School of Historical and Philosophical Studies - Theses
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ItemCompensatory justice and land claims by Australian aborigines( 1998)In this thesis, I delineate the general structure of the theory of Compensatory Justice. The various issues addressed in this work are resolved via the reflective equilibrium technique so closely associated with the work of John Rawls, though I do not proceed by way of an original position story. The scope of Compensatory Justice is defined such that compensation is a response only to certain sorts of harms, where harm is defined in terms of setbacks to interests. Compensable harms are distinguished from non-compensable harms; and I establish when a person can rightly be held liable to provide another's compensation, and how proper compensation is be determined in any given instance. In the course of resolving these general issues, a number of further issues are brought to light and settled, e.g. what should be done when there is no-one on whom liability can rightly be imposed for another's compensation. Numerous cases are considered which extend and test the conclusions reached about the precepts of Compensatory Justice. Once the delineation of the general structure is complete, the conclusions reached are applied to the issue of Australian Aborigines' land claims. Since those claims are, in essence, claims about the suffering of harm, they also may be claims about the suffering of compensable harm. Although determinations of compensable harm must be made on a case by case basis, in the expectation that at least some land claims made by Aborigines will involve compensable harms I consider some general issues which will be relevant to the determination of proper compensation for them. The major conclusions reached are: that compensable harm is harm which is not in a person's interest (i.e. which affords them a net loss in well-being); that the person who intentionally or negligently causes a given compensable harm can rightly be held liable for the compensation due to the harmed person, and that a person should not be chosen at random to bear such liability; that proper compensation counterbalances a harm by providing the harmed person with a relevant good equivalent to the extent of the harm they have suffered; that the only relevant compensatory good for Aborigines who have suffered harms in respect of land to which they have ties based on Traditional Law or long association will be the land which was the original object of their set back interest; and that where Aborigines have a prima facie valid entitlement to a given area of land qua compensation and that land is currently the object of another's equally prima facie valid entitlement, neither entitlement should be allowed to predominate if the two can coexist (in the event that the two cannot coexist, I determine ways of resolving the question of which entitlement should prevail).