There is a push for greater clarity about who the Indigenous traditional owners of land are in areas of Queensland where there are no recognised native title holders.

Key points: Under the 'last claim standing' clause, the most recent native title applicant is considered the traditional owners of land in Queensland where there is no registered native title holder

Under the 'last claim standing' clause, the most recent native title applicant is considered the traditional owners of land in Queensland where there is no registered native title holder There are no registered traditional owners in an estimated 40 per cent of Queensland

There are no registered traditional owners in an estimated 40 per cent of Queensland Lawyers for the Karingbal people of central Queensland say there is confusion over who owns what land, but industry groups support the current system

The Queensland Government is reviewing its cultural heritage legislation, including a provision that allows the last Indigenous group to have registered a claim for native title to be considered the traditional owners of land.

Legal professionals refer to the provision in section 34 of the Aboriginal Cultural Heritage Act (2003) as the "last claim standing" clause.

The Karingbal people from central Queensland say a system that makes it clear who owns what land would be beneficial for both Indigenous groups and people looking to commercialise the land.

But industry representatives such as AgForce and the Queensland Resources Council have voiced their support for the current system.

Review seeks to clarify land ownership

There are no registered traditional owners in land covering 40 per cent of Queensland, according to the State Government.

The Aboriginal Cultural Heritage Act sets out that if the native title claim is inconclusive, the traditional owner is considered to be the person with "knowledge about traditions, observances, customs or beliefs associated with the area".

The Karingbal people are the traditional owners of land near the Dawson River in central Queensland. ( ABC Rural: Caitlyn Gribbin )

The Karingbal people once held registered native title over land stretching from the Carnarvon Ranges to the Dawson River, but it has since expired and was not renewed by the Federal Court.

They are still considered the traditional owners because they are the latest Indigenous group to have applied for native title of the area and have evidence of cultural heritage on the land.

But their relationship with the "last claim standing" clause has been complex.

Valley ownership dispute leads to months of upheaval

Last year, 82 agreements between industry and Queensland Indigenous groups were deemed invalid for 10 months.

It came after the Supreme Court overturned a ministerial decision based on "last claim standing" logic in December 2017.

That decision by Curtis Pitt, then minister for Aboriginal and Torres Strait Islander Partnerships, disallowed a Karingbal group from becoming a recognised cultural heritage body presiding over the Arcadia Valley in central Queensland.

In the past more than one Indigenous group had applied for registered native title of the area.

One of the rival groups, the Bidjara people, applied several times for registered native title over the land, leading Mr Pitt to consider them to be the owners, based on "last claim standing" logic.

Upon judicial review, requested by legal representatives of the Karingbal people, the decision was overturned in the Supreme Court, which understood the Karingbal people to be the owners of the land based on a previous court ruling that recognised their link to the country.

The court ruling brought into question the validity of 82 agreements between Indigenous people and industry to conduct work on land, known as cultural heritage management plans (CHMPs).

Arcadia Valley was involved in the Supreme Court decision. ( Supplied )

In August 2018, a bill was introduced in State Parliament to reinstate the "last claim standing" clause and an inquiry process was held.

On the whole, industry — including AgForce and the Queensland Resources Council — supported the clause being reinstated.

The Queensland Resources Council said the Supreme Court's decision "cast doubt on the validity of existing cultural heritage management plans … that land users, in good faith, had entered into".

But Karingbal solicitor Scott Singleton described the clause as "a deeply flawed legislative provision that puts people in the position of speaking for country without any requirement or appropriate qualifications to do so".

"It has no regard to matters of traditional owner knowledge or responsibility," he said.

The "last claim standing" provision was reintroduced in Queensland legislation in October, and the 82 CHMPs were validated again.

Clause the best option available, says industry

Solicitors acting on behalf of industry say the "last claim standing" clause is imperfect, but it is the best option on offer at present.

