FEDERAL COURT OF AUSTRALIA

Briggs on behalf of the Boonwurrung People v State of Victoria (No 3) [2026] FCA 1359

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.40(b) of the Federal Court Rules 2011 (Cth), the native title claim group described in Schedule A of the Form 1 Application for a determination of native title be amended by deleting paragraph 2 and inserting:

The persons who comprise the Boonwurrung People’s native title claim group are all persons descended from one or more of the following ancestors:

(a)    Louisa Briggs;

(b)    Elizabeth Maynard;

(c)    Marjorie Munro (also known as Marjorie Munroe and Marjorie Munrow);

(d)    Eliza Nowan (also known as Eliza Nowen/Gamble),

and who identify as Boonwurrung or Bunurong.

2.    Pursuant to s 66B of the Native Title Act 1993 (Cth), the following persons do jointly replace the current Applicant:

(a)    Carolyn Maria Briggs;

(b)    Sylvia Fay Muir;

(c)    Zoe Hazel Upton;

(d)    Richard Young;

(e)    Glenn Shaw;

(f)    Robert Ogden;

(g)    Samantha Bennett; and

(h)    Tasma Walton.

3.    Pursuant to s 66B(4) of the Native Title Act 1993 (Cth), the Native Title Registrar be directed to amend the Register of Native Title Claims in accordance with order 2.

4.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), the Applicant have leave to file an amended Form 1 Application consistent with orders 1 and 2 on or before 12 October 2026.

5.    Pursuant to s 84(7) of the Native Title Act 1993 (Cth), Gail Kunwarra Dawson, Robert Ogden, Tasma Walton and Jarrod West cease to be parties to this proceeding.

6.    There be no order as to costs.

7.    The matter be listed for case management at 10.00 am on 22 October 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

1    This is the hearing of an Interlocutory Application dated 28 April 2026 for various orders made by people I will describe in these reasons as the Interlocutory Applicants. In summary, the orders sought are:

(1)    Order 1: Pursuant to r 1.40(b) of the Federal Court Rules 2011 (Cth), the native title claim group described in Schedule A of the Form 1 Application for a determination of native title be amended by deleting paragraph 2 and inserting:

The persons who comprise the Boonwurrung People’s native title claim group are all persons descended from one or more of the following ancestors:

(a)    Louisa Briggs;

(b)    Elizabeth Maynard;

(c)    Marjorie Munro (also known as Marjorie Munroe and Marjorie Munrow);

(d)    Eliza Nowan (also known as Eliza Nowen/Gamble),

and who identify as Boonwurrung and Bunurong.

(2)    Order 2 is that:

Pursuant to s 66B of the Native Title Act 1993 (Cth), the following persons do jointly replace the current Applicant:

a.    Carolyn Maria Briggs;

b.    Sylvia Fay Muir;

c.    Zoe Hazel Upton;

d.    Richard Young;

e.    Glenn Shaw;

f.    Robert Ogden;

g.    Samantha Bennett; and

h.    Tasma Walton.

(3)    Orders 3 and 4 are consequential orders providing for the Native Title Registrar to be directed to amend the Register of Native Title Claims and granting leave to the Applicant to file an amended Form 1 Application. Proposed order 5 would remove four individuals as parties to the proceeding, on the basis they would have become the current Applicants. The sixth order concerns costs.

2    The Interlocutory Application is supported by:

(1)    affidavit of Merinda Elizabeth Logie filed 29 April 2026;

(2)    affidavit of Merinda Elizabeth Logie filed 1 May 2026;

(3)    affidavit of Tim Pilbrow filed 29 April 2026;

(4)    affidavit of Robert Francis Ogden filed 29 April 2026;

(5)    affidavit of Glenn Francis Shaw filed 29 April 2026;

(6)    affidavit of Tasma Walton filed 29 April 2026;

(7)    affidavit of Samantha Bennett filed 29 April 2026;

(8)    affidavit of Zoe Hazel Upton filed 1 May 2026; and

(9)    affidavit of Merinda Elizabeth Logie filed in Court on 31 August 2026.

