THE APPLICANTS' SUBMISSIONS
29 The application is supported by an affidavit of Jason Briggs, the solicitor on the record for applicants, sworn 22 February 2024. The applicants did not file written submissions in support of the application, but most of Mr Briggs's affidavit is submissions rather than evidence and I accepted it on that basis.
30 Centrally, Mr Briggs submitted that on the fourth day of the Separate Questions Hearing, the Court for the first time "identified" a "discrete question" relating to each of the four allegedly abducted Aboriginal women, being:
Whether it is reasonable to infer that just because someone was taken from the coast of Western Port Bay or Port Philip Bay, that they were Boonwurrung/Bunurong.
He submitted that "discrete question" is directly relevant to the Court's determination of the Separate Questions and it was necessary for the applicant to adduce evidence by Dr Keen to properly respond to it.
31 However, in oral submissions Mr Levy, counsel for the applicants, abandoned the contention that the Court had "identified" (in the sense of raised for the first time) a question which was not previously known to the parties. He accepted that in raising that issue the Court was merely articulating a question of which the parties were already aware, and upon which they had adduced evidence and made submissions.
32 The primary thrust of the applicants' submissions then became that:
(a) prior to and at the time of the Separate Questions Hearing the applicants' lawyers were not aware of important developments in the mid-20th century in anthropological theory and models in relation to Aboriginal social organisation at a local level;
(b) the applicants' lawyers were not aware of those developments because they were not apprised of them by the experts the applicant had retained;
(c) those developments in anthropological theory and models and their significance to the facts relevant to the Separate Questions are addressed in Dr Keen's report. If it is accepted that the composition of the Boonwurrung group at a local level prior to effective sovereignty was in accordance with Dr Keen's opinion (which accords with settled anthropological theory), that would be a conclusive answer to the Bunurong respondents' contention that merely because the four named Aboriginal women were abducted from Boonwurrung country in the 1830s they were likely to have been Boonwurrung people; and
(d) Dr Keen's opinions are therefore significant to the just determination of a central factual question in the decision on the Separate Questions and it is in the interests of justice that the applicants be given leave to adduce evidence from him.
33 The applicants note that Dr Keen's report states that up until the mid-20th century the prevailing anthropological theory or model for the social organisation of Aboriginal "residence groups" on land in Australia was of a "patrilineal, patrilocal band". That theory, propounded by, amongst others, the then influential British social anthropologist A.R. Radcliffe-Brown (e.g. in "The Social Organisation of Australian Tribes" (Radcliffe-Brown 1930-31)), was said to have presumed that a significant proportion of such residence groups were also members of the traditional "land-owning group" for that land. Dr Keen described the Radcliffe-Brown model of local Aboriginal social organisation as follows:
According to this model, residents of a hunter-gatherer band or "horde" included males of the land owning group on whose land the group resided, minus females of the group who had married men of other groups, plus unmarried females of the land-owning group and in-marrying wives of men of the group. Since the land-owning group was exogamous the wives were members of other land-owning groups or clans.
34 The applicants' argued that if, prior to effective sovereignty, local Aboriginal social organisation operated in that way, it could more readily be inferred that an Aboriginal person observed on Boonwurrung country in the 1830s was more likely than not a member of the Boonwurrung land-owning group (except that Dr Keen's opinion was that due to exogamous marriage practices that inference cannot be drawn where an Aboriginal woman was married).
35 However, Dr Keen said that the Radcliffe-Brown model of Aboriginal social organisation prior to effective sovereignty was not based on actual observations or evidence of how Aboriginal people were socially organised and lived their lives, but instead reflected unproven "assumptions and theoretical models" about the social organisation of hunter-gatherer groups, and had long been discredited. Dr Keen drew a distinction between on the one hand, an Aboriginal "land-owning group" in Australia, and on the other hand, "residence groups" of Aboriginal persons who occupied and used the land at that time.
36 Mr Briggs submitted that Dr Keen's opinion finds support in a book by the eminent Australian anthropologist Professor Peter Sutton (Sutton P, Native Title in Australia, An Ethnographic Perspective (Cambridge University Press, 2003)) and he cited several passages from chapter two of that book. There, Professor Sutton said that Radcliffe-Brown's writings on local Aboriginal organisation had "held considerable sway until the Hiatt-Stanner debate of the 1960s", but that as far as local Aboriginal social organisation is concerned Radcliffe-Brown's views were now seen as removed from "ethnographic reality." Professor Sutton expressed the opinion that "[c]ontrary to Radcliffe-Brown's model, there are many more clans (and thus estates) represented in these bands than just the clan of the patrilineal core members, or that clan plus those of incoming spouses. In fact the average number of clans with members in a single band, on this sample, is more than six."
