified that, even on the assumption that their evidence was accepted by the Court as a truthful and credible record of that oral history, his opinion on the issue of whether Elizabeth Maynard was more likely than not a Boonwurrung woman would not change; and

(g)    he is a historical geographer rather than an anthropologist but he gave evidence on some anthropological questions, and his opinions differed from the views of the anthropologists retained by the parties. For example, he gave evidence that all Boonwurrung people were of the one moiety, and therefore a woman married to a Boonwurrung man was necessarily not herself a member of the Boonwurrung People. Dr Pilbrow and Mr Wood both disagreed and gave persuasive reasons for their view.

85    Generally speaking, I was drawn to conclude that I prefer the evidence of Dr Pilbrow and of Dr D’Arcy (except her evidence in relation to Jane Foster) to that of Dr Clark.

4.4.2    Dr D’Arcy

86    Dr D’Arcy is an experienced historian. Her 2005, 2006, 2007, 2023 and 2023 response reports are in evidence and she was cross-examined.

87    Dr D’Arcy’s 2005 report concerns the claimed Boonwurrung identity of Marjorie Munro, Elizabeth Maynard, Jane Foster and Louisa Briggs. Her 2007 report concerns the genealogies of Boonwurrung elders claimed to be descended from Marjorie Munro, Elizabeth Maynard and Jane Foster. The quality of those reports is variable, having been prepared for different purposes, but in general terms they are thoughtful and considered and they address the salient primary historical source documents and material secondary sources. Her 2023 report, which was prepared for this proceeding, is comprehensive, detailed and thoughtful in relation to the issues it covered, but Dr D’Arcy’s brief was limited to the claimed Boonwurrung identity of Louisa Briggs and Jane Foster. Her 2023 Response report was similarly limited. The parties reached agreement that Louisa Briggs was a member of the Boonwurrung People at sovereignty and thus there is no requirement to assess the weight to give Dr D’Arcy’s opinions on that issue.

88    Because her brief was limited, in her 2023 report and the BW Joint Experts’ Report Dr D’Arcy did not offer opinions in respect to Eliza Nowan/Gamble or Ann Munro, but provided opinions in relation to Marjorie Munro and Louisa Briggs which have some relevance to the claimed Boonwurrung identity of Ann Munro. In her 2005 and 2007 reports she provided an opinion in relation to the claimed Boonwurrung identity of Elizabeth Maynard.

89    In her oral testimony Dr D’Arcy was apparently candid, she did not offer opinions on matters on which she was not qualified, she was prepared to make appropriate concessions, and I found her an honest witness. I consider her evidence to have been largely reliable but her analysis of the salient primary and secondary source materials in relation to Jane Foster was flawed, and there are some serious gaps in the evidentiary foundation for the conclusion she reached. Generally speaking, I prefer her evidence in relation to the claimed Boonwurrung identity of Elizabeth Maynard to that of Dr Clark and Mr Wood, while in relation to the claimed Boonwurrung identity of Jane Foster I prefer the evidence of Dr Pilbrow and Dr Clark.

4.4.3    Mr Wood

90    Mr Wood is an experienced anthropologist and linguist. His 2023 report is in evidence and he was cross-examined. He testified that, because he was not briefed to do so, his report does not contain opinions as to whether one or more of Louisa Briggs, Ann Munro, Elizabeth Maynard, Eliza Nowan/Gamble, Marjorie Munro or Jane Foster were members of the Boonwurrung People who, at effective sovereignty, held right and interest in Boonwurrung country under traditional laws and customs.

91    Instead his 2023 report addressed the following issues:

(a)    an overview of Aboriginal society and component groups in the Boonwurrung claim area at effective sovereignty, and an explanation of the main elements of group formation, group nomenclature and recruitment principles. The report primarily focusses on the portion of the claim area from southeast of present urban Melbourne and the Mornington Peninsula south to Wilsons Promontory (that being the focus of his chapter in Fergie, Stockigt, and Wood (2019)), and the portion which was then subject to the Gunaikurnai proceeding in which the Boonwurrung were the fourth respondent;

(b)    in respect of group recruitment and associated rules for distributing rights and interests in land at the time of effective sovereignty Mr Wood said that the default recruitment rule for membership in landed groups at all levels – inclusive of the local clan estate, the named multi-estate cluster, and the dialect group – was serial patrifiliation, which drew on a doctrine of patrilineal descent and agnatic consubstantiality of bodily and spirit matter. That was accompanied by strong interests held by matrifiliates in the estate and estate cluster grouping of their mother, which included an institutionalised managerial role exercised by the sons of female clan members;

(c)    early ethnographers’ descriptions that Aboriginal groups throughout Victoria had closed and descending kin sets that were landed, yet of so small a scale that they often referred to them as “families”, with their members recruited by patrifiliation. These ethnographers were principally Howitt, A, The Native Tribes of South-east Australia (Macmillan and Co., London, 1904), Smythe, RB, The Aborigines of Victoria, Campbell, A, and VanderWall, R, (eds) John Bulmer’s Recollections of Victorian Aboriginal Life 1855-1908 (Museum Victoria, Melbourne, 1999), and Dawson, J, The Australian Aborigines: The Languages and Customs of Several Tribes in the Western District of Victoria, Australia (Robertson, Melbourne, 1881), but further examples occurred in the journals of the Government Protectors Robinson (1844) and Thomas (1839-1867). Mr Wood said that all of the tenured kin sets were intramural to a larger community, distinguished by a common language and commonality of broader interests;

(d)    the evidence for rights in mother’s country. Mr Wood said that although a person was born into primary membership of the estate group of their father, there is clear evidence that at birth they also acquired interests of a lesser but still strong order in the estate of their mother. In his opinion matrifiliation to an estate yielded important interests and duties, and the overall distribution of interest in the system thus had a significantly cognatic base. This does not mean it was an undifferentiated cognatic system, for it distinguished firmly between differing classes of rights, assigning primary ownership to patrifiliates, but aspects of managerial authority to matrifiliates, and to at least some degree to affines, that is, those married to clan members. Gradually, over time post European contact, recruitment shifted from the original structure privileging patriliny accompanied by a secondary matrilateral complement, to a situation in which both rights fell together to result in a more adaptive form of cognatic recruitment;

(e)    the nature of the rights and interests conferred by customary titles. Those persons with primary rights and interests in lands or waters enjoyed essentially unfettered beneficial rights in its resources. He characterised customary title as being “ownership more or less in the character of fee simple”;

(f)    group boundaries in the study region. Mr Wood set out his opinions regarding the boundaries of Boonwurrung country, but focusing on the portion of the Boonwurrung claim area from southeast of present urban Melbourne and the Mornington Peninsula south to Wilsons Promontory;

(g)    nodal ancestors and intergenerational transmission of connection. Mr Wood gave his opinion on what he called a “foundational problem” in current native title practice of defining a claim group by remote, archivally identified ancestors, which in his view departs from descent reckoning, group recruitment, recognition of membership and transmission of connection to country of origin as occurs in normative customary practice. He said that in native title practice, the term “apical” has become widely misused to refer to the earliest documented antecedents, regardless of whether they are among those memorialized as “socially significant progenitors” in the body of received knowledge and tradition held by the descent group itself. In his view it is nodal ancestors further down the line of descent from the most apical identifiable ancestors who are the creators and carriers of genealogical memory and the transmitters of connection to generations below them. These nodal figures relative to each generation reproduce the composition of the regional Aboriginal society, via live interaction with other member families of the society in their region; and

(h)    mutual recognition and the asserted misconstruction of “descendant” as a simple biological category. I will refer to this part of the report when I address the Separate Question regarding mutual recognition.

92    It appears that Mr Wood was incorrect in stating that he was not asked to provide opinions in relation to the claimed Boonwurrung identity of the named woman. The solicitors for the applicant gave him three letters of instruction:

(a)    in 2020 the applicant’s solicitors requested him to produce a report addressing the following terms of reference:

(a)    A description of the indigenous laws and customs of the claim area and context region as they were at effective sovereignty, and which groups held rights in the claim area under those laws and customs at that time. This will primarily consist of improvements to the consultant’s chapter in Fergie, Stockigt, and Wood (2019), including some re-ordering of the material and re-wording at points where he considers it will clarify the opinions expressed there;

(b)    A section containing an expert opinion on the importance and role of nodal ancestors in the continuous transmission of connection and in the assessment of native title claims, as distinct from apical ancestors and their discovery and reconstructed descent and connection drawn from written sources alone.

(b)    on 26 June 2021, the applicant’s solicitors amended the terms of reference, as follows:

Provide an expert opinion as to definition of a ‘traditional owner’ as written in Section 7 of the … Aboriginal Heritage Act 2006 (Vic) and its relationship to the outcomes of your research and findings.

(c)    on 26 April 2023, the applicant’s solicitors again amended the terms of reference, as follows:

You are retained to provide a written report in relation to the separate questions at [14] [of the March 2023 Orders], particularly subparagraph (d) of that order – ie whether, at sovereignty, membership of the Boonwurrung (also described as Bunurong) claim group require “mutual recognition” under the tripartite test described by Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at p 70.

93    Although on that last occasion Dr Wood was requested to “particularly” address the mutual recognition issue, the 26 April 2023 letter of instruction said, in terms, that his report should address the separate questions at Order 1 of the March 2023 Orders. Subparagraph (a) of Order 1 relates to the claimed Boonwurrung identity of the six named woman. There may have been some oral communication between the applicant’s solicitors and Mr Wood clarifying that he should only report on the mutual recognition aspect of Order 1, but there is no evidence of that.

94    Irrespective of how it came about, the result was that Mr Wood’s 2023 report only addressed the 2020 terms of reference, the June 2021 amendment to those terms, and the “mutual recognition” aspect of the 26 April 2023 terms of reference, and he did not provide opinions on the claimed Boonwurrung identity of the named women.

95    However, in the BW Joint Experts’ Report and in his oral testimony Mr Wood did provide opinions in relation to the asserted Boonwurrung identity of some of the named women. He said that he was able to do so because, in the fortnight before the BW Joint Experts’ Conference, the applicant’s solicitors requested that he read the reports of Drs D’Arcy, Pilbrow and Clark so that he was in the position to provide opinions in relation to the claimed Boonwurrung identity of the named women. He testified that he was provided with Dr Pilbrow’s 2023 report about 10 days before the BW Joint Experts’ Conference, then he received a short version of Dr Clark’s report and a then a longer one, and then he received Dr D’Arcy’s report approximately the day before the joint experts’ conference (T299.34-45).

96    In relation to the issues it covered, Mr Wood’s 2023 report is detailed and comprehensive and contains some considered analysis, but outside of the issue of mutual recognition it is not directly relevant to the claimed Boonwurrung identity of the named women. His opinions in the BW Joint Experts’ Report are short. Mr Wood is highly experienced and plainly knowledgeable, he gave his opinions in a confident manner, he was apparently candid, and I accept him as an honest witness. But I was ultimately left with the view that his opinions in relation to the claimed Boonwurrung identity of the named woman were unreliable and should be accorded minimal weight. Indeed, given the deficiencies in his approach I consider it appropriate to approach all of his evidence with some caution.

97    First, Mr Wood accepted that before he provided his opinions in the BW Joint Experts’ Report he did not conduct any independent research in relation to the claimed Boonwurrung identity of the named women. Instead, he confined his research to the reports produced by the other experts (T299.15-39). And as he said, he was unable to finish his consideration of those reports.

98    His unfinished consideration can be seen in the BW Joint Experts' Report where Mr Wood said the following in relation to Eliza Nowan/Gamble:

This is not a proposition I was briefed to cover in my report, but in the fortnight leading up to the conference I was asked to read the other expert reports.  I was not able to get through all of those reports and their primary sources, hence my comments on the descent of particular persons is patchy.

(Emphasis added.)  

99    It can also be seen in his oral testimony in relation to Elizabeth Maynard where he said (T301.16-20):

…the thing about this is that I relied quite heavily on my colleagues’ reports and their reasoning and their logic. So in the case of Maynard, I didn’t get to go through that as thoroughly as I went through some of the others. That is a weakness in my position there.

(Emphasis added.)  

100    I understood Mr Wood to mean that he ran out of time to finish his consideration of each of the other expert’s reports and source materials in relation to the claimed Boonwurrung identity of at least Eliza Nowan/Gamble and Elizabeth Maynard.

101    For Mr Wood’s opinions to have probative value for the Court it was necessary for him to have done more than incompletely consider the other expert’s reports and the primary and secondary source materials they referred to, and then to express views about the reasoning and logic underpinning their opinions; thus somehow setting himself up as the arbiter of the probative value of their opinions. Rather, he needed to consider the source materials for himself, apply his education, training and experience as an anthropologist in relation to those materials, and thus reach his own opinions on the claimed Boonwurrung identity of the named woman. 

102    Second, notwithstanding that Mr Wood ran out of time to finish his consideration of the other expert’s reports and source materials in relation to Eliza Nowan/Gamble and Elizabeth Maynard, he provided different opinions in the BW Joint Experts’ Report in respect to their claimed Boonwurrung identity to opinions he provided three years earlier in the Third GK Joint Experts’ Report. And he was unable to provide a satisfactory explanation for his changed opinions.

In relation to Eliza Nowan/Gamble

103    Proposition 12 in the Third GK Joint Experts’ Conference requested the experts to provide their opinion on the following statement:

There is sufficient evidence that at effective sovereignty the woman known as Eliza Nowen (also known as Eliza Gamble), had connection to an area which was part of the country of the owners of the claim area.

The claim area referred to the Boonwurrung claim area, although the focus in that case was on the area around Wilsons Promontory.

104    In response to Proposition 12 in the Third GK Joint Experts’ Report, Mr Wood joined with Dr Pilbrow, Ms Lothian, Dr Hutchings, Dr Cooms, Dr Fergie and Mr Annand in expressing the following opinion:

Agree. References in the early records to the ‘Western Port tribe’ we take as a reference to Boonwurrung. On the basis that the group of women of which Eliza Nowen was one were ‘…anxious to come to Port Philip to see their friends at Western Port’ there is a possibility that she came from that country. Later references to Eliza Gamble describe her as a ‘a native of Port Philip’ and together with the evidence as a whole provides an arguable case that Eliza Gamble (also known as Nowen) had a connection to the Port Philip/Western Port area.

We consider it a prima facie case that any person who was taken from the Western Port area in this period is more likely than not to have belonged to the Western Port area and thus to the Boonwurrung group. The abductions occurred prior to effective sovereignty and large scale displacement of people from their original countries. 

105    Proposition 13 in the Third GK Joint Experts’ Conference requested the experts to provide their opinion on the following statement:

There is sufficient evidence that at effective sovereignty the woman known as Eliza Nowen (also known as Eliza Gamble), would likely have qualified as a member of the group which owned the claim area through filiation, descent or adoption.

106    In response to Proposition 13, in the Third GK Joint Experts’ Report Mr Wood joined with the other experts in expressing the following opinion:

Agree on the basis of the evidence in the previous proposition.

107    Three years later, in the BW Joint Experts’ Report, Mr Wood expressed the opposite view: 

(a)    in relation to Proposition 12 (whether it was more probable than not that Eliza Nowan/Nowen was a member of the Boonwurrung People who, at sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs) he opined:

Disagree that it is more probable than not, again because the evidence is indecisive as to which part of the Victorian coast she might have come from. In [sic] can only be said that the possibilities [include] Port Philip Bay, and within that, the possibility that she was Boonwurrung. But again, not all the Victorian women living with sealers in Tasmania can have been taken from the Boonwurrung country.

(b)    in relation to Proposition 13 (whether it was more probable than not that Eliza Gamble was the same person as Eliza Nowan/Nowen) he said:

This is not a proposition I was briefed to cover in my report, but in the fortnight leading up to the conference I was asked to read the other expert reports. I was not able to get through all those reports and their primary sources, hence my comments on the descent of particular persons is patchy. In this case I did note that there is evidence for and against. E.g. the Bald Island residence of both, the marriage to Robert Gamble of both, the name Eliza and seven children in each case are suggestive of them being the same person. However, a number of the sealers were polygamists and may have two wives on Bald Island, the number seven a conflation of both women’s children. In particular, I find the age discrepancy of the two women and their children [an] issue raised by Clark (2023) difficult to reconcile with the proposition that they were the same person.

(c)    in relation to Proposition 14 (whether it was more probable than not that Eliza Gamble was a member of the Boonwurrung People who, at sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs) he opined:

Disagree that it is more probable than not, again because the evidence is indecisive as to which part of the Victorian coast she might have come from for the same reasons as in propositions 11 and 12 above.

In relation to Elizabeth Maynard

108    Proposition 18 in the Third GK Joint Experts’ Conference requested the experts to provide their opinion on the following statement:

There is sufficient evidence that at effective sovereignty the woman known as Elizabeth Maynard had connection to an area which was part of the country of the owners of the claim area.

Again, the claim area referred to was the Boonwurrung claim area, although the focus was on the area around Wilsons Promontory.

109    In response to Proposition 18, in the Third GK Joint Experts’ Report Mr Wood joined with Dr Pilbrow, Ms Lothian, Dr Hutchings, Dr Cooms, Dr Fergie and Mr Annand in expressing the following opinion:

Agree based on Tindale’s (1939) recording of Elizabeth as a ‘fb (full blood) Aust.’ from Victoria. Robinson (1837) provides a description of a pregnant woman with Richard Maynard (also known as Henry Todd) who is described as ‘a New Holland native of Port Philip […] who was taken from her own country by G Meredith.’ The abduction of women by George Meredith is documented by Robinson as occurring at Point Nepean.

110    Proposition 19 in the Third GK Joint Experts’ Conference requested the experts to provide their opinion on the following statement:

There is sufficient evidence that at effective sovereignty the woman known as Elizabeth Maynard would likely have qualified as a member of the group which owned the claim area through filiation, descent or adoption.

111    In response to Proposition 19, in the Third GK Joint Experts’ Report Mr Wood joined with the same experts in expressing the following opinion:

Agree on the basis of the evidence set out in response to the previous proposition.

112    Three years later, in Proposition 17 in the BW Joint Experts’ Conference, Mr Wood was asked to opine as to whether it was more probable than not that Elizabeth Maynard was a member of the Boonwurrung People who at sovereignty held rights and interests in any part of the Boonwurrung claim area under traditional laws and customs. In response to Proposition 17, in the BW Joint Experts’ Report Mr Wood said only: 

This was not a proposition I was briefed to cover in my report, and although I have read the other expert reports I would need to make a careful study of the primary documents to reach an opinion on this. It is not proposed that I do this as part of being retained. 

113    The opinions Mr Wood expressed in the Third GK Joint Experts’ Report in relation to the claimed Boonwurrung identity of Eliza Nowan/Gamble and Elizabeth Maynard were given in the context of a formal Court-convened joint experts’ conference in a contested native title determination application. It is appropriate to infer that Mr Wood provided those opinions having taken due care and having regard to his obligations to the Court as an expert witness.

114    The Third GK Joint Experts’ Report, which Mr Wood signed, had the following introduction:

4.    All of the experts came to the conference prepared, having considered the material circulated. Each expert had a clear understanding of his/her role as an expert witness, including his or her duty to the Court. As a result, the conference provided an opportunity for discussion and exchange of views on the issues in a productive, cooperative and professional manner.

5.    The experts each expressed the opinions attributed to him or her as set out in this report and have each indicated that he or she reached those opinions taking into account and applying his or her training, knowledge and experience as an anthropologist to the following material:

a.    The basis material for the conference circulated by the parties to the experts and Judicial Registrar Daniel ahead of the conference on a confidential and without prejudice basis:

i.    Applicant's Expert Report

Pilbrow, Timothy, 'Report on Gunai/Kurnai People's Connection to Wilsons Promontory and Surrounds', April 2019

ii.    Fourth Respondent's Expert Report

Fergie, Deane, Wood, Ray & Stockigt, Clara, 'Expert Consideration on behalf of the Fourth Respondent to the Gunaikurnai People Native Title Claim (VID737/2014)', May 2019

iii.    Fifth Respondent's Expert Report

Annand, James, 'Bunurong/Boon Wurrung, respondents to GunaiKurnai Native Title Claim (VID737/2014) Research Report: Ancestry, Genealogy, and Connection to Wilsons Promontory', April 2019

b.    any other material of which a particular expert was aware and which was identified to the other experts at the conference; and

c.    the consideration of the propositions undertaken during the conference and the information provided by, and views of, each of the other experts.

115    Mr Wood also made the following declaration:

I, Mr Ray Wood, in expressing the opinions attributed to me in this report have had regard to the basis material and the statements made at the conference of experts and have made all the inquiries which I believe are desirable and appropriate and no matters of significance which I regard as relevant have, to my knowledge, been withheld.

116    Given the materials before Mr Wood for that experts’ conference, the context in which he provided his opinions, and his obligations to the Court in doing so, it is appropriate to expect him to maintain those opinions unless he had sufficient reasons to change them. As I now turn to explain I am not persuaded that Mr Wood had sufficient reasons for his changed opinions in relation to the claimed Boonwurrung identity of Eliza Nowan/Gamble and Elizabeth Maynard.

117    Mr Wood sought to explain the basis for his changed opinions in a number of different ways, but centrally on the basis that in the BW Joint Experts’ Conference he had more information than he did for the Third GK Joint Experts’ Report, and that he had given the issues more thought (T268.40-45). He was troubled by the questioning he faced for the changes in his opinions, and he asked whether he was “bound forever” to the opinions he had earlier expressed when “what happened is that [in this proceeding] I gave it more thought in the light of the other factors I’ve raised and so I thought, in all honesty, I’m bound to take a different position” (T277.4-7). He said that, “particularly in the couple of days before [the BW Joint Experts’ Conference]…looking through the three reports, I particularly remember thinking to myself, ‘I can’t honestly say that there’s a more probable than not with’ – with any of the people, apart from Anne Munro and Louisa Briggs, which we have a bit more precise data about” (T300. 8-12). In relation to Elizabeth Maynard he said “[w]hen it got to this [proceeding] I realised that what’s here on Maynard is a lot thinner. … I was just reluctant to give a firm opinion” (T305.27-28).

118    I do not question Mr Wood’s honesty, and I have no difficulty accepting that an expert witness is not “bound forever” to an opinion he or she gives in a joint conference of experts. Amongst other things, the receipt of further information might reasonably prompt an expert to reconsider an opinion he or she had previously expressed. An expert might, indeed should, give careful attention to the opinions of other experts to see whether it is appropriate to maintain an opinion he or she had previously expressed.

119    But that is not the position here. I cannot accept Mr Wood’s evidence that he changed his opinions regarding the claimed Boonwurrung identity of Eliza Nowan/Gamble and Elizabeth Maynard because in this proceeding he had more information and gave greater consideration to the issues than he did for the Third GK Joint Experts’ Report.

120    I do not accept Mr Wood’s evidence that he had more information for the joint experts’ report in this proceeding, when:

(a)    he was not briefed to consider the claimed Boonwurrung identity of the named women;

(b)    his 2023 report did not address the claimed Boonwurrung identity of the named women;

(c)    it was not until a fortnight before the BW Joint Experts’ Conference that he was asked by the applicant’s solicitors to provide opinions in relation to the claimed Boonwurrung identity of the named women, and he was instructed to restrict his work to a consideration of the other expert’s reports;

(d)    he then received the other expert’s reports in dribs and drabs over the two weeks up to the BW Joint Experts’ Conference;

(e)    he ran out of time to finish his consideration of the other expert’s reports and source materials in relation to Eliza Nowan/Gamble and Elizabeth Maynard; and

(f)    the source materials before him for the Third GK Joint Experts’ Conference were materially the same as the sources referred to in the expert’s reports in this proceeding:

(i)    in cross-examination Mr Wood was drawn to accept that the source materials upon which Dr Clark’s 2023 report was based were materially the same as the source materials relied on by Mr Annand in his 2019 report, which was before Mr Wood in the Third GK Joint Experts’ Conference (T276.42-44); and

(ii)    he testified that until he read Dr Clark’s 2023 report he did not know that evidence in the 1881 Coranderrk Inquiry indicated that William Barak, a leader of the “Yarra tribe”, had “claimed” Ann Munro as a member of that tribe, which he described as new information. That was not, however, new information. The identification of Ann Munro as a member of the “Yarra tribe” in testimony before the Coranderrk Inquiry was considered in Annand 2019, which was before Mr Wood for the Third GK Joint Experts’ Conference (T266.35-44). Mr Wood’s error in treating that as “new information” is of particular importance because he said it was that “new information” which prompted his reconsideration of his opinions in relation to the claimed Boonwurrung identity of the other named women as well (T284.9-20).

121    In any event, it was wrong for Mr Wood to treat purported “new information” regarding Ann Munro as supporting a change in his opinions in relation to the claimed Boonwurrung identity of the other named women. The questions in relation to each of the named women could not be treated as a “packaged lot”, and he was required to give individual consideration to the evidence in relation to each of them. He did not point to any purported “new information” in relation to Eliza Nowan/Gamble or Elizabeth Maynard.

122    I do not accept Mr Wood’s evidence that he gave greater consideration to the claimed Boonwurrung identity of the named woman for the joint experts’ report in this proceeding than he had in giving his opinions in the Third GK Joint Experts’ Report, when:

(a)    in this proceeding he did not conduct any independent research before offering opinions in the BW Joint Expert’s Report. All he did was consider the reports of the other experts, doing so in a confined time frame, and which he was unable to finish;

(b)    the Third GK Joint Experts’ Conference was a formal Court-convened joint experts’ conference in a contested native title determination application. There Mr Wood opined that there is sufficient evidence that the woman known as Elizabeth Maynard was a member of the Boonwurrung People who, at sovereignty, had rights and interests in part of the Boonwurrung claim area under traditional laws and customs. Then, for his different opinion in this proceeding he said that he relied “quite heavily” on the reasoning of the other experts in relation to Elizabeth Maynard and he ran out of time to “thoroughly” consider the other expert’s reports. I do not understand how that could be a basis for changing his opinion, albeit only to a position of not offering an opinion; and

(c)    Mr Wood testified that on “further reflection” his view had changed as to the reliability of an inference that an Aboriginal woman abducted from the Port Phillip area was more likely than not to be Boonwurrung. He said that such women may have been abducted from other parts of Port Phillip Bay, such as, for example, the area near what is now Geelong, and it therefore could not be inferred that they were necessarily Boonwurrung people. I do not accept that that changed opinion was indicative of “further reflection”. Rather, it tends to show that, having been asked at the last minute to provide opinions in relation to the asserted Boonwurrung identity of the named women, Mr Wood was forced to rush and did not properly come to grips with the evidence. As I will explain, the evidence for an inference that Elizabeth Maynard was a Boonwurrung woman is substantially more extensive than just her being described in historical records as a “Port Phillip native”. In cross-examination he was drawn to accept that his opinion that it could not be inferred that an Aboriginal woman abducted from the Port Phillip area at sovereignty was a Boonwurrung woman was an opinion that was equally available on the evidence before him for the Third GK Joint Experts’ Report (T283.15-45; T284.4-7).

123    Somewhat relatedly, Mr Wood tried to explain his changed opinions by asserting that, for the Third GK Joint Experts’ Report, he was not required to carefully go through the primary source material in relation to the asserted Boonwurrung identity of the named women. He said that for that report “I wasn’t really briefed to go pour over the primary documents concerning these women” (T304.43-45), and that for that report he was briefed to do an “anthropological reconstruction” of the group distribution, for example, what group was on the west side of Port Phillip Bay. He said that, “those questions in the brief, at no stage, ones where I’ve personally – I’ve looked at the primary materials but I wasn’t briefed with really examining them in close detail” (T306.7-14).

124    I do not accept that. As I have said, Mr Wood provided his opinions in the Third GK Joint Experts’ Report in the formal context of a Court-ordered mediation in a contested native title determination application, and he declared that he had “made all the inquiries which I believe are desirable and appropriate”. Nowhere in that report did he suggest that he was not properly briefed to provide the opinions that he did in relation to the asserted Boonwurrung identity of the named women, nor that he did so without properly examining the source materials. The Court was not taken to the brief provided to Mr Wood in the Gunaikurnai proceeding but if it was limited in the way Mr Wood suggested he should not have expressed the opinions that he did.

125    Mr Wood also sought to distance himself from his opinions in the Third GK Joint Experts’ Report on the basis that those opinions were more the opinions of the other experts than his own. He said (T305.30-34):

In the earlier conference… it wasn’t a major part of it and I relied heavily on my colleagues that were present in that conference. I couldn’t see any reason at that stage to really contest their positions. In this one [the BW Joint Experts’ Conference in this proceeding] … the context had changed quite a bit.

126    Those matters do not justify Mr Wood's changed opinions. If I accept those explanations it would tend to show that Mr Wood did not take an appropriately considered approach to his obligations as an expert witness in the Gunaikurnai proceeding, which would give rise to questions as to the approach he took to the opinions he provided in this proceeding. Those attempted explanations raise more questions than they answer.

127    Notwithstanding Mr Wood’s protestations to the contrary; in my view it is more likely that he gave less consideration to the claimed Boonwurrung identity of Eliza Nowan/Gamble and Elizabeth Maynard for the joint experts’ conference in this proceeding than he did for the Third GK Joint Experts' Report.

128    Next, Mr Wood sought to explain his changed opinions on the basis that in the Third GK Joint Experts’ Conference his focus was on the extent of Gunaikurnai and Boonwurrung country, and Wilsons Promontory in particular (T304.43-45), which was different to his focus in this case. I do not accept that. In both proceedings a central part of the experts’ consideration was in relation to whether the evidence was sufficient to show that the named women were Boonwurrung, including because they had been abducted from Boonwurrung country. The fact that this proceeding concerns the entire Boonwurrung claim area while the Gunaikurnai proceeding was focussed on the area around Wilsons Promontory does not explain the change in Mr Wood’s opinions. 

129    Third, my view as to the weight properly to be given to Mr Wood’s opinions is also affected by the fact that he seemed to give credence only to Dr Clark’s opinions, and to largely dismiss those of Dr Pilbrow and Dr D’Arcy. That is important when he did not conduct any independent research. His approach to the Separate Question regarding Ann Munro involved little more than taking up Dr Clark’s opinion, which for reasons I will explain, was based on assumption. Each of his changed opinions favoured the applicant’s case, in circumstances where his explanations for his changed opinions were unsatisfactory.

130    I was left with the impression that Mr Wood had a tendency to advocate for the Boonwurrung case. That is not to suggest that he gave dishonest or disingenuous evidence. Rather, it is that he appeared to have lost objectivity through his work for the applicant. Mr Wood strenuously rejected that suggestion when it was put to him, but I was left with that impression. This is not the first time Mr Wood’s evidence has left the Court with that impression: see Malone v State of Queensland (No 5) [2021] FCA 1639; 397 ALR 397 at [870]-[871], [886], [888] (Reeves J); Nona v Queensland (No 5) [2023] FCA 135 at [546], [688] (Mortimer J, as her Honour then was). 

131    Ultimately Mr Wood conceded that, except for his opinion in relation to Ann Munro, his opinions in relation to the asserted Boonwurrung identity of the named women should not be given “great weight” (T306.15-16). That concession did not go far enough. Mr Wood’s changed opinions, his preparedness to offer opinions based in an unfinished consideration of other expert’s reports rather than his own independent research, his unsatisfactory explanations for his changed opinions, and his tendency for advocacy for the applicant’s case, led me to conclude that I should give his opinions on issues relating to the claimed Boonwurrung identity of the named women minimal weight, and to treat his evidence overall with some caution.  

4.4.4    Dr Pilbrow

132    Dr Pilbrow is an experienced anthropologist. His 2023 report and his response report are in evidence and he was cross-examined.

133    His reports are comprehensive and thoughtful, they contain a detailed discussion of the salient primary and secondary sources and a considered analysis of the materials. The reasoning in his reports was clear and sustainable. He gave his evidence in a straightforward and confident manner, he was apparently candid, he made concessions where appropriate and I found him an honest witness. Overall, I found Dr Pilbrow to be an impressive witness who gave reliable evidence. I prefer his evidence in relation to the asserted Boonwurrung identity of Elizabeth Maynard, Eliza Nowan/Gamble and Ann Munro to that of Dr Clark and Mr Wood, and I prefer his evidence in relation to Jane Foster to that of Dr D’Arcy.

4.4.5    Other expert opinions

134    I now turn to address another category of opinion evidence, being the opinions expressed in documents tendered into evidence, the authors of which were not called to give evidence (Additional Material). As earlier explained, a great raft of documents was admitted into evidence without objection, including earlier reports of anthropologists, historians and other academic researchers, including earlier expert opinions going directly to the asserted Boonwurrung identity of some of the named women, and other expert opinions which indirectly relate to that issue.

135    In tendering those documents the parties did not, in the main, address how the Court should treat the opinions there expressed or the weight properly to be given to them.

136    Insofar as the expert opinions in the Additional Material were relied upon by Dr Pilbrow, Mr Wood, Dr D’Arcy or Dr Clark as part of the basis for the opinions they expressed there is no difficulty. In Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [92]-[93] (Finn, Sundberg and Mansfield JJ) the Full Court explained that under the common law rules of evidence experts are entitled to rely upon reputable publications as a basis for their opinions, and can give evidence about the matters stated in such publications, notwithstanding that the publications constitute hearsay. The Full Court said (at [92]):

Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, ‘would be to ignore the accepted methods of professional work and to insist on finical and impossible standards’. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court.

(Citations omitted.)

Their Honours went on to say that nothing in the Evidence Act displaces that body of law (at [93]).

137    Further, as O’Bryan J usefully explained in Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 at [40], s 60(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. Under that provision, hearsay basis material referred to in an expert report is rendered admissible for the purpose of showing the basis or foundation for the opinions expressed in the report: see Quick v Stoland Pty Ltd [1998] FCA 1200; 87 FCR 371 at 377 (Branson J) and 382 (Finkelstein J); Neowarra v Western Australia [2003] FCA 1399; 134 FCR 208 at [38] (Sundberg J). Unlike the position at common law, hearsay evidence admitted under s 60 is admitted for all purposes (including proof of a fact asserted in such evidence): Lee v The Queen [1998] HCA 60; 195 CLR 594 at [39]-[40] (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ). The Court may, though, make orders to exclude such hearsay evidence under s 135, or to limit its use under s 136 of the Evidence Act.

138    In Malone, O’Bryan J dealt with a series of objections to an attempt to tender a series of reports prepared by anthropologists in that proceeding and in three other proceedings involving neighbouring native title claims, including the joint experts’ reports from the other native title proceedings, without calling the authors of the reports. The opposing party objected to the tendering of those reports, and argued that:

(a)    it is not permissible for an expert to base his or her opinion on the opinion of another person, in the sense of adopting and restating the opinion of another person (at [45]). His Honour accepted that for the reasons expressed (at [45]);

(b)    while it is permissible for an expert to rely upon reputable articles, publications and material produced by others in the area in which those others have expertise, the expert may only do so to provide the facts or assumptions upon which the expert then bases his or her opinion, and the opinion or conclusion of another expert cannot be an acceptable basis for an expert opinion (at [46]-[47]). His Honour did not accept that for the reasons expressed (at [48]); and

(c)    it is not permissible for an expert witness to rely on (hearsay) opinions expressed by others where those other opinions would not be admissible under s 79 of the Evidence Act (at [54]). His Honour did not accept that for the reasons expressed (at [55]), and concluded as follows (at [58]):

…if the opinion of an expert witness in a proceeding is based upon opinions expressed in publications and material produced by others, those other opinions are admissible to prove the foundation of the expert witness’ opinion. As such, the other opinions are admissible under s 77 ‘for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed’ in the same manner as they are admissible under s 60. Once admitted, they may be relied on for all purposes.

I agree with O’Bryan J’s approach in relation to each of those matters.

139    I also agree with O’Bryan J’s approach to an argument that the opinions expressed in the other reports were admissible as evidence to show that the opinion of the expert anthropologist proposed to be called was in harmony with the opinions of other anthropologists in respect of some relevant facts in issue. His Honour concluded (at [61]) that such earlier opinions would be relevant, and if those earlier opinions were relied upon by the testifying expert as part of the foundation for his or her opinions, then they would be admissible. But if the earlier opinions were not relied upon by the testifying expert, then they would not be admissible because “the relevance of the hearsay opinions depends upon proof of the truth of the asserted opinion: that is, that the opinions expressed are opinions held by the author. As such, the hearsay opinions would be inadmissible under s 59 and would not be rendered admissible by s 60.”

140    Here, the position is different to that in Malone. There was no objection to the tender of the Additional Material and those documents were admitted into evidence. No party sought orders under ss 135 or 136 of the Evidence Act to exclude or to restrict the use of any hearsay opinions contained in the Additional Material. The opinions contained in the Additional Material are therefore in evidence for all purposes.

141    There is, however, a question as to the weight to give to the expert opinions expressed in the Additional Material. The Court was only taken to selected parts of some of the documents, the basis for the opinions was sometimes not readily apparent, and the authors of the opinions were not before the Court so that their opinions could be tested. In those circumstances I consider little weight should be given to those opinions. While I occasionally found the opinions expressed in the Additional Material useful in buttressing a finding based on other evidence, I have centrally had regard to the opinions expressed by the testifying experts.

142    I now turn to consider each of the Separate Questions.

5.    ELIZABETH MAYNARD - SEPARATE QUESTION 1(a)(iii)

143    Although it is not the first question, it is convenient to start with Elizabeth Maynard.

144    Separate Question 1(a)(iii) asks whether Elizabeth Maynard was a member 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.

145    As the party asserting that Elizabeth Maynard was a Boonwurrung woman with rights and interests in Boonwurrung country, the Bunurong respondents had the onus to establish that.

5.1    The parties’ positions

146    The Bunurong respondents claimed that Elizabeth Maynard was an Aboriginal girl or woman who was abducted along with others by the sealer, Meredith from near Point Nepean in Port Phillip Bay, Victoria, in circa 1833. They alleged that Meredith took her to the Bass Strait islands where he disposed of her to another sealer, Richard Maynard, with whom she then cohabited and had children.

147    The Bunurong respondents, the State and the Commonwealth contended that the evidence is sufficient to infer on the balance of probabilities that Elizabeth Maynard was a Boonwurrung woman who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs. The Boonwurrung applicant argued that the evidence is insufficient to establish that. The Wurundjeri respondents did not take a position on the issue.

5.2    The locations

148    To understand the narrative of the historical records it is useful to understand the location of the Bass Strait islands. Reproduced below is a map of Tasmania showing the locations of the larger island groups in Bass Strait and their geographic relationship to Port Phillip Bay, and Point Nepean from where it is claimed Elizabeth Maynard was abducted. Point Nepean is the eastern point at the entrance to Port Phillip Bay.

149    Reproduced below is a map of the Furneaux group of islands, comprising two larger islands, King Island and Cape Barren Island, and numerous smaller islands, including Preservation Island, Gun Carriage Island and Clarks Island to which the evidence refers.

5.3    The historical records and secondary sources

150    The Bunurong respondents relied on a variety of archival records.

5.3.1    Abduction related records

151    The first relevant archival record is a letter from John Helder Wedge, a representative of the Port Phillip Association, to Major General Sir Richard Bourke, Colonial Secretary of VDL, dated 15 March 1836, which relevantly concerned the abduction of four Aboriginal women. Mr Wedge wrote:

Since my late arrival at this place I have learnt that a flagrant outrage has been committed upon the natives at Western Port by a party of men employed in collecting mimosa bark, the details of which I feel called upon, as one of the parties called upon for their protection, to communicate to you for the information of the Lieutenant Governor, … a few weeks since four individuals had received gunshot wounds …

…about a year and a half ago a similar attack was made upon the natives and four of their women were taken from them.

: Wedge’s letter, extracted in Fels, M, p 328.

152    As a result of that letter Governor Bourke sent Mr George Stewart, the Police Magistrate of Campbelltown, NSW, to Port Phillip. He reported that the man accused of abducting four Aboriginal women was the sealer, Meredith, who had since been killed by Aboriginals near Spencer’s Gulf, SA: Fels, M, p 329; D’Arcy 2005, p 59.

153    On 10 May 1836, Robinson, then Commandant of Wybalena Aboriginal Settlement on Flinders Island, made a journal entry recording that a sealer, William Proctor, had told him that New Holland women had been brought to the Bass Strait islands by Meredith, and that they had been passed on to other sealers. He wrote:

Proctor informed me that the New Holland women was brought to the islands by George Meredith, that Munro has one, Baily has one and the other sealer the last. George Meredith was speared by the natives on the coast of New Holland, no doubt in retaliation for the injuries he had done to them. This was a just retribution. Many aggressions had been committed by the Merediths on the natives at Oyster Bay.

(Emphasis added.)

: Robinson’s journal, transcribed by Plomley in Weep in Silence, p 353.

154    As Dr Clark accepted, in this period and region the terms “a native of New Holland” and “New Hollander” were expressions used to describe Aboriginals from mainland Australia, particularly Victoria, as distinct from Aboriginals from VDL. Robinson’s journal entry concerned an allegation by Proctor that Meredith had abducted some Aboriginal women from Victoria, taken them to islands in Bass Strait, and traded them to other sealers.

155    On 10 August 1836, Robinson made a journal entry in which he noted that a sealer, James Munro, was cohabiting with an Aboriginal New Hollander on Preservation Island (an island in the Furneaux group). He wrote: “He has living with him a female, a native of New Holland. She has recently had a child.”: Robinson’s journal, transcribed by Plomley, p 373.

156    On 30 August 1836 the sealers Tucker, Beadon, Dobson, Abyssinia Jack and a “half-caste” youth belonging to Beadon, told Robinson that they had heard that there were several native women from Western Port and Port Phillip on Gun Carriage Island and on Clarks Island; no names were recorded: Robinson’s journal, transcribed by Plomley, p 379.

157    In August 1836 three Aboriginal men, Derrimut, Betbenjee (Baitbanger) and Dallah Kalkeith (or Dal-la-gal-reeth), accompanied John Pascoe Fawkner on the vessel Enterprise to VDL. Robinson’s journal entry of 5 October 1836 records that he met two of them, Derrimut and Betbenjee in Hobart. He wrote:

J.P. Fawkner brought three natives of Port Phillip to VDL in 1836, arriving at Circular Head in September. He went on from there to Launceston, from where one of the natives were sent back to Port Phillip; and arrived at Hobart Town at the beginning of October. The two natives whom Fawkner brought to Hobart Town were DERIMUT (DERRAHMERT), a chief, and BETBENJEE (BAITBAINGER).

As I will explain, I consider the fact that Robinson described them as “natives of Port Philip” to be significant.

158    Robinson’s journal entry that day records that he met Derrimut and Betbenjee. He wrote:

The two Port Phillip natives with Mr Fawkner met me in Macquarie Street and informed me that the sealers had taken away their wives and that they were now with them the sealers in the straits.

: Robinson’s journal, transcribed by Plomley, p 385.

159    Derrimut and Betbenjee were described in an 1857 account as “princes, or chiefs”, that is, clan heads, with Derrimut’s country being near what is now Werribee, and Betbenjee’s country adjoining that: Bunce, D, Australasiatic Reminiscences of thirty-three years’ wanderings in Tasmania and the Australias, including Travels with Dr Leichhardt in North or Tropical Australia (JT Henty, Melbourne, 1857) pp 60-61 (Bunce 1857), cited in Clark 2002, p 58. Dr Clark accepted that Derrimut, Betbenjee and Dallah Kalkeith were all Boonwurrung men. He opined that Derrimut was the clan head of the Yalukit-willam clan of the Boonwurrung: Clark 2002, p 118. In the first Briggs affidavit Dr Briggs deposed that Derrimut was a Boonwurrung Arweet or chief, and in her PhD thesis exhibited to the second Briggs affidavit she said that Derrimut, Baitbanger and Dallah Kalkeith were Boonwurrung men. I infer that Derrimut and Betbenjee were both Boonwurrung clan heads.

160    Wedge, wrote to the Colonial Secretary again by letter dated 8 October 1836, asking him to instruct Robinson to restore the abducted women to their families. The letter said:

... some native women, I believe four in number, who have been forcibly taken from their husbands and families, from the southern coast of New Holland, by some men employed in sealing, and who frequent the islands in Bass Strait, and to request that His Excellency will be pleased to give the necessary instructions to the Commandant of Flinders Island [GA Robinson] to take measures for restoring these women to their families. Two of the native men who have been deprived of their wives are known to the Association, and others who have become residents at Port Phillip are on terms of friendly intercourse with them. Indeed one of them [Derrimut] has been civilized by Mr Fawkner, in whose family he has resided for several months past, and is at this time on a visit to this place …

: Wedge’s letter, extracted in Clark 2002, p 103.

161    Robinson’s journal entry of 24 October 1836 notes that he thought the best course of action was for him to go to Port Phillip and ask one or two of the Aboriginal men from whom the women had been abducted to accompany him to the Bass Strait islands in order to identify the women and recover them: Robinson’s journal, extracted in Clark 2002, p 103.

162    On 24 November 1836 Wedge again wrote to the Colonial Secretary. He concurred with Robinson’s plan which involved “one or two of the natives at Port Phillip from whom the women had been taken” going with Robinson on a repatriation mission. He wrote:

Relative to my application respecting the abduction of the four women in question and the instructions given thereon to the Commandant of Flinders Island that he should adopt such measures for the restoration of the women to their families as might appear to him expedient; that gentleman proposed, and I fully concurred in the suggestion, that one or two of the natives at Port Phillip from whom the women had been taken should, if possible, be induced to accompany the party in order to identify the women, and for that purpose it was arranged that the vessel should go direct to Port Phillip and from thence to the resort of the sealers.

: Wedge’s letter, extracted in Clark 2002, p 103.

163    On 15 December 1836 Capt. Hurburgh arrived at Flinders Island in the schooner Eliza to take Robinson to Port Phillip to investigate the kidnapping of the Port Phillip women by Meredith: CSO 1/901/19140, Tasmanian Archives, cited in Fels, M, p 332.

164    On 22 December 1836 Capt. Hurburgh and Robinson left for the Port Phillip settlement on the Eliza. In his journal entry that day Robinson notes the purpose of the voyage as “emancipating the New Holland females native of Port Phillip I had reported on, and it was first necessary to get the men in order to coin the women. Purpose therefore to proceed first to Port Phillip ...”: Robinson’s journal, extracted in Clark 2002, p 104.

165    Robinson was also accompanied on the Eliza by an Aboriginal woman from VDL, alias Matilda, who had assisted Meredith in the abductions. In his journal entry of 26 December 1836 Robinson records that when the Eliza entered the heads of Port Phillip Bay that day Matilda pointed out where and how the abductions occurred. He wrote:

At noon 12 am [sic] entered Port Phillip. … Point Nepean is on the eastern side [of] the entrance. Here the bush was on fire, as indeed it was in all parts of the country. Matilda the VDL native woman pointed out the spot a few miles down the harbour at Point Nepean where she said George Meredith and his crew of sealers stole the native women. The men’s names were Brown, Mr West the master of the schooner, a man named Billy. Said the schooner anchored off, the sealers went on shore. Said there was plenty of forest boomer kangaroo at the point. Said they deceived the people; gammoned them. Said the native men upset the boat and the men were all wet and fell into the water. Said there was plenty of black fellows, some on the Port Phillip side some outside, sea coast. Said the sealers were afraid of the Port Phillip natives. Said they employed her to entice them. George Meredith stole, the I think she said four women, took them in the schooner first to King Island and then to Hunter and Clarks and Gun Carriage Islands, and then sold them to the sealers there. I am informed that Munro bought one.

(Emphasis added.)

: Robinson’s journal, transcribed by Plomley, pp 405-406.

166    Matilda made a statement regarding the abductions (Matilda’s Statement), which was appended to Robinson’s Report which said the following:

The Statement of [blank] alias Maria alias Matilda

Says she had been for a long time living with the Sealers. That she was in George Meredith’s Schooner when he went to Port Phillip. That the vessel anchored within the entrance of the Port under Point ‘Nepene’ [sic]. That there was a tribe of Natives on the Point hunting kangaroo. That they the Sealing Men went on shore in their Boats and enticed the Natives and told her to do the same. After fixing upon the best looking women and girls did at a preconceived sign seized upon them and tied them with cords and then conveyed them on board the Schooner and proceeded on a Sealing Voyage to Kings Island and then Hunters Island and thence to the Furneaux Islands were [sic] they were left by Meredith. This woman having accompanied me to Port Phillip [one word illegible] and the start and described their proceedings.

(Emphasis added.)

: Matilda’s Statement, extracted in Fels, M, p 334.

167    Robinson’s journal entry of 27 December 1836 records the following:

Matilda said the sealers did not shoot the blacks, nor did the blacks spear the whites; both parties were afraid to commence hostilities; but the sealers tied the women’s hands with rope and put them in the boat.

: Robinson’s journal, transcribed by Plomley, p 406.

168    Matilda gave an eye-witness account of Meredith’s kidnapping of a group of Aboriginal women who had been part of a group hunting kangaroo on Point Nepean (Meredith abduction), giving the place of abduction, Meredith’s name as the leader, that the crew were sealers, the class of the ship they were sailing in, and the method of abduction. Robinson was uncertain about the number of women that Matilda told him had been abducted. In his journal he wrote that “I think she said four women”.