Special Counsel Tosin Aro works with resource companies and is a specialist in native title cases. ( Supplied: Clayton Utz )

Clayton Utz lawyer Tosin Aro, a specialist in native title cases that affect resource companies, said the 2017 decision resulted in an unusual situation.

"There was a risk those agreements were no longer enforceable, and if they were challenged, [they] might be reversed simply on the basis that you've entered into an agreement with a party.

"If 'last claim standing' was understood the way the Supreme Court said that it should be understood … the way that you kick off a CHMP process is by inviting everyone who thinks they're traditional Aboriginal parties to apply.

"We needed to have 'last claim standing' because otherwise it would open up, almost exponentially," Mr Aro said.

Mr Aro said he hoped a review, announced last year by the current minister Jackie Trad, would lead to better outcomes for everyone.

"Hopefully what will come out of all of this is an approved process that works better; the objective being the recognition, protection and conservation of Aboriginal cultural heritage."

Karingbal say artefact destruction a case for reform

Last year, a company was ordered to pay for the restoration of sacred Arcadia Valley land after stone artefacts were destroyed. ( Supplied: Australian Heritage Specialists )

Proponents for change say the "last claim standing" clause puts Aboriginal cultural heritage at risk of mismanagement through confusion over who can speak for the land.

The Karingbal people were delivered a blow in 2015 when they found ancestral artefacts on sacred Arcadia Valley land had been destroyed by a company quarrying for gravel.

Construction company Ostwald Construction Materials (OCM) was ordered to pay for the restoration of the land after being found to have destroyed stone tools and removed sacred Gumby Gumby trees without appropriate consultation with the Karingbal people.

Karingbal solicitor Scott Singleton said in the Bottletree Quarry case, "last claim standing" put "Aboriginal cultural heritage at risk of harm through mismanagement".

He said it denied Aboriginal people the ability to carry out their traditional responsibilities where activity proponents could pick and choose who they dealt with.

"Whilst not a direct factor in the quarry case, the lack of certainty about who to deal with because of the last failed claim provision certainly doesn't help avoid situations like the background to the quarry case."

OCM was ordered to pay a series of fines, including a $250,000 penalty, to the Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP), for the site to be restored.

But for Karingbal elder Charlie Stapleton, money is no replacement for the history that was lost during the process.

"This was a camping site … there were artefacts.

"I'm 70 now and I was taught about it when I was young."

Mr Stapleton said there was no consultation from OCM prior to the quarry being dug.

"They never spoke to us at all.

"We just went out there and found all the machinery," he said.

'Lack of awareness and miscommunication'

The company responsible for the damage, OCM, said the problem arose from miscommunication and a lack of awareness about who were the traditional owners of the land.

The former CEO of Ostwald Brothers says there was a lack of awareness about who were the traditional owners of Bottletree Quarry. ( Facebook )

Brendan Ostwald, former CEO of Ostwald Brothers, OCM's parent company now in liquidation, does not deny that the courtroom was the first interaction he had with the Karingbal people.

Mr Ostwald told the ABC he was under the impression that the cultural heritage management plan had been handled by one of the company's internal planners.

He said he was not aware that the Karingbal people were responsible for the parcel of land on which the Bottletree Quarry sat.

Mr Ostwald told the ABC he was proud of the former company's track record in terms of traditional owner engagement and Indigenous workforce participation.

"It [Bottletree Quarry] was a dark spot on a very strong history," he said.

Heritage consultant Ben Gall, who works with the Karingbal people, said their situation was symptomatic of larger issues that existed under the current act.

"Two and a half years later we had a prosecution in the courts, which is a great outcome," Mr Gall said.

"But reforms to the act around Karingbal's 'last man standing' role, the stop work, and some of the other mechanisms to assist DATSIP at that level would have been … well, we wouldn't even be talking about prosecution."

In a statement, a spokesperson for Ms Trad said the "broad" review into the Aboriginal Cultural Heritage Act was in its early stages and initial conversations with stakeholders had begun.