KRED's team is fresh off the plane from the National Native Title Conference in Port Douglas, QLD. While the photos hint at a week of lounging by an aquamarine swimming pool, we were, in fact, working the floor hard—networking, showcasing KRED Legal, and presenting on benchmark agreement making in the Kimberley.
Our KRED Legal Directors Wayne Bergmann, Zoe Ramsay and Rob Houston ran a session outlining the principles that underpin KRED Legal and emphasising that in all agreements negotiated for Traditional Owners, we strive to minimise negative impacts, maximise benefits, and do this in a culturally appropriate way.
KRED Legal’s strengths lie in landmark native title agreements negotiated by our lawyers, our group’s international recognition by the United Nations and success in facilitating independent Aboriginal economic development.
In the preparation stage of negotiating agreements, where the work relates to a commercial proponent or mining company, KRED Legal aims to secure funding for its services and engagement with Traditional Owners through a resourcing protocol. But often there are other costs to agreements, emotional, cultural and social costs, and long negotiation or litigation can sometimes cause ‘negotiating fatigue’. We act on the instruction of Traditional Owners to mitigate any negative impacts as best we can.
Before embarking on a negotiation, we also take into consideration possible consequences, asking the questions: What are the likely outcomes for a chosen approach? What are the alternatives? What are the possible consequences if a deal is not done? What consequences can you support or sustain?
KRED Legal Director, Zoe Ramsay, says that when it comes to the process and the outcomes of agreements, the KRED Legal team is working hard to raise the bar.
“We take a wholistic approach to putting Traditional Owners in the strongest position possible to have a say over development. We ensure all opportunities for legal pressure are taken up and procedural rights prosecuted in line with an overarching strategy. We use opportunities for political engagement and public pressure—through political meetings or press releases where appropriate, to get the best deal for our clients. If the opposite party has a social license to operate, this is something to be celebrated. If not, they should be kept accountable and rectify the situation” Ms Ramsay says.
There are minimum standards we negotiate to have included in our agreements, including, ‘no means no’ when it comes to protecting heritage, clear Indigenous employment targets and business development support, fair royalties and milestone payments and environmental provisions that go above and beyond the minimum protection afforded by state and national legislation. KRED Legal hopes to take the Kimberley benchmarks outside the Kimberley and see institute them instituted nationally.
Ms Ramsay says as part of the commercial term of agreements, allowances need to be made for negotiation, implementation and additional administrative expenses.
“These are not benefits. They should be seen by the opposite party as the cost of doing business on Traditional Lands” Ms Ramsay says.
So the wrap? If you want to do business in the Kimberley, then you need to sign a really strong agreement with Traditional Owners. And if you want to be represented by KRED Legal, be aware, that according to one audience member, Gregory McIntyre QC, “ . . . Bergmann and crew have street-KRED on commercial agreements for Indigenous groups.”
We’ll take that!