169    In I Succeeded Once Dr Fels opined, and I accept, that the descriptor “under Point Nepean” used in Matilda’s Statement was a specific nineteenth century descriptor which relates to the present-day locations of Portsea Pier, Portsea Pub, and Point Franklin: Fels, M, p 341.

170    Remarkably, eight years later, another eye-witness account emerged of (as I infer) the Meredith abduction. On 6 June 1841 a young Aboriginal man, Yanki Yanki (alternatively Yankee Yankee, Yonki Yonka or Yonki Yonker), walked into the encampment on the south side of the Port Phillip settlement. He had an amazing story to tell, which William Thomas, the Assistant Protector of Aborigines at Port Phillip Settlement, noted in his journal.

171    Thomas’ journal entry of 7 June 1841 records:

He was about 18 yrs of age and could not have been more than 10 yrs of age when kidnapped from Pt, just the age that would seem to be ripe for modelling [sic] the character. This youth was kidnapped with 8 lubras on the coast between Arthurs Seat and Point Nepean, by the sealers. [Thomas annotates at the bottom of the page] one of these Toutkuningrook, afterwards escaped, jumped overboard when the craft was near the coast by Cape Howe, and got safe to her tribe and is still alive.

Captn West since dead of a government schooner took Yanki Yanki to VDL. [Crossed out is the following: 1 lubra March run away.] Yanki was 1 year in VD Land. He was taken away from VD Land in the Royal William, cutter, Captn Patterson, to Swan River where he was 4 years at wages of 15 shillings per week. He came from Swan River on the Minnerva Schooner, Captn Reed, paid 9 for his passage to Adelaide. He left 3 lubras behind at Swan River with the sealers. He was at Adelaide 1 Year at 1 per week as Dairy Man & Stock Keeper. Yanki took his passage or worked his passage from Adelaide to Pt Phillip in the Diana, Captn Skein.

(Emphasis added.)

: Thomas, miscellaneous papers, extracted in Fels, M, p 366.

172    Thomas also records the following in an undated journal entry about Yanki Yanki:

He came to my tent and told me he was a native of this place which I did not believe at the moment but which a few hours convinced me was correct by the caressing and joyous formalities among the natives. He slept that night with his father [Big Benbow]. The next morning I got him to my tent where he related his history, which I communicated to His Honour the Superintendant and the following morning I introduced him to His Honour.

: Thomas, miscellaneous papers, extracted in Fels, M, p 366.

173    Thomas’ journal entry of 8 June 1841 records that he sent Yanki Yanki on horseback to visit Superintendent La Trobe with a letter stating:

…the bearer of this letter is the intelligent native of whom I spoke yesterday, who with his lubra was stolen from the beach between Arthur’s Seat and Point Nepean about 6 years back. He states his story in good English and answers to the name of Yunki Yunker.

: Thomas’ Journal, extracted in Fels, M, p 370.

174    Thomas’ journal also records that Yanki Yanki was formally welcomed back by the Boonwurrung in a ceremony called Woolworkbullunberlin: Thomas’ Journal, cited in Fels, M, p 370.

175    On 16 June 1841, 10 days after Yanki Yanki’s return, James Dredge, who was living at the Port Phillip settlement, made the following diary note about Yanki Yanki:

16 June 1841

During the week a young man of the Boonworongs arrived in the Edwina from Adelaide. It appears that about five years ago this Tribe was on the coast of the Bay near Arthur’s Seat when a vessel came in, and having anchored, her crew went ashore. Early one morning they induced nine women and two boys to go into their boat and took them on board their vessel and sailed out of the harbour. One of the women contrived afterwards to make her escape and returned to her own people. The others were taken to Preservation Island in the Straits where they used very cruelly. The young man now returned, was, after a time taken to Launceston where he escaped in a vessel which he thought would take him home. Her destination however was Swan River settlement where he lived amongst Europeans and made himself useful as a Stock keeper and eventually obtained one pound per week wages. An opportunity offering he took his passage in a vessel bound to Adelaide for which he paid 9 and then hired himself on the Edwina to work his passage to Port Phillip where he joined his relatives and friends whose joy at his arrival was unbounded.

He is a fine youth and speaks English pretty well.

(Emphasis added.)

: Dredge’s diary, extracted in Fels, M, p 368.

176    On the basis of those journal entries it is reasonable to infer that it is more likely than not that Yanki Yanki was a member of the Boonwurrung People. Dr Clark accepted that Yanki Yanki was taken in the Meredith abduction and in answer to Proposition 26 of the BW Joint Experts’ Report he described Yanki Yanki as a “Boonwurrung youth”.

177    Robinson’s journal entry of 28 December 1836 records that he held a conference that day“with Buckley and the Port Phillip aborigines.”: Robinson’s journal, transcribed by Plomley, p 407.

178    In Robinson’s Report, Robinson also records that he met with a group of “Port Phillip natives” at Port Phillip settlement on 28 December 1836 who were complaining about the abductions, some of whom had witnessed them. Robinson’s Report records that most of the natives were away from the settlement hunting, and the group he spoke to numbered 20, made up of men and women, but that only one of the men present had been robbed of his wife: see Fels, M, p 337; Clark 2002, pp 104-105. Dr Clark opined in Clark 2002, and Mr Annand agreed in 2019, that Derrimut was the informant for that meeting, while Dr Fels said that “contrary to Clark’s citation, Derrimut was not recorded as an informant on this date [journal entry dated 30 December 1836]”: Fels, M, p 335, fn 34. It is correct that Robinson did not record Derrimut as the informant, but I prefer Dr Clark’s opinion that it is likely he was present at the meeting. Derrimut had been robbed of his wife, and he was one of the two men requested to accompany Robinson on his mission which meant that he was not away on the hunting excursion at the time.

179    Robinson’s Report records:

Names of the men who had been robbed of their wives, was mentioned by the natives, one of whom was then present. Names also of the women that had been taken were stated and the whole of the natives bore testimony to the violent outrage that had been committed upon them. One aged woman that had two daughters forced from her, and she by signs and gestures evinced the strongest possible feeling at their loss, pointed in the direction whence they were taken from (at Point Nepean the head of the eastern entrance of Port Phillip), described the kind of vessel they were taken in, as having two masts and she together with the other natives present expressed their great desire to have them restored.

: Robinson’s Report, extracted in Clark 2002, pp 104-105.

180    Robinson’s journal entry of 3 January 1837 records the following information from his 28 December 1836 meeting with the “Port Philip natives”:

(a)    Nan-der-gor-oke: “Derremart’s wife who was taken by the sealers”; (Another record, informed by Benbow in April 1847 also described Nan-der-gor-roke as belonging to Derrimut and taken by sealers);

(b)    Doog-by-er-um-bore-oke: “The mother of the two girls stolen from P.P. [Port Phillip]”;

(c)    Nay-nar-gor-rote: one of two daughters of Doog-by-er-um-bore-oke: “One of the girl's names taken by the sealers”; and

(d)    Bor-ro-dang-er-gor-roke: “Another girl taken by the sealers”.

: Robinson’s journal, extracted in Clark 2002, p 226.

181    Robinson’s journal entries of 31 December 1836, 1 January 1837 and 3 January 1837 show that Robinson thought that he had the agreement of Derrimut and Dallah Kalkeith to accompany him on the intended repatriation mission but they ultimately refused to go. Robinson left Port Phillip for the Eliza on 1 January 1837, and the Eliza got underway on 3 January 1837: Robinson’s journal, transcribed by Plomley, pp 410, 412.

182    Robinson’s Report notes his view that some “depraved” whites had talked Derrimut and Dallah Kalkeith out of assisting the mission. He wrote:

I therefore requested that two of the Aborigines then on the settlement might be selected to accompany me to communicate with the captured women in order to [effect] their emancipation from the thraldom in which they were involved. The Aborigines appeared at first averse to go, but afterwards promised compliance. But on the morning following when on the point of my departure, they declined. Some of the depraved whites I had been informed, had been most industrious in persuading them from it and which was what I had been led to expect would be the case.

: Robinson’s Report, extracted in Clark 2002, p 105.

183    Robinson’s repatriation mission involved him visiting a number of the Bass Strait islands where he understood sealers were living with abducted Aboriginal women or girls. In his journal entry of 9 January 1837 he records his visit to Preservation Island where he met the sealer, James Munro, with his Aboriginal female partner. Robinson’s 9 January 1837 journal entry records:

Went on shore at Preservation Island with Captain Hurburgh … Found on shore James Monro who had a New Holland woman a native of Port Phillip. She was ill in bed. Had an infant child by some of the sealers; had also a daughter about fourteen years of age that she had in her own country. This was an interesting girl and it grieved me to leave her in such hands for I felt persuaded she would be maltreated. Another daughter belonging to this woman was living with Strognal on Gun Carriage by whom she had two children; she was about sixteen years of age … There is positive proof that Munro bought the woman with whom he was cohabiting and it is currently reported that he gave £7 for her. He denies having given a consideration for her and accounts for his having her by her being old or as he said he supposed she would not have fallen to his share; but this is only evasive, there is positive proof that not only was a consideration given for this woman but for every other woman brought from Port Phillip by George Meredith the original importer.

(Emphasis added.)

: Robinson’s journal, transcribed by Plomley, p 414.

184    Robinson’s Report records:

On being interrogated as to how he [Munro] became possessed of her, he stated that she as well as the other Port Phillip Aboriginal females, had been stolen from their country by George Meredith Junior, and after accompanying him upon a sealing voyage were brought back, and left at the Furneaux Islands. Upon being asked whether he had bought this woman he denied having done so and accounted for her by the circumstance of her being more aged than the rest or otherwise he supposed she would not have fallen to his share (It has been reported to me that the price given for her was seven pounds). But this was only evading the question for it certain this woman had been bought from the original importer, and that a consideration had been also given for the other women by the men they were then cohabiting with.

There is positive proof that these women were taken from their country by the individual alluded to, as communicated by Munro, as well the evidence of the Van Diemen's Land native woman [Matilda] whose testimony is appended to this report, besides which the women themselves and the sealers testify to the fact.

(Emphasis added.)

: Robinson’s Report, extracted in Clark 2002, pp 106-107.

185    Robinson’s Report also records:

Munro said that another of the Port Phillip women was on Clark Island, cohabiting with a sealer named Maynard on which island several other men - half caste girls - and Van Diemen's Land native women were staying.

186    In his 9 January 1837 journal entry Robinson records that later the same day Richard Maynard, and his “New Holland native of Port Phillip” female partner came to Preservation Island from Clarks Island. The journal entry records:

Before quitting Preservation Richard Maynard a sealer came to Preservation Island from Clarks Island. He had with him a New Holland native of Port Phillip. She was far advanced in pregnancy. She was a fine looking woman. She was completely under the influence of the sealer Maynard and when asked whether she would like to go to her own country she replied she would see me b..... first. Captain Hurburgh was with me at the time. Poor creature, her case and that of the others is truly pitiable. The man was impertinent and I warned him to quit the islands. To some remarks from Captain H he replied that he knew she was taken from her own country by G Meredith but with that he had nothing to do.

(Emphasis added.)

: Robinson’s journal, transcribed by Plomley, p 415.

187    By going back the original journal entry by Robinson Dr Clark discovered that Plomley had mis-transcribed the sentence emphasised in the passage above. Correctly transcribed that entry states that Maynard “knew she was taken from her country by G Meredith but with that he had nothing to do”. Maynard’s statement did not include the word “own”, and it therefore referred to his Aboriginal female partner having been taken “from her country” rather than “from her own country”.

188    Robinson’s 9 January 1837 journal entry also lists the names of the sealers and their Aboriginal partners on the various Bass Strait islands as at that time. It notes “Ric’d Maynard - One Port Phillip woman” on Clarks Island.

189    Robinson’s Report records the following about his meeting Richard Maynard and Maynard’s female partner:

Maynard and the Port Phillip woman referred to came to Preservation, I acquainted him with the intentions of the government in reference to the removal of the Port Phillip females, and called upon him to surrender the woman. His behaviour was contumacious said 'she was a free woman and living with him of her own choice and free will', said 'he knows she had been stolen from her country, by Meredith, but with that he Maynard had nothing to do and supposed it was not the intention to take her by force.'

The woman appeared enceinte, and I subsequently learnt that she was far advanced in pregnancy, on being spoken to she declined leaving the sealer and when I acquainted her with the desire of the government to send her back to her own country, she made use of a blasphemous expression and said she would not go. But it was quite apparent the poor creature was ignorant of what she was saying and was doing only what she had been instructed, she was evidently under the control of the man she was cohabiting with, and appeared to be influenced by fear. This individual as well the other natives of Port Phillip were the finest I had yet seen. It is the practice of the sealers to select the finest women, and girls, of this unfortunate race as was the practice towards the Van Diemen's Land native women.

(Emphasis added.)

: Robinson’s Report, extracted in Clark 2002, p 107.

The relevant sentence in Robinson’s Report did not contain the same transcription error as Robinson’s 9 January 1837 journal entry.

190    Unfortunately, Robinson was unable to repatriate any of the abducted women. Robinson’s Report notes:

I feel it would have greatly promoted the cause of humanity. 1stly it would have led to the emancipation of the New Holland women from the sealers. 2ndly because it would have tended to suppress a system of lawless aggression upon the original inhabitants of New Holland, than which, no system of slavery can possibly be worse, since those men not only steal these women from their country, as was the practice towards the poor Africans when doomed to slavery, for the purpose of labour, but also cohabit and live with them in a state of concubinage, and frequently bartering them away for seal skins and other property.

: Robinson’s Report, extracted in Clark 2002, p 105.

5.3.2    Other records

191    Richard Maynard and his de facto ‘wife’ were mentioned in an 1849 report by Surveyor General Power, which states:

On Woody Is. are Richard Maynard (who is an excellent boat builder), his wife, a native of New Holland, with three sons and two daughters

: Surveyor General Power’s report, extracted in Clark 2023, Appendix 39.

192    In 1863 Archdeacon Reiby visited the Bass Strait islands. In his report to the Tasmanian Legislative Council titled Report of Half-caste Islanders in Bass Strait, he referred to Richard Maynard and his wife. The report provides the following information:

(a)    there were six adults and eight children living on Long Island;

(b)    the six adults were Richard Maynard (or “Old Maynard”), Richard Maynard's wife (a “native of New South Wales”), William Maynard (“half-caste”), William Maynard's wife, William Brown, and William Brown’s wife (“half-caste”);

(c)    Richard Maynard was “one of the old sealers”, and had “lived for many years upon Long Island”; and

(d)    John Maynard lived on Little Dog Island with his wife (“half-caste”, “a daughter of old Everett by his first wife”, who has four young children).

: Tasmanian Legislative Council, Paper No 48 of 1863, extracted in Clark 2023, Appendix 2.

193    The first official record of Elizabeth Maynard by name is the register of Deaths in the District of George Town, Tasmania, for 1882 (Elizabeth Maynard’s death certificate). It records her date of death as 14 January 1882, age 71 years (therefore born circa 1811) and describes her as a “Sealer’s widow”. Given that Elizabeth Maynard’s birth preceded settlement at Port Phillip her age must be considered an estimate: Elizabeth Maynard’s death certificate extracted in Clark 2023, Appendix 38.

194    An 1870 book by James Bonwick refers to children on the Bass Strait islands born from unions between white sealers and Aboriginal women. He wrote “[o]ne woman had thirteen children by a sealer”: Bonwick, J, The Last of the Tasmanians, or, The black war of Van Diemen’s Land (Sampson Low, Son & Marston, London, 1870) p 316, extracted in Clark 2023, Appendix 40.

195    In 1953 Tindale wrote that Bonwick was there:

… alluding to the Australian aboriginal woman Elizabeth, second wife of ‘Henry’ Maynard the white sealer. She bore him at least twelve F1 [meaning ‘half-caste’] Australian children, as chronicled in this study. … Elizabeth… was still remembered affectionately in 1939 as ‘Granny.’

: Tindale, N, Growth of a People, p 13, cited in Clark 2023, p 37.

196    On 2 October 1899, Edward William Stephens wrote a letter to Mr JB Walker in which he describes Richard Maynard’s son, John Maynard, as the descendant of a “Tasmanian woman”, and describes his half-brothers as descendants of a “Victorian native woman”: EW Stephens’ letter, extracted in D’Arcy 2005, p 62.

197    A manuscript article by EW Stephens dated 16 October 1899 states that:

(a)    Richard Maynard, also known as “Tadds”, “Toombs” and “Bushby”, lived on the Bass Strait islands;

(b)    Richard Maynard’s first wife was “Tasmanian Margaret”;

(c)    Richard Maynard’s second wife was “Betty, an aboriginal from Victoria, by whom he had nine children, seven of whom are still living - two of these have very large families”; and

(d)    there were some asserted “physical and intellectual contrasts” between the descendants of “Victorian Betty” and of “Tasmanian Margaret”.

EW Stephens variously describes Richard Maynard’s second wife as “an aboriginal from Victoria”; “Victorian Betty” and “Victorian native woman”: Stephens, EW, The Furneaux Islands (University of Tasmania, RS40/1-2 Bladon Papers, 1899), cited in Clark 2023, p 39 and Pilbrow 2023, p 75.

198    The notebooks of Ernest Westlake dated 1908-1910 contain several references to the Maynard family. Westlake describes Richard Maynard’s son, John Maynard, as “a descendant of a Tas. woman”, and contrasts him with “many of his half caste brothers + their children who came from a Victorian native woman”: Papers of Ernest Westlake (AJCP, 1908-1910) Book 4, p 2: Appendix 2, Item 33 (Westlake 1908-1910), extracted in Pilbrow 2023, p 75.

199    A 1947 article by AL Meston states that Richard Maynard:

(a)    married a “Tasmanian chief’s daughter” named Limina Bungana or Manalagana, whom he later renamed Margaret, with whom he had two children; and

(b)    “later married an aboriginal woman from Victoria and had nine children by her”.

: Meston, AL, “The Halfcastes of the Furneaux Group” (1947) 2 (1) Records of the Queen Victoria Museum 47-52, p 49 (Meston 1947), cited in Pilbrow 2023, p 79.

200    Tindale’s 1938-1939 study of the Bass Strait Islander communities, undertaken as part of the Harvard-Adelaide Universities Anthropological Expedition, involved extensive genealogical research. His journal from that expedition states:

(a)    Maynard's first wife was a “Tasmanian woman”, with whom he had two children, John and Jane;

(b)    “Granny the full blood New Hollander”, was “the second partner” of a man named Maynard; and

(c)    “Maynard was a carpenter & boat builder by trade & came from England as a convict”.

201    Tindale notes that his research included a “long talk” with William Henry Mansell, who at 75 years of age was the oldest man then living on Cape Barren Island, and that Mansell:

…appeared to confirm all of our previous genealogies and extend them to the point that we can be reasonably certain that, apart from hidden illegitimacies, our genealogies are substantially correct.

Tindale Collection, Harvard-Adelaide Anthropological Expedition 1938-1939, Journal 2, p 79, cited in Pilbrow 2023, pp 75-76.

202    Tindale’s 1939 genealogies describe Elizabeth “Granny” Maynard as a “fb. Aust. from Victoria”. In Tindale’s system of notations that denotes a “full blood” Aboriginal from mainland Australia (as distinct from a “full blood” Aboriginal from Tasmania who he described as “fb. Tas.”), with the further information that she was from Victoria:

(a)    Genealogy Sheet 6 contains the following information:

(i)     “Granny” Elizabeth was the second wife of Henry Maynard, a “white man from England”, who is also recorded under the name “Richard” in the Georgetown Death Registry;

(ii)    “Granny” Elizabeth died on 14 January 1882, and her age was given as 71 yrs; and

(iii)    Sarah Maynard (died 15 May 1882, aged 37) was the daughter of Elizabeth “Granny” Maynard and Henry (Richard) Maynard;

(b)    Genealogy Sheet 4 describes Elizabeth “Granny” as a “full blood” from Victoria, as confirmed by her grandson, Darcy Maynard;

(c)    Genealogy Sheet 2 describes:

(i)    Elizabeth’s daughter Sarah Maynard as having married William Brown, a white man. Tindale lists five children of this marriage: Lily Jane, Mary, Rebecca, Argus, and William Henry; and

(ii)    Sarah Maynard’s daughter Rebecca as having married Benvenuto Everett (who was the grandson of a Tasmanian Aboriginal woman).

: Tindale 1939 cited in Pilbrow 2023, p 77; Genealogy Sheets, extracted in Annand 2019, pp 101-102.

203    Tindale wrote that Elizabeth Maynard was still remembered by her descendants at the time of his visit in 1938-1939, who referred to her affectionately as Granny. He notes her Victorian heritage by describing her as “a Victorian full blood”, and as a “full blood Australian from Victoria”: Tindale, N, Cape Barren Island Genealogy Sheet 4, extracted in Annand 2019, p 99.

204    In Growth of a People (1953) Tindale provided further information regarding the Maynard family and some brief descriptive notes on Elizabeth “Granny” Maynard and her descendants. It includes several pages of entries showing descendants born as late as 1949 when Tindale appears to have undertaken a follow-up visit to the Furneaux Islands. These entries update and sometimes correct the information in his 1939 genealogy charts. He notes that:

(a)    Henry Maynard was a “white sealer” who had “two aboriginal wives”;

(b)    Henry Maynard’s first wife was a Tasmanian aboriginal, with whom Maynard had two “half-caste” children, who died between 1840 and 1843;

(c)    Henry Maynard’s second wife was a woman named Elizabeth, a full-blood Aboriginal from Victoria, known as “Granny” to her descendants, with whom he had 11 “half-caste” children. “Granny” was described by those who knew her as a “real New Hollander”; and

(d)    Sarah Maynard was a “half-caste” woman, who was the first wife of William Richard Brown, having seven children with him.

: Tindale, N, Growth of a People, p 6, extracted in Annand 2019, p 101.

205    While most records regarding the Maynard family refer to Elizabeth Maynard’s ‘husband’ as “Richard”, in Growth of a People Tindale refers to him as “Henry”. Tindale acknowledges, however, that Henry Maynard was also known as Richard and notes that Henry was recorded under the name “Richard” in the Georgetown Death Registry. Tindale wrote:

Maynard, (previously known as Todd), HENRY, also called Richard, white, b. 1795 approx., d. 13 Aug. 1874, age 79 approx. carpenter and boat builder, from England; there known as Henry Todd and Bushy; in Georgetown Death Register is named Richard Maynard. Marr. Tasmanian full blood (of Ben Lomond Tribe) who died between 1840 and 1843. Then marr. Elizabeth, Australian full blood.

(Emphasis added.)

: Tindale, N, Growth of a People, p 45, extracted in Annand 2019, p 102.

206    The fact that Tindale had a high level of confidence in his 1939 and 1953 research and conclusions is material to my view regarding Elizabeth Maynard. In Growth of a People he wrote:

(a)    “In the course of our field work each measured person was subjected to enquiry as to his genealogical data. This information was written down in conventional form, along with all remembered dates. This led to innumerable overlapping of data, each confirming the other. Constant watch was kept for anomalies since pursuit of these by further enquiries generally enabled any conflicts to be resolved.” (p 17)

(b)    “The subsequent detailed elaboration and cross-checking of the results and the confirmation of birth and death dates by searching of records has given the writer a healthy respect for the accuracy and care with which the Islanders have been able to preserve details of their family histories.” (p 17)

(c)    “In 1939 the earliest direct and firm information obtainable from Bass Strait Islanders was carried in the minds of the second generation descendants of the original Tasmanians, whose ages ranged from 64 to 85 years. Their fragmentary recollections date possibly back to 1860, a period when more than one Tasmanian woman was living and five of the dozen original whites were still present. At this time most of the Fl generation were still in the prime of life. Some of them survived into the present [Twentieth] century so there existed a living vehicle for the transmission of direct data about F1s until relatively recent times ... Some of the natives possess data passed to them by their forebears.” (p 19)

: Tindale, N, Growth of a People, extracted in D’Arcy 2023, p 13.

207    The anthropologists Mollison and Everitt visited the Bass Strait islands in the 1970s and undertook further research into the genealogies of the Aboriginal residents. They published their genealogies in 1978 in which they also said that Richard Maynard was also as Henry, as well as by other forenames. They wrote:

Elizabeth alias ‘Granny Betty’ Nt. Port Phillip (Vic.) abducted by Meredith at same time as Margery Munro, Polly Bligh, (1811 - 14 Jan. 1882) as one of three wives of Richard Maynard alias John Todd, Tadds, Toombs, Henry Bushby, William Maynard (1795-13 Aug 1874), sealer of Gun Carriage Island and Clark Island.

: Mollison and Everitt, cited in Clark 2002, p 127.

208    Having regard to Tindale’s 1939 and 1953 research, supported by Mollison and Everitt’s genealogies, I am satisfied that Richard Maynard and Henry Maynard were the same person. The Court was not taken to the basis for Mollison and Everitt’s view that Richard Maynard had three wives rather than two wives as recorded by Tindale. I give greater weight to Tindale’s research and opinion in that regard.

209    The marriage register entry for the marriage of William Richard Brown and Sarah Ann Maynard (who is claimed to be the daughter of Richard Maynard and Elizabeth Maynard) on 29 August 1862 lists them both as “of age” (i.e., over 21). It records that the marriage took place in Launceston, but does not provide details of their parents. The birth register entry for Henry William Brown recorded his parents as William Richard Brown (a “Sealer”) and Sarah Brown (“formerly Maynard”) on 7 July 1867.

210    In “This Most Resolute Lady”, the anthropologist Barwick opined:

Emma Bligh married one of the eleven children of the sealer Richard Maynard and the Victorian Aboriginal ‘Elizabeth’ (Born 1811, died 11 Jan 1882). Descendants who remembered her in 1939 described her as a ‘real New Hollander’. Presumably she was the captive seen with Maynard in January 1837.

(Emphasis added.)

: Barwick 1985, p 233, cited in Clark 2002, p 129.

211    Thus, following her death in 1882, Elizabeth Maynard was identified in genealogical research and other writings as:

(a)    “an aboriginal from Victoria”, “Victorian Betty” and a “Victoria Native woman”: EW Stephens’ 1899 manuscript on the inhabitants of the Furneaux Islands;

(b)    a “Victorian Native Woman”: EW Stephens in Westlake 1908-1910;

(c)    an “Australian Aboriginal woman”, “a Victorian full blood”, and a “full blood Australian from Victoria”: Tindale 1939;

(d)    “a real New Hollander”: Tindale 1939 referring to Maynard family oral tradition;

(e)    “an aboriginal woman from Victoria”: Meston 1947;

(f)    “an Australian aboriginal woman from Victoria long known as ‘Granny’ to her descendants”: Tindale 1953;

(g)    “Elizabeth alias ‘Granny Betty’ a native of Port Phillip (Victoria)”: Mollison and Everitt 1978; and

(h)    a “Victorian Aboriginal ‘Elizabeth’” described to Tindale in 1939 by descendants who remembered her as a “real New Hollander”: Barwick 1985.

5.4    The lay evidence

212    Ms Dyan Summers, Mr Robert Ogden, and Mr Jarrod West gave evidence for the Bunurong respondents. Their evidence was directed at showing that they are descended from Elizabeth Maynard, and that within their family a story has been passed down to the effect that Elizabeth Maynard (known within the family as “Granny Betty”) was a “Port Philip woman” of the “Port Phillip tribe” who was abducted from the Port Phillip area (or in respect to Mr Ogden and Mr West the more specific locations of Portsea or Point Nepean).

5.4.1    Ms Dyan Summers

213    Ms Summers is a Bunurong elder, who was born in Launceston in 1952. She was raised largely at Emita on Flinders Island and now lives six months a year on Flinders Island and six months a year in Victoria. She spent most of her life working in community support in Tasmania in the areas of health, childcare, education and legal assistance, and is now retired.

214    She provided the information for the following skeletal genealogy showing her descent from Elizabeth Maynard:

215    She identifies as a Bunurong Islander through her mother, Maisie Lillian West, as her mother identified as an Islander. She said that she is Bunurong through her mother Maisie, who was Bunurong through her mother Lily Jane Brown (also known as “Alma” Lily Brown or Granny Alma). She traced her Bunurong ancestry back five generations to Elizabeth Maynard, whom she calls “Granny Betty”.

216    She said that she knows her family’s history through being told about it by her mother and other family members. She did not know her Granny Alma but knew of her through her mother, and her mother’s brothers and sisters, and said that they were a “very close-knit family”. She said that Granny Alma’s father was Henry William Brown (also known as Grandfather Bunny). She knew that Grandfather Bunny was her great-grandfather because her mother told her that, as did her Aunty Ella, Uncle Mark and Uncle George. She said that there were “lots and lots of stories” about Grandfather Bunny as he was a “bit of [a] character” who was married five times and had 23 children. She said that Grandfather Bunny’s mother was Sarah Ann Maynard who was the daughter of Elizabeth Maynard and Richard Maynard.

217    Ms Summers testified that she also knows her family’s history because the family tree was written in the back of the family Bible (Maynard Family Bible). She said that the Maynard Family Bible had been given to Grandfather Bunny when he was married and then passed down to her mother. It was kept in the front room when she was growing up in Emita and she had looked at it over the years and remembered seeing Sarah Ann Maynard and Elizabeth Maynard’s names written in it. She said that the Maynard Family Bible had since been lost.

218    Ms Summers was able to describe the Maynard Family Bible in some detail, in a fashion which left me in no doubt that she recalled it. She also recalled that a small photo of an Aboriginal woman was stuck inside the Bible, and that many years later, when she was researching her family history at the University of Tasmania and looking at its collection of old photographs, she saw the same photograph. That photograph had Sarah Ann Maynard’s name written on the back of it, and she identified it for the Court. She also identified the following photographs for the Court:

(a)    a photograph of her great-grandfather Henry William Brown (Grandfather Bunny) and his father William Richard Brown, upon which their names are written, which came from Aunty Ida’s photograph collection; and

(b)    a photograph of her maternal grandmother, Alma Lily Brown, known as Granny Alma, which was hanging in her mother’s home when Ms Summers was growing up. She said that her mother told her who it was.

219    Ms Summers stated that when she was growing up her family and other families on King Island often spoke about Granny Betty. She testified that Granny Betty “was spoken about all the time growing up, everybody, but not just my mother, you know, her sisters and other people in the community”. Ms Summers said that her mother’s sisters, Aunty Ella Jane West and Aunty Mary Jane West, her Uncle Mark and Aunty Clara Mansell (who she said is a descendant of Marjorie Munro) spoke to her about Granny Betty.

220    Most importantly, she testified that “the story of Granny Betty being kidnapped or stolen from the Port Phillip region was always spoken about”. She said that “we knew Granny Betty was kidnapped from the Port Phillip, because Mum referred to her as coming from the Port Phillip tribe” but “[w]e didn’t know the Port Phillip tribe was actually the Bunurong tribe.” Ms Summers said that she first learnt about Granny Betty when she was “young” or “little” but was unable to date it more precisely than that. She first “took an interest” in the story when she was probably nine or 10 years old (which, as I infer, dates that in the early 1960s as Ms Summers was born in 1952). She also said that her mother told her the story about Granny Betty being abducted was also spoken about on Cape Barren Island when her mother was growing up (which, as I infer, dates that in circa late 1930s/early 1940s as her mother, Maisie West was born in 1930).

221    She said that she was not told by her mother and other relatives where they had learned about Granny Betty, but said that “[t]hey would have learned it from their father and mother”. Ms Summers was asked in cross-examination whether it was in the early 1970s or late 1970s that she was told the story of Granny Betty being stolen from the Port Phillip region. She said in response that “[w]e always knew that” and “we grew up knowing it.” Ms Summers said that all of her direct family know the story about Granny Betty, as do her children as she has shared that knowledge with them, and they have shared it with their children.

222    Ms Summers also said that in the late 1970s she visited her mother, who lived in Melbourne by then, and they went to the Mornington Peninsula every opportunity they had. Her mother told her then that “this is our land, this is our country, this is … where Granny Betty came from. This is where we belong”.

223    Ms Summers said that she knew her Aunty Ida well and described her as a “very knowledgeable, very highly respected person within our community, both the Bunurong community and the Tasmanian community and the island community”. She said that Aunty Ida was given an OBE, was recognised as National Aboriginal Elder of the Year, and was given a state funeral.

224    She testified that Aunty Ida passed on a lot of family information to her and was “very influential” in her life. She talked with Aunty Ida about Granny Betty being stolen from Port Phillip, and recalled a conversation where they were sitting around “talking about Granny Betty and how traumatic it must have been for her to have been sold to a sealer and forced to have babies and forced to raise children to be very strong and proud, and how difficult those times would have been.”

225    Ms Summers said that she made the connection between the Port Phillip tribe and the Bunurong as an adult, that she did not know that as a child, and that the Bunurong connection was not spoken about when she was young. She testified that she was first told that the Port Phillip Aboriginal people were Bunurong, and that she was Bunurong, by her Aunty Ida. Initially Ms Summers testified that that conversation took place earlier, but in cross-examination she accepted that it was not until the 1990s that Aunty Ida told her that they were Bunurong people.

226    Ms Summers said that that was when she realised that she was a Bunurong person. Until then, while she knew that Granny Betty was stolen from Port Phillip and was a Port Phillip woman, she knew herself as an Islander. She immediately considered the information that she was a Bunurong person to be important. She began conducting research in the State Archives and in the Office of Aboriginal Affairs, which she said confirmed “everything that Aunty Ida had told me”.

227    She testified that she did not ask Aunty Ida how she knew that they were Bunurong, and that Aunty Ida “just said she knew”. She said that “I imagine [Aunty Ida] would have learned [that] from her mother and father, Nanny and Poppy Armstrong. They were very, very, very proud, proud people.”

228    Ms Summers also said that before she died Aunty Ida became “very concerned” about Bunurong issues, and told her that one of the reasons she did so was because:

…she was concerned that Granny Betty’s story would be lost, and she didn’t want that, … She said the words, ‘We can’t lose the stories’.

229    In cross-examination Mr Levy, counsel for the applicant, asked Ms Summers a series of questions about the role of Ms Murray and Mr Steven Compton in promoting the claim that various Bass Strait Islanders were Bunurong by descent, their alleged role in persuading Aunty Ida that she was Bunurong, the setting up of the BLC, Ms Murray’s alleged role in the BLC going into special administration; and Ms Summers’ role in reviving it. Those matters have little relevance to this Separate Question and I will not set them out.

230    Ms Summers accepted that a substantial number of descendants of Elizabeth Maynard do not identify as Bunurong people, including her late husband Ronnie Summers, the activist Michael Mansell, and the playwright Nathan Maynard. She said that that was because many Bunurong people living in Tasmania were too afraid to identify as such. She said that Michael Mansell challenged Tasmanian people who identified as Bunurong, and told them they could not identify as Bunurong because they were in fact Tasmanians. She said that she had an argument with Michael Mansell about that about four or five years ago.

231    Mr Levy took Ms Summers to a letter sent by Ms Murray to the representative body, Mirimbiak Nations Aboriginal Corporation dated 20 March 2000 (Mirimbiak Letter), in which Ms Murray complained about the alleged treatment by Dr Briggs of Bunurong elders, Aunty Ida West, Aunty Lennah and Aunty Verna Nicholls, at a meeting in Melbourne. Ms Murray wrote:

Unfortunately on this trip, my Nanna Ida West and Auntie Lennah and Auntie Verna were deeply offended by the actions of Caroline Briggs at the meeting. Before arrival to Melbourne, we had set an agenda with Mirimbiak, meeting with them on Thursday to discuss finances and genealogies and then Friday we were to meet with the Wurundjeri people to resolve issues and meet their elders. Then we were to have two frees [sic] days to show my elders their country. This was agreed with by Mirimbiak and seemed to hold no problems.

Their first day there [at a meeting at Mirimbiak] I feel that they were attacked verbally by Caroline Briggs, questioned of their genealogies and called 'you Tassie mob' on numerous occasions. Please let me stipulate for the record 'us Tassie mob' are in fact the true Bunurong people descended from Elizabeth Maynard and Jane Foster. They should not be held accountable for living on the islands where the government and their policies held them until the mid 1900's, where their genealogies and history was 'stolen' from them by academics, white and black. They are proud to have survived among the Bass Strait sealing and birding community; they carry their Bunurong knowledge with pride, handed down from generation to generation. They should be treated with great respect for having survived the injustices that have befallen them. Now they know exactly where their grandmothers were stolen from and where their land is, they will fight long and hard to protect and guard their land.

I think the way they were spoken to is disgraceful, where is the celebration for the Bunurong people returning? Perhaps the joining of families???

On the other hand, the Wurundjeri people were happy to have the true Bunurong people return, showing great respect, it was I am told an honour to meet with our neighbours we have since our trip, been accepted by the Wurundjeri and Aboriginal Affairs with our genealogy and acknowledged as Bunurong people and wish to be treated with respect in the future.

(Emphasis added.)

232    Ms Summers said that she had not seen the letter before but that Aunty Ida had told her about the meeting, which she was told was to decide who were members of the Bunurong/ Bunurong People and who were not. It was put to Ms Summers that the emphasised passage above shows that until around that time Aunty Ida and the other Bunurong elders did not know the location of Bunurong country. Ms Summers rejected that suggestion. She said that she “guessed” from the letter that Ms Murray had taken the elders to Point Nepean, but she did not know whether Aunty Ida had been to Point Nepean before that occasion.

5.4.2    Mr Robert Odgen

233    Mr Odgen is Ms Summers’ son. He was born in Launceston in 1968, and grew up moving between Launceston, Flinders Island and Cape Barren Island. He has an associate diploma in parks, recreation and heritage and has worked on Flinders Island as an Aboriginal cultural officer. He worked as a cultural field officer for the BLC from about September 2001 until 2013. The BLC was put into special administration around then and he did not return to work there until 2016 when he worked as a heritage manager until 2022. He said that he is now starting up a consultancy in cultural heritage.

234    He said that he provided the information for the skeletal genealogy attached to his lay witness outline. I will not reproduce it because it is materially the same as that provided by Ms Summers. The only difference is that it also records Mr Ogden’s father, Kenneth Ernest Ogden. Mr Ogden identifies as a Bunurong Palawa man, with the Palawa part being his Tasmanian side. Mr Ogden said that he is a Bunurong man through descent from his mother, Ms Summers, and through his maternal grandmother Maisie Lillian West (who he knew as “Nan”), going back to Elizabeth Maynard, who his Nan called Granny Betty. He knew of his bloodline going back to Granny Betty through conversations he had with Nan.

235    Mr Ogden testified that Nan told him about Granny Betty and “always recognised Granny Betty as being a Port Phillip woman that was taken from Port Phillip”. He said “that’s how she…told it to me through the years.” He said “I would assume [Nan] learnt [that] through her mother”, Granny Alma.

236    He said that when he was younger he would visit Nan, who lived just south of Woori Yallock, accompanied by his mother. Then, after he was about 10 years old, he and his sister Natasha would go to visit Nan on their own, usually twice at Christmas time and then at various times on school holidays. Sometimes they would also go to Port Phillip Bay.

237    Most importantly, Mr Ogden testified about an occasion, when he was around 10 or 11 years old, when he and Natasha went to the beach at Portsea (which is on Point Nepean) for a family gathering with Nan, Nan's brother, Uncle George, and other family members. He testified that the thing that resonated with him the most about that trip is that Nan said to him, “this is the area that Granny Betty was taken from.”

238    He said that Nan did not tell him how she knew that and at the time he did not know what that meant. He believes that information was important to Nan because he did not think she would have said that to him or to his sister if that area was not an important place, or if the story she was telling about Granny Betty being taken from that area was not important.

239    Mr Ogden said that growing up he also spent time on Flinders Island and Cape Barren Island. He would go to Flinders Island with his family, and when he was a bit older he also stayed there without his family while on school holidays. As a child he also used to visit Aunty Ida, and he went there through his teens, staying with her and Aunty Lena. When he was about 17, he said that he moved to Melbourne and lived with Nan for about 15 to 18 months. During this period she talked to him about their family members. After about 18 months, he moved back to Flinders Island and got a job as a trainee cultural heritage officer and land management officer with Tasmanian Parks and Wildlife.

240    He testified that when he was in his early 20s, probably in the late 1990s, Aunty Ida told him, “You need to go and, you know, use your skills that you’ve learnt and care for country over there – over here”, referring to the Port Phillip area. He said that was the first time that he had heard the word Bunurong, as the country Aunty Ida referred to was Bunurong country. He said that he did not follow Aunty Ida’s advice to go to Bunurong country at that time, but about three or four years later, in the early 2000s, he spent a weekend with Aunty Lena and caught up with Aunty Ida and they reiterated that it was time for him to go over to that country. He then started working as a cultural field officer for the BLC.

5.4.3    Mr Jarrod West

241    Mr West is the grandson of Ms Summers’ uncle, George Robert West, born in Melbourne in 1989. He is trained as a horticulturalist and is employed as a Senior Project Officer with the Biodiversity Division of the Victorian Department of Environment, Land, Water and Planning.

242    Mr West provided the information for the following skeletal genealogy which shows his descent from Elizabeth Maynard:

243    Granny Betty is described in the skeletal genealogy as “Elizabeth b. 1811”, which is a reference to Elizabeth Maynard.

244    He said that his father’s name is Christopher Thomas West, his mother’s name is Dawn Helen Wain, and his paternal grandfather is George West. George West’s mother is Alma Lily Brown, who he knew as Granny Alma. Mr West said that he identifies as a Bunurong man by descent from his father, Christopher West, who was Bunurong by descent from his father, George West, and that he has done so for as long as he can remember. He said:

I was always taught, from Dad, that we go back as far as Granny Betty, who was taken off our country…

He testified that being Bunurong is important to him, saying “[i]t’s everything I am, every decision I make, every direction I walk in.”

245    Mr West said that he learned most of his knowledge about Bunurong country from his father as he was growing up, and that his father was a Bunurong elder. He testified that he felt a bit lost with his cultural connection following his father’s death, but then connected with other Bunurong elders.

246    He stated that his father became an elder because he was recognised by other elders as a knowledge-holder, with a great understanding for country and community. His father was born in Melbourne, but when he was young he went to Flinders Island and lived there with Aunty Ida West. He described Aunty Ida as “quite a senior knowledge-holder” and said that a lot of knowledge was passed to his father through Aunty Ida, Aunty Lena and others then on Flinders Island.

247    Mr West testified that when he was growing up his father took him on visits to different places around Melbourne. When he was 15 or 16 years old he and his father found an old midden site at Shelly Beach on Western Port Bay, and his father told him that “we are going to protect it”, which they then did. His father was an archaeologist by training and wanted the site protected because, as his father said, it was “tangible evidence that our ancestors were here. There’s no speculation. It’s right here”. He said that his father was there referring to their Bunurong ancestors.

248    Most importantly he said that he and his father visited the moonah forest at Point Nepean quite a few times over the years. Mr West retold a Bunurong story that he said his father told him about the moonah trees and why they have limbs twisted together. Mr West testified that when he and his father went to the moonah forest at Point Nepean, his father said:

… there’s a spot right on the edge, and he said, ‘This… is where they took our grannies. This is where they stole them, from here.’

He says that his father was there referring to Granny Betty, and that they “never really talked about the other women that were taken”.

249    In cross-examination, Mr Levy:

(a)    suggested to Mr West that he was taught about his family and being Bunurong from around 1999, when he was about 10 years old. Mr West rejected that and said that he had been taught cultural knowledge by his father from much earlier than that, and was drip fed throughout his life. But he said that he wasn’t told, “[r]ight, son, let’s sit down and talk about Bunurong.”;

(b)    pressed Mr West on exactly when he was first told about Granny Betty being abducted from Point Nepean. In response he said that when he was probably six or seven years old his father told him “our grannies were stolen off the beach.” Then, when he was about 14 or 15 years old, and he and his father were in the moonah forest at Point Nepean, his father stood on a spot and said “[i]t was right here they took our grannies”;

(c)    questioned Mr West on the source of his and his father’s belief that Granny Betty was abducted from Point Nepean and referred him to the archival documents on Aboriginal women being abducted from there. Mr West said that he has never seen any such documents. Mr West also denied that such archival documents were the source of his father’s belief that Granny Betty was taken from Point Nepean. He said that his father told him that he was told that by his aunties on Flinders Island, Aunty Ida and Aunty Lena, although he said he did not know the source of his aunties’ belief in that regard; and

(d)    asked about any discussions Mr West had with Mr Ogden regarding Granny Betty being abducted from Point Nepean. Mr West agreed that he had spoken with Robert Ogden about being Bunurong and about Granny Betty being abducted from Point Nepean, including in the few weeks before the trial. He said that Mr Ogden told him what he knew about that story, and that he told Mr Ogden, “[t]hat’s pretty much spot on with what Dad told me when I was little”.

5.5    The expert evidence

5.5.1    Dr Clark

250    Dr Clark considered the historical records in relation to Elizabeth Maynard in his 2002, 2003 and 2023 reports.

Clark 2002

251    Dr Clark’s 2002 report was prepared for the Native Title Unit of the Victorian Department of Justice. It shows that he undertook detailed research into the claimed Boonwurrung identity of Elizabeth Maynard and considered the salient primary and secondary sources.

252    In the abstract for this report Dr Clark said that its primary aims were to determine:

(a)    Who may be able to assert an interest as a Boonwurrung person, and,

(b)    What area(s) of Victoria may be regarded as 'traditional' Boonwurrung country.

253    The report states that Dr Clark’s research had not found any people who were able to assert Boonwurrung ancestry on the basis that they were: (a) descendants of Boonwurrung people who survived colonization and who maintained a continuous connection to their country, or at least remained close to their traditional lands; or (b) Boonwurrung people who are descendants of Boonwurrung/Ganai marriages. However, he said:

It has only been possible to locate Boonwurrung people who are descended from Boonwurrung women who were abducted by sealers in the 1820s and 1830s, and thus removed from their traditional lands. A significant body of evidence exists that reveals that at least 20 women, girls, and boys, were abducted from Port Phillip Bay and Westernport Bay in the 1820s and 1830s. Two groups of Port Phillip and Western Port abductees have been found: those removed to the islands of the Bass Strait and/or to the Tasmanian mainland, and another small group who were taken to the Straits initially, only to be taken by sealers to Western Australia.

254    Then, specifically in relation to Elizabeth Maynard, Dr Clark said:

The Apical Ancestor Elizabeth Maynard has tentatively been identified as Boonwurrung, despite being unable to match her against one of the abducted women whose Aboriginal names are known. The nature of the argument behind this identification is no more or less complicated than the other assessments made on other abducted women and their descendants throughout this report. This supports the Maynard family's oral history nevertheless more research is required into the documentation of this oral history.

255    In relation to Elizabeth Maynard, Dr Clark reviewed materially the same archival records to those to which I have referred. He then provided the following opinion:

There are several possibilities as to whom Elizabeth Maynard may be. If she is Nandergoroke (formerly Derrimut's wife) or Karnjingoroke (formerly Budgery Tom's wife) then because these are two Boonwurrung men we can be definite that she would not be Boonwurrung, but likely to be Woiwurrung or from another Kulin wurrung with whom the Boonwurrung intermarried.

Alternatively, she may be Meendutgoroke, a 'big' Goroke (i.e. female) 'taken by sealers' according to Benbow, but her identity is uncertain because we do not know anymore than this. The other possibilities are Borrodangergorroke or one of the two daughters of Doogbyerumboreoke: Naynargorote and the second unnamed. Again, we do not know the language/tribal affiliation of any of these young women.

256    After discussing those possibilities, Dr Clark then turned to consider Robinson’s 9 January 1837 journal entry which records Richard Maynard as saying that he knew that his Aboriginal partner “was taken from her own country by G Meredith”. At that time Dr Clark did not know that Plomley had mis-transcribed that sentence and he opined that “on the face of it, this statement confirms that Elizabeth Maynard was taken from her own country, which was Point Nepean”. Even so, he considered that it was possible to interpret Maynard’s words in other ways. He also said that if Maynard's partner was married when she was abducted then Maynard’s statement may be compromised by the woman’s adherence to patrilocality, i.e., the rule that married women lived on their husband’s country and away from their own.

257    Dr Clark concluded:

This tentative identification of Elizabeth Maynard as Boonwurrung, despite being unable to match her against one of the abducted women whose Aboriginal name is known, supports the Maynard family's oral history that they are Boonwurrung descendants. More research is required into the documentation of this oral history.

258    Dr Clark also set out his views as to the importance of patrilineal descent to establishing primary rights in Boonwurrung country. He concluded that section of his report as follows:

Put simply, this research has not found any Boonwurrung people who are able to assert primary Boonwurrung identity through traditional patrineality. To assert Boonwurrung identity people have had to promote other relationships, most of which are matricentric, that is mother's country, or mother's mother's country, or mother's mother's mother's country, and so on, in other words a bundle of rights which may be considered ‘being behind’ those of primary patrilineal descent.

(Emphasis added.)

