The role of experts in compensation

The recent decision in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 is the only decision of its kind relating to the payment of compensation for the loss of native title. Tina Jowett’s paper will discuss the role of anthropologists in the legal context of compensation claims.
Anthropologists provide crucial evidence to establish the quantum of compensation payable for non-economic loss including evidence in support of the compensation principles of solatium. Solatium in the compensation context relates to the hurt caused to indigenous people by the extinguishment of native title.

The paper examines these principles and outlines the statutory framework relating to compensation claims under the Native Title Act 1993 (Cth). The paper will describe the inherent complexities of compensation claims including what “just terms” compensation may mean in the native title context and argues that solatium is a more important measure of quantum than the Western notion of market value.