37 Mr Briggs also submitted that Dr Keen's opinion finds support in:
(a) a 2021 paper by Emeritus Professor Nicolas Peterson of the Australian National University which summarised the errors in the Radcliffe-Brown model, titled "Understanding classical Aboriginal land tenure: key concepts and issues"; and
(b) the findings and reasonings of Blackburn J in Milirrpum v Nabalco Ply Ltd (1971) 17 FLR 141, and the evidence of Dr Kingsley Palmer in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [754] (Mortimer J).
38 The applicants said that the testimony of Dr Pilbrow, the Bunurong respondents' expert in the Separate Questions Hearing, "substantially replicated" the "now discredited Radcliffe-Brown model". They said that when it is understood that the Radcliffe-Brown model is contrary to mainstream anthropological theory in regard to Aboriginal social organisation at a local level prior to effective sovereignty, it cannot rationally be inferred from the presence of an Aboriginal woman on Boonwurrung country in the 1830s that she was more likely or not to have been a Boonwurrung person. They said that is the conclusion Dr Keen reached.
39 The applicants gave a number of explanations for why they and their lawyers were not aware of the (asserted )significant developments in anthropological theories and models in the mid-20th century (particularly the move away from Radcliffe-Brown's theories and models) until after the Separate Questions Hearing, and for their not appreciating the importance of those developments on the facts of this case.
40 They said that notwithstanding the publication of many anthropological reports since 2000 regarding the group status of Aboriginal women abducted from the Victorian coastline, none of those reports referred to the (asserted) significant developments in anthropological theories and models, or referred to their significance. They said that, since a 2003 report by their expert, Dr Clarke, the question as to whether it may rationally be inferred solely from the fact that a woman had been abducted from Boonwurrung country that the woman was a Boonwurrung person had, with one exception, been ignored in anthropological reports.
41 The applicants said that the exception was a joint experts' conference in September 2018 in an application for a native title determination application brought in 2014, titled Gunaikurnai People Native Title Group & Ors v State of Victoria & Ors proceeding VID 737 of 2014 (Gunaikurnai Application). As is usual, following that Court-convened conference the experts prepared a joint report dated 7 September 2018 (First Joint Gunaikurnai Experts' Report). That report was tendered, without objection, in this proceeding.
42 Each of the experts involved in the First Joint Gunaikurnai Experts' Report (Dr Mahnaz Alimardanian, an anthropologist, Ms Kathleen Lothian, a historian, Dr Suzi Hutchings, an anthropologist, Mr Wood, an anthropologist, Dr Valerie Cooms a historian and Mr James Annand, an anthropologist) agreed:
(a) in relation to Eliza Nowen and Jane Foster, that "[t]here are insufficient facts in the basis material for us to determine whether or not [Eliza Nowen/Jane Foster] had a traditional association with the Bunurong/Boonwurrung group and country"; and
(b) in relation to Elizabeth Maynard, that "the information does not include which Port Phillip group this woman belongs to, and this is the difficulty with determining whether she belonged to the Bunurong/Boonwurrung aggregation of local groups".
43 Following that, a further joint experts' conference was convened in the Gunaikurnai Application on 27 and 28 May 2019. As is usual the experts prepared another joint experts' report dated 11 May 2019 (Third Joint Gunaikurnai Experts' Report). That report was also tendered, without objection, in this proceeding.
44 Each of the experts involved in the Third Joint Gunaikurnai Experts' Report (Dr Pilbrow, Ms Lothian, Dr Hutchings, Mr Wood, Dr Cooms, Mr Annand and Dr Dean Fergie, an anthropologist) agreed as follows in relation to Eliza Nowen and Marjorie Munro:
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 belong 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."
For similar reasons the experts also agreed that the evidence indicated that Elizabeth Maynard had a connection to part of the Boonwurrung claim area.
