After all, statutes are suprior to the common law, and native title is a common law concept. This is clearly an invalid resumption, an uncompensated taking of property, not a simple amendment to the common law even though statutes can alter the common law of titles and property. If native title in fact is not necessarily extinguished by pastoral leases, then a statute declaring that it was would occupy a similar status. The Government is right to think that a court which held native title to exist despite pastoral leases would also find legislation to the contrary invalid. One might hope for speedy judicial resolution of the question, but the question is a judicial one.
Native title stands between usufructury and proprietary rights to land.
I will return to this issue below. M.A. Stephenson contributes an entire chapter on pastoral leases and reservation clauses. She reviews the state of the law and the various possibilities for resolving the uncertainty. Unfortunately, her admirable overview provides little guidance for choosing which view is correct or which view is likely to prevail in court. B.A. Keon-Cohen, on the other hand, argues that pastoral leases impair but do not necessarily extinguish native title.