For both the British and the Aborigines, conventional law dealt with property rights and relations between individuals and groups (Castles, 1982; Hanks and Keon-Cohen, 1984; Williams, 1987). In the British case, it was supposed to be declared, knowable and capable of enforcement (granted any physical difficulties of policing). So far as Aborigines were concerned, law was customary, not written, and handed down gradually between generations. For both groups, international law and law relating to conquest were obscure issues.

Whatever other matters may have been involved, law relating to land rights was fundamental as the basis for Aboriginal hunting and gathering, the location of sacred sites and hence the foundation of much of their ritual. British entry into Australia inevitably impinged, to say the least, on those land rights. In fact, British acknowledgement of indigenous land rights was an obscure legal matter. Moreover, there was a basic problem of interpretation of the appropriate action to be taken as between centralised British (Whitehall) authority and colonial British authority. British (Whitehall) professions that they sought to protect the welfare of ‘the natives’ conflicted with their action to enter and occupy Aboriginal areas. British colonial authority dealt with both Whitehall and the immediate processes of resource transfer from Aborigines to local settlers, to whom British (Whitehall and colonial) authority to occupy land was given.

For their part, Aboriginal land areas belonged to traditional occupiers, a word that British entry made ambiguous.