3    The original Applicants in this proceeding are Ms Carolyn Briggs and Ms Sylvia Muir (the Original Applicants). The Original Applicants oppose order 1 being made in its current form and argue that the words “and who identify as Boonwurrung and Bunurong” (the Disputed Words) should be removed from the proposed description of the Native Title claim group. The Original Applicants have filed no evidence in support of their position and filed submissions very late without having sought any extension of the timetable by which they were required to file those submissions. Nonetheless, I consider it is in the interests of justice, and in the interests of resolving disputes as quickly, inexpensively and efficiently as possible that the Original Applicants have leave to file and rely upon their written submissions. I have proceeded on the basis of consideration of those submissions as supplemented by oral submissions made by Mr Levy.

4    The State of Victoria consents to orders 1, 5 and 6 and neither consents nor opposes the balance of the orders. The Commonwealth of Australia (the Commonwealth) consents to the amendment of the Form 1 Application and the claim group description contained therein to ensure the claim group comprises descendants of the apical ancestors identified in the orders made by Murphy J in Briggs on behalf of the Boonwurrung People v State of Victoria (No 2) [2025] FCA 279 (Briggs (No 2)). The Commonwealth is neutral as to the composition of the Applicant on the basis that it is a matter for the claim group as a whole. The Commonwealth relied upon the affidavit of Mr Cameron Retallick dated 17 July 2026.

BACKGROUND

5    The Interlocutory Application seeks to bring the claim group description into conformity with the Court’s determination of the separate questions in Briggs (No 2), and to provide for the ongoing conduct of the matter under the Native Title Act 1993 (Cth) (the Act). The effect of Briggs (No 2), among other things, was to identify additional apical ancestors, the descendants of whom were identified by his Honour as Boonwurrung (or Bunurong), while other antecedents were found not to have been 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.

6    After Briggs (No 2) was delivered, certain meetings were called. There was a Notice for two meetings that was given together. The Notice identified that the purpose of the first meeting of 28 March 2026 was to:

... authorise the amendment of the native title claim group description in accordance with the orders of Justice Murphy.

7    That meeting was said to be open to anyone over the age of 18 years who is a biological descendant of Louisa Briggs. The agenda of that meeting included in the Notice provided that one of the items under consideration would be to:

Authorise the addition to the native title claim group description of the Boonwurrung Application the apical ancestors Elizabeth Maynard, Elizabeth Nowan…and Marjorie Munro…and their descendants and the removal of Ann Munro as an apical ancestor of the native title claim group.

8    The Notice then stated there would be a second meeting on the following day, 29 March 2026. The Notice said those who should attend the second meeting were the biological descendants of the identified ancestors or who could demonstrate they were “descended from the Boonwurrung/Bunurong People who occupied and possessed the land and waters of the claim area of the Boonwurrung Application prior to 1788 in accordance with the traditional laws and customs of the Boonwurrung/Bunurong People” and “who identify as Boonwurrung or Bunurong”. The purpose of that second meeting was identified in the notice as follows:

To confirm the amendment to the native title claim group description of the Boonwurrung Application made in the first meeting, to ensure that the description is acceptable to the members of the amended native title claim group and authorise any further changes to the native title claim group, including whether further apical ancestors should be added to it, and to consider and authorise the replacement of the Named Applicant of the Boonwurrung application.

9    In addition, the agenda said that they would “[c]onsider and authorise any other apical ancestors who should be added to the native title claim group of the Boonwurrung Application”. It also contemplated authorising “an application being made to the Federal Court to give effect to any changes authorised”.

10    There was a process for registration at the meetings, and travel assistance was made available for anyone traveling further than 50 kilometres from the meeting. The notice was published in various newspapers including the Koori Mail and the Herald Sun and via various social media channels. There is evidence of direct notification to various people via email.

11    The first meeting took place on 28 March 2026. The proposed resolutions were in evidence. However, the Interlocutory Applicants have not provided direct evidence of what took place at that meeting. The second meeting took place on 29 March 2026. The facilitator was Mr Michael O’Donnell, an independent lawyer. There were lawyers from Camatta Lawyers, Logie Legal and First Nations Legal and Research Services, and other individuals in attendance. The evidence is that approximately 371 Boonwurrung/Bunurong people attended the second meeting. Without being exhaustive, the minutes record that:

(1)    The first resolutions (resolution 1A and 1B) concerned the process that would be adopted for the resolutions themselves.