45 As the applicants submitted, none of the expert reports filed by the parties in this proceeding, nor any of the earlier expert reports which the parties tendered, mentioned the significant developments in anthropological theory and models that occurred during the mid-20th century to which Dr Keen referred, or in particular the discrediting of Radcliff-Brown's theories and models regarding the social organisation of local Aboriginal groups. Nor, as the applicants and the applicants' lawyers said, did the expert witnesses they engaged in the case alert the applicants' lawyers to the significance of those developments on the facts of this case. They said that, as a consequence, the applicants' lawyers were not aware of those (asserted) significant developments and thus did not appreciate the significance of those developments to this case.
46 That was said to have occurred because:
(a) the applicants' lawyers relied upon Dr Clark, a historical geographer, to express and develop his reasoning, first expressed in his 2003 report, that it cannot rationally be inferred solely from the fact that prior to effective sovereignty an Aboriginal woman was abducted from Boonwurrung country that the woman was a Boonwurrung person. The applicants said that Dr Clark is not an anthropologist and consequently was not apprised of the mid-20th century significant developments in anthropological theories and models about Aboriginal social organisation prior to effective sovereignty as explained by Dr Keen. As a result, Dr Clark did not refer to that extant body of research in his report, nor in his evidence in the Separate Questions Hearing;
(b) the applicants engaged Mr Wood, an anthropologist, for the Separate Questions Hearing but only in relation to Question 1(e), which concerned "mutual recognition". He was not asked to provide a written report about the other Separate Questions and was not formally retained in relation to the (asserted) "discrete question" which is the subject of Dr Keen's report. The applicants accepted, however, that at the Joint Experts' Conference in this proceeding, and in his evidence in the Separate Questions Hearing, Mr Wood generally supported Dr Clarke's opinion that it could not be inferred, from the fact that, prior to effective sovereignty, an Aboriginal woman was abducted from traditional Boonwurrung country, that she was, a Boonwurrung woman;
(c) the applicants' experts did not refer the applicants' lawyers to chapter two of Professor Sutton's book until after the Separate Questions Hearing. And notwithstanding that the applicants had relied upon other parts of that book the applicants' lawyers had not read chapter two; and
(d) at the time of the Separate Questions Hearing the applicants' lawyers were not aware of the findings and reasonings of Blackburn J in Milirrpum, nor of the evidence of Dr Palmer in Smirke.
47 The applicants said that, as a consequence, Mr Levy did not cross-examine Dr Pilbrow on his evidence (which was said to have "substantially replicated" the Radcliffe-Brown theory and model). Nor, as a consequence, did the applicants seek to put on evidence of an expert such as Dr Keen to meet those (asserted) deficiencies in Dr Pilbrow's opinions.
48 Mr Briggs, however, conceded that the applicants' lawyers ought to have been apprised of those matters at the time of the Separate Questions Hearing and he apologised for that failure.
49 Apparently so as to address any suggestion of delay in bringing this application, Mr Briggs deposed that the applicants' lawyers did not become aware of the findings and reasonings of Blackburn J in Milirrpum or of Dr Palmer's evidence in Smirke, or of their significance to the case, until October 2023 when they were preparing the applicant's submissions in reply. He also said that, in October 2023, the applicants' lawyers located the 2021 paper by Professor Peterson via a Google search.
50 Then, Mr Briggs deposed that in November 2023 the applicants' lawyers sought advice from Mr Wood, noting that in his evidence in the Separate Questions Hearing he had had indicated the existence of "ethnographic literature" as to "what Australian Aboriginal communities were like in the pre-contact eras, being "detailed studies" which showed that prior to effective sovereignty the "average camp had a pretty mixed composition of people from a wide catchment of … groups". Mr Wood responded on 9 December 2023 by explaining that the developments in anthropological theory and models about the social organisation of Aboriginal groups at a local level was explained in chapter two of Professor Sutton's book. Mr Levy said that it was then that he became aware of the contents of chapter two of the book.
51 Then, Mr Briggs deposed that he contacted Professor Peterson in December 2023 and asked whether he would be able to speedily write a report for use in the Separate Questions Hearing. Professor Peterson was unable to assist, but recommended Dr Keen. The applicants' lawyers then approached Dr Keen who advised on 8 January 2024 that he was unable to prepare a report within the necessary short timeframe, but after discussions he agreed to provide a short report, which is annexed to Mr Briggs's affidavit.