259    Dr Clark then said:

In relation to Elizabeth Maynard, she was taken from Point Nepean by George Meredith, probably in 1833. Her sealer husband, told Robinson in 1837 that he knew she was taken ‘from her own country’, and it has been argued in this chapter that this tentatively identifies Elizabeth Maynard as Boonwurrung, despite being unable to match her against one of the abducted women whose Aboriginal name is known.

…

Thus, of the twenty who are believed - or claimed - to have been abducted from Boonwurrung country, this research has suggested that twelve are probably able to assert Boonwurrung interest. However, of these twelve, we only know of four who married and whose children would be able to assert Boonwurrung interests through matricentric rights and responsibilities: Margery Munro, and her daughter Polly Bligh, Eliza Nowen, and Elizabeth Maynard.

(Emphasis added.)

Clark 2003

260    Dr Clark’s 2003 report supplements his 2002 report by taking into account some additional information provided by the BLC and the Victorian Boonwurrung Elders Land Council Aboriginal Corporation. Dr Clark said that the additional information had forced him to a “major rethink” in terms of the relationships between the apical ancestors Marjorie Munro, Ann Munro, Polly Bligh and Louisa Strugnell. The “major rethink” did not, however, relate to his opinion regarding the claimed Boonwurrung identity of Elizabeth Maynard.

261    In relation Elizabeth Maynard, Dr Clark said:

The [Clark 2002] Report applied a certain reading of Robinson (1837) references concerning the Port Phillip women with James Munro and Richard Maynard. In both instances, Robinson does not identify the names of the women he was referring to, however, it was inferred that in the case of Munro, the woman is Margery Munro, and in the case of Richard Maynard, it is Elizabeth Maynard. The degree of inference or speculation in both cases is of the same magnitude.

Given the regular movement of Woiwurrung families to Boonwurrung sites for ceremonies and other important activities, and the adherence to patrilocality, abduction from a Boonwurrung location is in itself [an] insufficient basis for assertion of Boonwurrung identity. Assertion of Boonwurrung identity will require confirmation, if possible, from family history, and oral history (both published and unpublished).

(Emphasis added.)

There, Dr Clark changed his opinion from a tentative identification of Elizabeth Maynard as Boonwurrung, to one where he considered the archival records regarding her place of abduction were insufficient to decide that she was probably Boonwurrung.

262    He said there are “several key issues” concerning Elizabeth Maynard, her identity, and the extent and nature of the oral history about her. He produced the following table which he said listed all that is known about her identity:

263    Dr Clark accepted that “New Hollander” was a term used to describe Aboriginals from mainland Australia, and in particular, Victorians. On that basis he accepted that Elizabeth Maynard was an Aboriginal from Victoria and, based on Robinson’s Report, that she was from the Port Phillip area.

264    Dr Clark then turned to consider Robinson’s journal entry recording Richard Maynard’s statement that “he knew she was taken from her own country by G Meredith”. He described that statement as “critical” and noted that in Clark 2002 he interpreted that as “…lending weight to the claim that she was ‘taken from her own country’ i.e. Point Nepean, the scene of abductions by George Meredith”.

265    Even so, Dr Clark reiterated his conclusion:

Given the regular movement of Woiwurrung families to Boonwurrung sites for ceremonies and other important activities, and the adherence to patrilocality, it is too tenuous to identify Elizabeth Maynard, based on this evidence, as Boonwurrung. Assertion of Boonwurrung identity will require confirmation, if possible, from Maynard family history, and oral history (both published and unpublished).

266    Dr Clark then said that aspects of the Maynard family oral history can be gleaned from unpublished and published sources, such as Westlake 1908-1910, Tindale (1939, 1953), and West, I, Pride Against Prejudice – reminiscences of a Tasmanian Aborigine (Australian Institute of Aboriginal Studies, Canberra, 1834; 2nd ed, 1837). He noted that those sources do not state that Elizabeth Maynard was Boonwurrung; instead, they make no claims as to her specific clan identity or language affiliation. He also considered the assertions of Boonwurrung identity by present-day descendants of Elizabeth Maynard: as found in Finlayson, J, Report to MNAC concerning research into Boonerwrung genealogical connections in Tasmania (June, Anthropos Consulting Services, Canberra, 2000) (Finlayson 2000) and Kruse, B, Fisher, K, Campo, N, Cousins, S and Guest, B, Report Assisting the Members of the Bunurong Land Council (Melbourne, 2001) (Kruse 2001). He accepted that some contemporary descendants of Elizabeth Maynard recognise her as Boonwurrung, but he considered that those assertions could not be substantiated by recourse to the historical records. He also considered that careful analysis of the assertions of some of the contemporary descendants suggested a body of knowledge that evolved and changed as more research was undertaken, rather than a body of knowledge that is transmitted between generations.

267    In his view, until systematic research into the Maynard family and oral history was undertaken, any judgment as to her Boonwurrung identity would be speculative. He concluded that “Elizabeth Maynard’s Victorian origins are supported by the historical record, but it does not reveal her identity beyond that general attribution.” Thus, Dr Clark was not persuaded that the evidence was sufficient to conclude that Elizabeth Maynard was a Boonwurrung woman with rights and interests in Boonwurrung country at effective sovereignty.

Clark 2023

268    Dr Clark prepared his 2023 report for the applicant for use in this proceeding. Again, his report shows that he undertook detailed research and considered the salient primary and secondary source materials.

269    In relation to the claimed Boonwurrung identity of Elizabeth Maynard Dr Clark commenced by setting out the following opinion:

I can find no conclusive documentary evidence that Elizabeth Maynard was a member of the Boonwurrung people. The earliest records that are imputed to concern her describe her as being ‘taken from her country’ by George Meredith, which is presumably a reference to the Meredith abduction off Point Nepean in 1833. However, the fact that ‘taken from her country’ is capable of both a narrow and a broad interpretation means that this cannot be taken as proof that Point Nepean was her country.

270    Dr Clark noted that there is only one primary source document in which Elizabeth Maynard is named, being the Elizabeth Maynard’s death certificate dated 14 January 1882 which records her as a “sealer’s widow” who died on 14 January 1882, age 71. He noted that Elizabeth Maynard’s death certificate does not state her ethnicity.

271    Dr Clark then tabulated the primary source documents which he said it can reasonably be inferred relate to Elizabeth Maynard, as follows.

272    He noted Tindale’s opinion in Growth of a People that it is probable that Bonwick “…was alluding to the Australian aboriginal woman Elizabeth, second wife of ‘Henry’ Maynard the white sealer…. Elizabeth … [who] was still remembered affectionately in 1939 as ‘Granny’.”: Tindale, N, Growth of a People, cited in Clark 2023, p 37.

273    Dr Clark then tabulated the primary sources which (he said) the Bunurong respondents’ assert refer to Elizabeth Maynard, as follows.

274    In relation to those archival records Dr Clark said:

(a)    none of them provide the name of Richard Maynard’s “Port Philip” Aboriginal female partner;

(b)    all the literature around Elizabeth Maynard assumes that these documents refer to the same person and that that person is the individual who came to be known as Elizabeth (Betty) Maynard; and

(c)    the earliest record that may refer to Elizabeth Maynard is Robinson’s journal entries of 9 January 1837, and when Robinson met the woman who is claimed to be Elizabeth Maynard in 1837 he notes that she was “far advanced in pregnancy”. In his opinion that is problematic because what became of that child is not known, and no Maynard child is claimed to have been born in 1837. He opined that that raises the possibility that the woman Robinson met in 1837 who was accompanying Maynard was not Elizabeth Maynard.

275    Dr Clark then tabulated other documents and genealogical research which discuss Elizabeth Maynard’s ethnicity, as follows.

I have previously referred to the contents of those records (except for the 1912 obituary which is not material) and I will not do so again.

276    Dr Clark noted that the first record that describes Elizabeth Maynard by name, other than Elizabeth Maynard’s death certificate in 1882, is EW Stephens’ 1899 manuscript which refers to her as “Victorian Betty”.

277    He said that while Tindale’s 1939 fieldnotes of his visit to Cape Barren Island confirm the status of Elizabeth Maynard as an Aboriginal from mainland Australia, his genealogies are in conflict with Mollison and Everett’s 1978 genealogies, Barwick 1985 and the oral history of Ms Sonia Murray, Ms Ila Purdon and Ms Ida West. He noted that Tindale records that Elizabeth “Granny” was married to Henry Maynard or Henry Todd Maynard, and Richard Maynard was their son.

278    Dr Clark then turned to consider Robinson’s journal entries in relation to Richard Maynard’s Aboriginal partner in 1837, noting that Robinson describes her as a “N[ew] H[olland] native of P[ort] P[hillip]” and a “P[ort] P[hillip] woman”. He considered it unclear whether Robinson was there referring to Port Phillip in the narrower sense of the Port Phillip settlement (which later became the town of Melbourne) or the broader sense of the administrative Port Phillip District which subsequently became the Colony of Victoria. He also relied on Robinson’s Report where Robinson said that it was an “indubitable fact” that Aboriginal women had been abducted “at Port Phillip, Portland Bay, Western Port, and other recently formed settlements; and indeed at every accessible spot where boats have visited along the south coast of New Holland”.

279    Dr Clark then noted his discovery of Plomley’s mis-transcription of Robinson’s 9 January 1837 journal entry. As I have said, the mis-transcription converted Maynard’s actual statement that “he knew [his ‘Port Phillip’ Aboriginal female partner] was taken from her country by G Meredith”, to a statement that “he knew she was taken from her own country by G Meredith”. Dr Clark considered the change to be “an important discrepancy”, as much had been made of the words “own country” by other researchers. He opined that:

The words ‘taken from her country’ are not as specific as ‘taken from her own country’, and given the regular movement of Woiwurrung families to Boonwurrung sites for ceremonies and other important activities, and adherence to patrilocality, it is too tenuous to identify Elizabeth Maynard, based on this evidence, as Boonwurrung.

280    Importantly, Dr Clark accepted that Meredith kidnapped at least four and possibly as many as nine women from Point Nepean in Port Phillip Bay in early 1833, and he noted that Maynard said that he knew his Aboriginal female partner was “taken from her country”. He accepted that Richard Maynard’s statement may suggest that Point Nepean was his Aboriginal partner’s “country” but considered the word “country” to be capable of both a broad and narrow interpretation and said that it is not possible to determine which interpretation applied. In his opinion, if Maynard’s partner was married when she was abducted, then adherence to patrilocality – the rule that married women live on their husband's country and away from their own – may favour a broader understanding of “country”. That seemed to be based in his view that if Maynard’s female partner had been married to a Boonwurrung man, she could not have been Boonwurrung by patrilineal descent because of exogamous marriage practices amongst the Eastern Kulin peoples.

281    Dr Clark also said that there had been numerous unsuccessful attempts to identify Maynard’s partner within the list of known women abducted by Meredith, and that the researchers had reached different conclusions. He opined:

There are numerous difficulties making sense of the earliest records imputed to refer to Elizabeth Maynard and genealogical records and family oral tradition. In particular there are difficulties reconciling the 1837 account of Richard Maynard’s New Holland companion being far advanced in pregnancy with the known family of Richard Maynard and Elizabeth Maynard. It has been argued by some researchers (such as Barwick 1985) and accepted by Maynard descendants that Elizabeth Maynard was Nandergoroke (Derrimut’s wife), one of the women abducted by George Meredith in 1833.

In Dr Clark’s view there is no evidence in the primary documents that supports the claim that Nandergoroke and Elizabeth Maynard were the same person. In passing I note that that opinion goes nowhere as the Bunurong respondents did not contend that Nandergoroke and Elizabeth Maynard were one and the same.

282    Dr Clark concluded that there are several possibilities as to whom Elizabeth Maynard may have been. He said:

If she is Nandergoroke (Derrimut’s wife) or Karnjingoroke (Budgery Tom’s wife) then because these are two Boonwurrung men we can be definite that she would not be Boonwurrung, but likely to be Woiwurrung or belong to another Kulin wurrung with whom the Boonwurrung intermarried. The possibility that Elizabeth Maynard is Nandergoroke is weakened, however, by Benbow’s 1848 attempt to recover this person who was believed to be at Geelong, having come from King Island. There is no record of Elizabeth Maynard having an association with King Island in 1848, so this suggests she is not Nandergoroke. Alternatively, she may be Meendutgoroke, a 'big' Goroke (i.e. female) 'taken by sealers' according to Benbow, but her identity is uncertain because we do not know any more than this.

283    Dr Clark said (as he had in his 2002 report) that the assertions of Boonwurrung identity by contemporary descendants of Elizabeth Maynard (as presented in Finlayson 2000 and Kruse 2001) suggested a body of knowledge that had evolved and changed as more research was undertaken, rather than a body of knowledge that had been transmitted between generations.

The BW Joint Experts’ Report

284    Proposition 17 in the BW Joint Experts’ Conference requested the experts to opine on the following statement:

It is more probable than not that, at effective sovereignty, the woman known as Elizabeth Maynard was a member of the group comprising Boonwurrung people who, at sovereignty, held rights and interests in accordance with their traditional customs in, or in any part of, the land and waters now covered by the Boonwurrung native title claim.

285    Dr Clark opined in response to that proposition:

Disagree. I can find no conclusive documentary evidence that Elizabeth Maynard was a member of the Boonwurrung people. (Clark 2023: 37). The earliest accounts claim that she is a ‘native of New Holland’, ‘a native of New South Wales’, ‘New Holland native of Port Phillip’, and ‘Port Phillip woman’. Later genealogical research states she is ‘Victorian’, ‘Australian Aboriginal woman’, ‘a real New Hollander’. The documentary record does not state that she is Boonwurrung.

Dr Clark’s oral testimony

286    In his oral testimony Dr Clark largely reiterated the opinions he expressed in his 2023 report and in the BW Joint Experts’ Report.

287    Although Dr Clark said that he considered Plomley’s mis-transcription of Robinson’s 9 January 1837 journal entry together with other factors, he described it as a “game-changer” and “critical”. He said the discovery of the mis-transcription led him to reconsider his opinion in relation to Elizabeth Maynard because the erroneous inclusion of the word “own” operated to narrow the focus of the place of abduction to Point Nepean, as that was where the Meredith abduction occurred (T390.24-26). He said (T390.33-37):

When I removed the word ‘own’ that then put me back into - the doubted category - the doubtful category because of the ambiguity and the lack of focus of - of the term ‘Port Phillip’ which can mean what was - what is now broadly Victoria, I was not prepared to continue with that perspective.

288    He reiterated his opinion that Woiwurrung people were often on Boonwurrung country for “ceremonies and other important activities” included “friendship ceremonies, marriage ceremonies, trade and barter, gathering to negotiate marriages, resource exploitation, things like that.” He denied that he failed to take into account that the Aboriginal group which was the subject of Meredith’s raid was engaged in hunting rather than in a ceremonial activity.

289    Dr Clark expressed doubt that the woman known as Elizabeth Maynard was taken in the Meredith abduction by stating that “Richard Maynard was a terribly clever man and when he ascribed the abduction of his wife to – to George Meredith who had been deceased by two years, [it] was a very clever move.” At another point he said Maynard was “very intelligent” and that in giving the account that his ‘wife’ was abducted by Meredith he was “blame shifting”.

290    He noted that the earliest documents relating to an unnamed Aboriginal woman assumed to be Elizabeth Maynard refer to her as a “New Holland native of Port Phillip” and a “Port Phillip woman”, but the later records dating beyond 1899 only attribute her origins to Victoria. He noted the following later references to her as “Victorian Betty”, “Victorian native woman”, “Aboriginal from Victoria”, “Australian Aboriginal woman” and “a real New Hollander”.

291    He also expressed doubt that Richard Maynard’s “Port Phillip” Aboriginal female partner was the woman known as Elizabeth Maynard. He noted that Robinson described her as being “far advanced in pregnancy” and that there is no evidence that Elizabeth Maynard had a child in 1837.

292    Dr Clark did not consider that Robinson’s use of the descriptor “Port Phillip” was a reference to the Port Phillip settlement (which later became known as Melbourne) nor that Robinson was referring to Port Phillip Bay. He said, “I have a feeling that he, in fact, is referring to what…was known as the district of Port Phillip, which we know began to be used in correspondence – official correspondence from May 1837.” Dr Clark said that was one of the reasons that he could not “categorically” say that Elizabeth Maynard, being a native of Port Phillip meant that she was of Boonwurrung descent.

293    He accepted that Yanki Yanki was part of the Meredith abduction from Point Nepean, and in answer to Proposition 26 of the BW Joint Experts’ Report he described Yanki Yanki as a “Boonwurrung youth”. He said that Yanki Yanki was from the country of the Yalukit-Willam clan which shows that other Aboriginal clans were present in the group hunting kangaroo on Point Nepean, but he accepted that Yalukit-Willam country is usually considered to be Boonwurrung country. He also accepted that Yanki Yanki’s presence at the time of the Meredith abduction did not show that non-Boonwurrung people were present in that group.

294    Importantly, Dr Clark said that it could be assumed that the group hunting kangaroo on Point Nepean would include married women present with their husbands. In his opinion, at effective sovereignty, it was “certain” that a woman who was married to a Boonwurrung man, and living on Boonwurrung country under the custom of patrilocality, was not herself a member of the Boonwurrung People because the Boonwurrung People were all of one moiety, which meant that under Eastern Kulin rules of exogamous marriage a Boonwurrung man could not marry a Boonwurrung woman.

295    Proposition 8 in the BW Joint Experts’ Report requested the experts to opine on the following:

At effective sovereignty, due to prevailing exogamous marriage practices of the Eastern Kulin Nation, if an Aboriginal girl or woman present on Boonwurrung country was married to a Boonwurrung man, such a girl or woman may not have been Boonwurrung by descent.

(Emphasis added.)

296    Both Dr Pilbrow and Mr Wood agreed with that statement. Dr Clark opined:

Agree with Mr Wood and Dr Pilbrow noting that Howitt (1904) acknowledged differences between his field notes and earlier publications; my research (Clark 1990) into Woiwurrung has suggested that Gunung-willam-baluk (Mount Macedon group) was of a different moiety than other Woiwurrung local groups.

297    Although Dr Clark there said that he agreed with Mr Wood and Dr Pilbrow, in his oral testimony he qualified that agreement, as follows:

…I noted there that I was attempting in my qualification to say that Howitt himself acknowledges that there were differences between his note and earlier publications in his 1904 publication. So I was qualifying my agreement there by saying that although I accepted and my research had shown that there were differences within the Woiworung, I – I was not willing to accept that on the basis of a note which was not accepted in [Howitt’s] 1904 publication that, therefore, there were differences within and between the [Boonwurrung].

298    Dr Clark accepted that this was an anthropological issue (and he is a historical geographer) but he said the following:

In my historical geographical research I have examined the marriage patterns between clans which then gives me the expertise to speak on whether or not there has been any marriage within language areas or without. And on that basis of that research I have not seen any evidence that suggests that there was any intra-[Boonwurrung] marriage.

299    Mr Athanasiou, counsel for the Bunurong respondents, asked Dr Clark about the basis for his change of opinion from that in 2002 that Elizabeth Maynard was “probably” Boonwurrung, to that in 2003, where he said that “until systematic research into the Maynard family and oral history was undertaken, any judgment as to her Boonwurrung identity would be speculative.” Dr Clark responded:

Well, the basis for my change in 2003 would have been on the basis of arguments around her identity and the extent and nature of the oral history about her, which is in paragraph 3. So I’ve talked about the problems [with] the attributions, which is consistent with my view today, and then I’ve talked about family memory, family history.

…

Well, on the basis of knowing Elizabeth Maynard’s Indigenous name, without knowing that, I – I can’t speculate as to which language group she may have belonged to. If she had belonged to an Eastern Kulin group, it’s very likely that her surname would have had the feminine affix “gurrk” and when you look at some of the names of the women abducted, many of them do have the feminine affix “gurrk” at the end, which does indicate that, therefore, those women are East Kulin. Now, because we can’t match this person, Elizabeth Maynard, with any of the known named Indigenous women, I can only speculate. So she could be Woiworung, she could be Wathaurung, she could be Jajowrong, she could be Taungurong.

300    Mr Kruse, junior counsel for the State in the Separate questions hearing, asked Dr Clark whether he agreed that the balance or weight of the evidence favoured an inference that Elizabeth Maynard was abducted from Point Nepean. In response he said that the evidence did not allow him to form an opinion which put it any higher than a possibility.

301    Mr Kruse then asked Dr Clark – on the assumption that the Court accepted Mr West’s and Mr Ogden’s evidence that they were told by their family that Granny Betty was taken from Point Nepean as credible and truthful – whether that changed his view as to the balance of the evidence regarding whether Elizabeth Maynard was taken from Point Nepean. In response Dr Clark said that their testimony did not change his opinion as he considered there to be “a disconnect between the [Maynard] family tradition and the primary records.” He also said that the testimony of the Bunurong lay witnesses showed that “this Boonwurrung identification was a late 1990s revelation”.

302    In cross-examination Mr Kruse also took Dr Clark:

(a)    to Mr West’s testimony that when he was at Point Nepean with his father:

Dad also spoke of Granny Betty as she was taken from this spot.

Dr Clark was asked, assuming that evidence was accepted by the Court as a truthful and credible record of the oral history given to Mr West, whether that would change his opinion as to the balance of the evidence regarding whether Elizabeth Maynard was taken from Point Nepean. Dr Clark said that it would not;

(b)    to Mr Ogden’s testimony of an occasion when he was at Portsea on a family barbecue with his sister Natasha, his Nan and other relatives:

The thing that resonates with me the most that was at the time at Portsea where [Nan] said ‘this is the area that Granny Betty was taken from’.

Dr Clark was asked, assuming that evidence was accepted by the Court as a truthful and credible record of the oral history given to Mr Ogden, whether that influenced his view as to the balance of the evidence regarding whether Elizabeth Maynard was taken from Point Nepean. He responded that it would not because he did not know the degree to which that statement had been influenced by the 1837 historical records. Mr Kruse then asked whether, if the Court concluded that that was evidence of family oral history, would that change his view. Dr Clark again said that it would not; and

(c)    to Ms Summers’ testimony that she was always told by her mother and other relatives that:

…we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe.

Dr Clark was asked whether that showed an equivalence in what Ms Summers had been told between where Granny Betty was abducted from and what tribe Granny Betty was from. Dr Clark did not accept that. He said the “Port Phillip tribe became synonymous with Wadawurrung…whereas [Point Nepean]…is in Western Port [and] is part of the Western Port tribe”. He also said there was no equivalence “because Port Phillip tribe relates to the Yarra and Point Nepean is…not part of the Yarra Country.” He also said that “saying that you're taken from Port Phillip is far too general. Whereas the specific location of the Meredith abduction was Point Nepean.” In his view the Port Phillip tribe became synonymous with the Wadawurrung.

5.5.2    Mr Wood

303    Mr Wood prepared his 2023 report at the request of the applicant for use in this proceeding. As I have said, his report was not directed to the claimed Boonwurrung status of the named women and did not include any opinions in that regard, except in relation to “mutual recognition”. Then, in the two weeks before the BW Joint Experts’ Conference Mr Wood was asked by the solicitors for the applicant to read the other experts’ reports and to provide opinions regarding the claimed Boonwurrung status of the named women.

The BW Joint Experts’ Report

304    Proposition 17 of the BW Joint Experts’ Report in this proceeding sought the experts’ opinion as to whether it was more probable than not that Elizabeth Maynard was a member of the Boonwurrung People who at sovereignty held rights and interests under traditional laws and customs in any part of the Boonwurrung claim area. Mr Wood did not express an opinion in relation to that. He said only:

This was not a proposition I was briefed to cover in my report, and although I have read the other expert reports I would need to make a careful study of the primary documents to reach an opinion on this. It is not proposed that I do this as part of being retained.

305    Mr Wood expressed that noncommittal view even though, in the Third GK Joint Experts’ Report in 2019 he had agreed that there is sufficient evidence that at effective sovereignty the woman known as Elizabeth Maynard had a connection to the Boonwurrung claim area, and would likely have qualified as a member of the group which owned that claim area through filiation, descent or adoption. Then he said:

Agree based on Tindale’s (1939) recording of Elizabeth as a ‘fb (full blood) Aust.’ from Victoria. Robinson (1837) provides a description of a pregnant woman with Richard Maynard (also known as Henry Todd) who is described as ‘a New Holland native of Port Philip […] who was taken from her own country by G Meredith.’ The abduction of women by George Meredith is documented by Robinson as occurring at Point Nepean.

Mr Wood’s oral testimony

306    Then, although Mr Wood said that he was not briefed to deal with the claimed Boonwurrung identity of Elizabeth Maynard in his 2023 report, and he declined to provide an opinion in the BW Joint Experts’ Report on that basis, in his oral evidence he provided opinions on a number of questions relating to the availability of an inference that Elizabeth Maynard was a member of the Boonwurrung People, each of which pointed away from inferring that to be so. Those opinions included that:

(a)    there is no specificity in the historical documents as to the location of the abductions and he noted that the description Port Phillip can cover “quite a range of places”;

(b)    it is possible that the "Port Phillip” women (such as Elizabeth Maynard) were taken from the western side of Port Phillip Bay around what is now Geelong, or areas on the Victorian coast to the east that are closer to the Furneaux Islands. Both of those locations fall outside Boonwurrung country;

(c)    the lack of specificity in the historical records contributed to his doubts regarding the asserted Boonwurrung status of the named women;

(d)    he was “puzzled” as to why Robinson and Thomas said nothing in relation to any kin relationship between the abducted women, or described them in terms more definitive than “Port Phillip” women. He considered that to be puzzling because, if the abducted women were all from the same location, and they were thrown together on islands in the Bass Strait, they must have had considerable dependence upon each other, yet nothing emerges in the historical records about them having been in any way kin related. He said that that may have just been overlooked by the people who recorded it, but Tindale did not usually overlook matters such as that. In his view that raised the possibility that the women were actually from different parts of the Victorian coast;

(e)    at sovereignty, Aboriginal communities were commonly made up of a “mixed composition of people from a wide catchment of…groups”, in support of the possibility that a person abducted from an Aboriginal camp in Boonwurrung country was not necessarily a Boonwurrung person;

(f)    that hunting kangaroo was a form of social activity that usually involved multiple language groups, in support of the possibility that non-Boonwurrung people may have been hunting kangaroo on Point Nepean at the time of the Meredith abduction; and

(g)    that “a place like Point Nepean is very easily communicable with the coast over near the Geelong side” of Port Phillip Bay by Aboriginal groups using bark canoes, in support of the possibility that Wadawurrung people could have been part of the group hunting kangaroo on Point Nepean at the time of the Meredith abduction.

307    For the reasons previously explained, I consider minimal weight should be given to Mr Wood’s opinions on the question as to whether or not Elizabeth Maynard was a member of the Boonwurrung People, and the same applies to his evidence on issues which directly touch on that question. Indeed, I approach Mr Wood’s evidence overall with some caution.

5.5.3    Dr Pilbrow

Pilbrow 2023

308    Dr Pilbrow prepared his report for the BLC for use in this proceeding. His report shows that he undertook detailed research into the claimed Boonwurrung identity of Elizabeth Maynard and considered the salient primary and secondary documents.

309    Dr Pilbrow relied on materially the same historical records as Dr Clark, but he concluded that it was more likely than not that Elizabeth Maynard was a member of the Boonwurrung People.

310    For that opinion he relied on the following salient documents. I have previously set out the information contained in those documents and I will not reiterate all the detail:

(a)    Robinson’s 9 January 1837 journal entries and Robinson’s Report regarding his visit to Preservation Island, and his meeting with Richard Maynard and his “Port Phillip” Aboriginal female partner, including Maynard’s remark in relation to that woman that “he knew she had been stolen from her country, by Meredith, but with that he had nothing to do”;

(b)    the 1849 report of the Surveyor General that Richard Maynard was living at Woody Island with “his wife, a native of New Holland, with three sons and two daughters”;

(c)    Archdeacon Reiby’s 1863 report which records Richard Maynard as “one of the old sealers”, who had “lived for many years upon Long Island” and his wife (a "native of New South Wales");

(d)    Elizabeth Maynard’s death certificate dated 14 January 1882 which records her as a “sealer’s widow”, and that she was 71 years old at her date of death, thus born circa 1811;

(e)    the writings of EW Stephens, dating from 1891-1912, which state that John Maynard was a descendant of a “Tasmanian woman”, whereas his half-brothers were descendants of a “Victorian native woman”;

(f)    EW Stephens’ 1899 manuscript article titled “The Furneaux Islands, their Early Settlement, and some Characteristics of their Inhabitants”, which states that Richard Maynard's first wife was “Tasmanian Margaret” and his second wife was “Betty, an aboriginal from Victoria, by whom he had nine children, seven of whom are still living - two of these have very large families.” He describes her as “Victorian Betty”;

(g)    Westlake 1908-1910 which describes John Maynard as “a descendant of a Tas. Woman”, in contrast to “many of his half caste brothers + their children who came from a Victorian native woman”;

(h)    Tindale’s journal from his anthropological expedition in 1938-1939 when he visited the Furneaux Islands in which his genealogical research included that:

(i)    Richard Maynard's first wife was a “Tasmanian woman”, with whom he had two children, John and Jane; and his second wife was “‘Granny’ the full blood New Hollander”;

(ii)    Elizabeth “Granny” was a “full blood” from Victoria, as confirmed by her grandson Darcy;

(iii)    “Granny” Elizabeth was the second wife of Henry Maynard, a “white man from England” also recorded under the name “Richard” in the Georgetown Death Registry; and

(iv)    under “Granny” Elizabeth's name, Tindale notes: “straightish hair, dark, died 14 Jan 1882 age given as 71 yrs [two words illegible] Register at Badger I[sland]”;

(i)    Tindale's 1953 article Growth of a People. provides detailed genealogical information regarding the Maynard family, including several pages of entries showing descendants born as late as 1949, when Tindale appears to have undertaken a follow up visit to the Furneaux Islands. These update and sometimes correct information conveyed in the 1939 genealogy charts, and include brief descriptive notes on Elizabeth or “Granny” Maynard and her descendants;

(j)    Dr Pilbrow noted that while many other records regarding the Maynards refer to Elizabeth's husband as Richard, Tindale 1953 refers to him as Henry, although acknowledging that Henry was also known as Richard, and again notes that:

(i)    Henry Maynard had two children with his first wife, a Tasmanian woman who died between 1840 and 1843;

(ii)    the second wife of Henry Maynard was a woman named Elizabeth, a full-blood Aboriginal woman from Victoria, known as “Granny” by her descendants; and

(iii)    Elizabeth had at least twelve children with Henry Maynard; and

(k)    Meston1947 states that Richard Maynard’s first wife was a Tasmanian chief's daughter named Limina Bungana or Manalagana, whom he later renamed Margaret, with whom he had two children, and he “later married an aboriginal woman from Victoria and had nine children by her.”

311    Having regard to those records Dr Pilbrow opined that there are consistent references to Elizabeth Maynard being a Port Phillip woman, and that this knowledge was widely acknowledged by other Islanders, government officials and other visitors to the Bass Strait islands. He noted that Elizabeth’s husband Richard Maynard acknowledged to Robinson in January 1837 that the woman with him had been abducted by Meredith. In Dr Pilbrow’s view while Elizabeth is not named in the early source documents, and was sometimes referred to only as “Granny”, the correlation between earlier and later records and with the birth records of her children strongly indicate that the later references to Elizabeth Maynard refer to the same Aboriginal woman that Robinson met on Preservation Island accompanying Richard Maynard in January 1837.

312    Dr Pilbrow considered that, given the likelihood that Elizabeth Maynard was abducted by Meredith from Point Nepean in around 1834, she was probably a Boonwurrung woman.

The BW Joint Experts’ Report

313    In the BW Joint Experts’ Report Dr Pilbrow opined that it is more probable than not that, at effective sovereignty, the woman known as Elizabeth Maynard was a member of the Boonwurrung People who, at sovereignty, held rights and interests in accordance with their traditional customs in part of the Boonwurrung claim area. He said:

Agree. There are a number of early records of Robinson in 1837 indicating that Richard Maynard was living with a “New Holland native of Port Philip”, and that she had been abducted from her country by Meredith, as described in Pilbrow 2023 at 188 and 189. Additionally, Richard Maynard is consistently recorded by various recorders as having had two wives, the first, a Tasmanian Aboriginal woman and the second Elizabeth or Betty, a Victorian Aboriginal woman (see Pilbrow 2023 at 197-200).

Information provided to NB Tindale in 1938-39 by family members also identifies Elizabeth as a “fb. Aust. from Victoria” (“confirmed by her grandson Darcy”), as described in Pilbrow 2023 at 202. In my opinion the early record information regarding the Maynard’s Aboriginal Australian partner’s Port Philip origin and the consistent record regarding Richard Maynard second partner being a Victorian Aboriginal woman enables me to infer that Elizabeth Maynard was more probably than not a member of the group comprising Boonwurrung people.

Dr Pilbrow’s oral testimony

314    In his oral testimony Dr Pilbrow largely reiterated the opinions he expressed in his 2023 report and in the BW Joint Experts’ Report.

315    When asked about Plomley’s mis-transcription of Robinson’s 9 January 1837 journal entry regarding Maynard’s statement to Robinson and Capt. Hurburgh, Dr Pilbrow accepted that that was an error, but said the deletion of the word “own” from Maynard’s statement did not change its meaning.

316    Dr Pilbrow opined that Elizabeth was abducted by Meredith in approximately 1834. He attributed the abduction to Meredith based on Robinson’s journal and Matilda’s Statement, and he dated the abduction by reference to Wedge’s 15 March 1836 letter to the VDL Colonial Secretary that recorded an attack on “natives of Western Port”, which resulted in four women being abducted a year and a half prior.

317    Mr Levy questioned Dr Pilbrow about the credibility of Richard Maynard’s account to Robinson on Preservation Island on 9 January 1837. Dr Pilbrow accepted that sealers were not “the most credible sources” and accepted that if Maynard had been involved in the abduction of Elizabeth Maynard he would “presumably not” admit to it. He did not, however, agree that if Maynard was himself involved in the abduction then “the obvious thing for someone like Maynard to do would be to blame someone else.” He said that he had “never come across a view in any of the…secondary literature or…any indication in the primary documents that Maynard was abducting women.” He also noted that Matilda’s Statement corroborated Meredith’s involvement in the abduction from Point Nepean.

318    It was put to Dr Pilbrow that, at effective sovereignty, it was “quite possible” that members of other Eastern Kulin groups would be present on Boonwurrung country (T371.27-36). Dr Pilbrow accepted that. In further cross-examination, Dr Pilbrow accepted that, in light of Matilda’s Statement that the group that was attacked by Meredith was hunting kangaroo on Point Nepean, it was possible that men or women from other Aboriginal groups were present in that group.

319    It was then put to Dr Pilbrow that “[i]t was common for the Bunurong when they were using the resources of Bunurong land to do so accompanied by members of other Kulin Nation groups” (T369.24-26). Dr Pilbrow did not accept that. Rather, he said that he agreed to the wording in Proposition 6 of the BW Joint Experts’ Report, with a proviso regarding his understanding of the meaning of the word “often”. He said that “I would not say that there was never interaction between these groups, but I…don’t understand what ‘often’ means in this context.” In relation to the frequency of interactions between members of Eastern Kulin groups, he said that he preferred the description “from time to time”.

320    Dr Pilbrow explained part of the basis for his opinion that it is more probable than not that Elizabeth Maynard was a Boonwurrung woman, as follows:

In my view, while we do know that local Aboriginal groups in the Eastern Kulin area would from time to time be visited by people from other local groups – that the majority of time people would have spent in their own group – on their own group’s country so that it is more probable than not that a – that a woman on Boonwurrung country was Boonwurrung than that she was not.

(Emphasis added.)

321    He also said:

That if a woman was married to a Boonwurrung man and bearing children for a Boonwurrung man, she was part of that Boonwurrung group. If she was the daughter of a Boonwurrung man and not yet married, she was part of the Boonwurrung group.

322    Contrary to Dr Clark’s opinion, Dr Pilbrow said that a woman married to a Boonwurrung man may have been a Boonwurrung woman of a different moiety to her husband, or alternatively she may have been from another Eastern Kulin group.

323    Mr Levy took Dr Pilbrow to Proposition 18 of the Third GK Joint Experts’ Report where Dr Pilbrow and the other experts (including Mr Wood) jointly opined that Elizabeth Maynard had a connection to the Boonwurrung claim area. Dr Pilbrow did not accept that in forming their view the expert panel had failed to consider the possibility that a woman married to a Boonwurrung man may be from a different Kulin group. He said that:

My recollection of those discussions was that we, collectively, the anthropologists in the room, were of the view that it was reasonable to infer that a woman abducted from that country was from that group, either married into the group and, therefore, bearing children for the group, or a daughter within the group.

324    Dr Pilbrow said that, whilst there is “no definitive answer” in the anthropological literature, he took the view that a non-Boonwurrung woman who married into the Boonwurrung “[d]oesn’t necessarily lose connection to where she came from but becomes part of that [Boonwurrung] community.” He accepted though that the rights and interests in Boonwurrung country that would accrue to her would be “use rights”, as distinct from “ownership rights”, although he also said that that position is “debatable”.

5.5.4    Dr D’Arcy

D’Arcy 2005

325    Dr D’Arcy prepared her 2005 report for the BLC. It shows that she undertook detailed research into the claimed Boonwurrung identity of Elizabeth Maynard and considered the salient primary and secondary materials.

326    In the abstract for her report Dr D’Arcy summarised her opinion as follows:

The assertion that Elizabeth Maynard was one of the four Bunurong women taken from Point Nepean, by George Meredith in late 1834, has been found to be correct. This is for a number of reasons. There is no documentary or other form of proof that Elizabeth Maynard resided in the Straits prior to 1836-1837. Robinson had direct contact with Elizabeth in January 1837. From his writings it is obvious that she was one of the woman abducted from Point Nepean by George Meredith. The Bunurong people historically occupied the lands of Point Nepean, therefore, Elizabeth Maynard was a woman belonging to the Bunurong peoples. Elizabeth went on to remain a partner of Richard Maynard's and had a very large family, of whom exist written accounts found in various primary and secondary source documents. In all documentary evidence sighted, Elizabeth Maynard is written of as an Australian, a New Hollander, a Victorian, or a Port Phillip woman. There is also strong oral history evidence that Elizabeth Maynard (Granny Betty) was a Victorian woman.

(Emphasis added.)

327    Dr D’Arcy relied upon the following primary and secondary sources and set out the passages she relied upon. I have previously discussed most of the primary sources and I will not do so again. It suffices to note that they include:

(a)    Wedge’s 15 March 1836 letter to the Colonial Secretary;

(b)    Robinson’s journal entries and Robinson’s Report regarding the Meredith abduction, and his visit to Preservation Island on 9 January 1837, where:

(i)    James Munro said that one of the abducted women was living with Richard Maynard; and

(ii)    Richard Maynard said that that his “Port Phillip” Aboriginal partner was abducted by Meredith, and Robinson concluded that that was the case;

(c)    Dredge’s 1841 diary entry regarding the return of Yanki Yanki and his account of the Meredith abduction;

(d)    the report by John Lort Stokes in Discoveries in Australia referring to his 1843 visit to Preservation Island, about which he wrote that:

I found Preservation Island inhabited by an old sealer of the name of James Munro ... Another man and three or four native women completed the settlement.

Stokes estimated that there were twenty-five “half-caste” children on Preservation Island;

(e)    the 1849 report of the Surveyor General that Richard Maynard was living on Woody Island with his wife, “a native of New Holland”, with three sons and two daughters;

(f)    Archdeacon Reiby’s 1863 letter;

(g)    EW Stephen’s 2 October 1899 letter to JB Walker;

(h)    EW Stephen’s 1899 manuscript;

(i)    Westlake’s 1908-1910 papers;

(j)    Tindales’s journal and genealogical research from the 1938-39 Harvard/Adelaide Universities Anthropological Expedition;

(k)    Tindale’s 1953 publication in Growth of a People;

(l)    Plomley’s 1966 research in which he concluded that in January 1837 Richard Maynard was living on Clarks Island with a Port Phillip woman who was one of those abducted by Meredith;

(m)    Mollison and Everitt’s 1978 genealogies which state that Richard Maynard’s second wife was “Elizabeth alias ‘Granny Betty’, Native Port Phillip (Vic), abducted by Meredith ... b. 1811, d. 14 Jan 1882”; and

(n)    Plomley’s 1990 research which states that Richard Maynard was:

Living on Clarke Island in January 1837 with a New Holland woman far advanced in pregnancy; one of those abducted at Port Phillip by George Meredith; this was the Port Phillip woman, Elizabeth, whom Maynard married after the death of Margaret in 1840-43.

328    Based upon those source documents Dr D’Arcy provided the following reasons for her conclusion that it is likely that Elizabeth Maynard was one of the women taken from Point Nepean by Meredith in circa 1834:

(a)    there is no mention of this woman residing with Richard Maynard in the Bass Strait islands prior to January 1837;

(b)    Robinson went firstly to Port Phillip in December 1836, then to the Bass Strait islands in January 1837, to investigate the Meredith abduction. He was intent on discovering the abducted women for the purpose of repatriating them to their country. When Robinson wrote that the woman residing with Richard Maynard was from Port Phillip, he was confirming that she was one of the women abducted from Point Nepean by Meredith;

(c)    Robinson directly asked the woman accompanying Richard Maynard if she would like to be returned to her own country, which confirms that she acknowledged to Robinson that she was from the Port Phillip/Point Nepean area (at that time the mis-transcription had not been discovered);

(d)    Capt. Hurburgh made a remark to Maynard, to which Maynard replied that the woman was indeed one of those taken by Meredith; and

(e)    from January 1837 onwards the woman, known as Elizabeth (“Granny Betty”) Maynard, remained Richard Maynard’s partner and they had a large family together. In all documentary evidence sighted by Dr D’Arcy, Elizabeth Maynard was written of as an “Australian”, a “New Hollander”, a “Victorian” or “Port Phillip” woman. She continued to be recognised by the Islander community as such, and when Tindale visited in 1939, oral history regarding Islander genealogy consistently recalled her as such.

The BW Joint Experts’ Report

329    In the BW Joint Experts’ Report Dr D’Arcy opined that it is more probable than not that, at effective sovereignty, the woman known as Elizabeth Maynard was a member of the Boonwurrung People who, at sovereignty, held rights and interests in accordance with their traditional customs in part of the Boonwurrung claim area. She said:

Agree. I was not retained to address this proposition, however, in 2005 I wrote a report addressing, in part, Elizabeth Maynard’s Boonwurrung heritage. Robinson makes mention of Elizabeth Maynard in 1837 and confirms that she was one of the women abducted by Port Nepean [sic] by George Meredith circa 1834. In 1939 Tindale confirmed her genealogy and Islander memories of her as such.

Dr D’Arcy’s oral testimony

330    In her oral testimony, Dr D’Arcy reiterated the opinion in her 2005 report that Elizabeth Maynard was one of the four Boonwurrung women taken from Point Nepean by Meredith in late 1834. She briefly summarised the primary sources she relied upon, as follows:

(a)    Robinson’s journal entry dated 26 December that describes the abduction from Point Nepean of a number of Aboriginal women by Meredith;

(b)    Robinson’s journal entry dated 9 January 1837 that describes his encounter with Richard Maynard and a “New Holland Port Phillip native woman” where Maynard said, and Robinson concluded, that she was one of the women taken by Meredith;

(c)    other mentions in archival documents of Elizabeth Maynard as a “Port Phillip woman”, “Australian native” and “Aboriginal from Victoria”;

(d)    Tindale’s 1939 research when he visited the Bass Strait islands and records Elizabeth Maynard as a “New Hollander” from Victoria;

(e)    Westlake’s 1908-1910 papers that describe Aboriginal women from Victoria on the islands; and

(f)    other references to Richard Maynard having a “Port Phillip” woman.

331    Dr D’Arcy was not cross-examined.

5.6    The applicant’s submissions

332    The Boonwurrung applicant submitted that the Separate Question in relation to Elizabeth Maynard must be answered “no” or “not proven”.

333    The applicant made three overarching submissions in relation to the asserted Boonwurrung identity of each of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster.

334    First, that the historical records alone, which are around 200 years old, and which derive from colonial enquiries or observations about the activities of white sealers on the Bass Strait islands, and were not directed at identifying the traditional country or kinship relations of any of the allegedly abducted Aboriginal women put forward by the Bunurong respondents, are insufficient to show that any of those women were Boonwurrung by descent. It contended that it is no longer possible, given the substantial passage of time, to investigate or determine that issue by reference to the evidence which existed 200 years ago (but has long ceased to exist). It argued that considerable caution is required when reasoning by inference from circumstantial evidence in the historical records.

335    The applicant relied on the remarks of Hodgson JA in Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 at [14], where his Honour observed that “in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.” The applicant submitted that those remarks underscore the considerable caution that is required when considering drawing inferences from the limited historical records which exist in relation to Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster’s claimed Boonwurrung ancestry. It submitted that “[t]he outcome should not depend on the happenstance of whether or not an historical observation was made and recorded around 200 years ago (for example, by a passing French Navy Captain); as that would not be an ‘appropriate basis on which to reach a reasonable decision’.”

336    The applicant further contended that the historical records in relation to the allegedly abducted Aboriginal women are necessarily attended by considerable doubt, inherently uncertain, and not of themselves capable of reliably establishing the traditional Aboriginal group to which those women belonged.

337    Second, the applicant contended that the Bunurong respondents’ argument in relation to the claimed Boonwurrung identity of each of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster relies on a presumption that the group of Aboriginal persons hunting kangaroo on Boonwurrung country from which she was abducted must have been predominantly comprised of Boonwurrung persons, which the applicant called the “place of abduction presumption”. It relied on Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Blackburn J), and Smirke v Western Australia (No 2) [2020] FCA 1728 (Mortimer J, as her Honour then was) in support of its argument that no such presumption is appropriate.

338    In Milirrpum Blackburn J did not accept anthropological opinions that, prior to effective sovereignty in 1935, a “band” or group of Aboriginal people which occupied and used land on the Gove Peninsula “would be made up of a core of members of a particular patrilineal descent unit” (i.e., a “clan” or traditional owners) (at 168). It said that his Honour did so because he accepted direct evidence from Aboriginal witnesses as to their actual occupation and traditional use of land prior to 1935, which made clear that the “band” or group which traditionally occupied and used land on a day-to-day basis prior to 1935 would not be comprised mostly of members of the traditional owning “clan” for that land.

339    It contended that it follows from Blackburn J’s elucidation and findings that if a passing observer saw an Aboriginal group on the Gove Peninsula prior to effective sovereignty, as did Matthew Flinders in 1802, the observer could not rationally infer that the members of the group in all likelihood were predominantly comprised by traditional owners of that land. It said that such inferential reasoning would be flawed not only because it was refuted by the direct evidence of Aboriginal witnesses before Blackburn J, but also because it involves a fundamental failure to appreciate that – under Aboriginal tradition – there is a marked distinction between the traditional ownership of land on the one hand, and the day-to-day occupation and usufructuary use of land on the other.

340    To similar effect, the applicant submitted that in Smirke Mortimer J accepted the anthropological evidence of Dr Kingsley Palmer which distinguished between a “country group” for land in the Pilbara (i.e., a traditional owning group whose relationship to land was “totemic” or “spiritually based”), and a “residence group” (i.e., who occupied and used land on a day-to-day basis). In Smirke neither Mortimer J nor Dr Palmer received direct oral evidence from living Aboriginal persons who occupied and used land in the Pilbara prior to effective sovereignty, but Dr Palmer relied on “field data” in that regard. Her Honour reproduced (at [754]) part of Dr Palmer’s opinion, as follows:

Third, since the country group was essentially totemic the relationship between a person and country and the assertion of rights in that country was fundamentally spiritually based. It was founded on a belief in the congruence between a person and the country wherein they consequently held rights.

Fourth, the [pre-sovereignty] country group, at least in the form of a descent group, was exogamous. Consequently, residence groups were comprised of members from at least two country groups (husband and wife) and based on field data available, generally half a dozen or so more. The members of the residence group hunted and foraged over the country of its member’s estates wherein constituent members held customary rights.

341    Again, on the applicant’s submissions, it follows from Dr Palmer’s evidence that if a passing observer saw an Aboriginal group in the Pilbara prior to effective sovereignty, the observer could not rationally or correctly infer that the members of the group in all likelihood were predominantly comprised by traditional owners of that land. Yet, on its submissions, this is precisely the inference which the Bunurong respondents and the State contended that the Court should make by reference only to a factual finding as to the place of abduction of an Aboriginal woman from the coastline of Victoria almost 200 years ago.

342    The applicant also submitted that caution is required to ensure that conceptual error does not infect reasoning when the “spiritual or religious is translated into the legal”, as is required in a native title determination: Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [14] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). It noted that the High Court there commented on the difficulties associated with “the inevitable tendency to think of rights and interest in relation to land only in terms familiar to the common lawyer”, and also said that “the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer’s one-dimensional view of property as control over access” (at [95]).