(2)    The second resolution involved attendees confirming that they were descended from one or more of the apical ancestors listed in the Notice.

(3)    The third resolution recorded that attendees considered there had been sufficient notice given of the meeting for the purpose of making authoritative decisions. I note there were four votes against that motion.

(4)    The fourth resolution recorded the group’s views that the meeting was a sufficiently representative meeting.

(5)    The fifth resolution was headed: “The Boonwurrung/Bunurong native title claim group”. It is clear that the resolution was read out, and Ms Logie explained the word Boonwurrung was used in the resolution because that was the term used in the legal claim. The motion was:

In accordance with the agreed and adopted decision making process, the people in attendance at this meeting confirm that the “Boonwurrung People’ are all persons descended from one or more of the following ancestors:

•    Louisa Briggs;

•    Elizabeth Maynard

•    Marjorie Munroe;

•    Eliza Nowen/Nowan/Gamble

and who identify as Boonwurrung or Bunurong.

The minutes record a clear majority in favour of the resolution with no votes recorded against and no abstentions recorded. The resolution was therefore recorded as passed.

(6)    The sixth resolution was entitled: “Acceptance of the amended claim group description”. It provided:

In accordance with the agreed and adopted decision making process, the people in attendance at this meeting accept the resolution passed by the Boonwurrung claim group on 28 March 2026 that:

The Native title Claim group description in Schedule A of the Boonwurrung People Native Title Determination Application (Form 1) be amended to add the following Apical ancestors:

1. Elizabeth Maynard, Eliza Nowan (also known as Eliza Nowen/Gamble) and Marjorie Munro (also known as Marjorie Munroe and Marjorie Munrow); and

2. to remove Ann Munro.

That resolution was also read out. The minutes record that:

…this resolution was for this meeting to confirm what happened at the meeting the previous day where the Boonwurrung group had agreed to include Elizabeth Maynard, Eliza Nowen/Gamble and Marjorie Munro as apical ancestors in the claim.

The minutes record a clear majority with no votes against and no abstentions. The minutes record that the resolution was passed.

(7)    The tenth resolution was entitled: “Technical and other Amendments to the Native Title Application (Form 1)”. It provided for the appointed lawyers to take steps in accordance with the authorisation provided. The minutes record a clear majority in favour with no votes against and no abstentions recorded. The resolution was recorded as passed.

12    The Interlocutory Application was made following the second meeting. I now turn to consider the most contentious aspect of the Interlocutory Application, the first order concerning the claim group.

THE FIRST ORDER: THE CLAIM GROUP

13    It is this aspect of the Interlocutory Application which the Original Applicants oppose and seek the removal of the Disputed Words.

14    As I have set out at [1(1)] above, the first order seeks to identify the native title claim group by including the words “and who identify as Boonwurrung or Bunurong”.

15    The Original Applicants advanced three reasons for their opposition to the inclusion of the Disputed Words:

(1)    First: the inclusion of these words is said to mean that proposed order 1 does not conform with the judgment of Murphy J in Briggs (No 2) because it is said there was no finding that the requirement for self-identification was a licit adaptation.

(2)    Second: the inclusion of the Disputed Words is inconsistent with, and not authorised by:

(a)    the third resolution made by the Original Applicants at the first meeting on 28 March 2026, which authorised the Boonwurrung Applicant to seek leave to expand the claim group to include an additional three apical ancestors; and

(b)    the sixth resolution made by the proposed expanded Boonwurrung claim group on 29 March 2026, entitled “Acceptance of the amended Claim group description”, which endorsed the third resolution as made on the previous day – and thus is a counterpart of that resolution.

(3)    Third: the third basis of objection to the inclusion of the Disputed Words effectively surrounds allegations that there was defective notice of the second meeting.

16    In oral submissions, it was said that all three arguments are connected to the proposition that the authorisation process was objectively confusing because the fifth proposed resolution at the second meeting used the words “and who identifies Boonwurrung or Bunurong” while the sixth proposed resolution did not use those words and was to different effect.

