The talk concerning ‘tradition’ and the authority of the madjamadjin within a PBC constitution engendered diverse and shifting reactions among members and sectors of the claimant group. A consequence of this shifting political ground was that some members of the claimant group tended to view the recognition of ‘traditional ownership’ and systems of attachment to country by Australian law (within the native title context) as leverage through which they could protect their own interests in country. That is, prior to the determination of native title made in 2005, native title for them presented itself as a democratic outside enforcement of ‘tradition’, such that their rights and interests would be as recognised and protected as those of others in their own society. Throughout the native title process, a number of claimants maintained that they would not be involved in the claim unless they had secure undertakings that their specific rights in country would be recognised and respected by the rest of the claimant group, following a native title determination. Accordingly, they maintained a position that principles of land ownership (recognising specific interests in country, with reference to estates or bur(u) should be enunciated within the constitution for the PBC. Given that most Bardi and Jawi share this ideal, the principle became enshrined within clause 12.1 the draft constitution of the Bardi and Jawi PBC:

That is, the principle they frequently articulate, that the gamelid (often equated with patrifiliate or ‘traditional owner’) of the buru (estate) should have the ‘top hand’ or the ‘final say’ over what happens in their buru, was given an imprimatur of sorts within the draft constitution. The principle of who has ‘final say’ over country was stated; but the question of who specifically will have authority over particular buru will be contested in some cases. Some buru too will become deceased estates as their members die out; others are in the midst of processes of succession in the present (Bagshaw 2001: 41–2). There is plenty of scope then for contention over the elaboration of specifics within these principles. Clause 12.2. addresses this issue, again placing the madjamadjin in the role of arbitrating disputes and as the authorities on culture: ‘Any disputes concerning a Bur, including a dispute as to the holder of an interest in that Bur, is to be resolved by the Governing Committee on advice from the Majamajin [sic], in accordance with Clause 13.’

The constitution thus not only prescribes general principles, but also processes (who is to be consulted; at what time, in what circumstances and contexts). The codification of principles and processes within portions of the draft constitution represents a transition from informal negotiations that may have occurred among the wider jural public over the same issues, and is an articulation elicited through engagement with native title. Such textual codification may transform ‘social values and practices’ by freezing these at a given point in time and thereby encouraging stasis in the system, and the system itself may dialectically evolve with reference to these representations (Mantziaris and Martin 2000: 43). Perhaps more consequentially, Mantziaris and Martin (ibid.) point to the possibility that such textualisation can ‘result in the loss of control by the relevant indigenous people over the interpretation and content of their traditional laws and customs’, which could fall to outside specialists such as lawyers and anthropologists. Contexts where this could occur is in ‘litigation between indigenous people or between indigenous people and the native title corporation regarding the nature of their entitlements as against one another (their rights inter se)’ (Mantziaris and Martin 2000: 66).