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Editors --- "Ashwin v Minara Resources Ltd [2006] WASC 75 - Case Summary" [2006] AUIndigLawRpr 46; (2006) 10(3) Australian Indigenous Law Reporter 45

ASHWIN & ORS V MINARA RESOURCES LTD

Supreme Court of Western Australia (Sanderson M) 10 May 2006 [2006] WASC 75

Native title — proper plaintiffs in representative proceedings — application to strike out part of statement of claim — adequacy of plea of fiduciary duty — enforceability of agreement to negotiate clauses in native title agreements

Court and Tribunal Decisions

Facts:

The defendant, Minara Resources, sought the determination of two applications relating to ongoing native title proceedings. The first application was an application to stay the proceedings until there was a determination identifying the proper plaintiffs and whether or not those plaintiffs should be joined in the proceedings. By the second application, the defendant sought to strike out all, or alternatively certain parts, of the plaintiffs’ statement of claim. By consent, both applications were heard and determined together.

The first application related to the originating process whereby Mr Ashwin claimed to be suing the defendant ‘for and on behalf of the Wutha People’, yet the original statement of claim failed to identify the Wutha People. An amended writ and statement of claim was then filed with the additional plaintiffs listed with the representative nature of the proceedings having been removed. In a third document (being Mr Ashwin’s affidavit), Mr Ashwin provided that both he and the additional plaintiffs were authorised to represent the Wutha People. The defendant argued that the plaintiffs were conducting a representative proceeding and therefore O 18 r 12(1) of the Court Rules applied. The defendants also objected to the action being in the name of the plaintiffs and submitted that the proceedings were therefore defective because the representative capacity of all parties should be stated in the title to the action.

In the strike out application of the plaintiff’s statement of claim the defendant argued that there was a deficiency in the pleading of the existence of a fiduciary relationship. The basis for this argument was that there was no fiduciary relationship arising from an Ancillary Deed between both parties. The defendant further submitted that clause 11 of the Ancillary Deed only embodied an ‘agreement to agree’ and thereby did not give rise to any legal obligations.

The Native Title Claim

In January and March of 1996 Mr Ashwin registered two native title claims under the Native Title Act 1993 (Cth) (‘NTA’) on behalf of the Wutha people. During the mid-1990s the predecessor of the defendant (‘Anaconda’) and Mr Ashwin signed an agreement (‘the Ancillary Deed’) relating to a proposed mining project on land with a registered native title claim. Despite the Ancillary Deed, the defendant was unable to proceed with the mining project as it did not have a right to negotiate the State of Western Australia and was effectively excluded from the process. To overcome this difficulty, Anaconda reached agreement with the native title group and Anaconda and the native title group then approached the State government advising that a deal had been reached. This led to what was known as the ‘State Deed’. The parties to that Deed were the State of Western Australia and the Minister for Mines, the plaintiff, and Anaconda.

From March 1998 the Wutha native title claim had four registered claimants. In September 1998, the NTA underwent substantial amendments which lead to the Wutha claim being combined into a single claim, leading to its acceptance for registration in June 1999. The re-registration procedure undertaken by the claimants provided for authorisation as well as a sufficient description of the Wutha people in the proceedings.

Held, representative pleadings permitted:

1 Although it is unhelpful to talk of any party carrying an onus in matters of a procedural nature, it is still for the defendant, by evidence, to make out a case for saying that representative proceedings are inappropriate. The defendants have failed to do so: [24], Carnie v Esanda Finance Corp Ltd [1995] HCA 9; (1995) 182 CLR 398 discussed.

2 It was open to Mr Ashwin alone to commence the proceedings and it makes no difference that there are now four plaintiffs: [25].

3 There is no need to state the representative capacity of the plaintiffs in the title of the action as the writ was accompanied by a statement of claim, and where the representative nature of the proceedings is entirely apparent from the statement of claim: [26], Re Tottenham v Tottenham [1896] 1 Ch 628 at 629 discussed.

Held, statement of claim struck out in part with leave to replead:

Fiduciary relationship

4. The plaintiff’s plea of fiduciary relationship between the plaintiff and defendant, based on the Ancillary Deed cannot be sustained. Plaintiff given leave to replead the claim of a fiduciary relationship as there may be material facts to establish the existence of fiduciary relationship between the parties: [27]–[30], The Wik Peoples v The State of Queensland (1996) 187 CLR 1 applied.

Agreement to agree

5. Although there is real doubt as to whether or not clause 11 of the Ancillary Deed is enforceable, the plaintiff’s pleading on balance ought not be struck out. Care needs to be taken not to stifle the development of the law relating to native title agreements, which is a new and evolving area of the law. The outcome of the plaintiffs being left with nothing in economic terms, if the defendant’s argument succeeds, should only be reached after careful consideration of all relevant evidence: [34]–[35], Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600 referred to.