They argued that pastoral leases are not inconsistent with native title and do not, therefore, extinguish it. Alternatively, they argued that native title, like the rights of the Crown in respect of the land, was not extinguished by the granting of the lease, but was merely suspended during its term. It would, therefore, be revived when the term of the lease expired. The majority of the judges in the High Court agreed with these arguments. The judges said that pastoral leases are different to ordinary leases, which have their origin in common law.
Ordinary leaseholders do have the right to exclusive possession of their land.
During the term of the lease they have the right to exclude everyone, including traditional owners, from coming onto the property. Such leases are, therefore, inconsistent with native title. The judges said that the rules relating to ordinary leases do not apply to pastoral leases. They looked at the history of pastoral leases in Australia. They were granted, under Acts of Parliament, over vast areas in remote parts of Australia.