The outcomes of native title cases are finally determined through mediation or litigation. Both result in a legal determination of the extent to which native title rights and interests can be recognised at law, although in some cases, of course, determinations are made that native title cannot be recognised. The time between when work on a native title claim begins and its resolution can be quite substantial. In the Bardi and Jawi case, work on the claim formally began in 1994. Following litigation, a determination was made in 2005, and an appeal to the full Federal Court was heard in early 2007. During the years since work on the claim began, Bardi and Jawi have constantly been involved in various processes associated with their claim, including claim research, meetings to give legal instructions, to make communal decisions about land use in the area under claim in response to various developments, in mediations and negotiations, giving evidence in the Federal Court (in 2001 and again in 2003), attending other court evidence including the Federal Court appeal in this case in 2007, and more.

While some Aboriginal groups claiming native title may achieve consent determinations without facing litigation, all groups holding native title are required to form a prescribed body corporate (PBC) to hold and manage their native title rights and interests. My exploration of the effects of engaging with native title processes here focuses on discussions concerning the development of a PBC, which, amongst Bardi and Jawi, began long before the determination of their case in June 2005. The discussions I refer to here principally took place between 1996 and 1998. Further discussions have no doubt taken place since then, and it should be emphasised that my observations here are limited to those negotiations, and that these occurred pre-determination.

The Native Title Act requires an incorporated native-title holding body, a PBC, to hold the native title rights and interests that form the ‘title’ once the case has been determined. Like other corporations, a PBC requires a constitution outlining the rules and objectives by which the corporation will operate. Long before their native title claim had been heard in the Federal Court, the Kimberley Land Council—concerned about formalising land-use decisions in the area under claim—convened meetings with Bardi and Jawi claimants to discuss issues related to the development of a constitution for their PBC (this began in 1996; the claim was first heard in 2001). However, claimant discussions over these issues were not confined to larger public meetings, but spilled over into every-day talk among members of the claimant group. The issues were considered to be of much consequence, and most claimants saw themselves as vital stakeholders in the outcomes.

As members of the claimant group discussed the constitution for their PBC, one aspect they felt had to be incorporated within the constitution concerned the role of the madjamadjin (‘Law bosses’ or senior ritual experts) within their society. The madjamadjin became defined in the draft constitution as ‘those Common Law Holders who are recognised in accordance with Aboriginal Law, as having authority to speak about Aboriginal Law, in relation to Traditional Country’. Clause 11.3 of the draft constitution of the Bardi and Jawi PBC defined the role of the madjamadjin as including:

During the course of their engagement with native title, as various internal disputes have arisen, Bardi have called upon the madjamadjin or ‘bosses’ to arbitrate matters having to do with their ‘culture’. This has not provided straightforward solutions, for as one madja or ‘boss’ described it to me—this is my paraphrase—while the roles and responsibilities of the madjamadjin within the ritual context are circumscribed, outside of the ritual sphere, no such circumscription exists, and bosses do not necessarily hold uniform opinions or interpretations in relation to cultural matters (and see Keen 1997: 62). This was evident in a number of situations I witnessed and discussed with various people, and the reflection regarding the madjamadjin just described was derived from one of these conversations.^[14] Authority is often contested between madja, and resolution of non-ritual issues in which madja intervene is rarely the direct outcome of their actions alone.

Notwithstanding this, the bosses themselves as well as the majority of the claimant group held the view that where a contentious issue concerning land ownership arose, it was the bosses who needed to be called upon to arbitrate the issue. The codification of the role of the madjamadjin within the draft constitution represents the Bardi and Jawi attempt to translate and transpose traditional cultural principles into the context of a draft constitution for a PBC, reflecting what Sullivan (1997: 139) described in another context as being ‘nothing less than an attempt at a self-governing structure reflecting customary Aboriginal Law.’

The incorporation of the role of the madjamadjin within the draft constitution, like other matters there that I will come to, stemmed from the public discussions concerning the reasons that Bardi and Jawi sought a determination of native title in the first instance. At the time of these discussions, most middle-aged and older Bardi saw native title as inseparable from aspects of their traditional laws and customs that underlay their claim to native title and provided its content. The formation of a PBC was, in their view, closely linked with the development of a particular kind of constitution—one they believed should adequately reflect the basis of their native title, that is to say, their ‘culture’. Thus, the 1998 draft constitution of their PBC sought to uphold Bardi and Jawi ‘Law, language and culture’. While PBC constitutions do not require this kind of reflection of a group’s law and custom, claimant perceptions that native title concerned their culture meant that they approached the development of the constitution from this basis. For example, one claimant expressed the view that ‘seeing that this land claim is a countryman thing, it’s about our culture, it’s [the constitution] gotta be Aboriginal more than whiteman’.^[15] Another claimant expressed it this way:

In the context of these public discussions, one claimant^[17]pointed out that prescribed rules within a constitution could not ensure cultural reproduction. He said, ‘can I strongly talk about this? I’m not against what’s been said here, but culture should be taught from home. Sit down with jawul [ritual godparent/s] tell stories, who is related to who …’. This man’s observation indicated his reflexivity about the ways in which ‘culture’ is reproduced, stressing ‘the home’ as the place where this should occur; an apparently more organic and kin-based form of cultural reproduction than that represented by the codification of certain aspects of ‘culture’ within a PBC’s constitution. His comment goes to the essence of one of the issues I wish to identify here: the effect of the native title process on cultural reproduction, which becomes potentially splintered between dynamism and codification, caught between ‘tradition’ and the objectification of ‘tradition’, whether that occurs through PBC ‘rules’ or indeed through native title determinations. The coexistence of dynamism and objectification also means that, regardless of the extent to which ‘rules’ reflecting ‘tradition’ are written into a constitution, ‘tradition’ will remain open to negotiation and contestation, and therefore the PBC’s fidelity to ‘tradition’ will remain so too. And while dynamism and a codification of sorts (as exemplified in ‘the Law’) has long been a feature of Aboriginal societies (Glaskin 2005), and are not, in that sense, antithetical to each other, the question of how such dynamism might interact with the written legally enforceable rules of the constitution remains.

As these issues were debated among members of the claimant group, opinions emerged regarding the notion of ‘traditional’ and whether the use of such concepts by members of the claimant group actually represented a fidelity to tradition. A true understanding and application of ‘tradition’ was seen as an issue of considerable importance, for the rationale was that if traditional cultural principles (‘rules’) were sufficiently specified within the constitution, they would provide a base-line for determining process and authority through which internal conflicts over land could be resolved. In this sense, an expectation was placed on the constitution that it would act as an impersonal external authority on these matters (perhaps a bit like ‘the Law’). The claimants maintained that the constitution of a PBC should reflect their culture, and therefore saw it as a matter of paramount importance to get the rules ‘right’.