In this chapter I have argued that the ways in which Bardi and Jawi have articulated and objectified aspects of their culture and identity through engagement with native title processes represents a different kind of objectification of their ‘culture’ than has previously arisen through colonial encounters. Further, I have suggested that codification arises in part through the native title process itself and in part through the claimants’ dialectic engagement with native title, following such objectification. Weiner’s description of the effects of codification amongst the Foi of Papua New Guinea is apposite to this discussion:
Although I have argued elsewhere that for the Foi, what we call law and the quality of being law- or rule-governed is not something that was consciously articulated, the coming of the government administration and Missionaries provided them with exposure to the idea that social law and customary action … were something that could be objectified, codified and altered by human effort, rather than as phenomena that were only revealed in the course of humans reacting to otherwise situational and contingent social engagements and encounters (1998: 2).
Unlike other contexts in which the imposition of the colonial order, whether through the arrival of missionaries or otherwise, resulted in the codification of Indigenous customary law (Weiner and Glaskin 2006), my view is that this process has only begun to be realised among Bardi and Jawi as they engage communally with the processes of the Native Title Act. Through their engagement with the native title process, their principles of customary law are becoming explicit and formulated, and this reflects the formal elicitation of these (through various aspects of the native title process) and the informal elicitation of these that emerges dialectically among the group in response to the former.
While the state is able to circumscribe indigenous claims to country, and this may have an effect on the terms in which Aboriginal claims to country are articulated, this process should not be seen only in these terms. Elsewhere I have demonstrated something of the ways Bardi and Jawi have altered their own conditions of existence, using various strategies to negotiate their relationship with the state, its agents and its policies (Glaskin 2002: 80–105; 107–37). Like other historically constituted actions (such as their return from Derby to Sunday Island), their attempts to draft a constitution for their prescribed body corporate reflecting their ‘culture’ is an index of their agency, a strategy aimed at ensuring their survival and cultural reproduction.
The circumscription both explicit and immanent within native title (as legislation and as process) should not therefore be limited to being read as having the outcomes of objectification and incorporation of Indigenous groups, even though these are significant effects. Bardi and Jawi reactions to the native title process are manifold, and have resulted in much negotiation over aspects of ‘tradition’, ‘culture’, and ‘authority’ (to take a few examples) amongst them. These internal negotiations within the group were elicited through engagement with the native title process and are reflective of historical engagement with the state. They reveal an articulatory dialectic emerging within what Weiner, following Sahlins, calls ‘the culture of the conjuncture, a relational moment that has particular historical and temporal as well as semiotic properties’ (2000: 262). The boundaries between the ‘internal’ and the ‘external’ are constructed through this process, constituting the claimant group both to members of the group and to the state with which they are engaged.
But amongst Bardi and Jawi too, important ‘dialectics of articulation’ have been occurring, impacting social and political relations within the group. During the latter part of their Federal Court evidence in 2003, many of the claimants referred to themselves as ‘Bardi–Jawi’, a term which in 1994 had been primarily used self-referentially by those persons having one Bardi and one Jawi parent, not by Bardi and Jawi people per se. This was seemingly consequential for the judge’s assessment of the nature of their contemporary society and how this related to Bardi and Jawi socio-linguistic identities in the pre-colonial context. While this is not the place for further discussion of this, it does demonstrate something of the effects of participating in native title processes on the ways that people articulate their identities in response to legal requirements, and signals something about how these articulations might transform over a short period of time. In litigation, much is read into these kinds of objectifications of identity, which might otherwise appear as the kind of shifting ground of articulation occurring commonly in societies in relation to various social processes, and which may indeed reflect temporary responses rather than real ontological or societal transformations.
Quite apart from the form of legal recognition finally made in native title determinations, one of the consequences of engaging in the native title process is the effect this may have on a group’s own property relations, on how these relations are articulated and objectified, and perhaps, subsequently codified (and see Glaskin 2007). Amongst Bardi and Jawi, during the PBC discussions preceding their determination, significant questions were raised; not just about their relationship with the state (historically and contemporarily), but also with respect to how they conceptualised and constituted themselves. These questions alone are significant, but they also have important consequences for the descendants of the current generations and for the ongoing reproduction of their culture and property relations over time.