343    Third, the applicant submitted that such difficulties are apparent in the expert reports of Dr Pilbrow and Dr D’Arcy, and in the Third GK Joint Experts’ Report in the Gunaikurnai proceeding. It said that the experts in the Third GK Joint Experts’ Report, which included Dr Pilbrow and Mr Wood, simply accepted the “place of abduction presumption”, and thus agreed that it was “likely” that Elizabeth Maynard and Eliza Nowan were more likely than not Boonwurrung women. On the applicant’s argument, that can be seen in the experts’ answer to Propositions 12 and 13 in relation to Eliza Nowan/Gamble where the experts jointly said:

We consider it a prima facie case that any person who was taken from the Western Port area in this period is more likely than not to have belonged to the Western Port area and thus to the Boonwurrung group. The abductions occurred prior to effective sovereignty and large scale displacement of people from their original countries.

The applicant argued that the experts applied the same rationale in answer to Propositions 18 and 19 in relation to Elizabeth Maynard.

344    The applicant contended that the Third GK Joint Experts’ Report does not record any appreciation of the conceptual distinction between traditional ownership (a “religious relationship”) and the day-to-day occupation and usufructuary use of land, as identified by Blackburn J in Milirrpum. On its argument, the position taken by the experts in the Third GK Joint Experts’ Report in May 2019 stands in contrast to the approach they took in the First GK Report in September 2018. There, the experts, which included Mr Wood but not Dr Pilbrow, did not fall into the error of a place of abduction presumption, and did not accept that it could reasonably be inferred that Elizabeth Maynard or Eliza Nowan/Gamble were Boonwurrung by descent. The experts there said that the archival record did “not include which Port Phillip group” Elizabeth Maynard belonged to, which resulted in an insuperable “difficulty” with “determining whether she belonged to the Bunurong/Boonwurrung aggregation of local groups”. For Eliza Nowan the experts said there were “insufficient facts in the basis material” to determine whether she had a “traditional association with the Bunurong/Boonwurrung group and country”.

345    The applicant gave credit to Mr Wood for reviewing his position as to Elizabeth Maynard and Eliza Nowan for the BW Joint Experts’ Report. It said that he did so in light of Dr Clark’s opinion, and also his own research and experience with Aboriginal groups elsewhere in Australia and in a manner which accorded with Blackburn J’s distinction in Milirrpum. It noted that Mr Wood reverted to his original opinion in the First GK Joint Experts’ Report that there is insufficient information to conclude that the abducted Aboriginal women were Boonwurrung.

346    On the other hand, the applicant noted that, in the BW Joint Experts’ Report, Dr Pilbrow maintained his opinion that Elizabeth Maynard and Eliza Nowan were Boonwurrung women, as he had opined in the Third GK Joint Experts’ Report. It submitted that Dr Pilbrow thereby continued to rely upon a place of abduction presumption. It argued that Dr Pilbrow’s 2023 report:

(a)    in relation to Elizabeth Maynard, simply presumes that her apparent abduction by Meredith from Point Nepean, probably in 1834, means that she can be inferred as probably a member of the Boonwurrung People holding rights and interests in the claim area (at [208]), and does not identify the factual basis or underlying reasoning for that presumption; and

(b)    in relation to Eliza Nowan, simply records that she can be inferred as probably a member of the Boonwurrung People holding rights and interests. The applicant contended that, although not identified in Dr Pilbrow’s report it is clear from his oral testimony that he considered it likely that Eliza Nowan was abducted from Western Port, and that he presumed from that that it can be inferred that she was probably Boonwurrung. The applicant submitted that Dr Pilbrow’s report does not identify the factual basis or underlying reasoning for that presumption.

347    The applicant also contended that Dr Pilbrow tried to resile from the joint answer to Proposition 6 in the BW Joint Experts’ Report in which he and the other experts agreed that “[a]t effective sovereignty, under the traditional laws acknowledged and customs observed of the Boonwurrung group (and other Eastern Kulin groups), members of any particular Eastern Kulin group were often present on the country of other Eastern Kulin groups for the purpose of accessing and using resources (such as hunting, fishing, food gathering, axe and tool manufacture), ceremonial activities, and due to marriage” (emphasis added). It argued that that could be seen in Dr Pilbrow’s evidence that it was “possible” that the group of Aboriginal people hunting kangaroo on Point Nepean who were attacked by Meredith included “men or women from other Aboriginal groups”. It argued that Dr Pilbrow expressed that erroneous opinion notwithstanding that he agreed in cross-examination that where, as here, there is little if any direct evidence prior to sovereignty as to the actual occupation and use of land by Aboriginal persons and groups under Aboriginal tradition, it is a reasonable conclusion to draw inferences from evidence of how pre-sovereignty tradition, occupation and use of land operates elsewhere in Australia.

348    The applicant submitted that Dr Pilbrow’s explanation as to the basis for his conclusion that it was merely “possible” that the group of Aboriginal people caught up in the Meredith abduction included men or women from other Aboriginal groups is unsatisfactory. It said that the adverb “often” has a clear and well-known meaning; it is not an elastic concept, and dictionary definitions of “often” include “frequently; many times”, “many times”, “many times on different occasions”, and “a lot or many times; frequently”. The applicant characterised Dr Pilbrow’s evidence as “shifting” and said it must be rejected.

349    It also contended that Dr Pilbrow’s opinion (and that of Dr D’Arcy) misconceives native title by reference to English property law concepts. On its argument, cross-examination revealed Dr Pilbrow’s reasoning to be internally inconsistent and fundamentally flawed, and Dr D’Arcy’s evidence should also be rejected on the same basis. It submitted that their opinions that it may be inferred from the place of abduction of an Aboriginal woman that the woman was Boonwurrung must be rejected.

350    Turning then to matters specific to Elizabeth Maynard, the applicant made a series of submissions.

351    It contended that, having regard to the historical records, there is significant doubt as to whether Elizabeth Maynard was abducted from Boonwurrung country or some other location and, if the former, whether it can properly be inferred 200 years later that she belonged to either the Boonwurrung People or another Eastern Kulin group. It said that the latter question involves inferential reasoning based on general evidence as to the composition of traditional Aboriginal groups (since there is no specific evidence about the actual composition of the Aboriginal group from which she may have been abducted), by reference to general evidence about exogamous marriage practices and the accepted fact that Aboriginal families and groups were commonly present on the country of neighbouring groups for usufructuary and ceremonial purposes. On its argument, the fact that, 200 years later, relevant evidence from an inspection or inquiry is no longer available, is a further source of doubt.

352    The applicant contended that the significant doubt injected by each of these variables in the reasoning process is cumulative, and taken together, is considerable. Given these cumulative doubts it argued that it cannot confidently or reliably be concluded from the historical records (or otherwise) that Elizabeth Maynard was a Boonwurrung woman.

353    The applicant noted Dr Clark’s opinion that the historical records show that Richard Maynard’s wife, who was first named in official records as Elizabeth (a sealer’s widow) when she died in 1882, was a “New Holland Native of Port Phillip” (Robinson 1837), a “P[ort] P[hillip] woman” (Robinson 1837), a “Port Phillip woman” (Robinson 1837), a “native of New Holland” (1849), and a “Native of New South Wales” (1861). It relied upon his opinion that it cannot be assumed that these were necessarily references to Elizabeth Maynard, since Robinson’s 1837 account records Richard Maynard’s ‘wife’ as being far advanced in pregnancy and there is no record of a Maynard child being born in that year. On the applicant’s argument it is “quite possible” that the Aboriginal woman Robinson saw accompanying Richard Maynard in January 1837 was not Elizabeth Maynard. It also argued that because Richard Maynard is recorded as having two wives, conceivably he may have had additional Aboriginal partners.

354    The applicant noted that, following her death in 1882, Elizabeth Maynard was variously identified as “an aboriginal from Victoria”, “Victorian Betty”, a “Victoria Native woman” (1899, 1908-1910, 1912), an “Australian Aboriginal woman”, “a real New Hollander” (Tindale 1939), and an “Australian Aboriginal woman from Victoria” (Tindale 1953). It argued that, at their highest, the historical records indicate that Elizabeth Maynard may have been a member of any of the five Eastern Kulin Aboriginal groups.

355    It described the references in the historical records to “Port Phillip” as imprecise, and said that that may have meant either: (a) the site which ultimately developed into the town and city of Melbourne; (b) Port Phillip Bay itself (or any section of its coastline); or (c) the Port Phillip District which was an administrative division of the Colony of New South Wales from 1836 to 1851 and which extended well to the north, west and east of Melbourne, and ultimately became the Colony of Victoria. On the applicant’s argument, it cannot be inferred or concluded from the evidence of abduction from “Port Phillip” that Elizabeth Maynard was a Boonwurrung woman.

356    The applicant also noted that the Bunurong respondents assert that Elizabeth Maynard was abducted by Meredith from Point Nepean in 1833, and infer that she was Boonwurrung because Point Nepean is Boonwurrung country. It said that the historical source for that proposition is Richard Maynard’s statement in January 1837 to Capt. Hurburgh, which was conveyed to Robinson, that he “knew she was taken from her country”. It submitted that, taken alone, this evidence is insufficient. As Dr Clark explained, Robinson was clear that Aboriginal women were abducted from numerous places on the south coast of Australia – indeed from “every accessible spot where those have visited on the south coast of New Holland” – and not only by sealers, but also “whalers, barkers, stockman, shepherds and others”.

357    The applicant also contended that the historical records are insufficient to show that Meredith was Elizabeth Maynard’s abductor. It submitted that abduction or kidnapping was a crime in colonial New South Wales and Tasmania, and that it can hardly be expected that a sealer would personally admit (if that was the case) to being complicit in the abduction of an Aboriginal woman. It submitted that the safer course for an abductor, who was confronted by colonial authorities (such as Robinson) would be to attribute responsibility for any abductions to Meredith, who was well known to have abducted Aboriginal women and who died on Kangaroo Island in SA in 1834 and thus could not complain about being wrongly accused.

358    The applicant further submitted that the historical records indicate that George Meredith kidnapped at least four and possibly as many as nine women from Point Nepean in early 1833, and contended that it cannot be concluded that other abductions by other persons (which are not recorded in historical records) did not occur.

359    It further argued that, even if it is accepted that Elizabeth Maynard was part of a group of women abducted by George Meredith from Point Nepean in around 1833, it cannot be concluded that she was likely to have been Boonwurrung. The applicant again noted that pre-effective sovereignty Aboriginal groups regularly used and were often present upon the country of neighbouring groups (including for hunting, fishing, gathering, other resource use, and ceremonial reasons), including the country of their husbands. On its argument, at its highest, the evidence indicates that Elizabeth Maynard may have been a member of any of the five Eastern Kulin Aboriginal groups.

360    The applicant also submitted that the Bunurong respondents expressly claimed that Elizabeth Maynard was Nandergoroke, the abducted wife of Derrimut, a Boonwurrung man. On its argument, again in reliance upon Dr Clark, if Elizabeth Maynard was Nandergoroke, the prevailing exogamous marriage practices of the Eastern Kulin groups meant that Elizabeth Maynard definitely would not be Boonwurrung, and would “likely” be Woiwurrung or from another Eastern Kulin wurrung with whom the Boonwurrung intermarried.

361    Next the applicant submitted that the evidence of Ms Summers, Mr Ogden and Mr West demonstrated that their claims to be Boonwurrung people, and to have knowledge of Boonwurrung traditions and customs, is not supported at all by any oral history received from their ancestors.

362    In relation to Ms Summers’ testimony, the applicant said that:

(a)    Ms Summers knew of her ancestor, Elizabeth Maynard (Granny Betty), because she was recorded in the Maynard Family Bible, and was spoken about by her mother and other relatives during her childhood; and

(b)    Ms Summers’ mother identified only as a Bass Strait Islander, and “only spoke about her island history, because that’s all she knew”. Her mother’s siblings spoke to her about Granny Betty as having been “stolen from the Port Phillip region”, which occurred in the early 1960s when Ms Summers was around nine or 10 years old. Ms Summers said that she “would imagine” that this information was “passed down” from the forebears of her mother and her mother’s siblings, which the applicant contended is just speculation.

363    The applicant submitted that the reference to “Port Phillip” in that purported oral history, which also appears in historical records, means that it is more likely (and certainly equally likely) that that information ultimately derived from historical records rather than information handed down orally over the generations from Elizabeth Maynard.

364    It contended that there is no oral history at all, deriving from Elizabeth Maynard or her contemporaries, handed down through the generations as to Elizabeth Maynard being Boonwurrung, or as to any Boonwurrung traditions or customs.

365    The applicant argued that it is clear from Ms Summers’ testimony under cross-examination that she did not know of her claimed Boonwurrung identity until the 1990s. It noted that Ms Summers initially said that she was first told she was Boonwurrung by Aunty Ida West in the late 1970s, who “had been doing some – or had somebody doing some research”. Ms Summers said that “to be quite honest, I didn’t, at first, believe it”, and that she had responded “No, we can’t be”. She continued, “We didn’t know the Port Phillip tribe was actually the Bunurong tribe. That connection between Port Phillip tribe and Bunurong … I made that connection as an adult. I didn’t know it as a child.”

366    Later in cross-examination Ms Summers accepted that she was confused about the date she was first told by Aunty Ida West that she was Boonwurrung, and accepted that the relevant conversation occurred in the 1990s. She also accepted that it was likely that Aunty Ida learnt of the Boonwurrung connection from Mr Compton or possibly Ms Murray “in the 90s”.

367    The applicant noted Ms Summers’ acceptance that there are a substantial number of descendants of Elizabeth Maynard who do not agree that they are Boonwurrung by descent. It said that Ms Summers’ evidence serves to confirm that the descendants of Elizabeth Maynard are not a “family of polity” whose members form a regional society under tradition which they commonly assert and acknowledge.

368    The applicant noted that Mr Ogden testified that he was told by his grandmother (Nan), Maisie Shaw (née West), that she “always recognised Granny Betty as being a Port Phillip woman that was taken from Port Phillip”, which accorded with Ms Summers’ testimony. It also noted that Mr Ogden claimed to have also been told by Nan when visiting Portsea on the Mornington Peninsula, that “this is the area that Granny Betty was taken from”. He said that occurred when he was only “about 10 or 11” (which dates it at around 1978-1979). The applicant contended that Mr Ogden’s recollection was contradicted by Ms Summers’ testimony that it was not until Aunty Ida received advice from Mr Compton, and possibly Ms Murray, in the 1990s that she (and by inference other Bunurong claimants including Mr Ogden) had any knowledge of the location of Boonwurrung country or the place of abduction. It submitted that Mr Ogden’s recollection on this issue should therefore be rejected as mistaken and unreliable.

369    The applicant further noted that Mr West testified that most of his Boonwurrung knowledge came from his late father, Christopher West. He recalled his father saying that “our grannies were stolen off the beach”, and initially believed that this information was first conveyed when he was “little, probably six or seven, probably very, very early”. Mr West also testified that when he was aged around “14 or 15”, in “2004-ish”, he visited the moonah forest at Point Nepean and was told by his father that Elizabeth Maynard was abducted from that location. The applicant accepted that the timing of Mr West’s earliest recollection (when “six or seven”) is inherently uncertain, but nonetheless submitted that his evidence indicates that he was told that in the latter part of the 1990s – which it said accorded with Ms Summers’ evidence that the source of the Aunty Ida West’s belief that Elizabeth Maynard was a Boonwurrung woman initially derived from advice given by Mr Compton, and possibly Ms Murray, at around that time.

370    The applicant contended that the absence of any relevant oral history derived from Elizabeth Maynard is confirmed by:

(a)    Dr Pilbrow’s fieldnotes of his interview on 3 March 2023 with Ms Summer’s younger sister, Nannette Shaw. According to the notes Ms Shaw told Dr Pilbrow that “[w]e found out about our [Boonwurrung] identity about 20 odd years ago” (i.e., in 2000 on her return to Tasmania from Queensland), and that “[w]e grew up know[ing] Tasmanian Aboriginal heritage, but not the [Boonwurrung] side of it”. Dr Pilbrow recorded Ms Shaw as saying that she found out about the Boonwurrung connection from Ms Summers, but did not “know how [Ms Summers] did the research”. She said that that was well after their mother died in 1986 and Ms Shaw believed that her mother did not know of any Boonwurrung connection – noting that she “would have been very proud of that and would have let us know”, but did not. Ms Shaw referred to some traditional practices being passed down to her from her Tasmanian ancestors, but not to any “cultural knowledge” from Granny Betty; and

(b)    Tindale’s research in 1939 and 1949, published in Tindale 1953. The applicant submitted that in conducting that research on Cape Barren Island Tindale interviewed almost every available person, and yet Tindale’s report provides no further details as to the location from which Granny Betty was abducted, the traditional group to which she belonged, or as to that group’s traditions and customs about membership or anything else. It also noted that no information was provided or recorded as to there being a Boonwurrung kinship relationship between Granny Betty and several other Aboriginal women who were abducted to islands in Bass Strait around the same time, and that Tindale records that his older informants had only “fragmentary recollections … possibly back to 1860”, when Elizabeth Maynard (and other abducted Aboriginal women) were alive.

371    The applicant said that Tindale was an experienced anthropologist and ethnographer, and would have been vitally interested in such information if it had been available. It contended that it must be concluded that by 1939 the oral traditional history relating to Elizabeth Maynard was no longer known at all to her descendants, and it follows that present-day descendants of Elizabeth Maynard also possess no oral history about Boonwurrung laws and customs which derive from her.

372    The applicant further contended that the fact that Ms Murray and Mr Compton were the source of the advice given to Aunty Ida West that Elizabeth Maynard was Boonwurrung, and that there is no Boonwurrung oral history deriving from Elizabeth Maynard or her contemporaries, is confirmed by the Mirimbiak Letter in March 2000. In that letter Ms Murray said that the “true Bunurong people” are descended from “Elizabeth Maynard and Jane Foster” and noted that the Mirimbiak-facilitated trip to Melbourne was an opportunity “to have two free days to show my elders their country”. Ms Murray continued by stating, “[n]ow they know exactly where their grandmothers were stolen from and where their land is, they will fight long and hard to protect and guard their land”.

373    The applicant argued that that was an unequivocal admission by Ms Murray that, before approximately 2000, Aunty Ida West, and others of her generation, had not in fact known where Boonwurrung country was located, and thus did not previously know of their Boonwurrung connection.

374    It also argued that that admission was confirmed by Ms Murray in her evidence before Justice Gordon in Registrar of Aboriginal and Torres Strait Islander Corporations v Sonia Murray, Mervyn Brown, Leonie Dickson and Verna Nichols [2015] FCA 346. (Registrar v Murray & Ors). In a statement filed in the proceeding Ms Murray said (at [37]):

I have worked very hard for nearly 20 years for the Bunurong community, 7 days a week for what seemed like 24 hours a day. When I started the Bunurong community were assumed extinct, I fought long and hard, many times on my own with local councils, state government, and various departments to get us recognised as a people.

(Applicant’s emphasis.)

375    The applicant noted that Ms Murray was scheduled to give evidence in the Separate Questions hearing in relation to Jane Foster, but did not ultimately do so. It said that the decision not to call her followed the filing of Dr Clark’s 2023 report in which he opined that Ms Murray was not biologically descended from Jane Foster. The applicant described Ms Murray as an integral witness in relation to matters pertaining to the descendants of Jane Foster, Elizabeth Maynard and Eliza Nowan, and argued that an inference under the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 308 should be drawn that, not only would Ms Murray’s evidence not have assisted the Bunurong respondents, but that it would have damaged the Bunurong respondents’ case. The applicant also argued that under the rule in Blatch v Archer [1774] EngR 2; 1 Cowp 63 at 65; 98 ER 969 at 970 the Bunurong respondents’ evidence must be assessed having regard to their belated failure to adduce evidence from Ms Murray.

5.7    Consideration regarding Elizabeth Maynard

376    The Bunurong respondents assert that an Aboriginal girl or woman was abducted by Meredith from near Point Nepean, Victoria, in circa 1833-1834, and taken away to islands in Bass Strait where she cohabited with the sealer Richard Maynard, and they had children together. They contended that that woman, later known as Elizabeth Maynard or Granny Betty, was a Boonwurrung woman who, at effective sovereignty, held rights and interests in part of Boonwurrung country under traditional laws and customs. They had the onus to establish that.

377    The question for the Court is whether the facts for which the Bunurong respondents contend are more likely than not to have existed, on the basis of the evidence adduced and inferences which can reasonably be drawn from that evidence, including to decide whether the available evidence is sufficient to enable a decision to be reached.

378    It cannot be doubted that in this shameful period of Australian history a large number of Aboriginal women and girls were abducted by white sealers, taken away from their country and, as noted in Robinson’s Report “sent…to distant isles doomed to captivity”. I accept, as Robinson said, that Aboriginal women and girls were kidnapped from “Port Phillip, Portland Bay, Western Port, and other recently formed settlements; and indeed at every accessible spot where boats have visited along the south coast of New Holland”.

379    The abduction of the Aboriginal woman later known as Elizabeth Maynard occurred in circa 1833, around 190 years ago, and the effluxion of time and the devastating impact of European colonisation on Victorian Aboriginal communities means that there are limitations in the evidence. I accept the applicant’s contention that the relevant archival records are largely records of colonial enquiries and observations about the activities of white sealers on the Bass Strait islands, and they were not directed at identifying the traditional country or kinship relationships of Aboriginal people.

380    However, the evidence relevant to the claimed Boonwurrung identity of Elizabeth Maynard is not limited to archival records. Those records provide some of the picture, the expert evidence assists in understanding the historical records and provides a further part of the picture, and the lay evidence as to the knowledge or belief passed down over generations that Elizabeth Maynard, or “Granny Betty”, was a Port Phillip woman who was abducted from the Port Phillip area provides the rest of the picture.

381    For the reasons I now turn to explain, I am satisfied that the evidence is sufficient to infer that it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs. It is appropriate to answer Separate Question 1(a)(iii), “yes”.

5.7.1    The Meredith Abduction

382    It was common ground between the expert witnesses that the Meredith abduction occurred. Having regard to archival records I am satisfied that it is more likely than not that Meredith and his crew abducted a number of Aboriginal people from near the coast of Port Phillip Bay, about two miles down the coast from Point Nepean, in around the second quarter of 1833.

383    That conclusion is centrally based on the following historical records:

(a)    Those abductions were the subject of complaint by Wedge in his 1836 letters.

(b)    Robinson’s journal entry of 3 January 1837 and Robinson’s Report to the Colonial Secretary records his meeting with a group of “Port Phillip natives” on 28 December 1836, some of whom witnessed the abductions, in which they complained about the abduction of a number of women and girls from near Point Nepean.

(c)    A VDL Aboriginal woman with the alias of Matilda, who assisted Meredith in the abduction, provided Robinson with an eye-witness account of the raid on a group of Aboriginal people hunting kangaroo on Point Nepean. Matilda’s Statement, Robinson’s 28 December 1836 journal entry and Robinson’s Report show that she was able to provide the place of the abductions, the names of the leader and associated crew members, the class of the ship they were sailing in, and the method of abduction. Those records provide that Meredith and his crew anchored their two masted schooner offshore, went ashore by boat, deceived some Aboriginal girls and women with Matilda’s assistance, and took them captive and back to the schooner. Matilda said that Meredith then took the abductees to King Island and then to Hunter, Clarks and Gun Carriage Islands in Bass Strait, where he sold them to other sealers. I see her account as a reliable record of the Meredith abduction.

(d)    Robinson’s Report records that when Robinson met James Munro on Preservation Island on 9 January 1837 Munro admitted that his female partner:

…as well as the other Port Phillip Aboriginal females, had been stolen from their country by George Meredith Junior, and after accompanying him upon a sealing voyage were brought back, and left at the Furneaux Islands.

(e)    Robinson’s Report and his 9 January 1837 journal entry also record that when Robinson met Richard Maynard on Preservation Island later the same day, Maynard admitted that “he knew that [his partner] had been stolen from her country, by Meredith.”

(f)    Yanki Yanki provided another eye-witness account of what it is appropriate to infer was the same event. Yanki Yanki independently told Dredge and Thomas about his abduction along with eight or nine others, which they recorded in their journals in 1841. It is appropriate to infer that Yanki Yanki was referring to the Meredith abduction when the kidnappings to which he referred:

(i)    occurred on the same section of the coast of Port Phillip Bay. Robinson records that when his vessel was passing Point Nepean Matilda pointed out the place where the abductions occurred “a few miles down the harbour at Point Nepean”. Yanki Yanki’s account, as recorded by Thomas was that the abductions occurred “on the coast between Arthurs Seat and Point Nepean” and as recorded by Dredge “on the coast of the Bay near Arthur’s Seat”. Those are essentially the same locations;

(ii)    used the same methodology (a vessel came in and anchored off the coast, the crew went ashore in a rowboat, took some women and girls captive, took them back to their vessel, and then took them to the Bass Strait islands);

(iii)    occurred in the same time period as the Meredith abduction. Researchers who have looked into the Meredith abduction have reached different views as to the date of its occurrence, but their estimates fall within a relatively close date range. Having regard to Wedge’s March 1836 letter which said that the abductions occurred “about a year and a half ago”, Drs Pilbrow and D’Arcy concluded that the Meredith abduction took place in approximately 1834. In reliance upon the conclusion that Meredith used the vessel Defiance for the abduction, and that the Defiance had sunk in Twofold Bay in late 1833, and also in reliance upon Matilda’s account to Robinson, Dr Fels concluded that the Meredith abductions were likely to have occurred between March and May 1833. Dr Clark and Mr Annand agreed with Dr Fels’ analysis. I take the same view. I consider it to be more likely than not that the Meredith abductions took place between March and May 1833. That approximation accords with Thomas’ crossing out of “six” and substituting “8” years of Yanki Yanki’s absence in his first journal record in 1841 regarding Yanki Yanki;

(iv)    involved multiple abductees, as did the Meredith abduction;

(v)    one of the abducted women subsequently escaped. Robinson’s Report records that “Munro stated that one of the Women brought from Port Phillip had absconded from the Islanders, at a small inlet called Sealer’s Cove on the South coast of New Holland at Wilson’s Promontory.”: see Robinson’s Report, extracted in Clark 2002, p 107. And Thomas’ June 1841 journal entry records that Yanki Yanki told him that one of the abductees, a woman named Toutkuningrook, later escaped;

(vi)    there are no historical records of another similar abduction event in that time period or in that general area; and

(vii)    Dr Clark and Mr Annand concluded that the abduction Yanki Yanki described was the same event as that described by Matilda. Dr Pilbrow said that it may be the same event.

I am satisfied that it is appropriate to infer that the abduction event Yanki Yanki described is the same event as the Meredith abduction described by Robinson in his journal entries and report.

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    For the reasons I now turn to explain, I consider the archival records provide a sufficient foundation to infer that it is more likely than not that the “Port Phillip” Aboriginal woman Robinson saw accompanying Richard Maynard on Preservation Island on 9 January 1837, was one of the abductees in the Meredith abduction.

385    That inference is centrally based on the following matters.

386    First, Robinson’s Report records that Matilda told him that Meredith took the women he had abducted “in the schooner first to Kings Island and then to Hunter and Clarks and Gun Carriage Islands, and then sold them to the sealers there” (emphasis added). Robinson’s relevant journal entries and report make it abundantly clear that he concluded that Meredith had sold the women he had kidnapped to various sealers on different Bass Strait islands.

387    Second, Robinson’s 9 January 1837 journal entry lists the sealers on various Bass Strait islands and their Aboriginal partners. It records that Richard Maynard had “[o]ne P[ort] P[hillip] woman” on Clarks Island, which is one of the islands which Matilda said Meredith had visited when trading the abducted women to other sealers.

388    Third, Robinson’s 9 January 1837 journal entry and Robinson’s Report record that:

(a)    Robinson met James Munro on Preservation Island on that day, and that Munro admitted that his partner “as well as the other Port Phillip Aboriginal females, had been stolen from their country by George Meredith” (emphasis added);

(b)    Munro told Robinson that “another of the Port Philip women was on Clark Island, cohabiting with a sealer named Maynard”. That is a statement that Maynard had one of the women abducted in the Meredith abduction;

(c)    later that day Richard Maynard came to Preservation Island accompanied by a “fine looking” unnamed “Port Philip” woman whom Robinson described as a “New Holland native of Port Phillip”. Robinson recorded that she was in an advanced state of pregnancy and said that the woman was “cohabiting” with Maynard. That is a statement that she was, at least then, Maynards ‘wife’;

(d)    Maynard said that “he knew she was taken from her country by G Meredith”. That is a contemporaneous record of an admission by Maynard that his partner was taken in the Meredith abduction; and

(e)    Robinson concluded that Maynard’s partner was one of the women taken in the Meredith abduction. In accordance with the repatriation purpose of his mission, he asked her if she wished to return to “her own country” but she refused.

389    Dr Clark tried to downplay the significance of Maynard’s admission. He said that “Richard Maynard was a terribly clever man and when he ascribed the abduction of his wife to … George Meredith who had been deceased by two years, [it] was a very clever move.” He also said Maynard was “very intelligent” and that he was “blame shifting”. By that Dr Clark meant that Maynard’s purported admission was instead an attempt to shift the blame for his partner’s abduction from himself onto somebody who could not deny such a claim nor be punished for it. That evidence was just speculation, as Dr Clark ultimately accepted.

390    The applicant contended that it would be unsafe to rely on Maynard’s admission, as abduction or kidnapping was a crime in colonial NSW and Tasmania. It argued that it can hardly be expected that Maynard would personally admit (if that was the case) to being complicit in the abduction of an Aboriginal woman. On its argument, the safer course for an abductor who was confronted by the authorities, such as Robinson, would be to attribute responsibility for any abduction to Meredith, who was well known to have abducted Aboriginal women and who died on Kangaroo Island in SA in 1834 and thus could not complain about being wrongly accused.

391    I do not accept the thrust of that contention. As Dr Pilbrow said, there is no evidence that Maynard was involved in the Meredith abduction and Matilda’s Statement refers to Meredith’s involvement in that abduction but makes no mention of Maynard, and there is no evidence that he was involved in the abduction of Aboriginal women. Thus, there is no evidence that Maynard had any reason to attempt to shift the blame for the abduction of his partner to the deceased Meredith so as to hide his own involvement. The applicant’s contention is just speculation.

392    Fourth, for the reasons I later explain, understood in context, Robinson’s use of “Port Phillip native” and “Port Philip woman” were most likely references to people belonging to the tribe and country to which Derrimut and Betbenjee belonged, being the coastal parts of the general area around what became known as Melbourne, including Point Nepean which was where the “Port Philip natives” told Robinson they had been abducted from.

393    Fifth, the applicant submitted that, while the historical records indicate that Meredith kidnapped at least four and possibly as many as nine women from Point Nepean in early 1833, it cannot be concluded that other abductions by other persons (which are not recorded in historical records) did not occur. I have no difficulty in accepting the possibility that other abductions occurred and went unrecorded, but that does not take the applicant’s argument far. Here, there is a plain connection between, on the one hand, Robinson’s account of the abduction of at least four and up to eight “Port Phillip” Aboriginal girls and women from Point Nepean (supported by Matilda’s Statement and Yanki Yanki’s account), and on the other hand:

(a)    James Munro’s statement to Robinson that “another of the Port Phillip women” taken in the Meredith abduction was on Clarks Island, cohabiting with Maynard;

(b)    Maynard’s admission that his “Port Philip” Aboriginal partner was stolen “from her country” by Meredith; and

(c)    Robinson’s conclusion that Maynard’s “Port Philip” Aboriginal partner was one of the women abducted from Point Nepean in the Meredith abduction.

394    That connection provides a sound basis for an inference that it is more likely than not that Maynard’s partner was one of the women abducted in the Meredith abduction. There is no evidence of facts that contradict that inference, and it would be erroneous to discount that inference because of the applicant’s conjecture about contrary explanations, where there is no evidence of facts to support the contrary explanations.

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    For the reasons I now explain, I consider the evidence provides a sufficient foundation to infer that it is more likely than not that Richard Maynard’s “Port Phillip” Aboriginal partner, seen by Robinson in January 1837, was the woman later known as Elizabeth Maynard and also known as “Granny Betty”.

396    That inference is centrally based in the following matters.

397    Based on historical records and genealogical research I consider it to be more likely than not that Richard Maynard had only two de facto ‘wives’ following his being transported to Australia as a convict, both of whom were Aboriginal. The evidence is sufficient to infer that his first wife was named Margaret, an Aboriginal from Tasmania with whom he had two children. His second wife was named Elizabeth, and was also known as “Victorian Betty” and “Granny Betty”, an Aboriginal from Victoria, with whom Maynard had approximately 11 children.

398    That inference is centrally based upon the following archival records:

(a)    Robinson’s 9 January 1837 journal entry lists Richard Maynard as living on Clarks Island with “[o]ne Port Philip woman”; i.e., with one ‘wife’.

(b)    In 1849, the Surveyor General’s report records Richard Maynard as living on Woody Island with “his wife, a native of New Holland, with three sons and two daughters”. As I have said, and as Dr Clark accepted, in early records in this region the expressions “native of New Holland” or “New Hollander” were used to describe Aboriginals from mainland Australia, particularly Victoria, as distinct from Aboriginals from VDL. That describes her as an Aboriginal from Victoria, which differentiates her from Maynard’s first wife who was from Tasmania.

(c)    In 1870 Bonwick wrote that one Aboriginal woman living on the Bass Strait islands had “thirteen children by a sealer”. In Growth of a People published in 1953, Tindale said that Bonwick was there alluding to “the Australian aboriginal woman Elizabeth, second wife of ‘Henry’ Maynard the white sealer” who bore him “at least” twelve “half-caste” children. There is no significance to Tindale’s reference to Elizabeth’s husband as “Henry” rather than “Richard”. As previously explained, I am satisfied that Richard Maynard and Henry Maynard were the same person.

(d)    Writing in the period 1891-1912 EW Stephens describes Richard Maynard’s son, John, as being descended from a “Tasmanian woman” and his half-brothers as being descended from a “Victorian native woman”. Westlake’s notebooks from 1908-1910, state the same.

(e)    EW Stephens’ 1899 manuscript describes Richard Maynard’s first wife as “Tasmanian Margaret”, and his second wife as “Victorian Betty”. He wrote that Richard Maynard’s second wife was “Betty, an aboriginal from Victoria, by whom he had nine children, seven of whom are still living…”. Stephens variously described Richard Maynard’s second wife as “an aboriginal from Victoria”, “Victorian Betty” and a “Victorian native woman”.

(f)    Tindale confirmed those matters in his 1938-1939 research for which his informants included Elizabeth Maynard’s grandson, Darcy, and Benevenuto Everett (who married Elizabeth Maynard’s granddaughter, Rebecca), and also William Henry Mansell, who, at 75 years of age, was the oldest man then living on the islands. Tindale was satisfied with the accuracy of the information provided by his informants. Tindale records Granny Betty as a “full blood New Hollander who was the second partner of Maynard” and that she was “from Victoria”. He wrote that “Elizabeth” was “still remembered affectionately by her descendants and people on Cape Barren Island in 1939 as ‘Granny’” who described her as a “New Hollander”. He notes Elizabeth’s Victorian Aboriginal ancestry by describing her as “New Hollander”, “a Victorian full blood”, and as a “full blood Australian from Victoria”.

(g)    Meston 1947 also states that Richard Maynard’s second wife was an Aboriginal woman from Victoria.

(h)    Tindale’s further genealogical research for Growth of a People, published in 1953, confirmed and updated his earlier work. He records Henry Maynard as a “white sealer” who had “two aboriginal wives”, and that:

(i)    his first wife was a Tasmanian Aboriginal, with whom Maynard had two “half-caste” children, who died between 1840 and 1843; and

(ii)    his second wife was a woman named Elizabeth, a full-blood Aboriginal from Victoria, known as “Granny” to her descendants, with whom he had 11 “half-caste” children. He said that “Granny” was described by those who knew her as a “real New Hollander”.

(i)    Elizabeth Maynard’s death certificate records her date of death as 14 January 1882, age 71 years (therefore born circa 1811), and it describes her as a “sealer’s widow” (which was Maynard’s occupation). Because her birth preceded European settlement at Port Phillip her age should be considered a rough estimate.

399    Next, the evidence is sufficient to infer that it is more likely than not that the “Port Phillip” Aboriginal woman who was Richard Maynard’s partner in January 1837 was his second ‘wife’ (whom the records referred to above show was known as Elizabeth Maynard or “Granny Betty”). That inference finds support in the following:

(a)    the historical records are clear that Richard Maynard had only two ‘wives’ and his first wife was an Aboriginal woman from Tasmania. It is quite unlikely that Maynard’s partner in January 1837 was his first ‘wife’ because:

(i)    Munro told Robinson that Maynard had one of the abducted “Port Philip women”, not a woman from VDL;

(ii)    Maynard admitted that his female partner in January 1837 was taken in the Meredith abduction, and they were “Port Phillip” women taken from Point Nepean, not VDL; and

(iii)    Robinson concluded (as have I) that Maynard’s “Port Phillip” female partner was one of the women abducted in the Meredith abduction;

(b)    Robinson’s Report records that Maynard was “cohabiting” with the “Port Phillip” woman accompanying him on 9 January 1837 and Robinson observed that the woman was heavily pregnant with (as I infer) Maynard’s child. It is reasonable to infer that Maynard had been living with that woman as his de facto ‘wife’ for around three and a half years; that is, since Meredith traded her to him in circa mid-1833; and

(c)    as I later explain, it is more likely than not that Robinson’s references to “Port Phillip native” and “Port Phillip woman” were references to people abducted in the Meredith abduction, from the tribe and country associated with Derrimut and Betbenjee, being the coastal parts of the area around what is now Melbourne, including Point Nepean which is where the “Port Philip” natives said the abductions took place. Robinson’s description of Richard Maynard’s partner as a “Port Philip native” marries up with archival records and genealogical research which indicate that Maynard’s second wife was a “full blood” Aboriginal woman from Victoria.

400    Against that inference the applicant argued that Maynard may have had additional Aboriginal ‘wives’. I accept that is a possibility, but it is just conjecture. There is no evidence that he had any other wives other than his first VDL ‘wife’.

401    Based on Dr Clark’s opinion, the applicant argued that because Richard Maynard’s female partner in January 1837 was heavily pregnant, and there is no record of Elizabeth Maynard having a child in 1837, that woman may not be the same person as Elizabeth Maynard. That is possible but it is less likely than that she was Elizabeth or Granny Betty. For example, Maynard’s partner’s pregnancy may have miscarried, the baby may have been stillborn, or if a healthy child was born the birth may have gone unrecorded. There were no official records kept of Aboriginal births at that time and there are many reasons why the birth of a “half-caste” Aboriginal child on a remote Bass Strait island in the 1830s would not have been recorded, or even remembered.

402    Having regard to the historical records alone I agree with Dr Pilbrow opinion that the balance of the evidence suggests that it is more likely than not that the woman accompanying Richard Maynard on 9 January 1837 was Elizabeth Maynard. As Dr Pilbrow put it in his oral testimony:

In my view, the balance of the evidence does suggest that. There are those references in Robinson’s journal that the woman with Maynard was one of the women that was taken and …there’s later documentation of his ongoing relationship with a woman who is described as a New Holland native. He’s only ever described as having a relationship with one Tasmanian woman and one New Holland woman, and all of his children are to either of those two women, …[and the New Holland woman] later becomes known as Elizabeth.

403    Importantly, the inference that Richard Maynard’s “Port Phillip” Aboriginal partner in January 1837 was his second wife Elizabeth Maynard (also known as Granny Betty), finds firm support in the lay evidence of Ms Summers, Mr Ogden and Mr West.

404    They gave unchallenged evidence which traced their ancestry back to Richard Maynard’s wife, Elizabeth Maynard or Granny Betty. Their evidence that they are descended from Richard and Elizabeth Maynard, also known as Granny Betty, is cogent, and the applicant made no challenge to it. For example, Ms Summers established her descent from Richard and Elizabeth Maynard by reference to family history passed down to her by oral tradition and also by reference to a family tree inscribed in the front of the Maynard Family Bible. I accept their evidence of descent.

405    Importantly, Ms Summers, Mr Ogden and Mr West also testified about a family history passed down to them by oral tradition regarding Granny Betty being a woman of the “Port Phillip” tribe who was kidnapped or stolen from the Port Phillip area (and in relation to Mr Ogden’s and Mr West’s testimony the more specific locations of Portsea/Point Nepean respectively), as follows:

(a)    Ms Summers testified that from when she was nine or 10 years old (i.e., circa the early 1960s) she was told by her mother, Maisie West, and her mother’s relatives including Aunty Ella Jane West, Aunty Mary Jane West, Uncle Mark, and by other people in the Aboriginal community on Flinders Island, about “Granny Betty being kidnapped or stolen from the Port Phillip region” and that her being kidnapped or stolen “was always spoken about”. She said that “we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe”. She also gave evidence that the story regarding Granny Betty’s abduction was spoken about on Cape Barren Island when her mother was growing up in, as I infer, the late 1930s/early 1940s. Ms Summers said that she was not told by her mother and her mother’s siblings from where they learned about Granny Betty, but she said “[t]hey would have learned it from their father and mother”.

(b)    Mr Odgen testified that his Nan (Ms Summers’ mother), Maisie West, told him about Granny Betty and “always recognised Granny Betty as being a Port Phillip woman that was taken from Port Phillip”, which was how Nan told it to him “through the years.” He said that when he was 10 or 11 years old (approximately 1978-1979) he went to Portsea (which is on Point Nepean) for a family barbecue with Nan and other relatives. He said that “the thing that resonates with me the most … was the time at Portsea where [Nan] said this is the area that Granny Betty was taken from.” He said that he was not told where Nan learned that information, but he assumed that she learnt it through her mother, Alma Lily West (known as Granny Alma).

(c)    Mr West testified that he and his father regularly went to the moonah forest on Point Nepean, and his father always told him that that was where they stole Granny Betty. He testified that when he was probably six or seven years old (approximately 1995-1996) his father told him “our grannies were stolen off the beach.” Then, when he was about 14 or 15 years old (approximately 2003-2004) he and his father were in the moonah forest on Point Nepean, and his father stood on a spot and said “[i]t was right here they took our grannies”. Mr West said that his father told him that he had been told that by his aunties on Flinders Island (Aunty Ida and Aunty Lena), but Mr West did not know the source of the aunties’ information.

406    Each of them was cross-examined and each gave credible evidence. The evidence of Ms Summers and Mr Ogden as to what they were told about Granny Betty’s kidnapping was not challenged. It was not put to any of Ms Summers, Mr Ogden or Mr West that they were not telling the truth, and there is no reason to doubt the honesty of their testimony. Nor was it put to any of them that their evidence was mistaken or unreliable. The applicant did put to Mr West that his or his father’s belief about Granny Betty’s kidnapping was derived from historical records but he denied that. He testified that he had never seen any such documents, and that his father told him he had been told that family history by his aunties on Flinders Island. I accept Mr West’s denial. The evidence of each of the Bunurong lay witnesses is broadly corroborative of the others. I found Ms Summers to be a particularly impressive witness, and both Mr Ogden and Mr West gave evidence which I found broadly reliable. I accept their evidence.

407    Lay evidence on a matter of family history such as evidence regarding ancestry or lineage can be of the highest importance (De Rose at [264]-[265]; Narrier at [318]), and it is appropriate to give weight to the evidence of Ms Summers, Mr Odgen and Mr West. Their evidence provides solid support for an inference that the “Port Philip” Aboriginal woman accompanying Richard Maynard in January 1837, who I infer began cohabiting with Richard Maynard in circa 1833, was his second ‘wife’ Elizabeth Maynard (aka Granny Betty), from whom it is uncontentious that Ms Summers, Mr Ogden and Mr West are descended.

408    The applicant submitted, in part in reliance on Dr Clark’s opinions, that no weight should be given to the evidence of the Bunurong lay witnesses. I do not accept Dr Clark’s evidence in this regard, nor the applicant’s submissions.

409    First, in cross-examination by Mr Kruse, Dr Clark was asked to assume that the Court found the evidence of each of the Bunurong lay witnesses to be a truthful and credible record of Maynard family oral history:

(a)    in Ms Summer’s case – that “the story of Granny Betty being kidnapped or stolen from the Port Phillip region was always spoken about”, and “we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe”;

(b)    in Mr Ogden’s case – that when he was at Portsea with his Nan, “the thing that resonates with me the most … was the time at Portsea where [Nan] said this is the area that Granny Betty was taken from”; and

(c)    in Mr West’s case – that when he was at Point Nepean with his father, his father “spoke of Granny Betty as she was taken from this spot.

410    On the basis of those assumptions, Mr Kruse asked Dr Clark whether their evidence changed his view on the balance of the evidence as to whether Elizabeth Maynard was abducted from Point Nepean. Dr Clark said it did not. I can see no proper basis for Dr Clark to treat the unchallenged testimony of Ms Summers, Mr Odgen and Mr West so dismissively. Further, his stated reasons for the rejection of the Bunurong lay witness evidence do not withstand examination:

(a)    in relation to Mr Ogden’s and Mr West’s testimony Dr Clark said that there is “a disconnect between the [Maynard] family tradition and the primary records”. He did not explain what that the asserted ‘disconnect’ was, and I do not accept that there is any significant “disconnect”;

(b)    Dr Clark said that the “Boonwurrung identification” by the Bunurong lay witnesses “was a late 1990s revelation”. That misunderstood the evidence. The “late 1990’s revelation” concerned Ms Summers’ evidence that it was not until the 1990s that Aunty Ida West told her that she was Bunurong. That “revelation” did not concern the family history that Ms Summers Mr Ogden and Mr West testified was told to them to the effect that Granny Betty was a Port Phillip woman abducted from the Port Phillip area (or in relation to Mr Ogden’s and Mr West’s testimony, from the more specific location of Portsea/Point Nepean); and

(c)    Dr Clark said that he did not know the degree to which Mr Ogden’s testimony that his Nan, Ms Maisie West, had told him that “this is the area where Granny Betty was taken from” had been influenced by the 1837 historical records. The applicant did not, however, challenge Mr Ogden’s testimony as to what he was told by his Nan, and it did not put to him that that his testimony was somehow influenced by historical records. Under the Browne v Dunn it was incumbent on the applicant to do so if it wished to argue otherwise. Further, in the absence of any suggestion that Mr Ogden was not telling the truth as to what he had been told by Maisie West, Dr Clark’s stated concern involved a suggestion that she had been influenced by historical records. But that is contrary to Ms Summers’ evidence, which I accept, that her mother, Maisie West, told her that she had been told the story about Granny Betty’s abduction from the Point Phillip region when she was growing up on Cape Barren Island in (as I infer) around the late 1930s/early 1940s. That points strongly away from an inference that Mr Ogden’s testimony was somehow derived from or influenced by historical records.

411    Second, the applicant contended that the references to “Port Phillip” in the testimony of Ms Summers, Mr Ogden and Mr West regarding the stories they were told about Granny Betty’s abduction are more likely than not (and certainly at least equally likely) to have been derived from historical records referring to the abductions of Aboriginal girls and women from Port Phillip, rather than stories handed down orally beginning with Elizabeth Maynard. I do not accept that.

412    In relation to Ms Summers’ evidence, the applicant did not challenge or seek to contradict her testimony that:

(a)    she was told from a young age by her mother and her mother’s siblings (and other members of the Flinders Island community) about “Granny Betty being kidnapped or stolen from the Port Phillip region” and that “we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe”;

(b)    although she was not told where her mother and her mother’s siblings learned the story about Granny Betty’s abduction, “[t]hey would have learned it from their father and mother”; and

(c)    her mother told her that she had been told the story about Granny Betty’s abduction when she was growing up on Cape Barren Island in, as I infer, the late 1930s/early 1940.

The applicant did not put to Ms Summers that the family history that she said was passed down to her by her mother and her mother’s siblings was somehow derived from archival records. Under the rule in Browne v Dunn the applicant should have done so if it wished to argue otherwise. In any event, Ms Summers was clear in stating that she was told that family history by her mother and her mother’s siblings (and other members of the Flinders Island community) when she was young, rather than learning it from historical records. I accept her evidence.

413    Relatedly, the applicant argued that Ms Summers’ evidence – that she “would imagine” that the story about the abduction of Granny Betty from Port Phillip was passed down to her mother and her mother’s siblings by their parents – was just speculation. I do not accept that. Ms Summers used that phrase shortly after testifying that her mother and her mother’s siblings “would have learned [that story] from their father and mother” (emphasis added). That indicates that Ms Summers understood that the story about Granny Betty’s kidnapping was not sourced from archival documents, which is also consistent with her mother having been told that family history when she was growing up on Cape Barren Island in the late 1930s/early 1940s. Indeed, one would expect that if Ms Summers’ mother or her mother’s siblings had understood that there were historical records capable of supporting the story about Granny Betty’s kidnapping, they would have told Ms Summers that. There is no evidence that they did.

