A common law doctrine of suspension of native title?: judicial interpretations of the 'reversion expectant argument' and the concept of 'operational inconsistency' - Part 2

Although the majority of the High Court in Western Australia v Ward rejected any question of common law suspension of native title rights, the court's treatment of this issue is not only obiter but based upon circular reasoning. Indeed, this article shows that sound principles and authority support a concept of suspension of native title rights at common law. Moreover, aspects of the Ward High Court's decision are consistent with this result. Crucially, it will be seen that support for a common law concept of suspension has two possible doctrinal underpinnings. The first is based upon the Wik High Court's treatment and rejection of the reversion expectant theory espoused by Brennan J in Mabo. That is, since the Crown does not acquire a beneficial reversionary interest on the grant of a lease, the Crown's title does not, at the expiration of the lease, stand in the way of the existence of any native title. The second is based upon the effect of the concept of 'operational inconsistency'. That is, a mining or pastoral lessee might exercise their rights under the lease in a way that would prevent the exercise of some relevant native title right or interest for so long as the lessee carries on that activity. The article is divided into two parts: Part I considers the pre-Ward High Court position and Part II addresses the Ward High Court decision and beyond