In 1996 the Kimberley Land Council began working with the Bardi and Jawi claimant group on the development of a PBC. The claimant group’s involvement in commercial developments on their country (such as tourism and trochus), and in non-commercial development of land through the outstation movement, meant that the right to negotiate under the NTA primarily involved negotiations between claimants rather than others outside of the claimant group.^[28] Accordingly, the claimant group needed to develop mechanisms through which negotiations over land management issues within the communal and legal context of native title could be addressed. This was necessary both for potential dealings with outsiders and for land and sea management issues arising between members of the claimant group. Management issues (such as the further development of outstations or the setting up of aquaculture projects) also held potential legal implications, since they could result in the issue of leases over land (or sea) that was under a native title claim. Since the right to negotiate required communal decisions about land interests which had not previously been negotiated internally in this manner,^[29] the development of a working group as a precursor to a PBC was closely related to the right to negotiate in this claim.

Decisions about land use had not previously been subject to this kind of formalised decision making by the broader Bardi and Jawi group. Rather, they had usually been made by the community councils, which were not necessarily or formally accountable to the wider jural public, although informal consultations with senior patrifiliates (where their country was concerned) and with madja or bosses (senior ritual leaders) were sometimes held.^[30] Madja (collectively madja-madjin) also frequently intervene in land use decisions in contexts where ngulungul (culturally restricted, ‘sacred’) locations are threatened by development. However, community council decisions have not necessarily taken into account the principles underlying the laws and customs of their peoples, and in this sense, their relationship with the PBC represents a significant issue.^[31]

In late 1996 Bardi and Jawi established an interim working group to deal with matters requiring negotiation and to begin the work of consulting with the other native title holders about how their interests might best be represented in the structure of a PBC. The claimant group decided that their representative working group would comprise two representatives from each of the ‘clan groups’. ‘Clan groups’ is a term that, especially since this time, has been increasingly applied by some claimants to the various regional aggregates defined by directional or geographic descriptions (rather than to estate groups).^[32]

Although ‘working group’ meetings were designed primarily for nominated representatives, as many claimants attended these (between 1996 and 1998) as attended larger-scale native title meetings. There were a number of reasons why this was the case. Bardi and Jawi have a vital interest in anything potentially having bearing upon their country, and native title falls squarely within this ambit. In addition, the notion that members of the group could have their interests adequately represented by others was at odds with internal community politics and competitive status relations (see Trigger 1988). The political nature of social relationships within indigenous groups means that consensual decision making in the context of PBCs (and their formation) will require time. Decisions are likely to remain subject to ‘an ongoing struggle over authority, legitimacy and influence between different groups and factions’ (Martin and Finlayson 1996: 7). This means that even so-called ‘consensual’ decisions (Sutton 1984/5: 382) are likely to be subject to revision, especially where they deal with questions of landownership and resource use. Discussing the problems inherent in ‘opinion formation and the problem of group consent’, Sutton argues that:

In the Bardi and Jawi claimant group, politics within the group reflect the historical experiences of the members.^[33] These politics has been accentuated by the outstation movement, which has consolidated intensely localised interests and competition over the allocation of resources; they have typically centred upon whom has pre-eminent rights in buru, and as corollaries, who has the right to exploit specific resources in a buru (such as trochus),^[34] or more generally use that buru for tourism ventures. Such issues of connection to country, who is seen to have proprietorial rights in country, and hence can derive economic advantages most legitimately from that country, have tended to assume centre stage in negotiations over the formation of a representative working group and in discussions about their PBC.