17    I turn now to consider each of these issues.

Conformity with the reasons in Briggs No 2

18    The Original Applicants submit that while Murphy J found that the three part test identified by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (at 70) was not a normative element of Boonwurrung traditional laws and customs at sovereignty, no factual finding was made as to whether that test – or only one criterion of the “mutual recognition” aspect of the test – may be a licit adaptation of traditional laws and customs which occurred post-sovereignty in response to the effects of colonisation.

19    It is therefore said that the adoption of part of that test (embodied in the Disputed Words) was inconsistent with his Honour’s findings so that the group could not be validly authorised.

20    There is nothing in the reasons in Briggs (No 2) which precludes the formulation of the group presently proposed. In answering the separate question, his Honour observed (at [947]):

... as the Commonwealth said, that does not deny that membership of a particular Aboriginal people may have the elements or requirements identified by Brennan J, but in all cases under the NTA the statutory criteria govern. Brennan J’s tripartite test may well reflect the traditional laws and customs of an Aboriginal group for the purposes of ss 223(1)(a) and (b), but his Honour’s dicta cannot set the content of those traditional laws and customs and thereby identify the metes and bounds of requirements for membership of that group at sovereignty or thereafter. The content of the traditional laws and customs of a claim group relevant to membership is a matter to be determined on the evidence in relation to each particular group including whether the evidence shows a normative system of traditional laws and customs.

21    The Commonwealth submits, and I accept, that the identification of the claim group is something that can be altered over time if necessary or appropriate to do so, provided the requirements of the Act and rules are met, including the requirements as to claim group authorisation.

22    Composition of the claim group for the purpose of the Form 1 application is necessarily constituted prior to the determination of a native title claim. The content of laws and customs are matters that must be determined on the evidence on the determination of that application. In this instance, the Original Applicants have not identified a basis for the submission that the description of the claim group in question is not available. I therefore reject this aspect of the Original Applicants’ attack on the proposed first order.

Authorisation at the meeting

23    The first aspect of the attack on the authorisation is related to the third resolution made at the first meeting on 28 March 2026. There is no direct evidence as to what took place at the meeting. However, it is clear that this was the first of the two steps referred to by Bromberg J in Champion on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2022] FCA 65 (at [17]):

In order to effect a change to the composition of a native title claim group, the claim group must abide by a two-step process: Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [56]-[57] (Reeves J). First, the existing claim group must meet to determine how the claim group is to be reconstituted. Second, the replacement claim group must meet to authorise the applicant or a new applicant to make the claim on behalf of the replacement claim group. The Act does not expressly mandate authorisation pursuant s 251B for the first step, but case law has proceeded on the basis that authorisation is required: Forrest v State of Western Australia [2014] FCA 876 at [8]-[12] (Gilmour J); Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2019] FCA 651 at [26] (Murphy J). The second step requires the replacement claim group to authorise a “new” applicant. While described as “new”, it may be the case that the replacement claim group merely reauthorises the existing applicants. Where the proposed group of persons who will be the applicant is actually new, such as in the present application, the requirements of s 66B(1) of the Act must also be met.

24    It appears to be submitted that the group at the first meeting had to agree to the inclusion of the Disputed Words for the second meeting to validly include those words. I do not accept that submission. The Original Applicants were present at both the first and second meetings. They were free to raise issues with the understanding of the first meeting’s resolutions at the second meeting. There is no evidence that such concerns were then raised or are now held. There is no basis on the evidence to support the conclusion that there was confusion arising from this issue, either subjectively or objectively. A submission suggesting there was a meaning intended that was not reflected in the 29 March 2026 meeting cannot be sustained in that context. This aspect of the complaint must fail.

25    The separate complaint that resolution five is unclear or confusing must likewise fail. Accepting for these purposes that it is an objective question (so that lack of evidence as to confusion is not relevant) it is necessary to read the resolution as a whole and in context. That context includes:

(1)    the terms of the Notice, which foreshadowed the Disputed Words;

(2)    the explanations at the meetings and the opportunity for discussion at those meetings that is plain, having reviewed the minutes;

(3)    the availability of independent individuals and lawyers at the meeting; and

(4)    the clear terms of the vote (with no opposing votes or abstentions recorded).

