We have already shown how the MLDRIN alliance is influenced by the common law creation that is native title, and how it operates within the broader intercultural context of south east Australia. Within this context, MLDRIN is influenced by government requirements for Indigenous people to have organisational and legal structures that will create more security in transactions (Mantziaris and Martin 2000: 100–1).

Becoming an incorporated body under government legislation is now a common example of how Indigenous organisations adopt western administration structures to improve their engagement with government. This governance mechanism, which draws on the values and practices of the general Australian society, helps the Indigenous organisation to strategically engage with broader Australian institutions (Martin 2003: 9). The formation of western-style organisations to represent Indigenous peoples’ interests has also become meaningful to Indigenous peoples as part of their experiences of living within intercultural Australia.

More than just engagement, the formalisation of organisational structures and the creation of a legal body through incorporation has become critical to how Indigenous peoples’ rights are being recognised by governments. As Tim Rowse observes, group rights for Indigenous people are evolving in a piecemeal fashion as ‘a series of loosely integrated organisational projects’ (2002: 179). Rowse writes that, ‘in practical terms, the collective subject of these rights is neither “the Indigenous people” nor “the Indigenous population”, but the organised instances of their mobilisation’ (2002: 179). The governance structure of MLDRIN needs to have the confidence of government if the Nations are to have their rights recognised and to exercise those rights, and going through the process of incorporation is part of achieving that confidence. Since becoming incorporated, the MLDRIN delegates have been able to have more substantive negotiations with State governments about the recognition of an Indigenous water allocation.

Native title is part of this trend. One of the reasons why the delegates have incorporated MLDRIN is to facilitate the type of agreement making between governments and traditional owner groups made possible by the influential policy changes wrought by native title. Since Mabo, governments across Australia have become familiar with making agreements with traditional owners who are asserting a collective identity and collective rights. Incorporated bodies have been designed by government as a part of this agreement making context. Under the NTA, native title groups are compulsorily required to become incorporated to hold their collective rights and to facilitate legal transactions with government and development proponents.

However, the mobilisation of traditional owner groups through organisational structures and incorporation raises concerns about the ‘juridification’ of what were previously informal decision making structures. Juridification is a trend in western legal systems to transform previously non-legal social relations into legal obligations (Mantziaris and Martin 2000: 127). While juridification does not necessarily have negative social consequences, for traditional owners the process of becoming incorporated does run the risk of supplanting their informally held decision making structures. Bureaucratic corporate practices such as annual general meetings, quorums, voting by proxy, the need to keep a register of members, and such like, are assumed to be a culturally neutral administrative regime, but they impose strong western cultural values which have consequences for how decisions are made (Sullivan 1996: 19–20).

One of the main concerns about incorporation is that it will narrow the group of people making decisions within the Nation. For MLDRIN, the incorporated body is the most efficient way to engage with the Nation, but there can be something important lost in this efficiency: the involvement of the Elders and the broader Nation group. The people who like going to meetings and are happy, or comfortable, with corporate structures, will likely be the people who have the most involvement in this mobilisation of traditional owner groups through legal entities. If the Nation is represented by very narrow interests only, the informed consent of the Nation group will be undermined, which then also undermines the legitimacy of MLDRIN.

MLDRIN is actively encouraging the incorporation of the unincorporated traditional owner groups within the alliance as a calculated risk. While incorporation may supplant their informal decision making processes, informal decision making structures are already supplanted when government consultation with traditional owners takes place through incorporated bodies which are not formed by traditional owners (such as some land councils and cultural heritage cooperatives). Several traditional owner groups within the MLDRIN alliance have already incorporated to address this problem with representation, as well as to pursue their own aspirations which require a contractual relationship with government. What is critical to ensuring informed consent is that robust relationships are established between the incorporated body and the informal political structures of the Nation (Martin 2005: 197).

Another risk of the incorporation process is the further consolidation of the traditional owner identity. The traditional owners have to create the organisational stability required by government, because the traditional owners are dependent on the government to accommodate their rights within the nation state (Tully 2004 [1995]: 165). However, there are complex issues of identity and scale for each traditional owner group. There is an instability that results from this difficult project of fixing dynamic and multi-layered relationships between people and their country. As this process of consolidation has been designed as fundamental to the governance structure of the MLDRIN alliance, the concomitant instability may hamper the realisation of the delegates’ aspirations for MLDRIN. The MLDRIN alliance is going through processes of change and amendment as the delegates and the Nations determine how best to represent and organise themselves. Indeed, rather than expecting MLDRIN to achieve a design endpoint, these processes of change are a part of the exercising of their political authority.

The relationship between traditional owners and their country is a broad intellectual and spiritual framework that informs traditional owners where their responsibilities lie in relation to their neighbours. Country and identities move over time and shift as populations move and shift through marriage, other alliances, or through political manoeuvring. This includes the experience of colonisation, such as the location of towns, mission lands, and roads. Movements and shifts will always continue, because relationships between groups, and between groups and their country, are dynamic, living relationships. This dynamism complicates the organisation of structures that seek to fix and determine relationships between traditional owners and their country.

The shifts in identity that occur and continue to occur reflect the complexities and politics of identity formation. Such shifts can be manipulated to undermine the legitimacy of the MLDRIN alliance if the government expects a traditional owner identity that is more fixed and bounded than it is in reality. Because of the persistence of porous boundaries in both traditional and contemporary times, the people–language–country identity which is being consolidated in the south east will always struggle to keep within that definition.