414    Further, there is a lack of reality in the suggestion (and there is no evidence to show) that archival records regarding the abduction of Aboriginal woman from the Port Phillip region in the 1830s were available or known about within the poor Aboriginal communities on Cape Barren Island in the late 1930s/early 1940s, which is when Ms Summers testified her mother was told the story of Granny Betty’s abduction. The same can be said about the early 1960s, when Ms Summers first remembers being told the story of Granny Betty’s abduction while growing up on Flinders Island.

415    Third, the applicant submitted that Mr Ogden’s evidence – that when he was at a family barbecue near the beach at Portsea in around the late 1970s Nan told him “this is the area that Granny Betty was taken from” – must be rejected as mistaken or unreliable. It argued that Mr Ogden’s recollection was contradicted by Ms Summers’ testimony that she did not know she was Bunurong until she was told that by Aunty Ida West in the 1990s. On its argument, that showed that Ms Summers (and by inference other Bunurong claimants including her son, Mr Ogden) had no knowledge of the place of Granny Betty’s abduction or the location of Bunurong country until the 1990s.

416    That submission has no force. Ms Summers’ acceptance that she did not know that she was Bunurong until she was told that by Aunty Ida in the 1990s does not contradict her evidence (or Mr Ogden’s evidence) about the family history passed down to them about Granny Betty’s kidnapping as a Port Phillip woman from the Port Phillip area. Ms Summers was the least geographically precise of the Bunurong lay witnesses in relation to the place of Granny Betty’s abduction, but she was clear in stating that from when she was about nine or 10 years old she was told about “Granny Betty being kidnapped or stolen from the Port Phillip region” and that “we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe”. Nor does it contradict Mr Ogden’s testimony that when he attended a family barbecue in Portsea when he was 10 or 11 years old his Nan told him, “This is the area that Granny Betty was taken from.” Mr Ogden’s evidence is broadly corroborative of Ms Summers’ evidence.

417    Fourth, the applicant submitted that Ms Summers’ evidence shows that she (and by inference her descendants) knew nothing about Boonwurrung country until the 1990s. I do not accept that. It is plain that Ms Summers did not know the name of Granny Betty’s Aboriginal group until the 1990s but not knowing the name of that group is a different thing to not knowing the location of the country of that group, particularly when Ms Summers testified that she “always knew” that that Granny Betty was a woman of the “Port Phillip” tribe and that Granny Betty's country was the Port Phillip area but that she did not know that the name of the “Port Philip” tribe was the Bunurong.

418    The position in relation to Mr Ogden’s evidence is similar. He testified that his Nan, (Ms Summers’ mother), told him about Granny Betty and “always recognised Granny Betty as being a Port Phillip woman that was taken from Port Phillip”. He said that when he was 10 or 11 years old (approximately 1978-1979) he attended a family barbecue to Portsea with Nan and other relatives, and that Nan said “this is the area that Granny Betty was taken from.” It is plain that at that time Mr Ogden did not know the name of Granny Betty’s Aboriginal group, but not knowing the name of that group is a different thing to not knowing the location of the country of that group, particularly when he said that he was told Granny Betty was a Port Phillip woman that was taken from Port Phillip.

419    Fifth, the applicant argued that Dr Pilbrow’s fieldnotes of his interview with Ms Summer’s sister, Nannette Shaw on 3 March 2023, show that there is no relevant Maynard family oral history. Dr Pilbrow’s notes record that Ms Shaw told him that “[w]e found out about our Bunurong identity about 20-odd years ago” (i.e., in 2000 on her return to Tasmania from Queensland), and “[w]e grew up know[ing] Tasmanian Aboriginal heritage, but not the Bunurong side of it”. The notes record Ms Shaw as saying that she found out about the Bunurong connection from Ms Summers well after their mother died in 1986, and that Ms Shaw believed that her mother did not know of any Bunurong connection.

420    Contrary to the applicant’s argument, for the reasons previously explained, Dr Pilbrow’s fieldnotes do not contradict Ms Summers’ evidence about family history passed down to her by her mother and her mother’s siblings regarding Granny Betty’s kidnapping as a Port Phillip woman from the Port Phillip area. Instead, it is reflective of Ms Summers’ evidence that she was not told that she was Bunurong, and did not know that she was Bunurong, until she was told that by Aunty Ida in the 1990s.

421    Sixth, the applicant submitted that Tindale’s 1938-1939 and 1949 research regarding the Bass Strait Islanders, published in 1953 in Growth of a People, shows that by 1939 any oral history relating to Elizabeth Maynard or Granny Betty was no longer known. It based that submission on the fact that Tindale’s research does not record any further details as to the location from which Granny Betty was abducted; the Aboriginal group to which she belonged; that group’s traditions and customs about membership; nor any information that there was a Boonwurrung kinship relationship between Granny Betty and some of the other Aboriginal women who were taken to the islands in Bass Strait around the same time. Tindale recorded that his older informants had only “fragmentary recollections… possibly back to 1860”, when Elizabeth Maynard and the other abducted Aboriginal women were alive. The applicant argued that, having regard to Tindale’s experience as an anthropologist and ethnographer, it must be concluded that as at 1939 the oral history relating to Elizabeth Maynard or Granny Betty was no longer known.

422    I accept that Tindale’s genealogies do not state those matters but I do not infer from that the Maynard family history about Granny Betty’s kidnapping was no longer known in 1939. Taking that approach would strip the testimony of Ms Summers, Mr Ogden and Mr West of any evidentiary value essentially on the basis that their accounts are not verifiable by reference to a documentary record, which would be contrary to authority: Mitchell at [37]-[39]. Further, to accept the applicant’s submission would be to accept that Ms Summers’ evidence as to what she was told about Granny Betty’s abduction when she was growing up on Flinders Island in the early 1960s, and as to what her mother told her she had been told when she was growing up on Cape Barren Island in around the late 1930s/early 1940s, is mistaken or unreliable, when Ms Summers’ evidence as to that was unchallenged. The absence of any mention of the story of Granny Betty's abduction in Tindale’s research should not be presumed to be more reliable than Ms Summers’ testimony, particularly when Tindale’s research is silent on the issue: Dempsey at [298]-[300].

423    Seventh, I do not accept the applicant’s contention that the Mirimbiak Letter is an “unequivocal admission” that prior to around 2000 Aunty Ida West, and other Bunurong people of her generation, had not in fact known where Bunurong country was located, and thus did not previously know of their Bunurong connection.

424    It is an overstatement to describe the Mirimbiak Letter as an “unequivocal admission” when it did not expressly state that on the Bunurong representatives’ trip to Melbourne in 2000 they discovered where Boonwurrung country was. Rather, the letter said “[n]ow they know exactly where their grandmothers were stolen from and where their land is”. But even if that is accepted to be an admission, it is Ms Murray’s ‘admission’ in relation to the knowledge of other people. She is not a party, nor as it eventuated a witness, and the letter is not probative evidence of the knowledge of others. In any event Ms Murray’s purported ‘admission’ was put to Ms Summers, who did not accept that Aunty Ida West did not know the location of Boonwurrung country, until around 2000. It was not put to Ms Summers that her evidence as to that was mistaken or unreliable.

425    Further, for the reasons previously explained, the Mirimbiak Letter is not inconsistent with Ms Summers’ evidence that she was told when growing up, and that her mother was told when she was growing up, about “Granny Betty being kidnapped or stolen from the Port Phillip region” and that “we knew Granny Betty was kidnapped from the Port Philip, because Mum referred to her as coming from the Port Philip tribe”. Nor is Ms Murray’s evidence in Registrar v Murray & Ors in 2015 that “when I started the Bunurong community were assumed extinct”, inconsistent with Ms Summers’ evidence about the family history passed down to her regarding Granny Betty’s abduction as a Port Phillip woman from the Port Phillip area.

426    Eighth, the applicant sought an inference under the rule in Jones v Dunkel based in the applicant’s failure to call Ms Murray, and it contended that pursuant to the rule in Blatch v Archer the Bunurong respondents’ evidence must be weighed having regard to that failure. I do not accept those submissions.

427    Under the rule in Jones v Dunkel the unexplained failure by a party to call a witness may, in appropriate circumstances, lead to the inference that the uncalled evidence would not have assisted that party’s case. The following conditions must be established for such an inference to be drawn:

(a)    the uncalled witness would be expected to be called by one party rather than the other, that is, the witness is in the party’s “camp”;

(b)    the evidence would elucidate a particular matter; and

(c)    their absence is unexplained.

: Jones v Dunkel at 308, 312 and 320-321; ASIC v Big Star Energy Ltd (No 3) [2020] FCA 1442; 389 ALR 17 at [34], citing Payne v Parker [1976] 1 NSWLR 191 at 201-202.

428    I am not persuaded that Ms Murray is in the Bunurong respondents’ camp. There is little evidence about Ms Murray’s position but the evidence that there is tends to show that Ms Murray is now persona non grata within the BLC because of the finding in Registrar v Murray & Ors that Ms Murray was involved in intermingling BLC funds, which led to its collapse. Further, the evidence shows that she has fallen out with Bunurong elders such as Ms Summers.

429    I am also not persuaded that Ms Murray’s evidence would elucidate any important factual issue in relation to Elizabeth Maynard. Far from her being an “integral witness” as the applicant contended, it is difficult to see how her evidence could be significant to the Separate Question regarding Elizabeth Maynard. Amongst other things:

(a)    Ms Murray does not claim to be a descendant of Elizabeth Maynard;

(b)    Ms Murray’s lay witness outline does not refer to any proposed evidence in relation to Elizabeth Maynard, other than her view as to who is descended from Elizabeth Maynard which is uncontentious;

(c)    Dr Pilbrow considered Ms Murray’s position in his 2023 report, but his consideration was confined to her asserted descent from Jane Foster, Ms Murray’s welcome into the Bunurong community after years of estrangement, and what Ms Murray would do if approached by a person claiming to be Bunurong in order to determine whether they were Bunurong. It had little or nothing to do with the Separate Question regarding Elizabeth Maynard; and

(d)    Dr D’Arcy considered Ms Murray’s position in her 2023 report, but her consideration was confined to stories told to Ms Murray by her elders about Jane Foster and Boonwurrung practices, Ms Murray’s activities with her elders, and knowledge passed on to her about weaving, plants and food. It also had little or nothing to do with the Separate Question regarding Elizabeth Maynard.

In those circumstances it would be inappropriate to draw a Jones v Dunkel inference in relation to the failure to call Ms Murray.

430    The rule in Blatch v Archer is based in Lord Mansfield’s oft-quoted statement that “...[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” Here, in circumstances where I am not persuaded that the proposed evidence of Ms Murray would have be important in relation to the factual questions regarding Elizabeth Maynard, there is no basis to weigh the Bunurong respondents’ evidence having regard to their failure to adduce evidence from her.

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    I have inferred that Richard Maynard’s “Port Phillip” Aboriginal partner, seen by Robinson in January 1837, was taken in the Meredith abduction, and that she was his second wife, the woman known as Elizabeth Maynard or “Granny Betty”. The next issue is whether the evidence is sufficient to infer that it is more likely than not that 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.

432    I will deal with that question in two stages, being whether it is reasonable to infer that it is more likely than not that:

(a)    the abductees in the Meredith abduction were, at least predominantly, members of the Boonwurrung People; and

(b)    Elizabeth Maynard was a member of the Boonwurrung People.

433    For the reasons I now turn to explain I am satisfied that the evidence is sufficient to infer that it is more likely than not that 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.

Whether it is open to infer that it is more likely than not that the abductees in the Meredith abduction were, at least predominantly, members of the Boonwurrung People?

434    I consider the archival records and expert evidence provide a sufficient foundation to infer that it is more likely than not that the abductees in the Meredith abduction were, at least predominantly, members of the Boonwurrung People.

435    That inference is centrally based on the following.

436    First, Dr Pilbrow, Mr Wood and Dr Clark jointly opined in the BW Joint Experts’ Report, and I accept, that based on Dr Pilbrow’s “reading of the early ethnography of Eastern Kulin groups and other Victorian Aboriginal groups, people spent the predominant amount of time on the country of their local group”: see Proposition 9. I accept, as Dr Pilbrow said, that while local Aboriginal groups in the Eastern Kulin area would from time to time be visited by people from other local groups, people spent the majority of time on their own group’s country. Thus, it is more likely than not that Boonwurrung people spent most of their time on the country of their local Boonwurrung group. It is uncontentious that Point Nepean, which is where the Meredith abduction occurred, is Boonwurrung country.

437    Second, Dr Pilbrow, Mr Wood and Dr Clark jointly opined, and I accept, that at effective sovereignty, members of any particular Eastern Kulin group were “often present” on the country of other Eastern Kulin groups for the purpose of accessing and using resources (such as hunting, fishing, food gathering, axe and tool manufacture), ceremonial activities, and due to marriage: Proposition 6 of the BW Joint Experts’ Report. But as I now explain, the experts did not agree on what they meant by stating that members of one group were “often present” on the country of another group.

438    I do not accept the applicant’s contention that Dr Pilbrow wrongly sought to resile from the joint opinion in Proposition 6 by stating that it was only “possible” that members of any particular Eastern Kulin group would be present on the country of other Eastern Kulin groups. Dr Pilbrow gave that answer in the context of cross-examination in which he accepted that it was “quite possible” that members of other Eastern Kulin groups would be present on Boonwurrung country (T371.27-36) but did not accept that “[i]t was common for the Bunurong when they were using the resources of Bunurong land to do so accompanied by members of other Kulin Nation groups” (T369.24-26). Dr Pilbrow said that he agreed to the wording in Proposition 6, with a proviso as to his understanding of the meaning of the word “often”.

439    The applicant relied on dictionary definitions of the adverb “often” in Proposition 6 which include “frequently; many times”, “many times”, and “a lot or many times; frequently”. It argued that “often” has a clear and well-known meaning and is not elastic. It described Dr Pilbrow’s evidence on this issue as “shifting” said that it should be rejected.

440    I take a different view, centrally because the evidence shows that each expert meant something different by their agreement to Proposition 6:

(a)    Dr Pilbrow accepted that visiting between the Boonwurrung and the adjoining Wadawurrung, Woiwurrung and Wurundjeri clans was “common”, but said that while members of a particular Eastern Kulin group were often present on the country of other Eastern Kulin groups, the meaning of “often” was unclear and “contextually dependent”. Based on his reading of the early ethnography of Eastern Kulin groups and other Victorian Aboriginal groups he preferred to state that members of one Eastern Kulin group were present on the country of other groups “from time to time”;

(b)    Mr Wood said that he “basically agree[d] with Dr Pilbrow”, but he also said “that classical Aboriginal groups were very mobile in an environment like – particularly with pretty dense canoe traffic and other things.” He said that often in Proposition 6 “probably means much more than every two years” and he expected “that to be pretty frequent…within a year, that…members of some groups would have contact with others... but it’s individuals from groups. It’s not that the entire group has got contact with the other entire group”; and

(c)    Dr Clark said that “I probably wouldn’t have used the word ‘often’. I would have used the word ‘regularly’”.

441    I prefer Dr Pilbrow’s opinion as to the frequency with which members of a particular Eastern Kulin group were likely to be present on the country of other Eastern Kulin groups, noting that Mr Wood said that he “basically agree[d]” with him. To the extent that Mr Wood was more specific as to the likely frequency of members of other Eastern Kulin groups on Boonwurrung country I treat his evidence with some caution for the reasons previously explained. I give less weight to Dr Clark’s opinion as the issue is primarily an anthropological question and he is an historical geographer. Thus, while I accept that members of other Eastern Kulin groups were “often” present on Boonwurrung country for various purposes I proceed on the basis that that means that members of other Eastern Kulin groups were present on Boonwurrung country “from time to time”.

442    Based on those general matters, but without putting too much reliance on this, I consider it to be more likely that a person present on Boonwurrung country was Boonwurrung than a member of another Eastern Kulin group, which accords with Dr Pilbrow’s opinion.

443    Third, the likelihood that members of other Eastern Kulin groups were present on Boonwurrung country for the purpose of fishing, axe and tool manufacture, or ceremonial activities is not directly relevant. Matilda’s Statement records that the group attacked by Meredith were hunting kangaroo on Point Nepean, and there is no evidence that the members of that group were on Boonwurrung country for any other reason. Further while I accept that members of other Eastern Kulin groups were sometimes involved in kangaroo hunting with Boonwurrung people, for the reasons previously explained, for the reasons previously set out I give minimal weight to Mr Wood’s opinion that hunting kangaroo was a form of social activity that usually involved multiple language groups. I was not taken to anything else in the anthropological evidence to support the proposition that that was true for the Boonwurrung group.

444    Fourth, Point Nepean is not close to the country of any neighbouring Easten Kulin groups. It sits at the tip of the Mornington Peninsula, deep inside Boonwurrung country (see the map reproduced above at [13]). Travelling by land, the nearest country of a neighbouring Eastern Kulin group is Woiwurrung country, and that country is approximately 80-90 km away by land, and further again to Wadawurrung country. Travelling by land to hunt kangaroo on Point Nepean is likely to have involved a long trek for other Eastern Kulin groups and it is likely that kangaroo were plentiful on their own country, or on Boonwurrung country much closer than Point Nepean. The position is similar if members of the Woiwurrung or Wadawurrung groups paddled across Port Phillip Bay by canoe to Point Nepean, although that would have involved a shorter travel distance. For example, the paddling distance between Wadawurrung country, around what is now Queenscliff, and Point Nepean is approximately 19 km. I accept that Aboriginal groups often travelled long distances to hunt and to gather food but it is a long paddle there and back and it is likely that kangaroo were plentiful on their own country.

445    Based on those general matters, but without putting too much reliance on them, I consider it to be more likely that the people in the group hunting kangaroo on Point Nepean on the day of the Meredith abduction were, at least predominantly, Boonwurrung. I accept that it is possible that members of other Eastern Kulin groups were present in the party hunting kangaroo, but the question is not what is possible. The Court must decide what may reasonably be inferred to be more likely than not based on the available evidence, and it cannot choose or elect between competing possibilities that are equally plausible on the evidence: Lithgow City Council at [94].

446    Fifth, the inference that the people in the group hunting kangaroo on Point Nepean on the day of the Meredith abduction were, at least predominantly, Boonwurrung finds support in Dredge’s 1841 diary entry. Dredge’s diary entry records Yanki Yanki as “a young man of the Boonworongs” and states that it was “this tribe” (emphasis added) that were on the coast near Point Nepean when the abductions too place. He does not say that Yanki Yanki said that members of other Eastern Kulin groups were hunting kangaroo on Point Nepean that day.

447    Sixth, the applicant’s contention that it is likely that members of other Eastern Kulin groups were in the group hunting kangaroo on Point Nepean that was attacked in the Meredith abduction is just speculation. There is no evidence of that. Dr Clark accepted that Yanki Yanki was from the Yalukit-Willam clan, being a Boonwurrung clan from near Werribee, which shows that members of Boonwurrung clans from areas other than Point Nepean were part of the group hunting kangaroo on Point Nepean. Dr Clark accepted that Yanki Yanki’s presence did not show that non-Boonwurrung people were present in that group. He agreed that there is no evidence that non-Boonwurrung people were in that group, except that he opined that it could be assumed that any woman in the hunting party that was married to a Boonwurrung man was “certainly” not themselves Boonwurrung. For reasons I later explain. He was wrong in stating that a woman married to a Boonwurrung man was necessarily not herself Boonwurrung.

448    On the other hand there is a basis to infer that it is more likely than not that the group hunting kangaroo was, at least predominantly, comprised of Boonwurrung people. Conjecture about alternative possibilities that cannot be proved or disproved on the evidence should not stand in the way of the Court drawing reasonable and rational inferences from the evidence that is available.

449    Seventh, and importantly, it is likely that when Robinson used the terms “Port Phillip native”, “Port Philip woman”, “Port Phillip Aboriginal” and “native of Port Phillip” in his journal entries and Robinson’s Report, he was referring to people he understood to be members of the group he associated with Derrimut and Betbenjee, whose country was the coastal parts of the area around what is now Melbourne, including Point Nepean which is where the “Port Philip” natives said the abductions took place.

450    Robinson’s 5 October 1836 journal entry records that three Victorian Aboriginal men, whom he describes as “natives of Port Phillip”, travelled with Fawkner to VDL in August 1836. He records that he met two of those men, Derrimut and Betbenjee, who complained to him about the abduction of their women. For the reasons earlier explained it is appropriate to infer that Derrimut and Betbenjee were Boonwurrung clan heads.

451    Dr Clark opined that Robinson’s and Thomas’ references to “Port Phillip” were geographically imprecise and may have meant either: (a) the site which ultimately developed into what is now known as Melbourne; (b) Port Phillip Bay itself including any section of its coastline; or (c) the Port Phillip District which was an administrative division of the Colony of NSW from 1836 to 1851 and which extended well to the north, west and east of Melbourne, and ultimately became the Colony of Victoria. He was not “convinced” that Robinson’s use of the term “Port Phillip” was a reference to the Port Phillip settlement that later became known as Melbourne, nor satisfied that Robinson was referring to Port Phillip Bay itself. He testified “I have a feeling that he, in fact, is referring to what…was known as the district of Port Phillip, which we know began to be used in correspondence – official correspondence from May 1837.”

452    I do not accept Dr Clark’s opinion in that regard. His testimony as to his “feeling” about what Robinson meant by his use of “Port Phillip” has little probative value. I also found curious Dr Clark’s evidence that the description “Port Phillip tribe” was synonymous with the Wadawurrung. The Court was not directly taken to anything in the evidence to support that view. I prefer Dr Pilbrow’s evidence that most of the early references to the “Port Phillip tribe” are references to the Boonwurrung group.

453    Mr Wood also opined that the descriptor “Port Phillip” lacked specificity and that the Port Phillip district can cover “quite a range of places” which meant that it was possible that a person described as a “Port Philip woman” may have been abducted from other areas around Port Phillip Bay, such as the western side near what is now Geelong (which is not Boonwurrung country). For the reasons I have explained it is appropriate to approach his evidence with caution. More particularly, in cross-examination he accepted that his opinion was derived from the generality of the description “Port Phillip” and from the fact that Robinson said that Aboriginal women had been abducted from “every accessible spot” along the southern coast of Australia. That is, his opinion was not based in the context in which Robinson and Thomas used the expressions “Port Phillip native” and the like in records at that time. In the circumstances I give his opinion minimal weight.

454    Dr D’Arcy opined, and I accept, that Robinson’s references to “Port Phillip” in his journals were more localised than the Port Phillip District, and that Robinson often referred to Port Phillip as the area of the settlement rather than to Port Phillip Bay itself or its coastline or to the extended Port Phillip District. Dr Pilbrow offered a similar opinion. He opined, and I accept, that the references in the historical records to “Port Phillip tribe – Port Phillip Aboriginal group … more often than not refer to the Boonwurrung”. He said that Thomas generally provided a contrast in name for the other groups, sometimes between the “Coast tribe” and “Yarra tribe”. Although he noted one reference where Thomas referred to the “Port Philip tribe” as referring to both tribes, and one reference where Thomas contrasted the “Port Philip” and the “Coast” tribes, he said there were other references where Thomas was clearly delineating between the “Yarra tribe” (the Woiwurrung) and the “Western Port tribe” (the Boonwurrung).

455    I can accept that the descriptor “Port Phillip” is imprecise, but when read in context Robinson’s references to the “Port Philip tribe”, “Port Philip natives”, “Port Phillip Aboriginal” and/or “Port Philip woman” were not references to Aboriginal people from anywhere on Port Phillip Bay or its coastline, or from anywhere in the vast Port Phillip District. I consider it to be significant, as did Dr Pilbrow, that:

(a)    when Robinson met two Boonwurrung clan heads, Derrimut and Betbenjee, in VDL in October 1836, he described them as “Port Philip natives”;

(b)    when Robinson met a group of Aboriginal people on 28 December 1836, including as I infer Derrimut, who were complaining about the Meredith abduction, he described them as “Port Phillip natives”, and (according to Dr Clark) Robinson relied upon Derrimut as an informant; and

(c)    when Robinson met James Munro’s and Richard Maynard’s female partners (whom he concluded had been abducted by Meredith from Point Nepean) he described them as “natives of Port Phillip” and “Port Philip” women.

456    Understood in context, Robinson’s references to “Port Philip native(s)”, “Port Philip Aboriginal” and “Port Philip woman”, were references to people associated with the group to which Derrimut and Betbenjee belonged, from the coastal parts of the area around what is now Melbourne, including Point Nepean which was where the “Port Phillip natives” told Robinson their members had been abducted from. In other circumstances the descriptor “Port Philip” tribe, native or woman might be understood to refer to people from a broader area, but not in this context. There are sound reasons to conclude that Robinson was not referring to people from other “tribes” who may have been abducted from other parts of Port Phillip Bay.

457    Eighth, to my mind it is significant that two Boonwurrung clan heads were driving the complaint about the Meredith abduction. That also supports an inference that the abductees in the Meredith abduction were, at least predominantly, Boonwurrung.

458    Relatedly, there is nothing in Robinson’s journal entries or Robinson’s Report regarding his 28 December 1836 meeting with a group of “Port Philip natives” to indicate that the people complaining about the Meredith abduction were a mixture of different Aboriginal groups. Robinson described them all as “Port Phillip natives” That also supports an inference that the abductees in the Meredith abduction were, at least predominantly, Boonwurrung.

459    Ninth, as I have said, I do not accept Dr Clark’s opinion that a woman married to a Boonwurrung man who was present in the party hunting kangaroo on the day of the Meredith abduction was herself “certainly” not Boonwurrung.

460    In Clark 2002 he wrote:

When we know that the women who were abducted were the wives of Boonwurrung men, we can be certain, because of rules of marriage exogamy and patrilocality, that these women were not Boonwurrung...

He said the same in his 2023 report and his oral testimony. In his opinion, at sovereignty, all Boonwurrung people were of the one moiety, and the prevailing exogamous marriage practices of the Eastern Kulin peoples therefore meant that Boonwurrung men had to marry women from other Eastern Kulin groups.

461    Dr Clark testified that he based that opinion on A.W. Howitt’s 1904 book and his own research in which he said he had found no evidence that Boonwurrung men married women from different Boonwurrung clan groups. This is, however, centrally an anthropological question and Dr Clark is a historical geographer, and his opinion differs from the views of the two anthropologists retained in the case, Dr Pilbrow and Mr Wood. They both testified that Howitt was wrong in the view that all Boonwurrung people were of one moiety and therefore could not intermarry.

462    As I said earlier, Proposition 8 in the BW Joint Experts’ Conference requested the experts to opine on the following statement:

At effective sovereignty, due to prevailing exogamous marriage practices of the Eastern Kulin Nation, if an Aboriginal girl or woman present on Boonwurrung country was married to a Boonwurrung man, such a girl or woman may not have been Boonwurrung by descent.

(Emphasis added.)

463    Dr Pilbrow and Mr Wood agreed with that proposition in the BW Joint Experts’ Report. Dr Pilbrow said:

Agree, with the qualification that while generally a marriage partner would be from a different local group and moiety there was the possibility that a Boonwurrung person from one moiety may marry a Boonwurrung person from another moiety. In this regard I question A.W Howitt’s account in his 1904 book which suggests that all Boonwurrung were of one moiety and all Woiwurrung of the other moiety. This conflicts with information recorded in Howitt’s fieldnotes which indicate that at least some Boonwurrung groups may have taken marriage partners from other Boonwurrung groups, as described in Pilbrow 2023 Responsive Report at 36-40.

(Emphasis added.)

464    The Pilbrow Response Report said:

While moieties are generally characterised as exogamous (that is, one must marry outside one’s moiety) more recent anthropological investigation has suggested that moieties are primarily to classify people and nature into two mutually-dependent divisions for ordering ceremonial and social life, and that moieties are not necessarily strictly exogamous.

465    Dr Pilbrow referred to the work of the noted anthropologist A.P. Elkin who opined in 1933 that the primary purpose of moieties was not to regulate marriage, but rather to regulate social and ceremonial life, and that it is rules of exogamy at the local group level (where local groups are distributed among the two moieties) that give rise to the effect that generally marriages are between members of opposite moieties. He quoted extensively from Elkin, as follows:

Again, as already stated, marriage into one's own section implies that the moiety is not exogamous, though the ignoring of the exogamous norm is perhaps even more striking in tribes, like those of south-western Victoria, which do not possess sections or sub-sections, but only moieties.

Now it is important to notice that such ignoring of a rule of exogamy, even in tribes with matrilineal descent of the moieties is not considered irregular, or terrible, nor does the contraction of a marriage within the moiety result in illness or death, provided that totemic and kinship and local or horde rules are observed. It is interesting to notice that a rule of exogamy of the moiety is probably observed in tribes in which there are no sections, but in which the moieties are patrilineal in descent, and associated with localized patrilineal totemic clans. As far as I could learn, this is so in north- west Australia. But if it is so, I believe it is the result of the exogamy of the local clans which are divided amongst the moieties. This point needs further study. I also understood that the tribes of north-eastern South Australia amongst whom I worked in 1930 also observed a rule of exogamy of the moiety. They have matri-lineal moieties, but not sections. But it is quite possible that I did not make sufficient inquiries and the tribes were too broken down and depopulated to enable satisfactory genealogies to be collected. In any case, the rule was broken temporarily at times of ceremonial and social significance. Unfortunately, insufficient attention has been paid to those marriages which do not conform to the norms of the various systems. We are too apt to dismiss them simply as irregular, or wrong, but they may be quite significant for a thorough understanding of aboriginal thought and institutions.

The facts given at least show that the moieties are not necessarily exogamous, and that in many tribes they are definitely not exogamous. In other words, their primary purpose is not to control marriage-- a function which they only perform to a limited degree. Their real function is (a) to classify man and nature into two mutually dependent divisions, (b) to order ceremonial life, and (c) to order social life, camping, fighting and playing in a dual organization.

: Elkin, AP, ‘Studies in Australian Totemism: Sub-Section, Section and Moiety Totemism’ (1933) 4 (1) Oceania 56-90, pp 86-87 cited in Pilbrow Response, p 11.

466    Dr Pilbrow also said that while Howitt described the Woiwurrung local groups as all being of the Waa moiety and the Boonwurrung local groups as all being of the Bunjil moiety, he had identified a local group named Ngaruk-willam as Woiwurrung which was at odds with his manuscript notes. Dr Pilbrow opined that there are “strong grounds” for considering that the Ngaruk-willam was instead a Boonwurrung clan of the Waa moiety. He also said that Howitt’s manuscript notes record a Boonwurrung group at Mordialloc who were of the Bunjil moiety, spoke Woiwurrung, and got their wives from other Boonwurrung groups. Dr Pilbrow opined that this information meant that it was possible that men of some Boonwurrung clan groups married women from other Boonwurrung clan groups. He said, and I accept, that this makes it difficult to make inferences about the group identity of a woman married to a Boonwurrung man purely by reference to her partner’s moiety affiliation.

467    In response to Proposition 8 Mr Wood agreed with Dr Pilbrow and opined:

Agree, but the proposition fails to capture the full range of possibilities. It is correct that due to the exogamy rule, and also the intergroup mobility issue dealt with under Proposition 6, an Aboriginal woman present on Boonwurrung country and married to a Boonwurrung man, was not necessarily Boonwurrung by descent. However, the possibility remains that such a woman was herself Boonwurrung but belonged to a different Boonwurrung descent group of the opposite patrimoiety than her Boonwurrung husband, and in this respect Dr Pilbrow’s remarks in relation to A.W Howitt are correct in my view…

(Emphasis added.)

468    Mr Wood put it more pithily in his oral evidence. There, he said that Dr Clark made the mistake of reading Howitt’s paper as a historian and that “Howitt was wrong about patrimoieties because he knew very little about them and was dealing with a handful of survivors and drew a conclusion that was not correct”.

469    In response to Proposition 8 in the BW Joint Experts’ Report Dr Clark said that he agreed with Mr Wood and Dr Pilbrow. He opined:

Agree with Mr Wood and Dr Pilbrow noting that Howitt (1904) acknowledged differences between his field notes and earlier publications; my research (Clark 1990) into Woiwurrung has suggested that Gunung-willam-baluk (Mount Macedon group) was of a different moiety than other Woiwurrung local groups.

470    There, Dr Clark agreed that at effective sovereignty a woman present on Boonwurrung country who was married to a Boonwurrung man may not have been Boonwurrung by patrilineal descent. That is, he did not opine that a woman married to a Boonwurrung man was certainly not herself Boonwurrung, whereas that was the thrust of his 2023 report and his oral evidence. His oral evidence on this issue was out of alignment with his agreement with Mr Wood and Dr Pilbrow in Proposition 8.

471    More importantly, Dr Clark’s opinion that a woman married to a Boonwurrung man was “certainly” not herself Boonwurrung is inconsistent with Agreed Fact 10 which states that “[a]t effective sovereignty, due to prevailing exogamous marriage practices of the Eastern Kulin Nation, if an Aboriginal girl or woman present on Boonwurrung country was married to a Boonwurrung man, such a girl or woman may not have been Boonwurrung by descent” (emphasis added).

472    In the circumstances I give no weight to Dr Clark’s opinion in this regard.

473    On my view of the evidence, at effective sovereignty, a woman who was married to a Boonwurrung man and present on Boonwurrung country may have been either:

(a)    Boonwurrung by patrilineal descent (i.e., born of a Boonwurrung father), and have married a Boonwurrung man of a different moiety. In that event she would have held primary rights and interests in Boonwurrung country under traditional laws and customs; or

(b)    a member of another Kulin Nation group (i.e., born of a non-Boonwurrung father), and have married a Boonwurrung man and been living with him on Boonwurrung country under the custom of patrilocality. In that event she would not have held primary rights and interests in Boonwurrung country under traditional laws and customs.

Even so, as Dr Pilbrow explained, a non-Boonwurrung woman married to a Boonwurrung man, living with him on Boonwurrung country and bearing children to him, was nevertheless part of that community. She would have secondary “use rights” (as distinct from primary “ownership rights”) in Boonwurrung country. Her primary rights and interests in country would be in her non-Boonwurrung father’s country.

474    For clarity, I will refer to a woman born of a non-Boonwurrung father, married to a Boonwurrung man and living with him on Boonwurrung country, as being part of the Boonwurrung “community” or being “associated” with the Boonwurrung. I will describe a woman born of a Boonwurrung father (whether or not married to a Boonwurrung man) as “a member of the Boonwurrung People”.

475    Tenth, having regard to the historical records it is reasonable to infer that between four and nine females (including one woman who subsequently escaped) and one or two boys were taken in the Meredith abduction. That inference is centrally based on the following:

(a)    in October 1836 Wedge wrote that “some native women, I believe four in number… have been forcibly taken from their husbands and families”. In his letter of November 1836 he again referred to “the abduction of the four women in question”;

(b)    Matilda’s Statement does not record the number of abductees, and Robinson’s Report notes “I think she said, four women”;

(c)    Yanki Yanki’s account was that eight or nine women and one or two boys were taken;

(d)    Thomas’ 1841 diary entry records that Yanki Yanki said that eight Aboriginal women and one boy were taken and that one of the abducted women subsequently escaped; and

(e)    Dredge’s 1841 diary entry records that Yanki Yanki said that nine Aboriginal women and two boys were taken in that incident.

476    It is open to infer from the historical records that the abductees included some girls or unmarried women. Matilda’s Statement states that Meredith and his crew “[a]fter fixing upon the best looking women and girls did at a preconceived sign seized upon them and tied them with cords” (emphasis added). Robinson’s Report records his meeting with a group of the “Port Philip natives” on 28 December 1836, some of whom had witnessed the Meredith abduction. He noted that “[o]ne aged woman had two daughters forced from her”.

477    More specifically Robinson’s 3 January 1837 journal entry identifies the following four abductees in the Meredith abduction.

(a)    Nan-der-gor-oke: “Derremart’s wife who was taken by the sealers”;

(b)    two daughters “forced from” Doog-by-er-um-bore-oke, being one daughter named Nay-nar-gor-rote and one unnamed daughter. I infer from them having been “forced from” their mother that they were girls rather than women; and

(c)    Bor-ro-dang-er-gor-roke: “Another girl taken by the sealers”. Based on Robinson’s description of her as a girl I infer that Bo-ro-dang-er-gor-roke was also a girl rather than a woman.

To that can be added one woman, Toutkuningrook, who later escaped, and one boy, Yanki Yanki, who was Boonwurrung.

478    Thus (putting to one side the escapee) if the abducted group is inferred to have included four females as Wedge and Robinson recorded, all but one of them were girls rather than women. If the abducted group is inferred to have included eight females as Yanki Yanki said, then almost half of them were girls rather than women. That is significant because Dr Pilbrow, Dr Clark and Mr Wood agreed in Proposition 9 of the BW Joint Experts’ Report that “[a]t effective sovereignty, if an Aboriginal girl or woman present on Boonwurrung country was unmarried, such a girl or woman would likely have been Boonwurrung as a result of inheritance of their identity from their father (unless their father was not Aboriginal).” Further, Dr Clark and Mr Wood agreed with Dr Pilbrow’s opinion in response to Proposition 9 that based on his reading of the early ethnography of Eastern Kulin and other Victorian Aboriginal groups, “an unmarried girl or woman was likely to be on her father's country most the time.”

479    Importantly, in Clark 2002 Dr Clark opined, and I agree, that:

(a)    having regard to the custom of patrilocality, Doog-by-um-bore-oke is likely to have been living with her Boonwurrung husband on Boonwurrung country, and it is reasonable to infer that her two daughters were members of the Boonwurrung People by patrilineal descent; and

(b)    Derrimut, a Boonwurrung clan head, was the source of the information recorded by Robinson and he is likely to have been referring to the abducted children of Boonwurrung families, and it is therefore reasonable to infer that Bor-ro-dang-er-gor-roke was also a member of the Boonwurrung People by patrilineal descent.

Thus, it is reasonable to infer that each the three abducted girls referred to by Robinson were Boonwurrung by patrilineal descent.

480    Whether Derrimut’s wife, Nan-der-gor-oke, was Boonwurrung by patrilineal descent is unknown, but she may have been. It is an agreed fact that at effective sovereignty, due to prevailing exogamous marriage practices of the Eastern Kulin Nation, if an Aboriginal girl or woman present on Boonwurrung country was married to a Boonwurrung man, such a girl or woman may or may not have been a member of the Boonwurrung People.

481    Thus it is possible that all of the identified abductees were members of the Boonwurrung People but the records are insufficient to conclude that that was the case. What we do know, as Dr Clark accepted, is that there is no evidence that any non-Boonwurrung people were present in the group hunting kangaroo on Point Nepean that were attacked by Meredith.

482    Eleventh, having regard to the matters enumerated above, I do not accept that an inference that it is more likely than not that the abductees in the Meredith abduction were, at least predominantly, members of the Boonwurrung People, involves the “place of abduction presumption” asserted by the applicant.

483    I consider the applicant’s reliance on the decisions in Smirke and Milirrpum to be misconceived. In Milirrpum there was direct evidence from Aboriginal lay witnesses as to their occupation and traditional use of land prior to 1935, which evidence established that the group which traditionally occupied and used land on a day-to-day basis prior to 1935 was not comprised mostly of members of the traditional owning “clan” for that land. In Smirke Dr Palmer’s evidence distinguished between a “country group” for land in the Pilbara (i.e., a traditional owning group whose relationship to land was “totemic” or “spiritually based”) and a “residence group” (i.e., who occupied and used land on a day-to-day basis). Those cases do not stand for a universal proposition in relation to the composition of Aboriginal groups found on their traditional country at effective sovereignty, or more particularly in relation to the composition of a specific group found hunting kangaroo on a particular day on Boonwurrung country. Further, the evidence here going to the composition of the group hunting kangaroo on Point Nepean and in relation to the composition of the abducted group is specific, and different to those cases.

Is it open to infer that it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People?

484    Having concluded that the abductees in the Meredith abduction were more likely than not to have been, at least predominantly, members of the Boonwurrung People, I now turn to the evidence relating to whether it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People.

485    For the reasons I now explain, I consider the evidence is sufficient to infer that it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in Boonwurrung country under traditional laws and customs.

486    First, I have inferred that the woman later known as Elizabeth Maynard was abducted in the Meredith abduction from Point Nepean, and I have inferred that the abductees from the Meredith abduction were, at least predominantly, members of the Boonwurrung People. In general terms, and without putting that too highly, that indicates that it is more likely than not that Elizabeth Maynard was Boonwurrung. But the evidence goes well further than that.

487    Second, the historical records support an inference that it is more likely than not that Elizabeth Maynard was a Boonwurrung woman. That is because:

(a)    three of the four females identified by Robinson as having been abducted in the Meredith abduction (or three of the eight females identified by Yanki Yanki) are likely to have been unmarried girls. And the experts agreed that, at effective sovereignty, an unmarried girl present on Boonwurrung country is likely to have been Boonwurrung by patrilineal descent; and

(b)    as Dr Clark opined in Clark 2002, Doog-by-um-bore-ok’s two abducted girls and the other abducted girl Bor-ro-dang-er-gor-roke, are likely to have been Boonwurrung by patrilineal descent.

Thus, putting to one side the escapee, Toutkuningrook and taking Yanki Yanki into account, four of the five persons known to have been abducted in the Meredith abduction are more likely than not to have been Boonwurrung by patrilineal descent. And the fifth person known to have been abducted in the Meredith abduction, Derrimut’s wife Nan-der-gor-oke, may or may not have been Boonwurrung by patrilineal descent.

488    Third, Richard Maynard’s admission that he knew that Elizabeth Maynard “was taken from her country” is capable of both a broad and narrow interpretation, but taking the narrow interpretation it supports an inference that the place from which Elizabeth was taken was “her country”. It is open to infer that Elizabeth knew where her “country” was and that Maynard’s knowledge as to the location of her “country” came from her. She was taken from Point Nepean which was Boonwurrung country, and that supports an inference that Elizabeth was Boonwurrung. That is, if Elizabeth had been born into another Eastern Kulin group, she would know that Point Nepean was not her country and she would not have told Maynard that.

489    Further, it is reasonable to approach Robinson’s 9 January 1837 journal entry on the basis that by then he had had at least eight years of working with Aboriginal people, and he plainly had an understanding that Aboriginal groups were associated with their particular “country”. His recording that Richard Maynard’s partner was a “Port Phillip” native and his conclusion that she was kidnapped from Point Nepean, together with his note of Maynard’s remark that shewas taken from “her country” offers some support for an inference that Robinson understood Point Nepean to be her country.

490    Fourth, I accept that the evidence does not establish the marital status of the abducted girls or women:

(a)    she may not have been married. In that event, pursuant to the expert’s agreement in Proposition 9, it is likely that she was Boonwurrung by patrilineal descent. The expert’s agreed that, at effective sovereignty, if an Aboriginal girl or woman present on Boonwurrung country was unmarried, such a girl or woman would likely have been Boonwurrung as a result of inheritance of their identity from their father (unless their father was not Aboriginal). Dr Pilbrow’s opined in response to Proposition 9 that based on his reading of the early ethnography of Eastern Kulin and other Victorian Aboriginal groups, “an unmarried girl or woman was likely to be on her father's country most of the time”. Dr Clark and Mr Wood agreed;

(b)    she may have been unmarried. In that event there are two possibilities:

(i)    first, it is possible that she was born of a Boonwurrung father and had married a Boonwurrung man of a different moiety. If born of a Boonwurrung father she was a member of the Boonwurrung People by patrilineal descent; and

(iii)    second, it is possible that she was born of a non-Boonwurrung father (i.e., into another Eastern Kulin group), and had married a Boonwurrung man and was living with him on Boonwurrung country under the custom of patrilocality. If born of a non-Boonwurrung father she was a member of the Boonwurrung People, although she was part of that “community”.

Having regard to the matters discussed above I consider the latter possibility to be the least likely of the alternatives.

491    There is no historical record which enables Elizabeth’s marital status at the time of her abduction to be established, and that factual gap cannot be resolved on the evidence. But I do not consider that precludes a finding that it is more likely than not that she was a member of the Boonwurrung People. It should be remembered that there is no evidence that at the time of her abduction Elizabeth was from another Eastern Kulin group but had married a Boonwurrung man, indeed no evidence that she was married at all. The paucity of historical information, and conjecture about alternative possibilities that cannot be proved or disproved on the evidence, should not stand in the way of the Court drawing reasonable and rational inferences from the evidence that is available.

492    Fifth, and importantly, the inference that Elizabeth Maynard was a member of the Boonwurrung People finds support in the evidence of Ms Summers, Mr Ogden and Mr West. They gave evidence of being told a family history, passed down to them by oral tradition, that Elizabeth Maynard or Granny Betty was a woman of the “Port Phillip” tribe who was kidnapped or stolen from the Port Phillip area (or in relation to Mr Ogden’s and Mr West’s evidence the more specific locations of Portsea/Point Nepean). As Dr Pilbrow said, their testimony and the historical records regarding the Meredith abduction are mutually supportive of an inference that Elizabeth Maynard was a member of the Boonwurrung People.

493    Sixth, the conclusion that it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People accords with my view of the expert evidence. I prefer the opinions of Dr Pilbrow and Dr D’Arcy regarding Elizabeth Maynard to those of Dr Clark and Mr Wood. I need not reiterate why it is appropriate to give minimal weight to Mr Woods’ opinions in relation to the claimed Boonwurrung identity of Elizabeth Maynard, or to his opinions which indirectly touch on that issue.

494    In relation to Dr Clark’s opinions in relation to the claimed Boonwurrung identity of Elizabeth Maynard, it is significant to my view that some of his testimony was just speculation or supposition:

(a)    first, he described his discovery of Plomley’s mis-transcription of Richard Maynard’s statement to Robinson as an “important discrepancy”, a “game-changer”, and “critical” to his change of opinion. Construing the meaning of Robinson’s record of Maynard’s statement does not involve the exercise of specialised knowledge, and I am in as good a position as Dr Clark to understand what Maynard meant. On the plain words of Maynard’s statement he said that he knew that Elizabeth had been taken from “her country by G. Meredith” which does little to change its meaning from that Maynard knew that she had been taken from “her own country”. Dr Clark gave too much significance to the mis-transcription. It was not an “important discrepancy” or a “game-changer”, and he should not have treated it as “critical” such as to justify or explain his change of opinion. As Dr Clark eventually seemed to concede, that involved him “over thinking” or “overfocussing” on that point;

(b)    second, he said that it was possible that Maynard’s partner was a woman from a neighbouring Eastern Kulin group who was on Boonwurrung country for “ceremonies and other important activities” which he said included “friendship ceremonies, marriage ceremonies, trade and barter, gathering to negotiate marriages, resource exploitation, things like that.”. There is no evidence of a friendship ceremony, marriage ceremony, trade and barter, or a gathering to negotiate marriage taking place on Boonwurrung country on the day of the Meredith abduction. Dr Clark accepted that daily hunting and gathering was not a ceremony, but he said that groups gathered for “harvesting of abundance”. There is, however, no evidence that this was a harvesting of abundance rather than a common-place kangaroo hunt; and

(c)    third, he said Richard Maynard was “very intelligent” and that he was “blame shifting” when he said that he knew his female partner had been “taken from her country by G Meredith”. As I have said, there is no evidence that Maynard was involved in the Meredith abduction and Matilda’s Statement refers to Meredith’s involvement in that abduction but makes no mention of Maynard, and there is no evidence that he was involved in the abduction of Aboriginal women. Thus, there is no evidence that Maynard had any reason to attempt to shift the blame for the abduction of his partner to the deceased Meredith so as to hide his own involvement. Dr Clark’s evidence was just speculation.

495    Dr Clark was correct in noting that Maynard’s admission to Robinson that his partner was taken from “her country” is capable of both a broad or narrow interpretation, but he seemed to assume that that admission could not support an inference that Maynard was referring to his partner’s abduction from her country on Point Nepean. In my view, when considered along with the other evidence, Maynard’s admission provides some support for an inference that his partner, whom I infer was Elizabeth Maynard, was a Boonwurrung woman abducted from Boonwurrung country on Point Nepean.

496    Another deficiency with Dr Clark’s opinion is his view that it is not open to infer from Robinson’s journal entry and Robinson’s Report that Richard Maynard’s “Port Phillip” partner was a Boonwurrung woman because Robinson’s use of the expression “Port Phillip native” may have meant either: (a) the settlement site which ultimately developed into the town of Melbourne; (b) Port Phillip Bay itself (or any section of its coastline); or (c) the vast Port Phillip District which extended well to the north, west and east of the Port Phillip settlement, and ultimately became the colony of Victoria. He said he a had a “feeling” that Robinson meant the latter. For the reasons previously explained, I do not accept that, read in context, Robinson’s use of the expression “Port Phillip native” was a reference to people from any part of Port Phillip Bay or the much broader Port Phillip District. I prefer the opinions of Dr D’Arcy and Dr Pilbrow in that regard.

497    Another deficiency with Dr Clark’s opinion is that, without a proper basis, he gave no weight to credible and persuasive testimony by Ms Summers, Mr Ogden and Mr West that they were told a family history, passed down by oral tradition from their older relatives, to the effect that Granny Betty was a woman of the “Port Philip” tribe who was kidnapped from the Port Phillip area.

