Henry Reynolds and Jamie Dalziel have pretty thoroughly covered the literature and legislation relating to the conferring of use-rights to Aboriginal people over pastoral leases and Crown Lands:

Reynolds and Dalziel: http://www.austlii.edu.au/au/journals/UNSWLawJl/1996/17.pdf

Dalziel: http://kirra.austlii.edu.au/au/journals/UNSWLJ/1999/4.html

And Mary Edmunds, Frank Brennan and Robert French all have very good takes on Aboriginal land use and pastoral leases:

http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip94n1.pdf

After all, since a pastoral lease was for a specific purpose, how could it be exclusive ? So how could it exclude Aboriginal people from traditional forms of land use ?

And another point that every government must have been aware of: if Aboriginal people WERE excluded from pastoral leases and Crown Lands, then on the one hand, are they outside the protection of the law ? Are they outlaws, in British law ? And since they are on their own land, if they rebel or carry out attacks on 'settlers', are their actions quite legitimate in terms of international law ?

And on the other hand, if they are British subjects, for whom the government is thereby responsible, to what extent can any of their rights be ignored, or removed ? And where can they go if they cannot stay on pastoral leases ? And why do that anyway: Aboriginal people wanted to stay on or near their own land, their land-use was compatible with pastoralists' land use, pastoral stations needed labour, and everywhere Aboriginal people were curious about these new forms of economy and living. So why create problems where none needs to be ?

So now, in 2011, we are left with the shambles of a complete misunderstanding of colonial and early Australian law, and of what land rights Aboriginal people already and always had. At least, until the lawyers negotiated away most of those rights in the period since Mabo.

There is no "misunderstanding of colonial and early Australian law" prior to Mabo. Aborigines had the same rights as fauna unless they succumbed to European law. Aboriginal people were considered to have, and to always have had, nothing, because their capacity to have anything through pre-existing law was not recognised. Since Mabo lawyers have negotiated away nothing because Aborigines had nothing to negotiate away in the first place, apart from rights Europeans extended to fauna.

You're talking through your hat, Whistler. What would have constituted a full recognition of Aboriginal traditrional rights to land ? All those features and functions that you listed above, plus the right to exclude all others. Any other rights ?

So Aboriginal people on pastoral leases and Crown Land had rights - it's not as if they had 'nothing'. They couldn't exclude - but neither could pastoralists, then and now.

Think of it this way: if pastoralists were granted the right, on payment of annual lease fees, to one form of land-use, it implied that there were many other uses - Aboriginal usufructurary rights and rights to camp and carry out ceremonies, mineral leases, education leases, railway leases, roadway leases, the right to travel through a pastoral lease by tourists, military leases, missions, etc.

So the use of land by pastoralists and the use of land by Aboriginal people were quite compatible, complementary and recognised by all legal systems in Australia, at least in the nineteenth and most of the twentieth centuries.

As for the requirement that you infer in your last post, that Aboriginal people would be required to live and 'nest' in trees, as if they were no more than native bird-life, you might have some trouble persuading anybody, Whistler.

I'm certainly not saying that colonial and early Australian legal systems fully recognised Aboriginal native title. But what rights were recognised were a long way from 'terra nullius', from 'nothing'. It's a tragedy that negotiations weren't carried out on the basis of that recognition.

Joe

Jo , whatever rights they had , the right to water was the most important,and most abused by whites as it is now.
Major Mitchell "Blushed inwardly,in front of my sable companion " when trying to find clean water for his team of men , while exploring north- west NSW in the 1800's.
They had to place branches in the water to try to have some water half suitable to drink .
Having had a few drinks of livestock polluted water on Pastoral Leases through necessity in my younger ,sillier days ,one can only imagine how cranky Aboriginal People would have been with the continual fouling of their drinking water as livestock and their well armed attendents continued their spread west,north and south .
Needless to say the wildlife , their legal food moved as well - but without the problems that Aboriginal People had, moving into the land of a Nation more remote from settlement and speaking another Language .
All the Finely crafted Clauses ,created in the the Capitals and transported by squatters to the bush , created with good intention, meant in practice - Nothing !
In fact it enabled the Govts and their Agent squatters to maintain their avaricious and destructive expansion on Aboriginal Land with the Aboriginals bearing the Cost .

Loudmouth, those features and functions listed above, plus the right to exclude all others, would constitute full recognition of traditional rights to land held by the Sulphur-crested Cockatoo. The notion fauna should possess a right at Common Law to exclude all others is beyond bizarre. If you're arguing, as you seem to be, that a perceived recognition of traditional law in some form granted under the doctrine of terra nullius can be revisited once terra nullius has been removed, your argument is a nonsense. If, on the other hand, you're arguing that certain rights to lands granted under the assumption Aborigines had succumbed to European law can be revisited, state governments for a very long time have largely recognised those rights, so your argument, however well intentioned, has no relevance.

Hi Jim,

Yes, the legal position was muddied by breaches of the law, which would have included attacks on Aboriginal groups and individuals, massacres and all manner of outrages. But the legal position and how it evolved across Australia would have been as Dalziel (1999) has described above: I strongly recommend it. The point is that Aboriginal groups had more rights to use land undisturbed than we have been led to believe and this has led many of us into assuming 'terra nullius' unnecessarily, including some 'learned' justices who should have known better.

Whistler,

The colonial position was to recognise customary land usage practices in all its colonies, including Australia and New Zealand. How Aboriginal people lived and how they used the land was recognised in Australian law - that's the gist of what I am trying to get across to you. If you want to compare those practices to the habits of native fauna, that's your problem to deal with.

For anybody else who is interested in how British colonial authorities actually handled issues of land tenure in the territories that they had invaded, going back to the Middle Ages, check out 'Land Law and Custom in the Colonies' (1st Ed. 1946) by Charles K. Meek, Frank Cass & Co., publishers.

Joe