Although Bardi and Jawi reached an agreement about a representative structure for a working group to precede their PBC, during my research, this representation was consistently challenged from within the group. Incorporation within the outstation context resulted in the multiplication of incorporated outstation groups; but in the native title context, the requirement is for a single incorporated group, a PBC. The outstation movement has a centrifugal impetus, while native title, as in the PBC regulations, has a centripetal one. These two forces are invariably in tension with one another, and it remains to be seen, at some later stage, how the relationships between incorporated outstation groups and the PBC will be accommodated.
At issue here is the relationship between these corporate entities that are, in some sense, designed to give some external representation to indigenous landowners, and landownership itself.
If the core of property as a social institution lies in a complex system of recognized rights and duties with reference to the control of valuable objects, and if the roles of the participating individuals are linked by this means with basic economic processes, and if, besides, all these processes of social interaction are validated by traditional beliefs, attitudes, and values, and sanctioned in custom and law, it is apparent that we are dealing with an institution extremely fundamental to the structure of human societies as going concerns. For, considered from a functional point of view, property rights are institutionalised means of defining who may control various classes of valuable objects for a variety of present and future purposes and the conditions under which this power may be exercised (Hallowell 1955: 246).
In his determination of the Bardi and Jawi claim, Justice French commented on the distinction between the workings of property as a social institution at a broader level that is reproduced over time, and the internal differentiation of various rights within a claimant group that are fundamental to the workings of property. In relation to the Commonwealth’s position that the determination of native title should be made at the level of the estate group, he said:
The Commonwealth argued against the applicants’ position that the Bardi and Jawi people comprise the proper native title holding group and that the rights of patriclans, lawmen and others are to be determined intramurally [i.e., internally]. This position, it was said, involved a ‘deliberate avoidance’ of the requirements of the Act. The Act, it was said, requires the Court to specify who has what rights under traditional law and custom and not to delegate that question to the applicants. The Commonwealth position so expressed risked conceptual confusion between native title rights and interests held in common by a particular society and their distribution and exercise according to elements of a unitary traditional law and/or custom which may be ambulatory and responsive to changing circumstances without affecting the integrity of its normative foundations.[35]
Discussions concerning the level at which native title should be recognised in various jurisdictions will no doubt continue. Different levels of incorporation may reflect, to uneven extents, the different levels at which land is traditionally held (and sometimes the internal differentiation of these). The difficulties indigenous groups encounter in forming PBCs may be considerable, and the implications for social relations within indigenous groups have yet to fully emerge or be understood. Regardless of the form in which native title is determined, and the extent of rights and interests such determinations recognise (Glaskin 2003), Aboriginal groups will be required to form PBCs to hold and administer title or to enact agreements, and this will require internal negotiations within native title claimant groups. At the core of many of these internal negotiations are the claimant group’s own property relations, that is, the social relations that they have among each other with respect to their exercise of rights in land or to speak for land. These internal property relations are distinct from those native title rights and interests that may eventually be recognised in native title determinations, but as I have argued elsewhere (Glaskin 2002, 2005), participation in the native title process itself (of which determinations of native title and incorporation as PBCs are part) will ultimately have an effect on the articulation and enactment of the internal property relations within those groups concerned.