498    Seventh, my view of the expert evidence is buttressed by the opinions in the Third GK Joint Experts’ Report. There, seven anthropologists, Dr Pilbrow, Ms Lothian, Dr Hutchings, Dr Cooms, Dr Fergie, Mr Annand and Mr Wood jointly agreed as follows:

(a)    On Proposition 18 – whether there is sufficient evidence that at effective sovereignty the woman known as Elizabeth Maynard had a connection to the Boonwurrung claim area – the experts opined:

Agree based on Tindale’s (1939) recording of Elizabeth as a ‘fb [full blood] Aust.’ from Victoria. Robinson (1837) provides a description of a pregnant woman with Richard Maynard (also known as Henry Todd) who is described as ‘a New Holland native of Port Philip […] who was taken from her own country by G Meredith’. The abduction of women by George Meredith is documented by Robinson as occurring at Point Nepean.

(b)    On Proposition 19 – whether there is sufficient evidence that at effective sovereignty the woman known as Elizabeth Maynard would likely have qualified as a member of the Boonwurrung group through filiation, descent or adoption – the experts opined:

Agree on the basis of the evidence set out in the response to the previous proposition.

Thus, they jointly opined that there is sufficient evidence to conclude that, at effective sovereignty, the woman known as Elizabeth Maynard was a member of the Boonwurrung group with rights and interests in Boonwurrung country under traditional laws and customs.

499    Having regard to the opinions of Dr Pilbrow and Dr D’Arcy, and the views of six other anthropologists in the Third GK Joint Experts’ Report, I see Dr Clark’s opinion regarding Elizabeth Maynard as something of an outlier.

500    Eighth, my view on this Separate Question is also buttressed by the submissions of the State and the Commonwealth. It is appropriate to give particular attention to their submissions as they are independent of the dispute between the Boonwurrung and Bunurong parties. I will not reiterate their submissions, some of which are captured in the reasons above, but they both accepted that it is reasonable for the Court to infer that it is more likely than not that Elizabeth Maynard was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs.

501    For of the reasons set out above I am a satisfied that it is appropriate to answer Separate Question 1(a)(iii), “yes”.

6.    MARJORIE MUNRO - Separate Question 1(a)(v)

502    It is an agreed fact that Marjorie Munro, also known as Marjorie Munroe and Marjorie Munrow, was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area, under traditional laws and customs. Question 1(a)(v) must therefore be answered “yes”.

503    While Marjorie Munro’s status as a member of the Boonwurrung People is an agreed fact, the facts underpinning that are not agreed. The applicant’s submission that Ann Munro was a member of the Boonwurrung People was based in the contention that she was Marjorie Munro’s daughter and Boonwurrung by descent from Marjorie Munro. The Bunurong respondents denied that. As I later explain when dealing with Ann Munro, there are a number of uncertainties or inconsistencies in the historical records regarding Marjorie Munro which affect the availability of an inference that Ann Munro was her daughter.

7.    LOUISA BRIGGS - Separate Question 1(a)(i)

504    On the fourth day of the hearing it became an agreed fact that Louisa Briggs was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs. Question 1(a)(i) must therefore be answered “yes”.

505    While Louisa Briggs’ status as a member of the Boonwurrung People is an agreed fact, there is no agreement as to the facts underpinning that. It is unnecessary to express any view on Louisa Briggs’ status as a member of the Boonwurrung People, and I do not. But I should record that I do not accept the applicant’s contention that the evidence in relation to Louisa Briggs’ claimed Boonwurrung identity was strong, whereas the evidence in relation to the Boonwurrung identity of the other named women was weak. That contention ran throughout the applicant’s submissions and it was seriously overstated.

506    By way of explanation, up to the point that it became an agreed fact, the applicant made the following contentions in relation to the claimed Boonwurrung identity of Louisa Briggs:

(a)    an Aboriginal woman was abducted from Western Port by a sealer and taken to Preservation Island where she cohabited with the sealer James Munro, and became known as Marjorie Munro;

(b)    Marjorie Munro was the “Port Phillip” Aboriginal woman Robinson saw accompanying James Munro on Preservation Island in January 1837;

(c)    Robinson recorded in his 9 January 1837 journal entry and Robinson’s Report that James Munro’s Aboriginal partner, (claimed to have been Marjorie Munro) had two daughters and one son. He noted that she had:

(i)    a 14-year-old daughter that “she had in her own country”, i.e., a daughter born pre-abduction;

(ii)    a 16-year-old- daughter (who Robinson did not see at that point), who was living with a sealer, John Strugnell, on Gun Carriage Island with whom that daughter had had two children; and

(iii)    an infant child fathered by Munro;

(d)    the genealogical diagram in Dr Clark’s 2023 report (Clark 2023 genealogy) states that those three children were:

(i)    a “full blood” Aboriginal 14-year-old daughter, Ann Munro, born circa 1822 in the area now known as Melbourne, from Marjorie’s marriage with an unknown Woiwurrung man;

(iv)    a “half-caste” Aboriginal 16-year-old daughter, Polly (who the applicant claimed was also known as “Mary”), from Marjorie’s ‘marriage’ to James Munro, born circa 1821 on King Island; and

(v)    a “half-caste” Aboriginal son, Robert, born circa 1836 in VDL, from Marjorie’s ‘marriage’ to James Munro;

(e)    the Clark 2023 genealogy also states that:

(i)    the two “half-caste” children of Polly (aka Mary) the 16-year-old daughter with John Strugnell were:

(A)    a daughter, Louisa Strugnell, born circa 1835, who later became known as Louisa Briggs following her marriage to a Tasmanian Aboriginal “half-caste” man named John Briggs with whom she had children; and

(B)    a son, Harry Strugnell, born circa 1836;

(vi)    the “full blood” Aboriginal 14-year-old daughter, Ann Munro, also married John Briggs and had children with him. John Briggs; and

(vii)    Ann Briggs (née Munro) and Louisa Briggs (née Strugnell) lived in a polygamous marriage, and brought their children up together as one family unit under traditional laws and customs, such that their cognatic descendants were Boonwurrung people.

507    The applicant claimed that Ann Briggs (née Munro) was the daughter of Marjorie Munro and the sister of Polly (claimed to be also known as Mary) who was Louisa’s mother. Ann Briggs (née Munro) was therefore Louisa’s aunt. And Ann and her niece Louisa were claimed to be in a polygamous marriage with John Briggs.

508    As can be expected in relation to such claims based in events up to 190 years ago on remote islands in Bass Strait, when no official records of such things were kept, there are limitations in the evidence relied upon by the applicant to show that Louisa Briggs was a Boonwurrung woman. The applicant contended, however, that “uniquely” amongst the named women who are claimed to have Boonwurrung ancestry Louisa Briggs herself provided an account of that. Louisa was interviewed in 1924 by two Sydney University geography students, L.D. Hall and D.R. Taylor, and she provided information which the applicant claimed identified her country as being south of Melbourne in Boonwurrung country. In particular the applicant relied upon Louisa Briggs’ statements to Hall and Taylor that her grandmother Marjorie was “a full blood of Melbourne”, and her mother Mary was a “half-caste”, who married her father, John Strugnell, a “white man”, and that Louisa had married a Tasmanian Aboriginal man named John Briggs: see Hall, LD and Taylor, DR, Mogumber and Cumeroogunja: a study of the Correlation of Australian Aboriginal Types (unpublished draft, University of Sydney Geography Department, 3 March 1927), extracted in Clark 2023, Appendix 4 (Hall and Taylor interview).

509    The applicant relied upon the Hall and Taylor interview as foundational to its case regarding Louisa Briggs, but it sought to rely upon one part of the interview and to ignore another part. The applicant effectively submitted that the Court should disregard that part of the interview which records Louisa as stating that in her girlhood she was taken in a little sailing boat to Tasmania and lived in the islands there. That part of the interview is important because it appears to be inconsistent with the applicant’s claim that Louisa was the daughter of Polly (aka “Mary”) Munro and John Strugnell. born on King Island in 1921.

510    Up to the point that it became an agreed fact that Louisa Briggs was a Boonwurrung woman the Bunurong respondents’ contentions included that:

(a)    there is insufficient evidence to infer that Marjorie’s daughter, Polly or Pol, was Louisa’s mother. The Hall and Taylor interview records Louisa as telling the interviewers that her mother was named Mary, and she made no reference to Polly or Pol. While “Mary” was a common diminutive for “Polly” in those days there are no historical records which state that Polly Munro was known as Mary. Indeed, several historical records record her as Polly or Pol and none refer to her as Mary, and the descendants of Polly do not have a family history that she was known as Mary;

(b)    Marjorie co-habited with James Munro on Preservation Island, but he had multiple Aboriginal ‘wives’, such that it could not be known which of his wives had what child;

(c)    there is insufficient evidence to infer that Marjorie Munro had daughters named either Ann or Mary; and

(d)    there are no historical records to show that Louisa Briggs (née Strugnell) was Marjorie Munro’s granddaughter, nor that she was Ann Munro’s niece.

I offer no final view on any of those contentions, but in my view they are not hopeless.

511    Some of the limitations in the evidence regarding the claimed Boonwurrung identity of Louisa Briggs can be seen in the historical records regarding Ann Munro. Those records make up the other part of the picture regarding the claimed daughters of Marjorie Munro, as Ann is claimed to be Marjorie’s daughter, and Louisa is claimed to be the daughter of Ann’s sister, Polly (also known as “Mary”). I will not set out those difficulties here, but I touch on them in the section of these reasons relating to the claimed Boonwurrung identity of Ann Munro.

512    Drs Pilbrow and D’Arcy both considered the historical records were insufficient to infer that Louisa Briggs was a Boonwurrung woman. Dr Pilbrow said that there is little information in the historical record about Louisa’s mother and grandmother such that he was:

…unable to infer that Louisa is the granddaughter of Marjorie Munro as there is conflicting information in the early record as to whether the woman in 1837 with [James] Munro was Marjorie Munro or another abducted woman, about whom the historical record provides little information.

513    Dr D’Arcy said that the “Port Philip” Aboriginal woman Robinson saw accompanying James Munro in January 1837 was not Marjorie Munro, and that the woman’s 16-year-old daughter was not Louisa Strugnell’s mother, Mary. She said that “it is almost impossible to determine that the Marjorie being described by Louisa in 1924 [in the Hall and Taylor interview] is Marjorie Munro”. She also said:

Except for the 1924 reference by Louisa about her grandmother and mother, whilst she was suffering from senile decay, all family histories/genealogies and records point to her [Louisa’s] Tasmanian descent up until 1985 (except the two references in 1960 and 1978).

514    It is an agreed fact that Louisa Briggs was, at effective sovereignty, a member of the Boonwurrung People and there is a basis in the evidence for the parties’ agreement. I note the evidentiary limitations only to illustrate my disagreement with the applicant’s approach to the evidence. It unfairly sought a relaxed approach to the limitations in its evidence in relation to the claimed Boonwurrung identity of Louisa Briggs and Ann Munro, and a strict approach to the limitations in the Bunurong respondents’ evidence in relation to the claimed Boonwurrung identity of Elizabeth Maynard, Eliza Nowan/Gamble and Jane Foster.

8.    ANN MUNRO - Separate Question 1(a)(ii)

515    Separate Question 1(a)(ii) asks whether Ann Munro was a member 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.

516    As the party asserting that Ann Munro was a Boonwurrung woman who, at effective sovereignty, held rights and interests in Boonwurrung country under traditional laws and customs, the Boonwurrung applicant had the onus to establish that.

8.1    The parties’ positions

517    The Boonwurrung Application alleges that Ann Munro was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area. It made that claim on the basis that she was the daughter of Marjorie Munro, who it is agreed was a member of the Boonwurrung People.

518    The applicant maintained that position throughout the Separate Questions hearing, but in written closing submissions after the hearing it changed its position. Then it argued that, although Ann Munro had a Boonwurrung mother (being Marjorie Munro), the evidence is insufficient to establish that she was patrilineally a member of the Boonwurrung People. It therefore accepted that Separate Question 1(a)(ii) must be answered “no” or “not proven”.

519    The Bunurong respondents and the Commonwealth also submitted that the evidence is insufficient to establish that Ann Munro was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs.

520    The applicant’s concession that Ann Munro was not a member of the Boonwurrung People should have been the end of the matter, but the State and the Wurundjeri respondents submitted that it is open on the evidence to answer “yes” to Separate Question 1(a)(ii), albeit on different grounds to those advanced by the applicant:

(a)    the State submitted that it “appears to be accepted” that Ann Munro was Marjorie Munro’s daughter, and it is open to infer that by descent from Marjorie she acquired rights and interests in Boonwurrung country under traditional laws and customs; and

(b)    the Wurundjeri respondents submitted that while the evidence does not show that Ann Munro was Marjorie Munro’s daughter, it is open to infer that she was abducted as a child from Point Nepean in circa 1833, and that she was more likely than not a member of the Boonwurrung People.

521    Then, in written closing submissions in reply, the applicant altered its position again, and it supported the State’s submissions as a basis for a finding that Ann Munro was a member of the Boonwurrung People.

522    In my view the applicant’s changing position reflected the weakness in the evidence it relied on to show that it is more likely than not that Ann Munro 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. For the reasons set out below I consider the evidence to be insufficient to infer that it is more likely than not that:

(a)    Ann Munro was Marjorie Munro’s daughter; or

(b)    that Ann Munro was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs.

It is therefore appropriate to answer Separate Question 1(a)(ii) “no”.

8.2    The pleadings

523    The Boonwurrung Application alleges that Ann Munro was a Boonwurrung woman but does not set out the basis for that allegation. In describing Ann’s Munro’s ancestry, it alleges only:

Ann Munrow (BOONWURRUNG), daughter of Kulin MAN ( - ) and Kulin WOMAN ( - ), was born circa 1825 in Melbourne. She married John BRIGGS circa 1840. She died on 6 November 1884 in Coranderrk Victoria.

That is an allegation that Ann Munro’s parents were members of the Kulin Nation peoples, rather than specifically Boonwurrung.

524    The applicant’s Statement of Facts and Issues re Connection (SFIC) alleges:

2.1     The Boonwurrung People are the cognatic descendants of Louisa Briggs (circa 1832 – 1925) and Ann Munrow (circa 1824 – 1884).

2.2     Louisa Briggs and Ann Munrow were Boonwurrung women who were in a polygamous marriage with John Briggs (circa 1820–1878). In accordance with Aboriginal tradition, their respective children were brought up as one family, and their cognatic descendants are Boonwurrung.

That is an allegation that Ann Munro was a member of the Boonwurrung People, without providing a basis for that.

525    The SFIC further alleges that Marjorie Munro and Polly aka “Mary” (Louisa’s alleged mother) “do not have any live descendants other than the descendants of Louisa Briggs (which, traditionally, include the descendants of Ann Munrow”). Thus, whether or not Ann Munro is shown to have been a member of the Boonwurrung People at effective sovereignty does not appear to affect the claimed Boonwurrung identity of any contemporary descendants.

8.3    The historical records and secondary sources

526    As previously noted, Robinson’s 9 January 1837 journal entry records, as follows:

Went on shore at Preservation Island with Captain Hurburgh… Found on shore James Munro who had a New Holland woman a native of Port Phillip. She was ill in bed. Had an infant child by some of the sealers; had also a daughter about fourteen years of age that she had in her own country. This was an interesting girl and it grieved me to leave her in such hands for I felt persuaded she would be maltreated. Another daughter belonging to this woman was living with Strognal on Gun Carriage by whom she had had two children; she was about sixteen years of age…

There is positive proof that Munro bought the woman with whom he was cohabiting and it is currently reported that he gave £7 for her. He denies having given a consideration for her and accounts for his having her by being old or as he said he supposed she would not have fallen to his share; but this is only evasive, there is positive proof that not only was a consideration given for this woman but for every other woman brought from Port Phillip by George Meredith the original importer.

(Emphasis added.)

: Robinson’s journal transcribed by Plomley, p 414.

527    Although that journal entry states that Munro’s partner had an infant child “by some of the sealers”, in Robinson’s Report he revises that statement by stating that the infant child was Munro’s.

528    Robinson’s journal entry that day also lists the names of the sealers and their Aboriginal partners on various Bass Strait islands. In relation to James Munro and his partner it records:

Preservation Isle: James Munro - one New Holland woman native of Port Phillip and daughter native of Port Phillip fourteen years of age, and an infant child belonging to the mother a half-caste.

529    As earlier noted, Robinson’s Report records the following:

On the following morning [9th January 1837] I went on shore [Preservation Island], and found upon the island, James Munro and another man named Kelly, whom I had met on a former occasion, at the Hunter Islands. There was also two Aboriginal female natives of Port Phillip, a mother and daughter the latter of whom a fine young girl, between thirteen and fourteen years of age. This woman was cohabiting with James Munro and by whom she had a child which was then at the breast.

…

On being interrogated as to how he became possessed of her, he stated that she as well as the other Port Phillip Aboriginal females, had been stolen from their country by George Meredith Junior, and after accompanying him upon a sealing voyage were brought back, and left at the Furneaux Islands. Upon being asked whether he had bought this woman he denied having done so and accounted for her by the circumstance of her being more aged than the rest or otherwise he supposed she would not have fallen to his share (It has been reported to me that the price given for her was seven pounds). But this was only evading the question for it certain this woman had been bought from the original importer, and that a consideration had been also given for the other women by the men they were then cohabiting with.

There is positive proof that these women were taken from their country by the individual alluded to, as communicated by Munro, as well the evidence of the Van Diemen's Land native woman [Matilda] whose testimony is appended to this report, besides which the women themselves and the sealers testify to the fact.

(Emphasis added.)

: Robinson’s Report, extracted in Clark 2002, pp 106-107.

530    Robinson’s 9 January 1837 journal entry and Robinson’s Report provides the following relevant information:

(a)    James Munro was cohabiting with a “Port Philip” woman on Preservation Island;

(b)    Munro said that his Aboriginal partner had been taken from her country by Meredith, along with a number of other “Port Philip Aboriginal females”;

(c)    Robinson concluded that Munro’s partner was one of the women taken in the Meredith abduction, which would date her abduction in the first half of 1833;

(d)    Munro’s partner had three children:

(i)    a younger daughter, being “a daughter about fourteen years of age that she had in her own country” (emphasis added), that is, a daughter that was born pre-abduction;

(ii)    an older daughter, being “about sixteen years of age” who was living with James Strugnell on Gun Carriage Island by whom she had had two children; and

(iii)    an infant boy who she had to Munro, who was still at breast.

531    For similar reasons as in relation to Elizabeth Maynard, it is reasonable to infer from Robinson’s 9 January 1837 journal entry and Robinson’s Report that James Munro’s female partner was abducted in the Meredith abduction. However, there remains a question as to whether the evidence is sufficient to infer that it is more likely than not that that woman was the woman later known as Marjorie Munro, and whether there is sufficient evidence to infer that one of her daughters was the woman later known as Ann Briggs (née Munro). I now turn to set out the further historical records relevant to those issues.

532    Robinson’s 27 March 1837 journal entry records that James Strugnell and a New Holland woman with two children were seen, they said on their way to the Kent Islands: Robinson’s journal transcribed by Plomley, p 435.

533    Robinson’s journal entry of 20 September 1837 records:

A sealer named Stragnel arrived at the settlement [Wybelena] and begged assistance to repair his boat … He had with him a female native of Port Phillip and two children that she had by this man. The woman did not appear more than seventeen years of age and was daughter to the woman who was cohabiting with James Munro. She was one of those taken from her country by Meredith.

: Robinson’s journal transcribed by Plomley, p 478.

534    There, Robinson again records that James Munro’s partner’s older daughter had two children with James Strugnell. He describes the older daughter as being no more than 17-years-old by then, which matches the age given to him on 9 January 1837.

535    In 1842 Capt. Crawford Pasco, a naval officer, visited the Furneaux and Kent Group islands on the cutter Vansittart while undertaking a four-month survey of the Bass Strait islands. In his 1897 book, A Roving Commission, Pasco wrote of his visit to Preservation Island in April 1842 in which he wrote that Munro had no children of his own, and the only child was a “little girl” who had been abducted at the same time as Munro’s Aboriginal female partner. He wrote:

On Preservation Island was Jimmy Munro, who held the title of King of the Straits, and had been there then (1842) for thirty-seven years. He had his lubra, but no family of his own. She had one little girl, whom he had brought with the mother, but I never knew what part they had been taken from, till forty years after, when I met the ‘little girl’ at Coranderrk Aboriginal Station in Victoria as Mrs Briggs, then an old grandmother.

(Emphasis added.)

: Pasco, p 148.

536    It is appropriate to infer that James Munro and Jimmy Munro are the same person. Archival records show that James Munro lived for many decades on Preservation Island until his death in circa 1845, and he was a well-known identity in the Bass Strait islands, being known as the “King of the Straits”.

537    Pasco also wrote that some 40 years later (circa 1882-1884) he visited Coranderrk Aboriginal Station where he met “Mrs Briggs” (whom the experts agree is likely to have been Ann Briggs (née Munro) rather than Louisa Briggs (née Strugnell)). Ann Briggs told Pasco that she was the “little girl” he met on Preservation Island 40 years earlier, and that she remembered “that she and her mother were near [Point] Nepean at the entrance of Port Phillip when Jimmy came in with his boat and carried them off.” Pasco wrote:

Visiting this station, where I knew some of the blacks, Mrs Briggs said she knew me when she was a little girl at Preservation Island, and remembered my having given her some biscuits. She told me that she and her mother were near Port [sic] Nepean at the entrance of Port Phillip when Jimmy came in his boat and carried them off. She told me the name of my vessel, in proof of her memory, the Vansittart.

: Pasco, p 148.

538    In circa 1843 Mr John Lort Stokes visited Preservation Island during the course of a survey. He wrote the following about James Munro: “I found Preservation Island inhabited by an old sealer of the name of James Munro ... Another man and three or four native women completed the settlement.” He said that the sealers made “excursions, principally to the shores of Australia, for the express purpose of obtaining by violence or stealth such valuable partners.”

: Stokes, cited in D’Arcy 2007, p 1.

539    In circa 1845 James Munro died. On 7 March 1846 the Hobart newspaper The Courier published an article about him, which said the following about his ‘wife’:

The woman of the late ‘James Munro’, the sealer, was a native of some part of the coast of New Holland, opposite to Van Diemen’s Land.

: The Courier (newspaper, 7 March 1846), extracted in Clark 2023, Appendix 11.

540    On 20 March 1856 Mr William Wilson wrote to the Lord Bishop of Tasmania, Bishop Nixon, regarding the welfare of the number of Aboriginal people living on the Bass Strait islands. Relevantly, he wrote:

[On Walker’s Island] live two other women, mother and daughter, the last having also two children, girls, about eight or 10 years of age, the elder woman also has one son, Robert Munro about 22 who does somewhat to assist… The two elder women are of extreme old age, I should say above seventy.

: Wilson’s 20 March 1856 letter, extracted in Clark 2023, Appendices 12 and 13.

541    Wilson’s 20 March 1856 letter contains the following relevant information:

(a)     an elderly Aboriginal woman was living on Walker’s Island;

(b)    with her unnamed daughter, who herself had two daughters “about eight or 10 years of age” (therefore born 1848 and 1846 respectively); and

(c)    a son, Robert Munro, about 22 years of age (therefore born circa 1834).

542    On 20 June 1856 Wilson again wrote to Bishop Nixon about, as I infer, the same elderly Aboriginal woman. He wrote:

Upon making enquiry respecting the other aged woman under Mr Howie’s protection I am obliged to admit… she is not a native of Tasmania, her history is this, she was brought over from Western Port, about thirty years ago by a sealer named Munro, with whom she afterward co[h]abited, that she has one daughter an Aborigine born on the islands, and that daughter has also two girls by a white man who left them soon after their birth and whom they have never seen since… The information I have been able to get and which I believe to be correct is as follows…

Old woman, ditto Western Point, Victoria, but living on Kings and other islands 30 years

Pol, an Aborigine, daughter of the above, born on Kings Island.

Robert Munro, son of the above, who has assisted in supplying his family for years, and needs nothing himself.

Two girls, daughters of Pol of 8 and 10 years natives of Tasmania.

: Wilson’s 20 June 1856 letter, extracted in Clark 2023, Appendix 13.

543    Wilson’s 20 June 1856 letter to Bishop Nixon contains the following relevant information about that elderly Aboriginal woman and her children, being that she:

(a)    was brought over from Western Port, about 30 years ago by a sealer named Munro, with whom she afterward cohabited;

(b)    had one daughter, Pol, “an Aborigine…born on the Kings Island”, who had had two daughters with a “white man” aged eight and 10 years respectively; and

(c)    had a son named Robert.

544    It is common ground between the experts, and I am satisfied that it is appropriate to infer, that it is more likely than not that the elderly Aboriginal woman referred to in Wilson’s March and June 1856 letters to Bishop Nixon was the woman known as Marjorie Munro.

545    In March 1862, Archdeacon Thomas Reiby visited the Bass Strait islands. He saw a woman he identified as Marjorie Munro living in straitened circumstances and he wrote to the VDL Colonial Secretary’s Department on her behalf and sought to procure the reinstatement of a modest government pension she had previously been receiving for giving assistance to survivors of a shipwreck. Archdeacon Reiby took down Marjorie’s story, and his doing so was witnessed and corroborated by approximately one dozen Bass Strait Islanders. Relevantly, her story included the following statement.

I am a native of Western Port, above the age of 70 ys & entirely destitute.

: Archdeacon Reiby’s letter, cited in D’Arcy 2007, p 2.

Happily, the Colonial Secretary’s Department agreed to reinstate Marjorie’s pension.

546    In 1863, Archdeacon Reiby visited the Bass Strait islands again and met with Marjorie and her children. He wrote of that meeting in a letter, which was subsequently published in Church News and also formed part of a report he made to the Tasmanian Legislative Council. He wrote:

Not far from Maynard's cottage we found old ‘Margery Munroe,’ a native of Western Port, living in a wretched hovel with her son Robert and daughter Polly. Polly, a woman of about 40 years, married a man named Bligh, some eighteen years ago, who left her to search for gold when the Melbourne goldfields were first discovered, and she has not heard from him, since. ‘Polly Bligh’ is certainly the most extraordinary looking woman I ever saw. She is very stout, immensely powerful, and much darker in color [sic] than her mother Margery. She has two interesting and pretty daughters living with her, the elder, 17 years old, the younger, 14 years; the younger, 'Emma,' I baptised…. Robert Munroe is, as far as I could learn, a kind son and affectionate brother

: Archdeacon Reiby’s report, extracted in Clark 2023, Appendix 2.

547    Archdeacon Reiby’s March 1863 report named the woman he met as Marjorie Munro and contains the following relevant information:

(a)    Marjorie was a “native of Western Port”;

(b)    she had two children living with her, being her daughter Polly, about 40 years of age (therefore born circa 1823) and her son Robert;

(c)    circa 18 years earlier (1845) Polly had married a man named Bligh, who left her to search for gold when the Melbourne goldfields were first discovered (circa 1850), and she has not heard from him since; and

(d)    Polly had two daughters living with her, being an elder (unnamed) daughter, age 17 years (whom other archival records indicate was named Eliza); and a younger daughter, named Emma, age 14 years.

548    From circa 1846, Polly Munro and Samuel Bligh lived on Preservation Island in James Munro's old home: Dr Allen's Journal, and Surveyor General Power’s 1849 report, cited in D’Arcy 2007, p 1.

549    The names Ann Munro and Ann Briggs (née Munro) appear in various Victorian birth and death records from the 1860s to the 1880s. The birth register for the district of Violet Town, Victoria records that “Ann Briggs formerly Munrow” and John Briggs, a shepherd from Tasmania, married in 1844 and had an unnamed baby girl on 20 May 1868 (Ann Briggs’ unnamed daughter’s birth certificate). That record contains the following information:

(a)    mother, “Ann Briggs formerly Munrow”, age 40, born in Melbourne;

(b)    father, John Briggs, age 43, a shepherd from Tasmania;

(c)    date and place of marriage, Tasmania in 1844;

(d)    Louisa Briggs witnessed the birth; and

(e)    the following other children of the marriage: Ellen (deceased), George 21 years 6 months, Henry 15 years, Elizabeth 13 years, John 11 years, Sarah nine years, William five years, Margaret two years.

: Ann Briggs’ unnamed daughter’s birth certificate, extracted in Clark 2023, Appendix 19.

The fact that Louisa Briggs witnessed the birth supports the applicant’s claim that she, Ann Briggs and John Briggs were living in a polygamous marriage.

550    It is more likely than not that Ann Briggs (née Munro) came to Victoria with her family in approximately 1852. That finds support in the death register for the District of Violet Town, Victoria which records that Ellen Briggs, the daughter of “Ann Briggs, formerly Munrow” and “John Briggs, Shepherd” passed away aged 22 years on 4 January 1868 (Ellen Briggs’ death certificate). It records that Ellen was born on Preservation Island, Tasmania, and had been in Victoria for 16 years. Thus, working backwards from Ellen’s date of death, her date of birth in Tasmania was circa 1846 and she arrived in Victoria in circa 1852 (as a six-year-old): Ellen Briggs’ death certificate, extracted in Clark 2023, Appendix 20.

551    The marriage register for the District of Portland Bay, Victoria records that George Briggs (Ann and John Briggs’ second child) married a woman of Irish descent, near Ararat on 2 February 1869 (George Briggs’ marriage certificate). George’s mother’s name is, however, given as “Nancy Munro” rather than as Ann Munro or Ann Briggs: George Briggs’ marriage certificate, extracted in Clark 2023, Appendix 21.

552    R.B. Smythe’s 1878book, The Aborigines of Victoria, has the following footnote (at p 94):

John Briggs, a half-caste Tasmanian, who intermarried with a half-caste Australian, has had ten children of whom eight are now living – three boys and five girls. John Briggs was born in one of the islands in Bass’s Straits. His wife is the daughter of an Australian woman, who, with her sister, was taken to Tasmania at the time that Buckley was removed from Port Phillip to that colony….He says he was married in 1844.

: Extracted in Clark 2023, Appendix 27.

553    The Minutes of Evidence from the Coranderrk Inquiry on 29 September 1881 record that:

(a)    Reverend Phillip Strickland, the Superintendent at Coranderrk, gave evidence that the only surviving “full blood” members of “the distinct Yarra tribe” then living at Coranderrk were “William Barak and Ann Briggs”; and

(b)    Thomas Harris, the Overseer at Coranderrk, gave evidence that he did not “think” there were any women of the “original Yarra tribe” living at Coranderrk “except [for] Mrs Briggs”.

: Minutes of Evidence, extracted in Clark 2023, Appendix 22.

554    The 1885 report of the “Board for the Protection of Aborigines in the Colony of Victoria” records that Ann Briggs died at Coranderrk on 6 November 1884, aged 60 years (Ann Briggs’ death certificate). It describes Ann Briggs as “Black”, which term was used to distinguish a “full blood” Aboriginal from a “half-caste”: extracted in Clark 2023, Appendix 23.

555    On 7 December 1923 the grandly named Hobart newspaper, World, published a letter from Mr Theodore Beggs in which he wrote:

When I was a child, Williams Briggs, a half-caste Tasmanian aboriginal was shepherding on this place for my father. He had with him as his wife Mrs Briggs, whom I believed to be the same as the woman in the portrait, and my parents always said that she was a full-blooded Tasmanian aboriginal.

William Briggs had also another wife, whom my father said he had bought from the Victorian aboriginals. She was a full-blooded Victorian aboriginal… Old William Briggs left here with his wives and family when I was a small child, about the year 1864.

: Beggs’ December 1923 letter, extracted in Clark 2023, Appendix 24.

The letter states the name of the “half caste Tasmanian Aboriginal” as being William Briggs, but in subsequent correpondence Mr Beggs corrects that by naming him as John Briggs.

556    On 17 June 1938 Mr Beggs wrote to the noted anthropologist Tindale and confirmed and corrected some of the details in his published letter. He wrote that:

(a)    John Briggs was a “half-caste” Tasmanian Aboriginal who worked as a shepherd on his father’s property, Mt Cole Station, from approximately 1865 to 1866;

(b)    John was accompanied by his wife who was also a “half-caste” Tasmanian Aboriginal, and they had one son, George; and

(c)    John also had with him another wife who was “a pure Victorian aboriginal” whom he understood Briggs had “bought from a Victorian tribe”.

: Beggs’ June 1938 letter, extracted in Clark 2023, Appendix 25.

557    Tindale’s 1938 genealogies from Cumeragunja Aboriginal Station record Ann Briggs as an “fb.aust” (a “full blood” Aboriginal from mainland Australia), and as being one of John Briggs’ two wives, and Louisa Briggs “a half-caste from Tasmania” as John Briggs’ other wife. That provides strong support for the applicant’s claim that Ann Briggs and Louisa Briggs were in a polygamous marriage with John Briggs.

558    As I have said, in 1924 two Sydney University geography students, LD Hall and DR Taylor, interviewed Louisa Briggs at Cumeragunja Aboriginal Station, where she was then living. In an unpublished account of that interview, they wrote:

We had many interviews with “Old Grannie” as Louisa Briggs is affectionately known. …

Further conversations lead her to tell us that her mother’s name was Mary and her grandmother’s Marjorie. The latter was a full blood of Melbourne. In her girlhood Louisa was taken in a little sailing boat to Tasmania and lived ‘in the highlands’ there. She married a nephew of Truganini, (she remembers Truganini) named John Briggs… Louisa’s father was John Strugnell, a white man, and her mother a halfcaste. She returned from Tasmania to Melbourne when that city had ‘more than three houses, but was smaller than Cumeroogunja’ and the Exhibition Ground was all forest, which may have been about 1830 to 1837 which makes Louisa well over the century as she was at that time a married woman.

: Hall and Taylor interview.

They noted that Louisa Briggs had “light blue eyes”: Hall and Taylor interview, pp 25-27, cited in Barwick 1985, p 217.

8.4    The lay evidence

559    The lay evidence relied on by the applicant to support an inference as to the claimed Boonwurrung identity of Ann Briggs (née Munro) is scant in the extreme.

560    In her first affidavit Dr Briggs deposed only that:

Louisa Briggs and Ann Munro were Boonwurrung women who were in a traditional polygamous marriage with a Tasmanian Aboriginal man, John Briggs (circa 1820-1878)

She also deposed that John Briggs was the son of an English father and an Aboriginal mother from the Cape Portland area in north-eastern Tasmania. She said that Louisa Briggs’ mother Mary, and her maternal grandmother Majorie Munro, were both Boonwurrung women. Dr Briggs did not, however, state that Ann Munro was Marjorie’s daughter or the sister of Louisa Briggs’ mother. Indeed, she did not depose as to any basis for the claim that Ann Munro was a Boonwurrung woman.

561    In her oral testimony Dr Briggs said only that she was told by her mother that Ann Munro was “the aunty to Louisa and they came back [to Victoria] with John [Briggs]”, and that “Ann Munro and Louisa Briggs travelled around Victoria” after arriving from Tasmania.

562    The other Boonwurrung lay witnesses, Ms Muir, Ms Carmichael and Ms Anderson, made no mention of Ann Munro at all.

563    Ms Summers, a Bunurong elder who gave evidence for the Bunurong respondents, testified that she had not heard that Ann Munro was Marjorie Munro’s daughter, and that her daughter-in-law, a descendant of Marjorie Munro, told her that she had never heard of Ann Munro. She also said that her daughter-in-law’s parents had never spoken of Ann Munro, but certainly spoke of Marjorie Munro and her daughter Polly. There was no objection to the hearsay nature of that evidence, and I consider it attracts the operation of s 73(1)(d) of the Evidence Act and is prima facie admissible under that provision: see e.g., Yarmirr at 544E-F.

8.5    The expert evidence

8.5.1    Dr Clark

564    Dr Clark considered the historical records in relation to Ann Munro in his 2002, 2003 and 2023 reports.

Clark 2002

565    Dr Clark’s 2002 report was prepared for the Native Title Unit of the Victorian Department of Justice. His research for the report was comprehensive, and he considered the salient primary and secondary materials in relation to Marjorie Munro and Ann Munro.

566    In the abstract for the 2002 report Dr Clark said:

In relation to Margery Munro, it has only been possible to identify some of her descendants as Boonwurrung. These include the descendants of only one of her two daughters, that being Polly Bligh. Her son Robert Munro did not have any children. The descendants of her other daughter, Ann Briggs (née Munro) are identified as Woiwurrung descendants for reasons explained in the report.

567    Dr Clark’s reasoning proceeded on the basis (which I accept) that in the early 1800s many Aboriginal girls and women were abducted from Port Phillip Bay and Western Port Bay and taken away to various places. He listed 20 Aboriginal people (one male, and 19 females) who were either claimed to be or known to be abductees from Port Phillip Bay and Western Port Bay, and he went through the historical records in relation to each of them.

568    In relation to Ann Briggs (née Munro) Dr Clark’s opinions include the following:

(a)    Robinson’s journal shows that Robinson visited James Munro's home on Preservation Island on 9 January 1837 and observed that the Aboriginal family with Munro comprised a New Holland woman identified as a native of Port Phillip, her 14-year-old daughter also a native of Port Phillip, and a “half-caste” infant boy belonging to the woman. Barwick considered the 14-year-old girl with James Munro’s partner to be Ann, later John Briggs’ first wife.

(b)    Ann Briggs died on 6 November 1884 at Coranderrk. Her death certificate records that she was a “black” (i.e., “full-blood” Aboriginal) and age 60, which suggests her year of birth was circa 1824. But on her unnamed daughter’s birth certificate in 1868, Ann’s age is listed as being 40, which suggests her year of birth was circa 1828. The birth registration record gives her place of birth as Melbourne.

(c)    It is curious that the names Ann Munro or Ann Briggs do not appear anywhere in the Bass Strait genealogies such as those of Tindale 1953 and Mollison and Everitt 1978, but that may be explained by the fact that she migrated to Victoria with her family in early 1852.

(d)    Lesley Alves, a historian, opined in a 2002 report titled Historical analysis of the Boonerwrung People & Assessment of Connection Report (Alves 2002) (at p 28) that the identity of Ann Briggs was problematic. Alves said:

There is no direct evidence that she was Louisa's aunt by blood relation, yet for Barwick this was critical in establishing Louisa's credentials amongst the Woiworung leaders at Coranderrk. It is the job of the anthropologists to unravel the question of patrilineal descent through two generations on the maternal side, to establish whether Louisa and her descendants could claim to speak for Boonerwrung.

Alves concluded that “with such scant evidence available, Ann's relationship to Louisa remains in the realms of uncertainty”: Alves 2002, p 23. Dr Clark, however, took the view that Alves was writing without the knowledge of the clues that Dr Clark had uncovered.

(e)    The further clues Dr Clark had uncovered were some previously unknown birth and death records relevant to Ann Munro. Those records indicate that John Briggs, Ann Briggs (née Munro) and Louisa Briggs (née Strugnell) lived in a polygamous marriage and that they all migrated to Victoria with their children in approximately 1852. He relied on the following matters for that conclusion:

(i)    Ann Briggs’ unnamed daughter’s birth certificate records Ann Munro’s marriage to John Briggs in 1844, in Tasmania.

(ii)    Ann was John Briggs’ first wife, and in 1851 he took a second wife, Louisa Strugnell.

(iii)    John then lived in a polygamous marriage with both women. Ann and John had two children in Tasmania, Ellen, born in 1846 on Preservation Island, and George born in 1847. Dr Clark cited Murray-Smith, S, ‘Bass Strait: Discovery and Exploration’ in Murray-Smith, S, (ed) Bass Strait Australia’s Last Frontier (Australian Broadcasting Corporation, Sydney) (at p 26) for the proposition that “polygamy was tolerated” amongst the Aboriginal people of Tasmania, and Robinson’s journals to support the proposition that it was very common in Victoria.

(iv)    Ellen died near Violet Town in Victoria on 4 January 1868. Her death certificate shows that Ellen had been in Victoria for 16 years and that she came across to Victoria in 1852, with her father John Briggs, his wives, and her brother, George Briggs.

(v)    Anne’s son, George Briggs was also in Victoria at that time. He married near Ararat on 2 February 1869: George Briggs’ marriage certificate.

(vi)    Ann and John Briggs’ had a daughter in Victoria on 20 May 1868, and the birth was witnessed by Louisa Briggs: Ann Briggs’ unnamed daughter’s birth certificate. That confirms that Ann Briggs was in Victoria at that time, and that it is probable that Ann accompanied John and Louisa Briggs, Sam Bligh, her daughter Ellen and her son George to Victoria in 1852.

(f)    Harris’ evidence at the 1881 Coranderrk Inquiry shows that Ann Briggs was at Coranderrk at that time. The “Mrs Briggs” referred to in that evidence could not have been Louisa Briggs as she was not at Coranderrk in 1881; instead, being at Ebenezer Aboriginal Station.

569    The new information discovered by Dr Clark included that Ann Briggs’ unnamed daughter’s birth certificate and Ellen Briggs’ death certificate record Ann Briggs’ maiden name as “Ann Munrow”. Dr Clark considered that the fact that the historical records show Ann Briggs’ maiden name as “Ann Munrow” (or “Nancy Munro” in the George Briggs’ marriage certificate) was “…the strongest evidence we have that she was one of the two daughters of Margery Munro, and the daughter that Robinson met living with her mother on Preservation Island in 1837.”

570    In relation to Marjorie Munro and Ann Munro, Dr Clark opined:

It has been argued that Margery Munro is Boonwurrung on three grounds: her daughter Ann Munro was identified as a 'fullblood' survivor of the Woiwurrung, meaning that Ann's father, Margery's husband, had to be Woiwurrung. The other grounds are two pieces of evidence that describe her as a 'native of Western Port', and as a woman brought from Western Port. Margery Munro's two daughters who were abducted with her at the same time, were Ann Munro (later Ann Briggs) who is Woiwurrung, and Polly Munro (Polly Bligh), who it is argued here must have been a 'half-caste' and was thus Boonwurrung through her 'mother's country'. If Polly is a 'full-blood', then like Ann, she would be Woiwurrung.

(Emphasis added.)

571    Dr Clark there opined that:

(a)    Marjorie had two daughters, Ann and Polly;

(b)    Ann and Polly were abducted together, in the same abduction as Marjorie;

(c)    Ann was identified in the Coranderrk Inquiry as a “full blood” survivor of the “yarra tribe” meaning the Woiwurrung group, which means that her father must have been Woiwurrung, and Ann was therefore Woiwurrung by patrilineal descent; and

(d)    Polly Munro (later Polly Bligh) “must” have been a “half-caste”. As a woman with a non-Indigenous father, she was a Boonwurrung woman by descent from her mother Marjorie.

572    In the course of his consideration in relation to the claimed Boonwurrung identity of Louisa Briggs, Dr Clark also provided opinions in relation to Ann Munro, some of which critique the conclusions of Dr Barwick in Barwick 1985.

573    In relation to the 1924 Hall and Taylor interview with Louisa Briggs, Dr Clark noted that it records Louisa as saying that in her girlhood she was “taken in a sailing boat to Tasmania and lived ‘in the highlands’ there”. He opined that Louisa was deaf by that point of her life and considered it possible that she was misheard to say “highlands” when in fact she said, “islands”. He seemed to concur with the assessment in Alves 2002 (at p 18) that Louisa Briggs’ recollection about the grass huts Louisa described on the islands accorded with Robinson’s observation that Preservation Island had no trees: Plomley, pp 220-221.

574    The primary difficulty Dr Clark saw with Louisa’s account in the Hall and Taylor interview is that she claimed that in her girlhood she was taken in a boat from Victoria to the islands of Tasmania, which did not accord with his opinion that she was born on the Bass Strait islands rather than abducted and taken there. Having regard to Louisa’s mistaken assertion that she was about 50 years of age (when she was actually circa 90 years old) he said that she was likely to have been suffering some memory loss given her advanced age.

575    Dr Clark opined that, as Robinson’s 1837journal entries do not name Marjorie’s two daughters, there are several possible ways to identify which of Marjorie’s daughters was living with Strugnell, and thus who Louisa’s mother was. He concluded that there is evidence pointing both ways and noted the following matters:

(a)    in the Hall and Taylor interview Louisa Briggs identified her mother as a “half-caste” named Mary;

(b)    Polly (Poll) and Molly (Moll) were various pet-forms, alterations, and diminutives, of the forename “Mary”. He opined that there is “no doubting” that Polly is the usual diminutive for Mary;

(c)    Bass Strait Islander Morgan Mansell, whose mother was Eliza Bligh’s daughter, told Mollison and Everitt that “my mother said Harry Strugnell, and Eliza Bligh was [sic] brother and sister, or half sister.” He opined that this statement by a descendant of Eliza Bligh’s was confirmation that Polly Bligh was Harry Strugnell’s mother, and that at least one branch of the Bligh family accepts a direct relationship with the Briggs’ family;

(d)    one of Louisa's daughters was called Polly in the 1924 genealogy, and was called Mary in her mother's 1925 death certificate, and was known by both names from childhood (Barwick 1985); and

(e)    it was “incontrovertible” that Louisa Briggs could not have been the daughter of a “full blood” Aboriginal as Hall and Taylor record her eye colour as “light blue” (Barwick 1985, p 217). He said that a person with blue eyes must have inherited the recessive gene from both parents, and to transmit that trait Louisa's mother must have had a European parent bearing it. Thus, Mary (Polly) must have been a “half-caste” as Louisa said to Hall and Taylor. Louisa’s eye colour, and the fact that Ann was a “full blood” Aboriginal, meant that Ann could not be Louisa’s mother.

576    Dr Clark concluded that, of Marjorie Munro’s two daughters living in 1837, only Polly Munro (who he opined was also known as Mary) could have been Louisa’s mother, and Ann Munro could not have been. He said:

Despite the protestations of some of the descendants of Eliza and Emma Bligh that they have no family tradition of Polly ever being referred to as 'Mary', this has to be balanced against the fact that there is a Bligh family history (as stated by Morgan Mansell) that Polly Bligh was the mother of Harry Strugnell, Louisa's brother. Polly and Mary are the same name, and the forename Mary is affectionately altered to become Polly or Poll. Why this practice of using Mary and Polly interchangeably would continue to be an important part of Louisa's family and not those of her half-sisters Eliza and Emma Bligh cannot be easily explained. James Munro, Margery's companion on Preservation Island, is reputed to have been distinguished by his 'crack-jaw dictionary words' (Bonwick in Murray-Smith 1979: 68), and it may be that his· command of the English language accounts for the use of Polly as a diminutive of Mary.

The incontrovertible evidence that confirms that Polly is Louisa's mother is the fact that Louisa's mother had to be a 'half-caste' woman who was able to transmit the recessive gene that causes blue eye colour. Polly was a half-caste daughter of Margery; whereas Ann Munro was a fullblood daughter, so of the two siblings, only Polly could have been Louisa's and Harry Strugnell's mother.

577    In relation to Wilson’s 1856 letter to Bishop Nixon, Dr Clark noted that Wilson made the following observations about the Western Port Aboriginal woman and her family:

(a)    she was a native of Western Port, Victoria;

(b)    she was brought over by a sealer named Munro 30 years ago;

(c)    she had cohabited with Munro;

(d)    she had been living on Kings and other islands for 30 years;

(e)    she had a son, Robert Munro;

(f)    her daughter Pol, was born on Kings Island; and

(g)    Pol had two daughters, age eight and 10, natives of Tasmania, to a white man who left soon after their birth, and they have never seen him since.

578    Dr Clark was “certain” that the old Western Port woman referred to by Wilson was Marjorie Munro, and said that it can be reconstructed from Wilson’s letter that Marjorie was abducted in approximately 1826 by Jimmy Munro, with whom she lived and had two children, Pol and Robert Munro, and that Pol’s two daughters were born circa 1846 and circa 1848. He said that the Pol in Wilson’s letter is “obviously” Polly Bligh, who had two daughters with Sam Bligh, who then deserted his family to go to the Victorian goldfields in the early 1850s.

579    Dr Clark, however, noted several difficulties in relation to the inferences that could be drawn from Wilson’s letters, namely:

(a)    Wilson’s letter implied that Marjorie had lived continuously with Jimmy Munro since her abduction in circa 1826, yet when Quakers James Backhouse and George Walker, met Munro on Preservation Island in 1832 they noted that he had lived there since 1820, and that he was at that time, accompanied by an Aboriginal woman named Jumbo. In Friendly Mission, Plomley (at p 995) identified Jumbo as Drum-mer-ner-loon-ner, a Tasmanian Aboriginal woman from Little Swanport. Dr Clark accepted that the fact that James Munro was with Jumbo in 1832, rather than Marjorie challenges the inference that Marjorie lived with James Munro following her abduction in circa 1826;

(b)    in 1856 Wilson wrote that Marjorie had two children, Pol and Robert, whereas Robinson referred to her having three children (two daughters and a newborn son) at the time of his January 1837 visit to Preservation Island;

(c)    according to Wilson’s letter, Marjorie had one daughter Pol. That is contrary to Robinson's January 1837 account in which he said that the woman accompanying James Munro had two daughters, a 16-year-old daughter living with Strugnell who had had two children with him, and a 14-year-old daughter that Marjorie gave birth to in “her own country”. Dr Clark opined that both of the teenage girls must have been born before 1826, the supposed year of Marjorie’s abduction according to Wilson; and

(d)    Wilson’s letter is clear that Marjorie was abducted by Munro, but Munro told Robinson in January 1837 that Meredith had abducted her. Dr Clark said that Wilson's view was endorsed by “Mrs Briggs” (said to be Ann Briggs) who told Pasco at Coranderrk in circa 1882 that Munro had abducted her and her mother. He noted that Mollison and Everitt, opined that both Meredith and Munro were likely to have been responsible for Marjorie and Ann’s abduction.