26    I do not see any basis to assert that the fifth resolution is anything other than clear and operative in accordance with its terms. Those terms are reflected in the proposed first order in the present Interlocutory Application.

The terms of the Notice

27    I accept that the Notice should not be scrutinised in an overly technical or pedantic way. A standard of perfection is not required and a robust approach should be taken to determining whether or not the Notice offered a reasonable opportunity for people to determine whether they were among those entitled to attend to vote and decide whether to attend to vote and participate in the meeting (Burragubba v Queensland [2017] FCA 373 at [30] – [32] (Reeves J); Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40] – [41] (Rares J); TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2015] FCA 818; 242 FCR 283 (Rares J) at [120]). I note the comments of Stone J in Lawson on behalf of the ‘Pooncarie’ Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (at [28]):

In an ideal situation one might wish for more precise identification of the Claim Group members and information on what proportion of the membership actually attended the meeting. I do not think, however, that the Act requires decisions of native title claim groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.

28    Those comments were subsequently cited in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464 at [54] (Rangiah J). I likewise agree with her Honour’s comments.

29    As set out earlier, the Notice identified the expanded claim group, and included reference to the notion of self-identification in the terms ultimately included. I do not accept that it was necessary to set out at length, the proposed resolutions. It is clear, in my view, that there was sufficient notice of the matters to be discussed. Moreover, that was reflected in the resolutions of the meeting themselves, with 371 attendees, resolutions to the effect that there was a sufficiency of notice should be given substantial weight in the overall analysis.

30    Had there been any concerns about the adequacy of notice, given the nature and number of the attendees, one could have expected them to have been raised, and the evidence is that no such concerns were raised.

31    The Notice was therefore sufficiently clear to authorise the first order.

32    I do not accept the arguments proffered by the Original Applicants as to why the proposed first order should not be made. In my view, the first order was authorised validly at a properly convened meeting.

33    The first order will therefore be made in the terms proposed in the Interlocutory Application.

THE SECOND ORDER: SECTION 66B

34    Section 66B(1) – (2) of the Act provide for the replacement of the applicant of a native title claim group in cases of consent or absence of authority. It provides:

Replacement in case of consent or absence of authority

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    the person consents to his or her replacement or removal;

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

(2)    The Court may make the order if it is satisfied that the grounds are established.

35    In exercising its discretion under s 66B, the Court’s attention is directed to the resolutions considered and passed or rejected by a claim group in the process of authorising a replacement applicant. To that end, the discretion in s 66B(2) should be exercised in a manner that seeks to give effect to the intention of the claim group, determined by reference to the construction of resolutions made by the claim group at an authorisation meeting. In Smallwood v Queensland [2014] FCA 331; 218 FCR 305, Rares J said (at [41]):

... the construction of a resolution at a meeting of a claim group must be approached on the same basis as the construction of any other resolution by a body, that is, in the way in which an ordinary, reasonable person who was present at the meeting of the claim group and understood its laws and customs would have understood the words used in the resolution to have been employed.

36    The Court must be satisfied that the orders sought by a person or persons under s 66B will give effect to the intention of the claim group. I have considered the criteria in s 66B and have concluded that because of the authorisation meeting that I have analysed earlier in these reasons:

(1)    the Original Applicants are no longer authorised by the claim group to deal with matters arising in relation to the application;

(2)    the Interlocutory Applicants are authorised by the claim group to deal with matters arising in relation to the application; and

(3)    the Interlocutory Applicants are so authorised.

37    The ultimate question is whether the Court is satisfied that the intention of the claim group is to nominate the Interlocutory Applicants in the manner set out in the proposed orders. I am so satisfied by reason of the evidence of the authorisation meetings that has been provided to the Court.

THE BALANCE OF THE ORDERS

38    The balance of the orders are uncontroversial and follow from the reasons already explained. I will therefore hear the parties as to the correct date for proposed order 4 and, otherwise, the orders will be made in accordance with the Interlocutory Application.

39    These reasons were delivered ex tempore and were revised in accordance with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J, Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

Associate:

Dated:    14 September 2026

SCHEDULE OF PARTIES