KRED Enterprises Pty Ltd as trustee for KRED Enterprises Charitable Trust (KRED) Response to Wrong Skin Podcast 5 & Associated Article published by Fairfax Media, Saturday July 28
You can read a PDF version of KRED's public statement regarding Richard Baker's "Wrong Skin" podcast and associated media here.
KRED is aware of Richard Baker’s Podcast series “Wrong Skin” and associated media commentary in The Age and related publications. We have particular concerns in relation to Podcast 5 and Richard Baker’s article “Native entitlement: Wheeling and dealing in the Kimberley”. Both contain numerous inaccuracies, internal contradictions and defamatory statements.
We welcome balanced debate about native title laws and the path forward for our people. We also welcome scrutiny of our role and that of representative bodies and land councils.
However, where baseless allegations are made, they need to be addressed. We have obligations to disadvantaged Indigenous groups and individuals within Western Australia, to the people who established us, for those who envisioned KRED before that and for those who rely on us to represent them against powerful players in the mining sector. For that reason, we consider it necessary to respond to Mr Baker’s reports, for the sake of correcting the record. While the comments below do not constitute an exhaustive list of the errors in Baker’s podcast and article, they address some of the more concerning points.
1. False Claims regarding Sara Bergmann
The claim that Sara Bergmann used her father’s position to get special and privileged treatment is wrong and defamatory. Baker’s report contains the rhetorical question ‘How many other young people in the Kimberley would even be in such a position to try such a thing on.’
The answer to this is simple – 11 other young Aboriginal women were encouraged to act as Sara did. They and Sara were encouraged to do so by Dreamtime Founder Sylvia Giacci, not Wayne Bergmann. Ms Giacci has confirmed that she (not Sara) drafted letters for all 12 of those women, who were urged to use her letter to seek sponsorship to attend a leadership program in New York.
The inference by Mr Baker is that Wayne Bergmann or Sara attempted to use his influence to get special treatment for his daughter. However, in addition to the letter in question having been drafted by Ms Giacci and the approaches having been made by Sara at Ms Giacci’s urging, Ms Giacci at the time had neither met, spoken to, nor heard of Wayne Bergmann. Mr Baker has received a copy of a letter from Ms Giacci’s letter setting this out and is aware of the factual errors in his report. Despite that, he has failed to correct the record.
As Ms Giacci confirms, had Mr Baker contacted her she would have explained all of the above to him. This failure to undertake these investigative measures reveals a disregard for the facts and absence of due diligence, and throws into question the veracity of the balance of Mr Baker’s report.
Mr Baker’s podcast proclaims a strong reluctance to bring children into his reports but he justifies departing from this core value with the rhetorical question above. The facts provide a simple answer to that rhetorical question and undermine the premise upon which that question is posed.
As such, a public retraction of this claim and an apology to Sara Bergmann should be made by Mr Baker and Fairfax.
2. The KLC out-sourced the profitable parts of the native title process to KRED
The claim that the KLC out-sourced the profitable parts of its native title process such as commercial negotiations, legal advice and heritage surveys to KRED infers some wrongdoing in the outsourcing of those duties, as well as an assumption that each of them would otherwise deliver profits to the KLC.
These inferences are wrong on several grounds. Firstly, the Native Title Act 1993(Native Title Act) provides for organisations such as the KLC to outsource their functions in relation to future acts. Secondly, there is no evidence that undertaking that work in-house delivers a profit to those organisations.
It is KRED’s view that proponents of development on native title land – who are overwhelmingly corporations working within the mining and resources sector – ought to bear a native title party’s costs associated with the development proposal. KRED is also of the view that it is appropriate for most of the work to be outsourced to a capable, local, Indigenous organisation and that any profit made by the service provider should be returned to a regional, Aboriginal charity, as opposed to lining the pockets of non-Indigenous lawyers and consultants.
This is consistent with reconciliation action plans of most large corporations as well as Indigenous procurement policies implemented by the Commonwealth and many state governments in Australia.
3. False Claims regarding Wayne Bergmann’s remuneration
The claim that Wayne Bergmann is paid $450 an hour is wrong. KRED charges mining companies $450 an hour for the work Wayne Bergmann does on behalf of Traditional Owners. However, Wayne himself receives a salary from KRED which is substantially lower.
Further, the hourly rate which KRED charges for Wayne’s time is entirely reasonable bearing in mind the 25+ years’ experience Wayne Bergmann brings to negotiations in the Kimberley and the charges are lower than that of many Perth-based professionals who provide similar services.
We query whether, if Wayne Bergmann was Caucasian, Mr Baker be so quick to assume he is personally paid $450 an hour by mining companies, or that such an hourly rate (if it were paid) was unreasonable in the circumstances.
Given the facts do not support Mr Baker’s allegations, Mr Baker and Fairfax ought to retract this claim.
4. Statements that KRED insists on charging local and often poorly resourced Aboriginal groups the same rates as listed mining companies and “issued a $20,000 bill to one Aboriginal corporation for a one-day meeting with nearby Traditional Owners”
KRED insists Traditional Owners are paid for their time, accommodation and fuel costs for their attendance to meet and consider proposals affecting their native title rights and interests. This often accounts for more than two thirds of any given meeting invoice. Those costs should be met by the party bringing a development proposal to the Traditional Owners for consideration.
The statement that ‘blackfellas don’t pay to speak to blackfellas’ reveals a fundamental misunderstanding of native title and Aboriginal politics, if not entrenched racism. Aboriginal groups are not homogenous and their rights to speak for country vary. For example, people with traditional connection to an area of land arguably have greater rights to speak for it – under both the traditional and non-Indigenous legal systems. Those rights carry with them an entitlement to be remunerated for their time spent considering proposals over their country, even if the proponent of that proposal is another Indigenous group.
As for KRED’s rates, they are far from secret and are routinely sent out to those seeking our services.
Given the facts do not support Baker’s allegation that KRED overcharges Indigenous groups, Mr Baker and Fairfax ought to retract that claim.
5. False Claims regarding KRED & Traditional Owner groups in Looma
KRED does not and has never represented the Looma and Noonkanbah communities. KRED represents only those who choose to take up membership of its parent company (which is entirely voluntary and can be withdrawn at any time) or clients who decide to use KRED’s services.
6. Misleading inferences from the statement that“KRED wrote itself into deals” it negotiates for Traditional Owners.
This statement infers that the modest contributions made to KRED have been made either without the knowledge or consent of the applicable Traditional Owner group. This is false.
It is KRED’s practice to ensure first that any Traditional Owner group contributing to the assets of the Amboorriny Burru Foundation from benefits received under mining and coexistence agreements receive independent legal advice prior to resolving to make such a contribution – advice to which KRED is not privy. Secondly, KRED requires Traditional Owner groups to authorise that contribution in accordance with authorisation requirements under the Native Title Act. While there may be individuals who disagree with the decision of the majority of the Traditional Owner group or a decision of the group made in accordance with traditional decision-making processes, native title law requires those decisions to be followed.
By way of background, this sharing of benefits is founded in concept of wunan, or sharing, and is culturally and regionally appropriate. For example, one member group may have an abundance of mining activity on its lands and their neighbours may have none. Without a percentage of those benefits being allocated to a regional body, only one Traditional Owner group would benefit from the resource development while its neighbouring Traditional Owner group would see none of it. While this may be consistent with hyper-capitalism, it is inconsistent with the traditional practices and equitable values of KRED’s member organisations.
Again, membership of KRED and this sharing of benefits is entirely voluntary and, in the case of our current member organisations, must be supported by a decision made by the majority of the Traditional Owner group.
KRED prides itself on encouraging Traditional Owners to walk in two worlds – taking their rightful place in the modern economy, while maintaining culturally appropriate practices. The sharing of benefits through a regional fund is representative of this.
Given the misleading nature of statements made by Mr Baker, the seriousness of those inferences and the lack of any factual basis for making them, Mr Baker and Fairfax ought to immediately retract the same.
7. False claims of conflict of interest in the relationship between the KLC & KRED
These claims are wrong on three counts.
First, conflict can only arise when there is a divergence of interests. However, the objectives of the KLC and KRED are fundamentally aligned. The shared vision for economic independence goes back to the ‘Crocodile Hole’ meeting in the East Kimberley in 1991.
Secondly, the allegation that Wayne Bergmann’s appointment as Special Adviser to the KLC gives rise to inherent conflict is entirely baseless. In addition to the interests of KRED and the KLC being aligned and the Special Advisor position being an unpaid position, Special Advisors are elected by the membership of the KLC by way of democratic vote. In the unlikely event that a conflict did arise, it would be dealt with in the same manner it would if Wayne were a non-Indigenous executive of another corporation. Mr Baker’s report fails to establish any conflict, despite inferring that it exists.
Finally, Mr Baker claims that the KLC coerces native title groups to engage KRED to enter into agreements, using native title as ‘leverage’. In support of that allegation, Mr Baker refers to a letter from the KLC which is dated August 2010. However, KRED commenced operating in March 2011. It is obviously impossible for the KLC to force claim groups to use an organisation that didn’t exist at the time and there is a fundamental disconnect between Mr Baker’s allegations and the facts he refers to as purported evidence of his claim.
Even if the timeline did not undermine Mr Baker’s allegation (which it does), the content of the letter itself does not support his claim. The KLC letter to the negotiation committee makes the point that the committee was acting against the instructions of the claim group and advises them of the impact of those actions.
Again, there is a total absence of facts to support Mr Baker’s allegations and both Mr Baker and Fairfax ought to immediately retract the same.
8. False Claims regarding the ‘enormous power of KRED & Wayne Bergmann over ASX companies.’
The claim that any Indigenous body wields enormous power over mining companies is self-evidently ludicrous. The power imbalance between Aboriginal people and their organisations in favour of non-Indigenous entities is undeniable. It is one of the reasons that the Commonwealth Government of Australia considers proponents ought to meet the costs of impecunious native title parties in future act negotiations. It is why representative bodies exist and receive funding to advance the interests of Aboriginal people. It was reflected in the ‘Closing the Gap’ and numerous other Commonwealth initiatives. Most importantly, it is reflected in the balance sheets and tax returns of ASX listed companies when compared with their Indigenous counterparts. These companies derive billions of dollars from development on native title land, as compared with the relatively insignificant benefits received by the Traditional Owners of that land and local Aboriginal stakeholders.
Mining and resource development companies are well funded, well connected politically and have the non-Indigenous legal system on their side. To claim that they are the oppressed party in this dynamic is illogical and demonstrably wrong. This claim ought to be immediately withdrawn.
Further comment
As mentioned, we welcome fair and balanced debate about the way in which policy and processes affecting Traditional Owners and Aboriginal stakeholders can be improved. However, baseless allegations which have the capacity to hinder that progress must be addressed.
It is a matter of public record that KRED is regularly audited and no anomalies or irregularities have ever been raised. It is also a matter of public record we have been successful in delivering outcomes for our members and constituents, in extremely difficult circumstances. We are proud of the work KRED has done, in giving Traditional Owners a chance to start to participate in a meaningful way in the discussion around the use of their land.
Podcast 5 and its associated article are not balanced and allegations and inferences made by Mr Baker are without any factual basis.
Mr Baker and Fairfax ought to immediately withdraw the defamatory material and false claims from publication and make with appropriate acknowledgements and retractions.