580    Dr Clark summarised his view in relation to Wilson’s 1856 letter as follows:

Wilson's letter provides us with some useful information. It confirms that in 1856, Margery Munro was living in the Straits with her son, Robert Munro, and her daughter Polly Bligh and Polly's two daughters, Eliza and Emma. Wilson provides us with the earliest year of abduction of Margery, that of 1826, yet the best reconstruction suggests her daughter Polly was born before 1826, thus contradicting his claim. He contends that Margery was abducted by Munro, yet this contradicts Munro's words to Robinson in 1837 that his Port Phillip companion had been abducted by George Meredith. Wilson would also seem to be wrong in terms of a birthplace for Polly.

581    In relation to the passage in R.B. Smythe’s 1878 book, Dr Clark opined that whether John Briggs’ wife in this account is taken to be Ann Briggs (née Munro) or Louisa Briggs (née Strugnell) there are “irregularities” which make inferences difficult. He considered it appropriate to understand Smythe’s account as referring to both Ann Briggs and Louisa Briggs. He said that the informant seemed to be speaking about John Briggs’ children with both Ann and Louisa as one family, yet failed to include all of his children with both wives and did not mention that he was married to two women. Dr Clark also considered the year that Smythe said that the Aboriginal woman (inferred to be Marjorie) and her sister were abducted and taken to Tasmania (being when William Buckley was removed from Port Phillip to Tasmania, which took place in 1837) to be problematic because by January 1837 Polly Munro had had two children to John Strugnell so she must have been taken to Tasmania earlier than that. He noted Wilson’s 1856 letter stating that Marjorie was kidnapped in circa 1826.

582    In relation to Capt. Pasco’s 1896 account in A Roving Commission, Dr Clark considered there to be some confusion as to which “Mrs Briggs” he was referring to in his recollection of seeing a “little girl” on Preservation Island in 1842, and at Coranderrk 40 years later. He said that both Ann Briggs and Louisa Briggs were at Coranderrk when Pasco visited there.

583    In relation to the possibility that Pasco was referring to Louisa Briggs, Dr Clark noted that Robinson’s January 1837 journal entry records that the “Port Phillip” Aboriginal woman accompanying James Munro (whom Dr Clark opined was Marjorie Munro) had a 16-year-old daughter living with John Strugnell on Gun Carriage Island who had two children with him. He said that John Strugnell was only on the Bass Strait islands for a few years, probably from 1833 until late 1837 (Plomley, pp 478, 972). He also noted that Barwick and Alves considered that once Strugnell left the islands, his wife and her two children relocated to Preservation Island to live with Marjorie Munro, Louisa's grandmother. That would mean that when Capt. Pasco visited the island in 1842, young Louisa (who was born on 14 November 1836) would have been five years old, thus matching Pasco’s description of meeting a “little girl” on Preservation Island.

584    However, Dr Clark saw several difficulties with drawing the inference that the woman Pasco met was Louisa:

(a)    first, Louisa was only 48 years old in 1884 when Pasco visited Coranderrk in 1884, which did not match Pasco’s description of meeting an “old grandmother”;

(b)    second, in the meeting at Coranderrk Aboriginal Station in 1884 Mrs Briggs gave an account of being abducted with her mother from near Point Nepean by Jimmy Munro. Louisa Briggs was not, however, abducted. She was born in Tasmania on 14 November 1836. Dr Clark noted that Alves 2002 (at p 22) took the view that Louisa may have fabricated that account to receive assistance from the Victorian Government; and

(c)    third, Pasco observed that when he met James Munro on Preservation Island in 1842 he had with him his Aboriginal female partner “but no family of his own. She had one little girl, whom he had brought with the mother”. That is, the little girl had been abducted with the woman Dr Clark inferred to be Marjorie Munro; whereas Louisa was born in Tasmania.

Dr Clark described the “major difficulty” with drawing the inference that the woman Pasco met was Louisa Briggs to be the claim that she was abducted from near Point Nepean by Jimmy Munro and taken to the Bass strait islands.

585    In relation to the possibility that Pasco was referring to Ann Briggs, Dr Clark opined that the “major difficulty” was that she is believed to have been born in 1823/1824 or 1828, which would make her 14, 18 or 19 years of age in 1842, which does not match Pasco’s description of meeting a “little girl” on Preservation Island at that time. Ann Briggs would though have been around 60 years of age in 1882, which is closer to Pasco’s description of meeting an “old grandmother” at Coranderrk.

586    Dr Clark concluded that it was more likely that Pasco met with Ann Briggs at Coranderrk as Louisa Briggs was born in Tasmania, rather than having been abducted and taken there. He said that while Pasco’s recollection that Ann Briggs was a “little girl” in 1842 was problematic, given Pasco was ignorant of Jimmy Munro’s child, Robert Munro, some qualification must be given to his memory and his knowledge of the Munro family.

587    Dr Clark noted that Tindale and Birdsell visited Cape Barren Island in 1937-1939, and revisited in 1949, and visited Cumeragunja Aboriginal Station in May 1938. Tindale’s 1953 genealogy in relation to John Briggs states the following:

BRIGGS, JOHN, Fl Tas, b. [blank] age [blank] f. George Briggs m. Tasmanian full blood. Marr. 1844 to Fl Aus, name not recorded. Had ten children; descendants are in Victoria.

“F1” means “half-caste”. That records that John Briggs married an unnamed “half-caste” mainland Australian Aboriginal woman, and their descendants then lived in Victoria.

Clark 2003

588    Dr Clark’s 2003 report is supplementary to Clark 2002. It addressed some additional information provided by the BLC and the Victorian Boonerwrung Elders Land Council Aboriginal Corporation, which Dr Clark said had forced him to a “major rethink” in terms of the relationships between Marjorie Munro, Ann Munro, Polly Bligh and Louisa Strugnell.

589    In this report Dr Clark moved away from his view that Ann Briggs (née Munro) was the 14-year-old daughter of the “Port Phillip” Aboriginal woman Robinson saw accompanying James Munro in January 1837. He opined that there is “little doubt” that that woman was Marjorie Munro and that it is “not contested” that the infant child was Robert Munro, born in either 1835 or 1836. But he said there was “confusion” around the identity of Marjorie’s two daughters, being the 14-year-old daughter Robinson observed and the 16-year-old daughter who Robinson was told was living with James Strugnell on Gun Carriage Island and had had two children with him.

590    Dr Clark noted that Barwick had resolved that confusion by concluding that Marjorie Munro’s 14-year-old daughter was known as Ann, and her 16-year-old daughter was known as Polly. According to Barwick, Polly married Strugnell and had two children, Louisa and Harry, while living with him on Gun Carriage Island. Later, she married Sam Bligh and had Emma and Eliza with him. Barwick argued that the woman who Louisa Briggs identified to Hall and Taylor in 1924 as her mother, Mary, was actually Polly, who must also have been known as Mary.

591    Dr Clark expressed several difficulties with that theory, including that:

(a)    while there is “no doubting” that Polly is a variant of Molly and that Molly is a pet form of Mary, the problem with the Barwick’s Mary/Polly naming is that:

(i)    apart from the family of Louisa Briggs, there is no history of the use of Mary as a variant of Polly within the Bass Strait Islander community;

(ii)    the families of Polly Bligh’s daughters, Emma Bligh and Eliza, do not have a history that she was also known as Mary; and

(iii)    it is not possible to find usage of the alternative name Mary in any of the 19th century records that concern Polly Bligh;

(b)    in the Hall and Taylor interview Louisa said that her mother Mary was a “half-caste”, and Hall and Taylor record that Louisa had light blue eyes. For Louisa to have light blue eyes she had to have inherited that recessive gene from both parents, such that her mother had to have been a “half-caste”. While in 1837 Robinson was not told the ancestry of the 16-year-old daughter cohabiting with Strugnell, Tindale’s genealogies in 1939 and 1953 record that he was told by Polly’s granddaughter that Polly was a “full blood”; and

(c)    Barwick opined that Marjorie’s 14-year-old daughter was Ann, and therefore the 16-year-old daughter with Strugnell must be Polly. For Polly to have been Louisa’s mother, she must have been a “half-caste” and (according to Barwick) the sources that describe her as being a “full blood” are wrong.

592    Dr Clark rejected Barwick’s reasoning, and said she had “assumed” that Ann was Marjorie’s daughter, and that Polly was the daughter who married Strugnell and had two children with him. In Dr Clark’s opinion another “more plausible” scenario was that Polly was the 14-year-old daughter Robinson saw living with Marjorie in 1837, that another daughter was living with Strugnell, and that Ann Munro was not Marjorie Munro’s daughter.

593    Thus, Dr Clark changed his 2002 opinion in relation to Ann Briggs (née Munro) and concluded that the evidence is insufficient to infer that she was Marjorie Munro’s daughter. He opined:

The early history of Ann Munro (Munrow) is problematic, as stated by Alves (2002). She was born in either 1824 or 1828 in what became known as Melbourne. There is no direct evidence that Ann was Louisa's aunt by blood relation, and there is agreement with Alves, that 'Ann's relationship to Louisa remains in the realms of uncertainty'. Presumably, Ann was one of ·the Kulin children abducted by sealers from Western Port Bay or Port Phillip Bay in the 1830s. She may have become part of James Munro's household and raised by Margery Munro, which may account for the adoption of Munrow as her surname. This may also explain how she came to be the first wife of John Briggs, another who was part of the Munro household.

Clark 2023

594    Dr Clark prepared his 2023 report for the applicant for use in this proceeding. The report is thorough and he considered all the salient primary and secondary materials in relation to Ann Munro.

595    He commenced his report by expressing the following conclusion:

In my assessment, Ann Briggs is a Woiwurrung woman, whose father was Woiwurrung, and whose mother (Marjorie Munro) was Boonwurrung. This is confirmed by testimony at the Coranderrk Inquiry of 1881; details of her death in Board for the Protection of Aborigines records (BPA 1885); Beggs family correspondence (1923; 1938); and Tindale’s 1938 genealogy.

596    There, Dr Clark reversed the opinion he expressed in Clark 2003 and returned to his 2002 opinion that Ann Briggs (née Munro) was Marjorie Munro’s daughter. He opined that Ann Briggs (née Munro) was Woiwurrung by patrilineal descent rather than Boonwurrung.

597    Dr Clark tabulated the following primary sources in which Ann Munro is named, and in most cases attached a copy or an extract of the relevant document. He relied upon essentially the same source documents as for his 2002 and 2003 opinions.

598    Dr Clark opined that those historical records show the following:

(a)    Ann Munro married John Briggs in 1844 and they had two children together in Tasmania;

(b)    John Briggs took a second wife, Louisa Strugnell, Ann’s niece, in 1851;

(c)    in 1852, John Briggs, his wife Ann and their two children, and his second wife Louisa, along with Sam Bligh (Ann’s brother-in-law and Louisa’s step-father) left the Bass Strait islands for the Victorian goldfields;

(d)    Ellen Briggs’ death certificate (1868), and Ann Brigg’s unnamed daughter’s birth certificate (1868), as well as the correspondence from Mr Beggs (1923; 1938), confirm that Ann was in Victoria with John Briggs from 1852; and

(e)    testimony at the Coranderrk Inquiry evidence shows that Ann Briggs was a “full blood” Aboriginal of the “Yarra Tribe”, as both the manager Strickland and the overseer Harris testified that the only “full blood” survivors of the “Yarra tribe” on the station were William Barak and Ann Briggs.

599    Dr Clark then tabulated the following primary sources which he considered can be reasonably inferred to relate to Ann Munro:

600    Dr Clark did not clearly express the reasoning behind his opinion that Ann Munro was Marjorie Munro’s 14-year-old “full blood” daughter, whom Robinson saw accompanying her mother and James Munro on Preservation Island in January1837. Dr Clark’s various conclusions can though be seen in the Clark 2023 genealogy, reproduced below.

The BW Joint Experts’ Report

601    Proposition 18 in the BW Joint Experts’ Conference requested Dr Clark, Mr Wood, Dr Pilbrow and Dr D’Arcy to opine on the following statement:

It is more probable than not that, at effective sovereignty, the woman known as Ann Munrow was a member of the group comprising Boonwurrung people who, at sovereignty, held rights and interests in accordance with their traditional customs in, or in any part of, the land and waters now covered by the Boonwurrung native title claim.

602    None of the experts agreed with that proposition, but they took that position for different reasons.

603    Dr Clark expressed the following opinion on Proposition 18:

Disagree on the basis that in my assessment Ann Briggs is a Woiwurrung woman, whose father was Woiwurrung, and whose mother (Marjorie Munro) was Boonwurrung. This is confirmed by testimony at the Coranderrk Inquiry of 1881; details of her death in Board for the Protection of Aborigines records (BPA 1885); Beggs family correspondence (1923; 1938); and Tindale’s 1938 genealogy.

The birth certificate of her unnamed daughter states her birthplace as Melbourne. Louisa Briggs is listed as the witness.

Dr Clark’s oral testimony

604    Dr Clark was cross-examined by Ms Sheehan, counsel for the Wurundjeri respondents, by way of questions centrally directed at showing that Dr Clark was wrong in opining that Ann Munro was Woiwurrung by patrilineal descent.

605    Dr Clark accepted that Barwick’s 1985 article about Louisa Briggs was very much “a work in progress”. He agreed that Barwick’s work was “pioneering”, with a qualification that some of her work was “quite flawed”, and that because she died young she did not have the opportunity to go back and conduct further research. He also agree that Barwick “placed certain signposts around what should and should not be relied upon”.

606    Dr Clark disagreed with some of Barwick’s opinions, including that:

(a)    Barwick did not appreciate that Ann Briggs was living in a polygamous relationship with John Briggs and Louisa Briggs from 1852 when the Briggs family came to Victoria from Tasmania, until 1871 when they moved to Coranderrk, including at Mt Cole station (as referred to by Mr Beggs);

(b)    Barwick was wrong in referring to Ann Briggs as being a “newcomer” to Coranderrk in 1881, as by then she had been there for a number of years;

(c)    Barwick was incorrect in stating that Ann Briggs’ arrival at Coranderrk was a result of John Briggs’ request for a fare to travel to Tasmania in September 1877; and

(d)    it was not possible to identify Marjorie Munro by reference to the names of the abducted Aboriginal women found in historical records, as Barwick had.

607    Dr Clark accepted that his identification of Ann Briggs as having been a Woiwurrung woman was based in the testimony of Strickland and Harris before the 1881 Coranderrk Inquiry, who testified that William Barak and Ann Briggs were the only two “full blood” members of the “distinct” or “original Yarra tribe” living at Coranderrk Aboriginal Station at that time. Dr Clark also considered it significant that when Ann Briggs was suffering from an eye condition and was sent from Coranderrk by train to Melbourne for treatment, she was met at the train station by William Barak, who was a clan leader of the Woiwurrung group.

608    Ms Sheehan took Dr Clark to Barwick’s view that:

The subsequent identification of Ann Briggs with the ‘Yarra tribe’ to which Barak belonged is indirect evidence that her mother belonged to the Wurundjeriballuk clan of Woiworung, and was of the appropriate moiety to marry Eurer-nowel of the Bunurong clan whose territory became the coastal suburbs of Melbourne.

He accepted that the only historical record Barwick relied upon to identify Ann Briggs as belonging to the Woiwurrung was the testimony of Strickland and Harris.

609    Ms Sheehan then took Dr Clark to his 2023 genealogy, and asked him to explain how Marjorie Munro could have given birth to Polly (claimed to also have been known as “Mary”) in 1821 on King Island, and yet have given birth to Ann while still living around Melbourne in 1822. In response, Dr Clark accepted that that was a “difficulty”, but he said that the dates of birth cannot be seen as “ironclad” and there is some flexibility about them.

610    He said that Marjorie Munro was “certainly” the mother of both Ann and Polly (also claimed to be “Mary”). He recognised that Robinson’s account of his meeting with (the woman he inferred to be) Marjorie Munro in 1837 gave a different birthplace to Polly than Wilson’s 1856 letter, which refers to Polly having been born on King Island.”

8.5.2    Mr Wood

611    As I have said, Mr Wood prepared his 2023 report at the request of the applicant for use in this proceeding. As I have said, his report was not directed to the claimed Boonwurrung status of the named women and did not include any opinions in that regard, except in relation to “mutual recognition”. Then, in the two weeks before the BW Joint Experts’ Conference Mr Wood was asked by the solicitors for the applicant to read the other experts’ reports and to provide opinions regarding the claimed Boonwurrung status of the named women. Notwithstanding that he was not briefed on the issue, Mr Wood offered some opinions in relation to Ann Munro’s group identity.

612    In the BW Joint Experts’ Report Mr Wood said the following in relation to Ann Munro:

Not briefed but I do note that the repeated references assigning her to the Yarra [tribe] and to the same group as William Barak as set out in Clark 2023 suggests this was her own group identification in her lifetime. I doubt this would have been repeated in Coranderrk records if it wasn’t based on her own self-identification.

Thus Mr Wood supported Dr Clark’s opinion that Ann Munro was a Woiwurrung woman by patrilineal descent.

613    In his oral testimony, Mr Wood said little about Ann Munro except by testifying that the testimony of Strickland and Harris at the Coranderrk Inquiry showed that William Barak, a Woiwurrung leader, had “claimed” Ann Munro as a member of the “Yarra tribe”. In his view William Barak must have said something that led Strickland and Harris to give evidence that William Barak and Ann Briggs were the only two “full blood” members of the Yarra tribe living at Coranderrk. He said that it was unlikely that Barak would have said that Ann Munro belonged to the Yarra tribe unless she actually did belong to that group.

614    In circumstances where Mr Wood did not conduct independent research in relation to Ann Munro, and where he seemed to do little more than take up Dr Clark’s opinions regarding Ann Munro, I concluded that I should give no weight to his evidence on this issue.

8.5.3    Dr Pilbrow

Pilbrow 2023

615    Dr Pilbrow’s 2023 report is thorough and shows that he considered all the salient primary and secondary materials in relation to Ann Munro.

616    He considered essentially the same primary and secondary source materials as Dr Clark. I have previously discussed the information contained in that material and I will not reiterate it in detail. The source materials Dr Pilbrow relied on include the following:

(a)    the birth and death records in which the name “Ann Munrow” appears as the maiden name of Ann Briggs, being the records for her children;

(b)    historical records that indicate that Ann Briggs and Louisa Briggs were in a polygamous marriage with John Briggs, and witnessed the birth records for each other’s children;

(c)    RB Smythe’s account in The Aborigines of Victoria, (said by Dr Pilbrow to be information relayed from John Green, the Superintendent at Coranderrk) that John Briggs’ wife whom he married in 1844 was a “half-caste” Aboriginal, the “daughter of an Australian woman”;

(d)    the testimony of Strickland and Harris at the 1881 Coranderrk Inquiry that William Barak and Ann Briggs were the only two surviving “full blood” members of the “Yarra tribe” living at Coranderrk;

(e)    Ann Briggs’ death certificate, which records her death at Coranderrk on 6 November 1884, and describes her as 60 years old and “Black” (i.e., not a “half-caste”);

(f)    “Mrs Briggs” account to Capt. Pasco, when they met again in circa 1882, that she and her mother were “carried off” by Jimmy Munro from near Point Nepean at the entrance of Port Phillip;

(g)    Tindale’s 1938 genealogy compiled at Cumeragunja which describes Ann Briggs as a “full blood” Australian Aboriginal;

(h)    Tindale’s 1953 genealogy regarding John Briggs’ ancestry in Growth of a People in which he records John Briggs as having only one spouse, who is not named;

(i)    Mollison and Everitt’s 1978 genealogies in relation to the Briggs family, which do not mention Ann Briggs; and

(j)    the genealogies compiled by Alick Jackomos regarding the Briggs family, which do not mention Ann Briggs: Jackomos, A, Edwards Family, Genealogies of Aboriginal families from Cummeragunga and Moonaculla now living in Goulburn Valley and Murray River towns including Shepparton, Echuca, Swan Hill and Deniliquin and Descendants now living in Melbourne and some ex-Coranderrk Families (1987), Appendix 2, Items 15 and 16 cited in Pilbrow 2023, p 99.

617    In relation to Capt. Pasco’s account of his meeting with “Mrs Briggs” at Coranderrk in circa 1882, Dr Pilbrow considered it to be more likely than not that Pasco met with Ann Briggs rather than Louisa Briggs, because Louisa was born in Tasmania and not abducted and taken there. That is, he took the same view as Dr Clark.

618    In relation to the relevant passage in RB Smythe’s book, Dr Pilbrow noted that Smythe merely relayed that John Briggs’ wife was taken to Tasmania with her mother and sister at the time of William Buckley’s removal from Victoria (1837), and that Tindale relayed the same information in 1953 and observed that her abduction must have occurred after 1835. He noted that Smythe made no further mention of either Ann Munro’s mother (claimed to be Marjorie Munro) or her sister, and that in her recollection of events to Pasco, Ann Briggs did not mention having a sister who was abducted with her. Dr Pilbrow also opined that, if the information relayed by RB Smythe was accurate, then Ann Munro’s abduction was later than the Meredith abduction, which took place in 1834.

619    Dr Pilbrow said that, notwithstanding its deficiencies, he was satisfied that RB Smythe’s account referred to Ann Briggs, essentially because it correctly stated the date of John Briggs and Ann’s marriage as 1844. He considered that to support the conclusion that it was Ann Briggs who met Pasco at Coranderrk Aboriginal Station in circa 1882, and told her own abduction story. In relation to RB Smythe’s statement that Ann Briggs was a “half-caste”, he noted that Smythe does not give a basis for that conclusion; that Ann Briggs’ death certificate records her as “Black” as opposed to a “half-caste”; and that Tindale’s genealogies record her as a “full blood”.

620    Dr Pilbrow accepted that the evidence shows that Ann Briggs spent many years as an adult in Victoria, as can be seen from birth and death records which show that she gave birth to an unnamed daughter in Victoria in 1868; that her daughter Ellen died in Victoria in 1868 at age 22 and that her daughter had been in Victoria for 16 years at that point. He accepted that that indicates that the Briggs family moved to Victoria in around 1852.

621    He noted the historical records that describe Ann Munro as a “full blood” Aboriginal, and Strickland and Harris’ testimony at the Coranderrk Inquiry that she was the only female member of the “Yarra tribe” living at Coranderrk at that time. In his view the Minutes of Evidence from that Inquiry show that there was considerable interest in clarifying whether the residents at Coranderrk were from the Melbourne district (i.e., local) or from other districts, and there is no mention in the evidence of the Bunurong, Boonwurrung, Coast tribe, Western Port tribe or Port Phillip tribe. He considered the references to the “Yarra tribe” to refer to people from the Melbourne area, as the contrast appeared to be between “local” Aboriginal people and those from more distant districts. But he accepted the possibility that Ann Munro’s description as being of the “Yarra tribe” may connote that she was a member of the Woiwurrung group.

622    Dr Pilbrow accepted that Ann Munro’s surname suggested an association with James Munro’s household on Preservation Island, and noted that Ann’s first child, Ellen, was born on that island. But he also said that James Munro had liaisons with various Aboriginal women, and there are no historical documents which shed direct light on whether Ann Munro was Marjorie’s daughter.

623    In relation to Barwick’s opinion that Ann Briggs was one of Marjorie’s daughters and that the other daughter was Louisa Briggs’ mother, Dr Pilbrow said that in order to reach that conclusion Barwick had to assume that Louisa’s mother (who Louisa identified to Hall and Taylor as Mary) was also known as Polly, and that Polly (aka Mary) had two children with Strugnell, and later had two children with Samuel Bligh. In his opinion there is no historical information to support the assumption that Polly and Mary were the same person.

624    Dr Pilbrow concluded that there is no early record suggesting that Marjorie Munro was Ann Munro’s mother. Moreover, in his view Marjorie Munro was abducted earlier and is therefore unlikely to be the same woman as Ann Muno’s mother who, on Ann Briggs née Munro’s account to Pasco, was abducted with her.

625    He concluded that all that can be drawn from the source materials in relation to Ann Briggs (née Munro) is that she was an Aboriginal woman from the area now known as Melbourne, born circa 1828, who arrived in Tasmania prior to her 1844 marriage to John Briggs. He considered it likely that she was abducted from the Port Phillip coast, but said it was not possible to know where her country was. He considered the evidence to be insufficient to show that Ann Munro was Marjorie Munro’s daughter, and while Ann was possibly a Boonwurrung woman the evidence is insufficient to conclude what Aboriginal group she had belonged to.

The BW Joint Experts’ Report

626    In the BW Joint Experts’ Report Dr Pilbrow expressed the following conclusion in relation to Ann Munro:

Disagree on the basis that there is insufficient information in the record to identify her country of origin. I note that she is recorded in the Coranderrk inquiry in 1881 as being part of the Yarra Tribe. In my view this likely was a reference to the Woiwurrung Wurundjeri group but I am not certain that this usage in that inquiry was necessarily a reference to Woiwurrung Wurundjeri.

8.5.4    Dr D’Arcy

627    Dr D’Arcy was not briefed to provide an opinion in relation to the claimed Boonwurrung identity of Ann Munro and she did not do so. But in responding to Proposition 15 in the BW Joint Experts’ Report, (which concerned the claimed Boonwurrung identity of Marjorie Munro) she said:

…in 2005 I wrote a report addressing, in part, Marjorie Munro’s heritage. Marjorie confirms in 1856, 1862 and 1863 that she is a Western Port woman. Marjorie has two children - Polly who is recorded as ‘full-blood’ and Robert who is recorded as ‘half-caste’.

628    Dr D’Arcy’s 2005 report is thorough and it shows that she considered the salient primary and secondary materials in relation to Marjorie Munro, including by considering the number and identity of her children.

629    Dr D’Arcy summarised her opinion as follows:

•    Marjorie Munroe consistently stated that she was a Western Port woman. She was interviewed in 1856, 1862 and 1863. In 1862 Marjorie's evidence was witnessed and corroborated by approximately one dozen Islanders.

•    In 1856, Marjorie described herself as having been taken from Western Port by James Monroe. She had spent time living on King Island, where the first of her children was born. This was Polly, with whom Marjorie was most likely already pregnant when she was abducted from Western Port by Munroe. This would place the date of her abduction circa 1820-1823. Therefore, Marjorie was not abducted by George Meredith circa 1834, but by Munroe circa 1820-1823.

•    In 1856, Marjorie's second child is described as a male named Robert, born on Preservation Island circa 1835, of a white father. Robert may have been the child of the Port Phillip woman residing with Munroe, described to Robinson by Dr Allen on 9 August 1836. Polly’s age/birthdate also correlates to the age of the daughter of the woman residing with Munroe in January 1837.

•    Marjorie's children are consistently described in primary and secondary source documents as one Aboriginal daughter and one half-caste son. It is unlikely that Marjorie had more than two children, as she consistently states over a period of nearly ten years that she has two. There is no evidence of any other issue. Marjorie's children lived with her into adulthood. Robert still resided with her in 1859 as a man aged approximately 24, and Polly resided with Marjorie until Marjorie's death late in 1863. Polly had two girls of her own who also resided with her and Marjorie. It is not known if Marjorie resided with Polly during Polly's marriage to Sam Blythe, although she was certainly nearby to Preservation Island where Polly and Sam resided, as she assisted the survivors of the wreck of the Governor Phillip in 1848. With such a close-knit immediate family, it is unlikely that Marjorie would have left other children out of the descriptions she gave in 1856, 1862, and 1863.

•    Marjorie's daughter, Polly, was remembered by the Islander community in 1939 as a Victorian Aboriginal, and is also described as a 'New Hollander' - an Islander term associated with persons from Victoria. Polly's two daughters are described by Tindale as Fl Australians.

(Footnotes omitted.)

8.6    Consideration regarding Ann Munro

8.6.1    Whether the evidence is sufficient to show that Ann Munro was Marjorie Munro’s daughter

630    I will first deal with the State’s contention, subsequently taken up by the applicant, that it “appears to be accepted” that Ann Munro was Marjorie Munro’s daughter, and that in circumstances where the parties agree that Marjorie Munro, Louisa Briggs and their descendants are Boonwurrung “in the absence of clear contradictory evidence” it is reasonable to infer that Ann Munro was a member of the Boonwurrung People with rights and interests in Boonwurrung country under traditional laws and customs.

631    I consider the evidence is insufficient to infer that it is more likely than not that Ann Munro was Marjorie Munro’s daughter. At best, the evidence gives rise to competing possibilities of equal likelihood, or the choice between them can only be resolved by conjecture: Westbus at [20]; CEPSU v ACCC at [38].

632    First, the State was wrong to submit that it “appears to be accepted” that Ann Munro was Marjorie’s daughter. In summary, the position of the respective expert witnesses is as follows:

(a)    Dr Clark opined that Ann Munro was Marjorie Munro’s daughter;

(b)    Mr Wood did not offer an opinion on Ann Munro’s parentage;

(c)    Dr D’Arcy opined in D’Arcy 2005 and in Proposition 15 of the BW Joint Experts’ Report that Marjorie had only two children, Polly and Robert, and that Ann Munro was not her daughter; and

(d)    Dr Pilbrow opined that there is no historical information suggesting a parental relationship between Marjorie Munro and Ann Munro.

Perhaps needless to say, that does not show acceptance of the proposition that Ann Munro was Marjorie Munro’s daughter.

633    Second, on a matter of family history such as Ann Munro’s lineage the evidence of the lay witnesses is of the highest importance: De Rose at [264]-[265]; Narrier at [318]. Here, three of the applicant’s lay witnesses, Ms Muir, Ms Carmichael and Ms Anderson, said nothing to show that Ann Munro was Marjorie Munro’s daughter. And Dr Briggs said only that she was told that Ann Munro was “the aunty to Louisa and they came back [to Victoria] with John [Briggs]”. Again, perhaps needless to say, an Aboriginal person’s description of another Aboriginal person as “aunty” does not necessarily connote that she is an aunty by blood relation. If Dr Briggs had been able to say that she had been told that Ann Munro was Marjorie Munro’s daughter, and Louisa Briggs’ aunt, I expect that she would have expressly said so. The weakness of the applicant’s lay evidence regarding Ann Munro’s lineage is a significant deficiency in the applicant’s case.

634    Further, Ms Summers, who gave reliable evidence, testified that her daughter-in-law, a descendant of Marjorie Munro, had never heard of Ann Munro. She also said that her daughter-in-law’s parents had never spoken of Ann Munro, but certainly spoke of Marjorie Munro and her daughter Polly.

635    Third, the historical records are a plainly insufficient foundation to infer that it is more likely than not that the unnamed 14-year-old daughter of the Port Phillip Aboriginal woman Robinson saw accompanying James Munro on Preservation Island in January 1837 was the daughter of Marjorie Munro, and insufficient to show that it is more likely than not that she is the person later known as Ann Munro. I consider such an inference has no more probability than other available inferences and drawing it would be no more than conjecture: Lithgow City Council at [94].

636    The applicant’s argument that the 14-year-old daughter of the Port Phillip Aboriginal woman Robinson saw accompanying James Munro in January 1837 was Ann Munro is based, in part, in the proposition that James Munro’s partner was the woman identified as Marjorie Munro by Wilson and Archdeacon Reiby in their 1856 and 1862-1863 letters around 19 and 25 years later.

637    It is common ground between the experts, and I accept, that it is appropriate to infer that the “Western Port” woman referred to by Wilson and Archdeacon Reiby was Marjorie Munro, and that she had lived with James Munro on Preservation Island. But that does not show:

(a)    that the woman Robinson saw accompanying James Munro in January 1837 was the same person as Marjorie Munro; nor

(b)    that the 14-year-old daughter of the woman Robinson saw accompanying James Munro in January 1837 was the person later known as Ann Briggs (née Munro).

638    There are a number of difficulties or inconsistencies in the historical records which mean that there is no proper foundation in the evidence to infer that James Munro’s female partner seen on Preservation Island in January 1837 was the woman later identified as Marjorie Munro by Wilson and Archdeacon Reiby. And there is little in the evidence to support an inference that the 14-year-old daughter of James Munro’s female partner was the woman known as Ann Briggs (née Munro).

639    Those difficulties start with the differences between Robinson’s 9 January 1837 journal entry and Robinson’s Report in relation to the woman Robinson saw accompanying James Munro in 1837, and Wilson’s and Archdeacon Reiby’s 1856 and 1862-1863 letters in relation to Marjorie Munro. The inconsistencies relate to:

(a)    the number of children the woman had:

(i)    Robinson records James Munro’s female partner as having two teenage daughters, age 14 years and 16 years respectively, and an infant son; and

(ii)    Wilson and Archdeacon Reiby record Marjorie Munro as having only one daughter, named Polly or Pol, and a son named Robert;

(b)    the identity of the woman’s abductor:

(i)    James Munro said, and Robinson concluded, that Munro’s female partner was taken in the Meredith abduction; and

(ii)    Wilson’s 20 June 1856 letter records that the woman identified as Marjorie Munro was kidnapped by Munro (as I infer, James Munro), and Capt. Pasco wrote that when he met Ann Briggs (née Munro) at Coranderrk in circa 1882, she told him that she and her mother were taken by James Munro; and

(c)    the date of the woman’s abduction;

(i)    James Munro said, and Robinson concluded, that Munro’s female partner was taken in the Meredith abduction which puts it in the first half of 1833; and

(ii)    Wilson’s 20 June 1856 letter records that the woman identified as Marjorie Munro was “brought over from Western Port, about 30 years ago”, which puts it in circa 1826.

That points strongly away from an inference that James Munro’s Aboriginal partner in January 1837 was the same person as Marjorie Munro.

640    The inconsistency in relation to the number of children the woman had is material. Marjorie Munro was spoken to by Wilson in 1856, and by Archdeacon Reiby in 1862 and 1863 and she consistently said that she was a “Western Port” Aboriginal woman who had two children, a daughter named Polly and a son named Robert. The historical records indicate that Marjorie’s children lived with her into adulthood and that they were a close-knit family. Robert still lived with her in 1859 as a man aged approximately 24, and Archdeacon Reiby recorded that he was a caring son. Polly lived with Marjorie until Marjorie's death late in 1863. As Dr D’Arcy opined, with such a close-knit immediate family it is unlikely that Marjorie would have left out any children when she said in 1856, 1862, and 1863 that she had only two children, one daughter named Polly, and a son named Robert. That points strongly away from an inference that Marjorie Munro had a daughter named Ann.

641    There is no sufficient foundation in the evidence for Dr Clark’s opinion (taken up by the applicant and the State) that the 14-year-old daughter of James Munro’s female partner in January 1837 (claimed to have been Marjorie Munro) is likely to have been the daughter of that woman’s marriage to an unnamed Woiwurrung man and the person later known as Ann Briggs (née Munro). The Clark 2023 genealogy states that:

(a)    the 14-year-old daughter of James Munro’s female partner was a “full blood” named Ann who was the child of that woman’s union with an unknown Woiwurrung man, born in 1822 in the area which later became known as Melbourne; and

(b)    the 16-year-old daughter of James Munro’s female partner in January 1837 was a “half-caste” named Polly (aka Mary) who was the child of that woman’s union with James Munro, born in 1821 on King Island.

642    However, if the younger sister was a “full blood” Aboriginal born of Marjorie’s marriage to a Woiwurrung man how could the position have been any different for her older sister? There is no evidence from which to infer that, pre-abduction, Marjorie had a child to a non-Indigenous man and then subsequently had another daughter through marriage to an Indigenous man.

643    In his 2002 report (in which he reached the same conclusion as his 2023 report) Dr Clark opined:

Margery Munro's two daughters who were abducted with her at the same time, were Ann Munro (later Ann Briggs) who is Woiwurrung, and Polly Munro (Polly Bligh), who it is argued here must have been a 'half-caste' and was thus Boonwurrung through her 'mother's country'.

If the two daughters were abducted at the same time then, in circumstances where Robinson records that the 14-year-old daughter was “born on her own country”, they must both have been born on their traditional country, pre-abduction. If they were both born on their traditional country I can see no basis in the evidence to infer that the first-born daughter (said to be Polly aka Mary) could be a “half-caste”, whereas the later-born daughter (said to be Ann) could be a “full blood”.

644    Further, if the older sister was a “half-caste” from Marjorie’s ‘marriage’ to James Munro, born in 1821 on King Island, how could the younger sister have been born on her traditional country in 1822? I can see no basis in the evidence to infer that Marjorie somehow travelled back and forth from the Bass Strait islands to her traditional country.

645    And for James Munro’s partner (claimed to be Marjorie Munro) to have given birth to a “half-caste” child (claimed to be Polly aka Mary) on King Island in 1821, Marjorie must have been abducted and taken to the Bass Strait islands before that date. That would date Marjorie’s abduction at prior to 1821 which is inconsistent with her being James Munro’s female partner seen by Robinson in January 1837. James Munro said, and Robinson concluded, that that woman was abducted in the Meredith abduction, which took place in 1833.

646    A similar point can be made from Archdeacon Reiby’s 1863 letter which states that Marjorie’s daughter, Polly, was around 40 years old at that time, which dates her birth at circa 1823. Wilson’s 1856 letter records Polly as having been born on King Island, and the Clark 2023 genealogy dates her birth year as 1821. For Polly to have been born to Marjorie on King Island in circa 1821, Marjorie must have been abducted before that year. But James Munro said, and Robinson concluded, that James Munro’s female partner in January 1837 was abducted in the Meredith abduction, which took place in the first half of 1833

647    I accept that Ann Briggs (née Munro) was a “full blood” Aboriginal. Tindale's 1938 genealogies record Ann Briggs as a “full blood” from Victoria, and Robinson describes James Munro’s partner’s 14-year-old daughter as a “full blood” Aboriginal from Victoria. But that does not mean that that daughter was Ann Briggs (née Munro). The evidence shows that many Aboriginal girls and women were taken from the Victorian coast to islands in Bass Strait, and that sealers like Munro sometimes took several women as their companions. And it is difficult to see how the first-born daughter could be a “half-caste” while the later-born daughter is a “full blood”.

648    To my mind it is more likely, or at least equally likely, that the two daughters of James Munro’s female partner in January 1837 were both “full-bloods” who were abducted at the same time as their mother, or that their mother was abducted with one daughter and while pregnant with the other. The difficulty for the applicant with accepting that is that it would be inconsistent with Louisa Briggs’ statement to Hall and Taylor that her mother Mary (said to be the same person as Polly) was a “half-caste”, and it would be inconsistent with Louisa Briggs having “light blue eyes”.

649    A less fundamental inconsistency relates to Capt. Pasco’s 1897 account of his meeting with James Munro on Preservation Island in 1842. Pasco wrote that Munro had his Aboriginal female partner and a “little girl” who Munro had abducted with the mother although Pasco did not know what “part they had been taken from”. He also wrote of his visit to Coranderrk 40 years later (circa 1882-1884) where he met an “old grandmother” named “Mrs Briggs”. It is common ground between the experts, and I accept, that it is more likely than not that the woman Pasco met at Coranderrk was Ann Briggs rather than Louisa Briggs. I take that view largely because Louisa Briggs was born on the Bass Strait islands rather than abducted as a young girl along with her mother, and because she would have been only approximately 46 years old in 1882 which does not match Pasco’s description of his meeting an “old grandmother” at Coranderrk.

650    Ann Briggs (as I infer) told Pasco that:

(a)    she was the little girl he had met on Preservation Island, and provided details which seemed to confirm that; and

(b)    that she and her mother were abducted by Jimmy Munro from near Point Nepean at the entrance to Port Phillip. That points away from inferring that she was the 14-year-old daughter of James Munro’s female partner in January 1837, as James Munro said, and Robinson concluded, that that woman was taken in the Meredith abduction.

651    Further inconsistencies or difficulties are that:

(a)    Robinson records that James Munro’s female partner in January 1837 had two daughters, a 16-year-old and a 14-year-old, who Dr Clark said are likely to have been abducted together with their mother. But when Ann Briggs met Pasco at Coranderrk she said that she had been taken with her mother. She did not say that she had a sister who was taken at the same time. It is reasonable to expect that she would have said so had that been the case; and

(b)    Robinson’s 9 January 1837 journal entry and Robinson’s Report record that James Munro’s female partner had two daughters, aged 14 and 16 years respectively. At the time of Capt. Pasco’s visit five years later in April 1842, those two girls would have been approximately 19 and 21 years old. Neither of them could reasonably answer Pasco’s description that in that visit he met Munro’s partner and her “little girl”. That points to an inference that James Munro’s female partner in January 1837 was a different person to the partner Pasco met five years later. If the young girl Pasco met in 1842 and again in circa 1882-1884 is accepted to be Ann Briggs (née Munro) then she was not the 14-year-old daughter of James Munro’s female partner seen by Robinson in January 1837.

652    Another substantial difficulty with the reliability of an inference that James Munro’s female partner seen by Robinson in January 1837 was the same person identified 19 and 25 years later as Marjorie Munro is that Wilson’s 1856 letter suggests that Marjorie Munro had been cohabiting with James Munro for around 30 years. Historical records and secondary sources indicate that that was not the case and that he had a large number of Aboriginal partners during that period:

(a)    George Walker made a contemporaneous journal entry that he met James Munro on Preservation Island in 1832. He wrote that the island was “exclusively occupied by [Munro] and a black woman who lives with him, and whom he says he has brought up from a child of eight years old, her father having been shot by Europeans”. Walker later identified Munro’s partner as an Aboriginal woman named Jumbo. Plomley (p 796) identifies Jumbo as Bull-rer also known as Drum-mer-ner-loo-ner, the daughter of Bull-rub, from the Parre-been-ne group from Ringarooma, Cape Portland, Tasmania: Backhouse, J and Tylor, C, (eds) The Life and Labours of George Washington Walker, of Hobart Town, Tasmania (A.W. Bennett & Thomas Brady, London,1862), p 96, cited in Clark 2002, p 136;

(b)    in January 1836 the surgeon on Flinders Island was sent to Gun Carriage Island to make a report on the sealers and their women. While there he was told that James Munro had paid seven pounds for a “New Holland” woman named Emue. That woman was identified by Plomley in 1987 as having come from SA: Fels, M, p 330;

(c)    in his 2002 report Dr Clark wrote that Munro had “been conspicuous in his younger days in forcibly removing native women from the mainland and at one time had no fewer than six of them in his household”: Bateson, C, Dire Strait A History of Bass Strait (A.H. & A.W. Reed for BHP, Sydney, 1973) p 44 cited in Clark 2002, p136. Munro was not, however, a young man in the mid-1820s to mid-1830s. The 1845 article in the Launceston Examiner states that he died in late 1844 at age 82, which puts his date of birth at circa 1762;

(d)    Plomley wrote the following about James Munro’s wives:

MUNRO, James. Other Spelling MUNROE. Light hair; fair complexion; 5’ 5”; age 51 came to the colony per Royal Admiral II convict ship; free. Sealer 12 years. Rendezvous: Preservation Island (for last 9-10 years). Women (1) DRUM.MER.NER.LOO.NER (Jumbo). (At one time he had six native women.) Robinson remarks that formerly he had been conspicuous in forcibly removing native women from the main, but now, being an old man, he was entirely dependent upon the goodwill of the other sealers. In October 1835 he had a New Zealand woman living with him; and in January 1836 he had the New Holland woman Emue, who he had obtained from Anderson[…] The VDL administration appointed him ‘constable’ in the straits about October 1825.

: Plomley, Friendly Mission, pp 1056-1057; and

(e)    Mr Annand said the following regarding the number of Munro’s ‘wives’:

Mollison and Everitt’s genealogies include entries for James Munro and list eight ‘wives’. Below are the details provided:

•    Drummernerlooner (alias, Jumbo, of Boobyalla River Tas, 1812-1847/51);

•    Mary (of Tas., died November 1829);

•    Dromedeener (alias Mary, Swanport, Tas, born 1812);

•    Mirnermannerme (alias Maria, of Swanport, Tas, born 1811, died ‘before Oct 1835);

•    Mannermannermener (of Swanport, Tas);

•    ‘A New Zealand woman’;

•    Emmue (Anderson’s Australian wife); and

•    Margery/Margaret (Australian, Port Phillip, Vic. ‘alive 1863).

Annand noted Mollison and Everitt’s view that many of Munro’s ‘wives’ were “only short term associations”: Annand 2019, p 62.

653    The next difficulty with the inference that Ann Briggs (née Munro) was the daughter of Marjorie Munro is Tindale’s 1938 genealogies. The principal informant for his research in relation to the Briggs family was Carrie Aulton, Louisa Briggs’ daughter. Tindale’s 1938 genealogies do not state that Ann Briggs (née Munro) was Louisa Briggs’ aunt, nor that Ann and Louisa had a common ancestor in Marjorie Munro. It is reasonable to expect that Ms Aulton would have told Tindale that if that had been the case and that Tindale would have recorded such information had he been told that.

654    I accept that Ann Munro’s surname suggests an association with James Munro’s household on Preservation Island, and that Ellen Briggs’ death certificate shows that Ellen was born on Preservation Island in 1846 which also suggests an association between Ann Munro and James Munro’s household. But, as noted by Dr Pilbrow, Dr Clark and Mr Annand, James Munro had liaisons with various Aboriginal women, and the archival records are insufficient to infer that the 14-year-old daughter of James Munro’s partner (seen by Robinson in 1837) was the woman later known as Ann Briggs (née Munro), nor to establish that there was a parental relationship between Marjorie Munro and Ann Briggs (née Munro), and the lay evidence is insufficient to fill in the gaps.

655    Fourth, Dr Clark was the only expert to opine that Ann Munro was Marjorie’s daughter, and his opinion shifted around. In his 2002 report he expressed the opinion that Ann Munro was Marjorie’s daughter. Then, in his 2003 report Dr Clark changed his opinion and concluded that the evidence was insufficient to establish that Ann Munro was Marjorie’s daughter. He said that another “more plausible” scenario is that Polly was the 14-year-old daughter seen by Robinson living with Marjorie in 1837, that another daughter was living with Strugnell, and that Ann was not Marjorie Munro’s daughter. Dr Clark criticised Barwick for “assuming” that Ann was Marjorie’s daughter, and that Polly was the daughter who married Strugnell and had two children with him. He agreed with Alves that “Ann's relationship to Louisa remains in the realms of uncertainty”.

656    Dr Clark went on to opine:

Presumably, Ann was one of ·the Kulin children abducted by sealers from Western Port Bay or Port Phillip Bay in the 1830s. She may have become part of James Munro's household and raised by Margery Munro, which may account for the adoption of Munrow as her surname. This may also explain how she came to be the first wife of John Briggs, another who was part of the Munro household.

657    Then, in his 2023 report Dr Clark reverted to his 2002 opinion. He opined that the identification of Ann Briggs’ maiden name as “Ann Munrow” or “Nancy Munro” was “the strongest evidence we have that she was one of the two daughters of Margery Munro, and the daughter that Robinson met living with her mother on Preservation Island in 1837.” I do not consider that to be strong evidence given the number of female Aboriginal partners Munro had.

658    Dr Clark’s 2023 report does not reveal the reasoning behind his conclusion that it is likely that Ann Munro was Marjorie Munro’s daughter, or adequately explain why he moved away from his 2003 opinion. I consider he assumed that Ann Munro was Marjorie Munro’s daughter rather than reaching a reasoned conclusion in that regard, and I prefer the opinion of Dr Pilbrow in relation to Ann Munro.

659    Fifth, there is no force in the State’s contention that “in the absence of clear contradictory evidence” it should be inferred that Ann Munro was Marjorie Munro’s daughter, with rights and interests in Boonwurrung country under traditional laws and customs. The applicant had the onus to establish that it is more likely than not that the woman known as Ann Munro was a member of the Boonwurrung People. It singularly failed to do so, and the asserted absence of “clear contradictory evidence” does not mean that the applicant’s case succeeds. Further, there is no sufficient evidentiary foundation for that inference.

660    Sixth, the State argued that it would be anomalous to decide that Ann Munro, who it said was descended from Marjorie, was not a member of the Boonwurrung People on the basis that her father was a Woiwurrung man and primary rights in country are passed down patrilineally, when a person with a non-Indigenous father can establish membership of the Boonwurrung People by descent from an Aboriginal mother (as agreed in Proposition 10 of the BW Joint Experts’ Report). That is an anomaly but here it is theoretical. The evidence is insufficient to infer that it is more likely than not that Ann Munro was Marjorie Munro’s daughter, and therefore Boonwurrung by descent from her.

