In Mabo v. Queensland, Brennan J. stated, "recognition by our common law of the rights and interests in land of the Indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system." What criticisms do you think Indigenous people might raise about this statement? Do you see any issues with the use of the term recognition? What does this imply?

Indigenous people might say that the statement of Brennan J. in Mabo v. Queensland shows that the High Court places convenience for those currently occupying the land ahead of justice. The implication of the word recognition is that it may be acknowledged informally that the land was stolen from Indigenous people, but to recognize this as a matter of law would create too many difficulties for the Court.

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The judgment of Brennan J. in Mabo v. Queensland concurs with those of five of the other six Justices of the High Court of Australia in finding that legal certainty and public order are more important than strict justice. Another passage from the same judgment makes this principle explicit:

The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed.

Indigenous people might well say that this principle only leads to the perpetuation of injustice. The court has essentially found that if an unjust action is sufficiently old and well-established to form part of the "skeleton" of the Australian legal system, no remedy for this injustice can even be considered.

The use of the word recognition makes it clear that a double standard is in operation, separating the law from justice. It is possible to admit that, as a matter of morality and natural justice, land was stolen from its Indigenous inhabitants. Australians do, in fact, admit this every day, often in official and quasi-official formulations and settings. However, it is one thing to admit that this is the truth and another to recognize it as a matter of law. If it were formally recognized by the courts, the land would have to be restored to its rightful owners. This implies that convenience for those currently in possession of the land is more important than justice.

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