8.6.2    The Wurundjeri respondents’ contention that Ann Munro was a Boonwurrung woman with rights and interests in Boonwurrung country

661    I now turn to address the Wurundjeri respondents’ submission that, notwithstanding that the evidence is insufficient to infer that Ann Briggs (née Munro) was Marjorie Munro’s daughter, it may be open to infer that she was abducted as a young child from Point Nepean in 1833 or 1834. It did not expressly say so, but that carried the suggestion that she was taken in the Meredith abduction. It said that the fact that she was a child when abducted is confirmed by the dates of her child bearing, attested in the records of her children, born between 1840 and 1868; from these, her imputed date of birth would be around 1828, or a few years earlier; her age at abduction would then be five or six years, or a few years older; her first child born at 12 or a few years older; her last child born at 40 or a few years older. On that basis the Wurundjeri respondents said that the simplest and most plausible inference is that she would have been living on her home country, Boonwurrung country, as part of her Boonwurrung father’s clan.

662    I do not accept that submission.

663    First, that was not the basis upon which the applicant put its case. Until it altered its position the applicant had contended that Ann Briggs (née Munro) was a member of the Boonwurrung People because she was Marjorie Munro’s daughter. No party put on evidence directed at showing that she was abducted independently from the woman claimed to be Marjorie Munro.

664    Second, at the centre of the Wurundjeri respondents’ uncertain submission is that historical records that show that Ann Briggs (née Munro) was a “full blood” Aboriginal and that her unnamed daughter’s birth certificate shows that she was born in circa 1828, and that it should be inferred that she was taken from Point Nepean in 1833-1834. That she was a “full blood” Aboriginal can be accepted but it tells nothing about when she was abducted, where she was abducted from, or whether or not she was a member of the Boonwurrung People. I accept that it is possible that Ann Briggs (née Munro) was a young Boonwurrung girl abducted from Point Nepean but there is no proper basis on which to draw that inference.

665    The historical records say nothing to indicate that Ann Munro’s people were Boonwurrung or that she belonged to Boonwurrung country, the expert evidence does not provide a basis to infer that Ann Munro was a member of the Boonwurrung, and there is no cogent lay evidence that she was Boonwurrung. Only one of the four Boonwurrung lay witnesses mentioned her at all, and she did not in clear terms express any basis for a claim of Boonwurrung ancestry. None even testified to being told that Ann Munro was abducted, let alone where she was abducted from. On a question of family history such as this the lay evidence is of the highest importance, and there is no lay evidence as to her having Boonwurrung ancestry.

8.6.3    The Wurundjeri respondents’ contention that Ann Munro should be found not to have been a Woiwurrung woman

666    The Wurundjeri respondents sought a finding that, at effective sovereignty, Ann Munro was not a member of the Woiwurrung people.

667    They submitted that the applicant’s contention that Ann Munro had a Woiwurrung father (and was therefore Woiwurrung by patrilineal descent) should be rejected, for reasons including the following:

(a)    the questions asked of the Aboriginal witnesses at the Coranderrk Inquiry, including William Barak, John Briggs and Robert Wandin, did not include questions regarding their tribal identity, only their age and where they were born, and then questions about the living and working conditions at Coranderrk. Thus, the Aboriginal witnesses who held the knowledge of family connection, kinship and identity of the Aboriginal residents of Coranderrk were not asked the same questions as Strickland and Harris, and were not given an opportunity to state their view as to whether or not Ann Briggs was Woiwurrung;

(b)    the Aboriginal witnesses at the Coranderrk Inquiry did not identify or even mention Ann Briggs in the evidence they gave, and their evidence cannot support a finding that any of them recognised her as a member of the “Yarra tribe” or Woiwurrung;

(c)    the evidence that Ann Briggs was a member of the “Yarra tribe” in the Coranderrk Inquiry was only that of Strickland and Harris, Coranderrk’s manager and overseer, two non-Indigenous people. The Wurundjeri respondents submitted that too much has been made of their testimony simply because it was recorded in writing, and they described it as an example of the dangers in native title cases of placing too much reliance on historical records as compared to oral history;

(d)    the testimony of Strickland and Harris was subsequently referenced in Barwick 1985 and erroneously given the status of an accepted fact by academics that followed her, including Dr Clark. In his 2002 report, as part of seeking to establish that Marjorie Munro was Boonwurrung, Dr Clark uncritically assumed that Ann Munro was Marjorie Munro’s daughter. In both his 2002 and 2023 reports, Dr Clark relied upon Strickland and Harris’ testimony as the first piece of evidence to indicate that Marjorie Munro was Boonwurrung, by a process of inference from the purported identity of her purported daughter. That conclusion lacked a proper factual foundation;

(e)    Barwick’s essay inaccurately analysed the limited historical data with respect to Ann Munro, which focussed on Louisa Briggs rather than her. Dr Clark accepted that Barwick’s essay “was very much a work in progress” and that her untimely death meant that she did not have the opportunity to review her work. Barwick herself described her reconstruction of events as “speculative”;

(f)    the basis for Barwick’s opinion that Ann Briggs “belong[ed] to the Woiwurrung” was solely based on the testimony of Strickland and Harris and Barwick’s mistaken view of contextual matters. The contextual matters include Smythe’s footnote in The Aborigines of Victoria (1878) in which he said that John Briggs’ wife “is the daughter of an Australian woman, who, with her sister, was taken to Tasmania at the time that Buckley was removed from Port Phillip to that colony.” Barwick’s opinion, based on Smythe’s reference, led her to the erroneous conclusion that Louisa Briggs’ mother and aunt were kidnapped from Point Nepean, and failed to take account of the multiple references that Marjorie Munro was from Western Port and was not in the group of women taken from Point Nepean;

(g)    the repetition of the testimony of Strickland and Harris since Barwick 1985 gives it a veneer of orthodoxy that does not bear scrutiny and it should be kept in mind that:

(i)    there is no oral history or any other evidence that Ann Briggs identified herself as a “Yarra Black” or a Wurundjeri person to her family, or the broader community of Indigenous residents at Coranderrk;

(ii)    there is no documentary evidence that Ann Briggs identified herself as a “Yarra Black” or a Wurundjeri person to any government official or other record maker or keeper, such as William Thomas, Smythe, John Green (the first superintendent at Coranderrk) or Pasco who wrote of a circa 1882 conversation with a “Mrs Briggs” at Coranderrk;

(iii)    the evidence of Strickland and Harris is a “one-off” and cannot be seen as determinative when the evidence of Indigenous witnesses as to Ann Munro’s Aboriginal group was not taken, and the phrases “Yarra Black” and “Yarra tribe” are ambiguous;

(iv)    in his 2023 report Dr Pilbrow opined that the reference to the “Yarra tribe”:

…probably refer[s] to Aborigines from the Melbourne area, as the contrast appears to be between ‘local’ Aboriginal people and those from more distant districts such as Gippsland or the Ovens River. However, it is possible that Ann’s description as of the ‘Yarra tribe’ may connote that she was a member of the Wurundjeri/Woiwurrung people.

In the BW Joint Experts’ Report Dr Pilbrow said that the reference was “likely” to be a reference to the Woiwurrung Wurundjeri group, but he was not certain that the usage of that expression in the Coranderrk Inquiry was necessarily a reference to the Woiwurrung Wurundjeri; and

(h)    the danger of accepting the evidence of Strickland and Harris without question is illustrated by the evidence of Mr Wood. In the BW Joint Experts’ Report, he said in respect to Ann Munro:

Not briefed but I do note that the repeated references assigning her to the Yarra and to the same group as William Barak as set out in Clark 2023 suggests this was her own group identification in her lifetime. I doubt this would have been repeated in Coranderrk records if it wasn’t based on her own self-identification.

The Wurundjeri respondents contended that there were not, however, repeated references assigning Ann Briggs to the “Yarra tribe”, and that that was not in Coranderrk records but in the testimony before the Coranderrk Inquiry. Further, there was no basis in the evidence for Mr Wood to state that that was Ann Munro’s self-identification. In his oral testimony Mr Wood said that the identification of Ann Munro as being of the “Yarra tribe” may be because William Barak had “claimed” her as one of his group, or had said something that made “those white people say it”. Mr Wood was incorrect to suggest that William Barak claimed Ann Munro or that her identity as a member of the “Yarra tribe” can be attributed to him or, at the least, the basis for such an assertion is tenuous.

668    The Wurundjeri respondents submitted, and I accept, that Dr Clark’s assumption that Ann Munro was the daughter of Marjorie Munro and an unnamed Woiwurrung woman had the effect that his overall findings in respect of Marjorie Munro, Louisa Briggs and Ann Briggs became, to an extent, inconsistent and illogical. They contended that the Court should find that Ann Briggs (née Munro) was not, at effective sovereignty, a member of the Wurundjeri Woiwurrung People because the issue of her group identity has been directly raised and debated by all interested parties through the evidence and submissions, and it is in the interests of justice to bring that issue to finality. They argued that by making such a finding the Court will provide finality on an issue that has been ventilated before the Court and which effects the purported native title rights and interests of the descendants of Ann Briggs (née Munro), the descendants of other asserted apical ancestors, and the broader community. In particular they said that the assertion that the descendants of Ann Briggs (née Munro) are Wurundjeri Woiwurrung People is a matter of direct significance to the rights of the Wurundjeri respondents and their community.

669    I accept those submissions. The only evidence that Ann Briggs (née Munro) was a member of the Woiwurrung People is the evidence given by non-Indigenous witnesses at the 1881 Coranderrk Inquiry that she was of the “Yarra tribe”. That was circa 40 years after effective sovereignty and after substantial dislocation of the Aboriginal people in and around the settlement of Melbourne. By itself, and there is nothing more, that is insufficient to infer that it is more likely than not that, at effective sovereignty, she was a member of the Woiwurrung People. I can accept that she was close to William Barak while at Coranderrk and that she may have been or become associated with the Yarra “community”, but the evidence is insufficient to conclude that, at effective sovereignty, she was Woiwurrung by patrilineal descent.

670    The Separate Questions do not ask whether Ann Munro was a member of the Wurundjeri Woiwurrung group, but all potentially interested were on notice that one of the issues to be decided was the Aboriginal group to which she belonged, and the issue was fully ventilated. I find that the evidence is insufficient to establish that Ann Munro was a member of the Woiwurrung people who, at effective sovereignty, held rights and interests in Woiwurrung country under traditional laws and customs.

8.6.4    Whether Ann Munro’s cognatic descendants are Boonwurrung People

671    The applicant submitted that the children of the polygamous marriage between John Briggs, Ann Munro and Louisa Briggs, who it alleged were brought up as one integrated family in accordance with Aboriginal tradition, were members of the Boonwurrung People, and that their present-day cognatic descendants are Boonwurrung People.

672    This issue cannot be decided in this hearing. None of the Separate Questions were directed at deciding the issue and it was given little or no attention in the evidence and submissions.

9.    ELIZA NOWAN - Separate Question 1(a)(iv)

673    Separate Question 1(a)(iv) asks whether Eliza Nowan, also known as Eliza Nowen, was a member 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. Unless the context otherwise requires I use the “Nowan” spelling variation.

674    As the party asserting that Eliza Nowan was a Boonwurrung woman who, at effective sovereignty, held rights and interests in Boonwurrung country under traditional laws and customs, the Bunurong respondents had the onus to establish that.

9.1    The parties’ positions

675    The Bunurong respondents asserted that Eliza Nowan was an Aboriginal woman who was abducted (together with two other Aboriginal women and a boy) by sealers from the coast of Western Port, Victoria, in circa 1834, and she was taken to Bald Island, an island off the coast of WA near Albany, where she cohabited with a sealer, Robert Gamble, and they had children together.

676    Each of the Bunurong respondents, the State, and the Commonwealth argued that the evidence is sufficient to infer that it is more likely than not that Eliza Nowan was a member of the Boonwurrung People who, at effective sovereignty, held rights and interests in part of the Boonwurrung claim area under traditional laws and customs.

677    The applicant submitted that the evidence is insufficient to establish that. The Wurundjeri respondents did not make submissions on this question.

9.2    The historical records and secondary sources

678    The Bunurong respondents centrally relied upon a journal entry dated 11 December 1839 by William Thomas, the Assistant Protector of the Aborigines at Port Phillip and Guardian of the Aborigines of Victoria from 1839-1867, which records what he was told by George Douglas Smythe, a surveyor of Swan River, WA (Smythe’s account). Thomas records:

Mr Smyth, Surveyor at Swan River call'd, …

He also stated that there were 4 Port Phillip natives 3 Women & a boy at St Georges Sound who were stole away by the Sealers in the year 1834. They were stole by the Captn of the George, the fourth Cutter, which left Sydney, touched at Western Port, on its way to St Georges Sound. One Lubra was cut over the face which she said was done by her father.

One Woman named Mary, has 2 Children, is 26 yrs of age, her husband is Captn Williams of Waler.

Eliza Nowen, on Balls Island about 24 yrs age, has 7 children.

Julian Morgan aged 22 yrs has several children.

These Lubras are all anxious to come to Port Phillip to see their Friends at Western Port.

(Emphasis added.)

: Thomas’ journal, extracted in Clark 2023, Appendix 49.

679    It is uncontentious that the reference to “St George’s Sound” was a reference to King George Sound (sometimes referred to as King George’s Sound), near Albany, WA, and that the reference to “Balls Island” was a reference to Bald Island, near King George Sound.

680    The parties did not refer to it, but Dr Fels also referred to another, less detailed journal entry on 11 December 1839 by Thomas. That journal entry records:

In the evening a Mr Smyth, Brother to Captain Lonsdale gives me an account of Blacks at St George’s Sound & in the islands in straits.

: Thomas’ journal, extracted in Fels, M, p 355.

681    The Bunurong respondents further relied upon the following records.

682    On 8 October 1842 the Perth Gazette published an article by William Nairn Clark titled “Remarks respecting the Islands on the Coast of S.W. Australia”. WN Clark was a lawyer and publisher and the article concerned the history of sealers in King George Sound, the Aboriginal women they had abducted and brought with them from the “district of Port Phillip”, and the presence of those women and their children in King George Sound, and on Bald Island in particular. He identified a sealer “Bob Gemble”, who lived on Bald Island with his Aboriginal ‘wives’ and children. It is uncontentious that Bob Gemble and Robert Gamble are most likely the same person.

683    WN Clark wrote:

The first sealers on the south-west coast of Australia originally came from the penal settlement of Van Diemen’s Land … One party landed in the district of Port Phillip, and forcibly brought away with them several native women, of a much more handsome and engaging appearance than those in this part of the island [Western Australia]…. Several children were the fruits of this intercourse, some of whom are to be seen at King George’s Sound, their complexions being much lighter than those of other native children.

…

The first aggression on the rights of the natives by the sealers, since this Colony [Western Australia] was formed, occurred at Port Phillip in the year 1831. A marauding crew from Van Diemen’s Land arrived on the coast and forcibly abducted several native women; afraid of the consequences, they left that part of the territory of Australia and steered in a westerly direction along the coast…

…

Bald Island, about twenty miles to the eastward of the Sound, has been inhabited frequently by them on account of the number of wallabees [sic] that abound on it. One of the sealers named ‘Gemble,’ or familiarly ‘Bob Gemble,’ originally from Van Diemen’s Land, used to reside there with his black gins and his children for months together, and for aught that I know, he may be either there, or somewhere in the Archipelago, to this day. This man seals on his own account, and his wives perform the part of a boat’s crew.

(Emphasis added.)

: Perth Gazette, dated 8 October 1842 at p 3.

684    Other historical records show that Robert Gamble was originally a sealer in Bass Strait. Robinson’s journal records that Robert Gamble was sealing in Bass Strait from 1827-1830, and spent 10 months on King Island. In circa 1830 he was at the Kent group of islands (north of Flinders Island) where he shot an Aboriginal woman, and he was later employed as a coxswain on board the schooner Carlton in Bass Strait: Clark 2002, Appendix 16. Robinson records that Gamble was employed by the government to assist with “measures on the coast for capturing or conciliating the aborigines”: Robinson’s journal transcribed by Plomley in Friendly Mission, pp 246, 305, 443n.86, 1013.

685    By no later than 1834-1835 Robert Gamble was living in WA. The Gamble family bible (Gamble Family Bible), now held at the Albany Historical Society, records that his first child, Martha, was born on 5 December 1835. He is listed as a “seaman” in the 1836 WA Plantagenet Census: Dictionary of Western Australians, Vol 1-Early Settlers, cited in Clark 2002, p 234.

686    The Gamble Family Bible lists the dates of birth of his seven children, born between 1835 and 1860, as follows: Martha, 5 December 1835; John, 10 March 1837; Robert, 5 April 1838; Isabella, 8 February 1839; Nancy, 5 November 1844; Emma, 9 August 1853; and John, 22 February 1860: Gamble Family Bible, extracted in Clark 2023, Appendix 52.

687    The Gamble Family Bible does not record Eliza Nowan or Gamble as the mother of those children, but various official records record Eliza Gamble as Robert Gamble’s ‘wife’ and a “native of Port Philip”. The 27 October 1848 baptism record for the first of Robert Gamble’s children, Martha, (Martha Gamble’s baptism certificate) gives her birth date as 5 December 1835 (which matches the date in the Gamble Family Bible) and lists her parents as Robert Gamble with the unnamed mother described as “a native of Port Phillip (Pagan)”: Clark 2023, Appendix 54.

688    Then, the 1867 baptism record for Eliza Gamble (Eliza Gamble’s baptism certificate), records her baptism on 4 October 1867 in Albany and describes her as the widow of Robert Gamble, aged 54 and “a native of Port Phillip”. She was baptised on her death bed as the record of her death the following day (Eliza Gamble’s death certificate) records her death on 5 October 1867 in Albany, aged “about 60”, and describes her as an “Aboriginal of Port Phillip”.

689    Later, the baptism certificate for Emma and John, the sixth and seventh children listed in the Gamble Family Bible, records their baptism on 18 March 1869 (Emma and John’s baptism certificate). It records:

(a)    Emma and John's parents as Robert & Eliza Gamble;

(b)    Emma's birthdate as 9 August 1854, whereas it is recorded in the Gamble Family Bible as 9 August 1853. I treat that as just a mistake; and

(c)    John's birthdate as 22 February 1860 which matches his birthdate in the Gamble Family Bible.

690    For its part, the applicant relied on archival records which it argued indicate that Tasmanian Aboriginal women were on the islands near Albany in the relevant period, and that Tasmanian Aboriginal women were encamped near where Eliza Nowan and others were taken from. In October1826 a French naval expedition led by Capt. Dumont D’Urville was in King George Sound, WA. In his book Two Voyages to the South Seas Capt. D’Urville wrote the following about meeting some English sealers with their Aboriginal partners, who were from Victoria and also Tasmania:

We thought ourselves alone with our savages in these solitudes, so we were not a little surprised to see a boat arrive carrying English sealers, who were camped on one of the islands around the bay ... The next day a second boat arrived…

These sealers had native women from New Holland and Van Diemen's Land with them. They appear to have abducted the former by force which made them feared along this coast.

: Two Voyages to the South Seas, p 49.

691    A month later the French expedition had moved to Phillip Island near the mouth of Western Port Bay, where there was a sealer’s encampment. D’Urville wrote that on 14 November 1826 he saw five VDL Aboriginal women living with sealers there:

Today just as I stepped ashore I caught a glimpse for a few moments of five Tasmanian women who live here with the sealers; this was long enough to confirm their close resemblance to the women I had already observed with the adventurers of King George Sound…

: Two Voyages to the South Seas, p 57.

692    D’Urville also wrote that the sealers from that encampment had driven the local Aboriginals away:

The sealers temporarily settled here appear to have driven the natives away. There were some differences with them in which the former came out second best. It would seem that this was because they wanted to abduct some of their women and the natives, taking them by surprise, killed five of them.

: Two Voyages to the South Seas, p 61.

9.3    The lay evidence

693    Two descendants of Eliza Gamble gave evidence for the Bunurong respondents, Gail Dawson and Tasma Walton.

9.3.1    Ms Tasma Walton

694    Ms Walton was born on 19 August 1973 in Geraldton, Western Australia. She is a well-known Australian actor.

695    She testified that she identifies as a Bunurong person, through her mother, Elizabeth Eileen Clark, and her maternal grandmother Eileen Amelia May Fitzgerald (known to her as “Nan”), going back to Eliza Nowan. She believes Eliza Gamble and Eliza Nowan to be the same person.

696    Ms Walton’s parents separated when she was young and her grandparents, Nan and Bruce Clark, assisted in raising her and her siblings. Ms Walton gave evidence about Nan telling her stories growing up including about a baby whale named “Djudju”, female water spirits, and a bunyip and swan. She said “Nan would often talk about…the saltwater …whale stories, stories about the female water spirits that… look after the girls.”

697    Ms Walton said that Nan lived in Melbourne during WWII and had fond memories of her time there. She recalled Nan visiting her in Melbourne for three weeks in the late 1990s, and she said that they went on a road trip to Albert Park, Mornington Peninsula, and other locations along the coast of Port Phillip Bay. She said that during the trip Nan took her to places and would say, “this place reminds me of a story I heard”. Ms Walton testified that the stories “resonate[d] for that country”. She had a feeling that was “proof of Nana Eliza [Gamble] being from those places that my [Nan] were telling stories about.” Ms Walton “absolutely” considered the stories to be Bunurong stories.

698    She said that Nan told her a story about a swan and a bunyip when they went around Albert Park Lake, and when they visited Cheviot Beach on Point Nepean where former Prime Minister Harold Holt disappeared. Nan told her that he should not have been swimming there, because “he’s a man” and that’s “mermaid country”.

699    Ms Walton said that she believed that Nan learned those stories from Aunty Martha, who learned them from Nana Emma Gamble, who in turn learned them from Nana Eliza Gamble. She accepted, however, that Nan did not tell her who told her those stories.

700    She said that her identifying as Bunurong through her mother, and her grandmother, was “incredibly important” to her. She testified:

I think country needs her people and when you have a connection and a bloodline on country that has been around for millennia, it – it’s a real tether to the country and I think, especially when – you know, when so much disruption has happened and so much brutality has been inflicted, I think it’s really important that as a traditional custodian you honour your obligations to your country and to your culture and you keep those fragments of culture and stories alive and reinvigorated and you bring your community together so that you can all stand united and care for country.

701    Ms Walton said that when she was growing up she was not told by her mother and or her Nan about being Bunurong or having a Bunurong heritage. She said that learning about her Bunurong identity was a gradual process and included her mother showing her Eliza Gamble’s death certificate in the early 1990s, which showed that Eliza Gamble was “a native of Port Phillip” and that she was a “pagan”. Then, in the mid to late 1990s she moved to Melbourne and immediately felt at home on the coastal parts of Melbourne, and lived in St Kilda, which gave her “this sense of rightness”.

702    She said in the 1990s there was no internet, so it was hard to undertake research, particularly when she was very busy. She was keen to find as much information as she could, in order to “feel grounded and settled” and with the development of the internet and Google, research became easier. In around 2011 she undertook research into colonial records, which included following Robert Gamble’s movements, having known that he had children to Eliza Gamble and that they had been left on Bald Island for periods of time. In this period she saw Eliza Gamble’s baptism certificate for the first time which, like her death certificate, said she was from “Port Phillip”. She said that that research led her to discover Thomas’ journal entry recording what GD Smythe said about Eliza Nowan being on Bald Island. It was that document which she said “really resonated for me to say this is who [Eliza Nowan] was”. She said that after seeing that document she believed that “Eliza Gamble must have been not only from the Port Phillip region, but in fact from Bunurong Country on the Port Phillip region”. Part of that belief was also the “feeling” that she got from the stories Nan told her.

703    After this discovery, Ms Walton said that she “went back to her family and said, ‘Well, this is what I found’, and many of them agreed that they had known that for a long time.” By her family she meant her mother, her mother’s brother, Uncle Eddie, and her Nan’s brother’s daughter, Aunty Sharon.

704    Ms Walton testified that her mother said that “makes sense” but provided no additional details except to note that she had seen Eliza Gamble’s death certificate in the 1980s, and that in her view it explained why Nan kept going to Melbourne. Ms Walton testified that Uncle Eddie said “I’ve always known”, but she had not asked him after that how he had known as he had been unwell. She said that Uncle Eddie’s daughter, Aunty Sharon, had later told her that in the weeks leading up to his death, Uncle Eddie had “verified that information.”

705    Junior counsel for the State, Mr Kruse, sought greater clarity by asking “[h]e [Uncle Eddie] has always known what, exactly?”, to which Ms Walton responded “[t]hat our ancestor was from there”, although he did not say how he knew that. Mr Kruse also sought greater clarity as to what Uncle Eddie had said to Aunty Sharon, by asking “exactly what those details were?” Ms Walton responded only that “[i]t seemed to be, really, a lot of, ‘We’ve always known’.” The Court asked Ms Walton whether she was referring to Uncle Eddie knowing that their ancestor had come from “roughly the Port Phillip area”, or to Uncle Eddie knowing that the family was Bunurong. To that Ms Walton responded “[t]he entirety of it” (T65.39-41).

706    Ms Walton agreed with Mr Kruse’s suggestion that she meant the entirety of the story that she understood from Smythe when she did that research. Mr Kruse then returned to ask the meaning of “the entirety of it” and Ms Walton responded (T66.1-4):

[that] she was – she was a woman taken by sealers, sold to Robert Gamble, left in, you know the arms of the … West Australia and that her family came from the Mornington Peninsula area.

707    Then, in cross-examination by Mr Levy, counsel for the applicant, Ms Walton gave different answers, as shown in the following exchange (T66.35-67.5):

MR LEVY: … I think you said your understanding was he had always known the entirety?

MS WALTON: That was my assumption.

MR LEVY: Yes. Okay… What did you mean by the word ‘the entirety’?

MS WALTON: That our ancestor was an Aboriginal woman from the Mornington Peninsula area, a Bunurong woman.

MR LEVY: But your mum’s brother didn’t actually say that he – he didn’t provide detail of what he had always – already known?

MS WALTON: He did not say those exact words, no.

MR LEVY: No. Okay. And did your mum’s brother indicate that he knew about the Thomas/Smyth [account]?

MS WALTON: No, he didn’t indicate that.

MR LEVY: No. Okay. And did your mum’s brother use any words like, ‘Port Phillip’ or ‘Westernport’ or any of those things?

MS WALTON: Not at that time, no.

708    There, Ms Walton said that she assumed that Uncle Eddie had always known “the entirety of it”, by which she meant “that our ancestor was an Aboriginal woman from the Mornington Peninsula area, a Bunurong woman”. But she accepted that Uncle Eddie did not say “those exact words”; that he did not use words like “Port Phillip” or “Westernport”; and that he did not indicate that he knew about Smythe’s account.

709    I found Ms Walton’s evidence unclear regarding what Uncle Eddie said he had known about Eliza Nowan/Gamble’s ancestry or where she was from. Her evidence was unclear as to the extent of Uncle Eddie’s knowledge or belief in that regard, and the basis for that knowledge or belief, i.e., how he came to that knowledge or belief.

9.3.2    Ms Gail Dawson

710    Ms Dawson is a retired teacher and school principal, born on 6 January 1953 in Gnowangerup, WA, about 100 km from Albany.

711    She testified that she identifies as a Bunurong person through her father William Dawson, and paternal grandmother Maud Teresa Serl, back to Eliza Nowan and Robert Gamble. She said that she is a Bunurong person through descent from Eliza Nowan/Gamble.

712    Ms Dawson gave evidence that she was told by her mother as a child that she was Aboriginal. Her parents separated when Ms Dawson was five years old and she lived with her mother in Busselton, and then moved back to Albany, on King George Sound.

713    She said that although they moved away her mother stayed connected with members of her father’s family, including Uncle Bronk. Ms Dawson went to school in Albany and after she finished school they moved to Perth, and she went to teacher’s college. When she graduated she chose to work in Derby, WA, and she spent most of her teaching career working in Aboriginal communities across the northern part of Australia.

714    She said that in 1994 she had six months off for study leave, and during that period she had time to reconnect with her cousins and aunties on her father’s side, including her cousin Ms Terri Lo Presti (formerly Dawson) who has since passed away, Ms Lorraine Symington, and her father’s sisters, Aunty Ronnie, Aunty Sheila and Aunty Nell. She said that her cousins on that side, who were around her age or younger, strongly identified as Aboriginal. Ms Lo Presti had been working with Aunty Pat Keenan for over a decade to compile research into their Aboriginal heritage. Her aunties though were more interested in not dealing with the issue of Aboriginality and they preferred a story that they had some Māori ancestry.

715    Ms Dawson said that she regarded herself as an Aboriginal person, but up until around 1996 she was not tied to a particular group. Then in 1996 Ms Dawson said she was shown Eliza Gamble’s death certificate, which had been located by Ms Lo Presti and Aunty Pat. She described that as a “definitive moment” as it showed that Eliza was “a native of Port Phillip” and that she was a “pagan” which was of “vital interest” to her. She said that she saw Eliza Gamble’s baptism certificate around the same time which said the same thing. She therefore knew that her family was from the Port Phillip region but she did not know at that time that the area that her ancestor was from was called Bunurong country.

716    In around 1999, she saw an advertisement by the BLC in the New Idea magazine, seeking the descendants of Aboriginal women abducted from Port Phillip Bay by sealers in the 1830s. She telephoned the BLC and it was “confirmed” to her that Eliza Nowan was a Bunurong woman. That was the first time that she learnt that was the case. Around the same time she saw some notices in a newspaper by the Victorian Department of Justice calling for descendants of Aboriginal women taken from Port Phillip by the sealers in the early 1830s. She responded to the notice and came to Melbourne for some meetings.

717    When she came to Melbourne she met and stayed with other people who had responded to that notice. In that period she met Ms Murray, Uncle Mervyn Brown, and two young men from the Thomas family. She said that Uncle Merv was from the Elizabeth Maynard family line, had lived in Victoria for many years, and was a senior Bunurong elder. She said that there is nothing like the feeling she got when Uncle Merv and other Bunurong people shared stories, and took her around to some areas and showed her some places; it felt like “coming home”. She said that Bunurong country is “my home and I can’t wait to walk and think about how the land was used. I look underneath all the buildings for the land forms; I look for the medicinal plants; I love meeting up with my other kin from the other apical ancestors. We’re all very close.”

718    Ms Dawson recalled that during various Melbourne visits, Uncle Merv took her on road trips in 2000, 2002 and 2005. She said that he showed her “our country on the Werribee…all the way around, down to Wilsons Prom” and along the way they stopped at significant places, and he showed her old Bunurong sites. She said that at Werribee Uncle Merv told her “about eel gatherings where our ancestors gathered with neighbouring tribes and trapped eels and cooked them”. They went through Williamstown where Uncle Merv showed her the place where their people first saw white people; and stories about the interactions between the Wurundjeri and the Bunurong and where the falls were on the Yarra River. She said that Uncle Merv also showed her where a women’s site was on the Mornington Peninsula, midden sites all around Carrum Downs, and he told her the story of the moonah trees on Point Nepean, and where Bunjil came out of the sea at Wilsons Promontory.

719    Ms Dawson said that she moved back to WA in 2003, and talked with the descendants of Eliza Gamble who were located there about what she had discovered. She said that there was a lot of interest in their Bunurong heritage and for the descendants of Eliza Gamble it was “our main topic of conversation” Ms Dawson joined the BLC in 2016, and she was the chairperson until 2018.

9.4    The expert evidence

9.4.1    Dr Clark

Clark 2002

720    Dr Clark first considered the historical records in relation to Eliza Nowan in his 2002 report.

721    In the abstract for that report Dr Clark said:

…A significant body of evidence exists that reveals that at least 20 women, girls, and boys, were abducted from Port Phillip Bay and Westernport Bay in the 1820s and 1830s. Two groups of Port Phillip and Western Port abductees have been found: those removed to the islands of the Bass Strait and/or to the Tasmanian mainland, and another small group who were taken to the Straits initially, only to be taken by sealers to Western Australia.

More research is required into the group taken to Western Australia, however examination of the relevant historical record, albeit fragmentary, does suggest an affiliation with Western Port Bay, and thus they are likely to be Boonwurrung.

(Emphasis added.)

722    In the body of his report Dr Clark noted that Barwick 1985 said the following in relation to Eliza Nowan:

Barwick (1985: 231-2) records the following:

Cumpston (1970: 133-5) notes that the sealers Isaac Winterbourne and John Anderson (a different man to the John Anderson in Bass Strait) had three native women at Middle Island off the Western Australian coast in April 1835 and that both men were at Albany by September 18. In November 1839, William Thomas learned of a boy and three women of the Port Phillip tribe at King George's Sound. Mary (26), Eliza Nowen (24) and Julia Morgan (22)’ had been taken there earlier by sealers, and were anxious to return to Port Phillip to see their friends at Western Port (Thomas jnl Nov. 1839 - Jan. 1840). Thomas never recorded their return.

723    Dr Clark considered an account by Gail Dawson which included a contention that Eliza Nowan was abducted by Robert Gamble along with her son Yanki Yanki, i.e., that they were abducted in the Meredith abduction. Dr Clark considered it to be unlikely that Yanki Yanki was Eliza Nowan’s son.

724    In relation to Robert Gamble, Dr Clark said:

Robert Gamble is known to have been sealing in the Straits from 1827-30, which included ten months in King Island. In c. 1830, he shot a Tasmanian Aboriginal woman at Kent Groups, and although charged with murder and sent to Hobart, he was subsequently released. He found employment as a coxswain on the schooner 'Carlton'.

725    In relation to Eliza Nowan he opined:

What can be reconstructed about Eliza Nowen is as follows:

In 1835, three native women were with the Bass Strait sealers Isaac Winterbourne and John Anderson at Albany, Western Australia.

In 1839, Assistant Protector William Thomas learned that three women of the 'Port Phillip tribe', he records the identity of these three women, however the name of a boy with [them] is not recorded. He records their names as Mary (26), Eliza Nowen (24) and Julia Morgan (22). He noted they 'were anxious to return to Port Phillip to see their friends at Western Port' (Thomas jnl Nov. 1839 - Jan. 1840).

726    Then, by reference to the Aboriginal names of some known abductees, Dr Clark discussed various possibilities as to who Eliza Nowan was, without reaching any conclusion in that regard. He noted that Mollison and Everitt were unable to uncover any further information on the three women Thomas recorded he was told were living with sealers in WA, and said that their absence from Victorian records post 1839 may be because they left the Bass Straits islands and were taken to WA, noting that Aboriginal women were traded as economic commodities.

727    Dr Clark then expressed the view that Eliza Nowan was part of the Meredith abduction. He opined:

Thomas’ comment that the three women were ‘anxious to return to Port Phillip to see their friends at Western Port’ (Thomas jnl Nov. 1839 – Jan. 1840); though obviously not conclusive, does suggest an affiliation with Western Port Bay, and thus they are likely to be Boonwurrung.

He did not adequately explain the basis for the inference that Eliza Nowan was part of the Meredith abduction. He considered that Eliza Nowan was “likely” to be Boonwurrung but said that “more research is required.”

Clark 2023

728    Dr Clark’s report is thorough and it shows that he gave consideration to all of the salient primary and secondary materials regarding Eliza Nowan and Eliza Gamble.

729    Dr Clark commenced his report by stating the following conclusion:

I can find no compelling documentary evidence that Eliza Nowen was a member of the Boonwurrung people, who, at sovereignty, held rights and interests in any part of the land and waters covered by the Application under traditional laws and customs.

730    He noted that there is only one primary source document in which Eliza Nowan is named, being Smythe’s account recorded in Thomas’ 11 December 1839 journal entry. He described Thomas’ journal entry in tabular form as below and annexed a copy of that document.

731    Dr Clark described Smythe’s account as incoherent and problematic and said that it is unknown if Smythe was relaying first hand or second hand information. In his view Smythe’s account has the following problems:

(a)    the abduction seems to be attributed to sealers and the captain of the George;

(b)    the George was a government cutter, and Dr Fels opined that “it would be astonishing to find a government cutter engaged in the abduction of native women” (Fels, M, p 356). He said that Dr Fels’ detailed analysis of the service record of the revenue cutter Prince George failed to find any evidence of its presence at King George Sound or the Swan River settlement (Fels, M, p 359f). He noted that Dr Fels had written (at p 359f):

Unless evidence is found for the Prince George between these two dates [September 1833 and May 1834], then I suggest that the evidence from Smythe, recorded by Thomas, must be kept in mind as possibly true, and that further research is required to confirm or refute it.

(c)    Eliza Nowan is recorded as having had seven children, and it would only be possible for her to have had seven children by late 1839 if she was pregnant when she was abducted in 1834, or if some of the births were twins;

(d)    Dr Fels believed that the date of abduction of 1834 may well be correct, but noted that it cannot be assumed with certainty that this abduction was part of the Meredith abduction. After “careful analysis” Dr Fels concluded that the Meredith abduction took place between March and May 1833, which is the year before Eliza Nowan’s abduction;

(e)    WN Clark’s 1842 article in the Perth Gazette unequivocally states that Bob Gemble (who Dr Clark seemed to accept was the same person as Robert Gamble) was on Bald Island with his ‘wives’, indicating that he lived with at least two Aboriginal women. Dr Clark said it may be that Eliza Nowan was one of those ‘wives’, but, as her link to Robert Gamble has not been proven, that was speculation; and

(f)    Smythe’s comment that the three Port Phillip women were “anxious to come to Port Phillip to see their Friends at Western Port” may suggest an affiliation with Western Port Bay, but this is not determinative that they were Boonwurrung women. Here Dr Clark relied on primary references such as the journal entries of D’Urville in 1826 and Hovell in Journal on the Voyage to and at Western Port, New South Wales, 7 November 1826-7 April 1827, which both refer to Tasmanian Aboriginal women living at Western Port Bay with sealers. He opined that the reference in Smythe’s account to the women being “anxious to come to Port Phillip to see their Friends at Western Port” may refer to their Tasmanian Aboriginal friends.

Dr Clark said it was not possible to be definitive as to whether Eliza Nowan was a Boonwurrung woman on the strength of Smythe’s account.

732    He also said that the reference to Eliza Nowan being a “Port Phillip” woman is unclear, given that “Port Phillip” can have a broad or a narrow application particularly in 1839 when “Port Phillip” referred to both the administrative Port Phillip District which later became the Colony of Victoria, or to Port Phillip Bay generally, or to the area around the Port Phillip settlement. Dr Clark said that the “scant evidence” that exists in relation to Eliza Nowan suggests an affiliation with Port Phillip, but whether this relates to the narrow understanding of the settlement, or to the Port Phillip District which later became Victoria is not clear, and whether this translates into her being a Boonwurrung person is not proven.

733    Dr Clark then turned to consider the claim that Eliza Gamble was the same person as Eliza Nowan, and concluded there was no documentary evidence to show that.

734    Dr Clark tabulated the primary sources in which Eliza Gamble is named as set out below, and annexed a copy or an excerpt of that document.

735    He then tabulated the primary sources which he said can reasonably be inferred to relate to Eliza Gamble as below.

736    Dr Clark referred to five publications that he said captured the oral history of the Gamble family:

(a)    a 2002 statement by Gail Dawson in which she claimed that their ancestor Eliza and her son Yanki Yanki were taken by Capt. Robert Gamble. He quoted from her statement as follows:

Our family’s oral history recorded that Eliza was a Maori woman although there was also talk that she was Aboriginal. Some members of the family were told Eliza was buried with a plaque recording that she was the first Maori women to come to Australia. Eliza was buried in Albany but no plaque has been found or recorded thus far. All records available record that she was an Aboriginal woman from Victoria.

Dr Clark identified a series of difficulties with Ms Dawson’s statement, being that there is no record that Yanki Yanki was abducted with his mother; that Yanki Yanki’s mother was Mullingrook, Benbow’s wife, who was not abducted by the sealers, and Eliza Gamble was not his mother; that Yanki Yanki is believed to have been abducted by George Meredith in 1833, and not in 1834 as stated in Thomas’ December 1839 journal entry; and that Eliza Nowan was not abducted by Capt. Robert Gamble. Smythe told Thomas that “they were stolen by the sealers and by the Captain of the George the fourth cutter”. The master of the George was Captain John Roach.

(b)    a manuscript titled “The life of Robert Gamble and Eliza (Nowen) Gamble”, written by members of the Gamble family, being a collation of what is known by the family which does not provide any new information.

(c)    a 2014 article titled “Gamble family history of Martha Gamble” by Ms Lo Presti which states:

Eliza Nowen was a woman of the Bunurong People of Pt. Phillip Bay and had been captured by raiders in 1832/34. Robert may have bought her from another sealer on one of the islands of Bass Strait, but early records state that she was originally from Pt. Phillip Bay.

Dr Clark opined that this showed a change in the Gamble family narrative over time since it was no longer claimed that Robert Gamble was responsible for Eliza’s abduction and the year of abduction is given a range of 1832-1834, notwithstanding that Smythe’s account states it as 1834. He also noted that Thomas journal entry did not state “Pt. Phillip Bay”, rather it said “Port Phillip”.

(d)    a Text Publishing blog published in October 2019 which states that Ms Dawson said the following in a speech:

I am Aunty Gail Dawson. I’m Kunwarra, the old black swan. I’m also Karimarra and Gamanydjan but really Nonda, this shell. My grannie Naynaygurrk was stolen from Point Nepean in 1834 and taken to King George Sound. We made our way back here. We call it the voice of our Ancestors.

(e)    the March 2021 issue (No 22) of Garland Magazine which published an article about Ms Dawson entitled “Mother Whale and the creation of Nerrm: A Bunwurrang women’s dreaming story”. The article included the following author profile:

Aunty Gail Koonwarra Dawson is Baurrk Nilam Wiyakabul of the Naynaygurrk Apical Ancestor Group. She is a bee-keeper, fabric queen and weaver of textiles, grasses and stories, a friend and Bunarong social justice warrior.

Dr Clark said that the 2019 and 2021 publications revealed a change in position in that Eliza Gamble had become “Naynaygurrk”, the evidence for which was unknown.

737    Dr Clark opined that there are difficulties with linking Eliza Nowan to Eliza Gamble based on Smythe’s account. He noted that Smythe’s account records:

(a)    Eliza Nowan as having seven children in 1839, which does not align with the Gamble Family Bible which lists seven children of Robert Gamble, only four of whom were born up to and including 1839. In his view that considerably weakened the possibility that Eliza Gamble and Eliza Nowan were the same person; and

(b)    Eliza Nowan’s age as 24, thus dating her birth in circa 1815, which does not align with Eliza Gamble’s death certificate which records Eliza Gamble’s age at death as “about 60” years, thus dating her birth year as circa 1807. He said that meant that in 1839 Eliza Gamble was about 32, whereas Smythe’s account has Eliza Nowan’s age as 24.

738    In Dr Clark’s view Eliza Gamble was “undoubtedly” connected to Robert Gamble, but he considered there to be no “vital records” that show that Eliza Gamble and Eliza Nowan were the same person. He noted that they shared the same forename, but said that that may be coincidental. He also opined that it seemed odd that, if Robert Gamble was Eliza’s spouse in 1839, she would use her maiden name Eliza Nowan instead of the Gamble surname. Dr Clark thought it possible that Eliza Nowan’s spouse was someone with the surname Nowan, but a search of birth, death and marriage records across Australia did not reveal any instance of that surname.

739    Dr Clark accepted that there is no reason to doubt that Eliza Gamble was an Aboriginal woman from the Port Phillip area, but said that the documentary record does not show that she is the Eliza Nowan named in Smythe’s account, and her traditional country is not known other than her being a “Port Phillip native”. He opined that the circumstances of how Eliza Gamble came to be in the Albany region are not known, but he noted that sealers from Bass Strait are known to have been at King George Sound from at least the 1820s. He referred to Capt. D’Urville’s encounters in October 1826 with six sealers living on Breaksea Island and with two groups of whalers who had five Aboriginal women with them.

The BW Joint Experts’ Report

740    Proposition 12 in the BW Joint Experts’ Conference requested Dr Clark, Mr Wood, Dr Pilbrow and Dr D’Arcy to opine on the following statement:

It is more probable than not that, at effective sovereignty, the woman known as Eliza Nowan/Nowen was a member of the group comprising Boonwurrung people who, at sovereignty, held rights and interests in accordance with their traditional customs in, or in any part of, the land and waters now covered by the Boonwurrung native title claim.

741    Dr Clark expressed the following opinion in relation to that proposition:

Disagree. I am not convinced that Eliza Nowan/Nowen was Boonwurrung. There is only one source that refers to Eliza Nowan/Nowen which is Smyth and that account is incoherent. It has problems with regards to the attribution of the abductors, the vessel that was involved in the abduction and whether it went to the Swan River settlement. Smyth’s comment that the women were anxious to come to Port Phillip to see their friends at Western Port may suggest an affiliation with Western Port Bay but this is not conclusive that they are Boonwurrung, indeed primary references such as Dumont d’Urville (journal 14/11/1826) and Hovell (journal 20/12/1827) refer to Tasmanian women living at Western Port Bay with sealers. On the strength of the Smyth record, it is not possible to be definitive. (Clark 2023:49-51)

742    Proposition 13 then asked the experts to opine on the following proposition:

It is more probable than not that Eliza Gamble is the same person as Eliza Nowan/Nowen.

743    Dr Clark expressed the following opinion in relation to that proposition:

Disagree. The relationship between Eliza Nowan/Nowen and Eliza Gamble remains unclear and the latter’s traditional country is not known except she was a Port Phillip native. There is no vital evidence that Eliza Nowan/Nowen and Eliza Gamble are the same person. Eliza Gamble is undoubtedly connected to Robert Gamble but I cannot find any concrete evidence that Eliza Gamble and Eliza Nowan/Nowen are the same person other than they share the same forename, which may be coincidental. Furthermore the differences concerning the seven children that Eliza Nowan/Nowen had by 1839 and the seven children that Eliza Gamble had from 1835 to 1860 needs to be accounted for.

Dr Clark’s oral testimony

744    In his oral testimony, Dr Clark said that Thomas’ 1839 journal entry setting out Smythe’s account was not a credible basis for a conclusion that Eliza Nowan was a Boonwurrung woman. He again asserted the following difficulties or shortcomings with Smythe’s account:

(a)    the identity of the person who did the abduction;

(b)    the movement of the supposed vessel used in the abduction to King George Sound;

(c)    the difference between the number of children attributed to Eliza Nowan and Eliza Gamble as at 1839;

(d)    the difference in the ages of Eliza Nowan and Eliza Gamble as at 1839;

(e)    the difference in the date of the abduction in Smythe’s account and the date of the Meredith abduction;

(f)    Smythe’s reference to the women being “all anxious to come to Port Phillip to see their Friends at Western Port”. Dr Clark said that that was not “conclusive” because the journal entries of Capt. D’Urville in 1826 and Hovell in 1827 which meant that it was “very possible” that the reference to “their Friends at Western Port” referred to “fellow Tasmanians”; and

(g)    the lack of precision with the label “Port Phillip”. Dr Clark said that its use in 1839 is “somewhat problematical” because the Port Phillip District had existed as an administrative entity for a number of years by then, and he would expect a surveyor like Smythe to be “quite precise” in his use of terms. He said that led him to consider that the term “Port Philip” in Smythe’s account related to the “Port Phillip District”. In cross-examination by the State, it was put to him that the sentence “[they are] all anxious to return to Port Phillip to see their Friends at Western Port” indicates that Smythe was using Port Phillip in a more general sense, to include Western Port. Dr Clark did not accept that.

745    He said that several claims in the Gamble oral tradition are “clearly wrong” including the claims that Yanki Yanki was Eliza Gamble’s son and that Eliza Nowan was abducted by Robert Gamble.

746    Dr Clark also said that he had been told by a colleague that “Nowen” was an American name, and he noted the presence of American whaling vessels at Bald Island at that time. Dr Clark said he could not find that name in any West Australian record, and he said that “it could well be the case” that Eliza Nowan was partnered with a North American who then returned to North America, which may explain why the surname never appears again in WA.

747    Dr Clark accepted that his view that it was unlikely that a government cutter would be involved in the abduction of Aboriginal women was based in the scholarship of Dr Fels who he said had looked at that issue “extensively”. When Dr Pilbrow queried what primary source indicated that the George IV cutter was a government vessel Dr Clark did not respond.

9.4.2    Mr Wood

748    As I have previously explained, Mr Wood said he was not briefed to consider the claimed Boonwurrung identity of the named women and his 2023 report did not include any opinions in that regard. Then, in the circumstances previously outlined Mr Wood did express an opinion regarding Eliza Nowan in the BW Joint Experts’ report.

749    In relation to Proposition 12, which concerned whether it was more likely than not that Eliza Nowan was a member of the Boonwurrung People, he opined:

Disagree that it is more probable than not, again because the evidence is indecisive as to which part of the Victorian coast she might have come from. In can only be said that the possibilities Port Phillip Bay, and within that, the possibility that she was Boonwurrung. But again, not all the Victorian women living with sealers in Tasmania can have been taken from the Boonwurrung country.

750    In relation to Proposition 13, which concerned whether it is more probable than not that Eliza Gamble was the same person as Eliza Nowan/Nowen, he opined: