Watson, Irene --- "Talking Up Aboriginal Law in a Sea of Genocide: Interview with Robbie Thorpe" [2000] IndigLawB 47; (2000) 5(1) Indigenous Law Bulletin 14

Talking Up Aboriginal Law in a Sea of Genocide:

Interview with Robbie Thorpe

by Irene Watson

Robbie Thorpe is from the Krautungalung people of the Gunnai Nation, the traditional owners of Lake Tyers. He has been active in initiating indigenous solutions and, in particular, has been a strong advocate for ‘Pay the Rent’, an indigenous initiative which would provide an independent economic resource for Aboriginal peoples. Robbie has initiated a number of legal actions, where he has argued that crimes of genocide have been committed against Aboriginal peoples throughout the history of the colonisation of Australia.

Irene Watson talks with Robbie Thorpe at Lake Tyers, Victoria-

Irene Watson: Robbie, what are your thoughts on civil rights and Aboriginal Peoples in the year 2000?

Robbie Thorpe: Civil rights is a good one for this country to talk about because it was founded on the basis that Aboriginal people were uncivilised people, were lawless, roving bands of savages. We weren’t afforded civil rights and as such we weren’t recognised and we’ve missed that process for the last two hundred years. I don’t think you can have any laws that are appropriate for Aboriginal people in this country until you have a treaty, which ends the war. Before you have a treaty you have to have an end to hostilities. Before those processes take place, you can’t talk about having a civil rights society.

Australia doesn’t qualify as a civil rights society because it can’t prevent things like genocide. What denotes a nation of people that’s civilised is its capacity to prevent crimes against humanity. Australia’s incapable of doing that.

IW: What Aboriginal rights have been breached?

RT: One of our rights being breached is the right to consent. Aboriginal people haven’t consented. If you do things without consent, it’s considered rape. Now, a lot of crimes have been committed against Aboriginal people. There is a history of denial, which has gone on, and these crimes are continuing.

They won’t take the fundamental steps towards establishing a civil society. They need to have a treaty; they need to end the war against the Aboriginal people. We know we’ve had a war here, but they can’t tell you what day it ended. That may be the national day this country could celebrate.

Until they have that treaty with Aboriginal people we can’t talk about making laws for Aboriginal people or applying it to them. The treaty will give them that basis of law to do it.

IW: What steps have you taken towards gaining the recognition of Aboriginal laws?

RT: Australia ratified the Genocide Convention in 1949, but never legislated to protect people from crimes of genocide. So considering that this country was based upon a terra nullius of law, which meant it was an empty country, they had a hollow Genocide Act. We have challenged the Commonwealth of Australia in Thorpe v Commonwealth^[1] to qualify our legal status and we argued it should be done at an international level. You’ve got to have an umpire to make that unbiased decision.

IW: Can you tell me about the genocide litigation?

RT: In our first case, Thorpe v Commonwealth,^[2] we alleged that genocide was a crime of universal jurisdiction, and that no-one was immune from prosecution. We tried to place blocks in the system so that other people who came after us could use them, but what tripped us up in Nulyarimma v Thompson^[3] was that Australia recognised the crime of genocide everywhere else except in Australia.

IW: So where to now, in the process of testing the law, and the future of Indigenous survival against genocide?

RT: Preventing genocide happening to our people would be a good start to having some kind of future. The [extradition] treaty became relevant to extradite war criminals, because there’s no jurisdiction over crimes of genocide in Australia. We need to extradite those people to a place where they can be tried for crimes of genocide. We are claiming we’ve got genocidists in this country, and we want them out of here, and if Australia hasn’t the facility to deal with it, we need to do something about that. We need to extradite these people to a jurisdiction, which has it. That became relevant today, Friday July 13.

IW: How was that?

RT: This [extradition] treaty to take Konrad Kalejs, a war criminal from Melbourne, is an applicable law now for us, to apply to people like Kennett, Howard, and any other war criminals in this country.

IW: So what drives you?

RT: There ain’t no future here. My people are haemorrhaging in terms of their lives. We have historical Aboriginal people who control and run our cultural business, for example - they are just the native police people, who did the ethnic cleansing and the genocide in our early days. They’re the black people who survived in our territory, and we’re a minority amongst Aboriginal people in our territory. We’re way behind the eight ball: we’ve got no rights, we’re the most despised people, the indigenous people of this area. There’s been a lot of movement of Aboriginal people who don’t respect other Aboriginal people’s land.

IW: So you’re talking about Aboriginal people colonising other Aboriginal people’s lands?

RT: Absolutely, that’s our worst problem, native police. The whole issue of native police needs to be brought into light now. We’ve had the deaths in custody, the stolen generations, and everything that constitutes genocide in the Genocide Convention. Australia’s guilty of everything.

IW: They define the crime of genocide in a narrow way: in terms of physical acts of destruction. Acts of cultural genocide are excluded from the definition of crimes of genocide. In your mind, what is genocide?

RT: Genocide would mean that the Gunnai Nation are no more; there’s a sunset on it, and they’re aiming at that. It’s been going on for a long time and we’re at the end of it.

IW: How has it been done, what has been the historical process?

RT: Initially it was smallpox infestation, then it was massacres and hunting them down, and then it was reserves, then as they died out they moved other blacks in, and they moved the surviving traditional blacks to other reserves in other parts of the country. They uprooted entire populations, moved them, took their children away, stopped them from speaking their language; genocide they committed in Victoria and a lot of other places. People think genocide’s shooting people; it’s not, it’s a lot broader than that. The cultural definitions come into it.

IW: So how do they commit genocide today?

RT: How do they do it today? They deny us resources, they destroy our sites, and they control our culture. [The Department of] Aboriginal affairs in Victoria is in control of all the Aboriginal peoples’ culture in Victoria: all the information goes there, nothing comes into the communities. The cultural officers work for them; they’re not accountable to the communities. There are no indigenous structures in Victoria. There are no elders’ councils that are not corporate bodies. There are no politically independent Aboriginal people.

If the government’s paying you, and you’re a corporate body, well, where does that leave customary law and the decision-making there under it? But we are establishing our elders and through that we’ll establish our men’s and women’s business and through that we’ll take our children through the law again. We’re being stopped and it’s a state of mind to a large degree.

Assimilation is probably the worst act of genocide because it’s being something that you detest the most – to be like a white man. So assimilation is probably where we are as Aboriginal people: that’s genocide. That’s the worst type. As far as I’m concerned, that’s what I’m striving not to be.

I was talking to my wife here and she was saying we’re only draft citizens at this stage - we’ve never been the full quid citizens. In the ’67 referendum, most Aboriginal people never voted. They don’t want this - who wants to be an Australian citizen? We’ve got identities already. If you vote you’re condoning it - you’re assimilating yourself to some degree.

People should look at the genocide legislation debate in Canberra in 1948-49, It’ll shock people. It’s the most damning piece of evidence in this country. And then to not legislate!

IW: But the Genocide Convention was a response to the German’s treatment of the Jews. There was never any thinking that it would be raised or used in relation to us.

RT: Well it’s funny that the first president of the United Nations was Herbert Evatt, an Australian lawyer. I’ve got this document that says that - while Australia adopted this new world order, the world, gave them three options in terms of their future development and Aboriginal people: (a) to treaty with the Aboriginal people, (b) to recognise the rights of Aboriginal people, and (c) to continue to fundamentally alter the environment in every aspect. They were the three options that Australia had, and they had fifty years to sort that out after 1949, and this brings things right up to the present time. So I don’t know, what good’s the UN anyway? Been charged with genocide themselves haven’t they?

IW: So does the idea of rights have any meaning for us?

RT: Surely we’ve got fundamental human rights! But we haven’t!

IW: Can we have rights without recognition of our sovereignty and our law?

RT: No! I don’t think you can. You need to have a law, because that’s what will give you the rights. Our law was the precedent law in this country. So, you know, where’s the rights there? What law operates in this country - what’s the appropriate law for this land? I reckon I know what it is, and I want to live under it. I’ve never consented to the white man’s law. Not many other blackfellows want it either. We’ve been dominated completely and utterly.

They’ve had 200 years in isolation from the rest of the world to do exactly what they wanted to do. They’ve lied all the way - terra nullius - they’ve said they lied about that. They’ve admitted that they stole children: that’s article (e) of the Genocide Convention. They’ve had an inquiry into the deaths in custody, killing members of the group. They’ve caused mental stress on Aboriginal people - and everything that’s in the Genocide Convention, Australia’s breached. I can’t believe that it gets swept aside each time. It’s like you’re talking to a brick wall.

IW: What are your thoughts on the 1993 Native Title Act - was it a step out of the darkness of terra nullius and a step towards preventing the crime of genocide?

RT: I think this was a further act of genocide, and I have made this claim. When the High Court removed the lie of terra nullius they also removed their own jurisdiction, because that was the basis of it, terra nullius.

They didn’t have the right to make laws - judges don’t make laws for people anyway. They said that native title was our title, and that was its domestic form; but it was their title. It was their law that they made. They defrauded the Aboriginal people - they perverted the course of justice by imposing this European concept of title on our people, when we are saying we are the sovereign people.

And as it turns out, native title is the lowest form of title in their law! It’s less than the rights of cattle and livestock. Less than the pastoral lease title. It’s not what Aboriginal people have been marching up and down the street for the last hundred years, native title. And it seems like it’s water under the bridge, but I’m still hanging onto that bridge. Because that’s where it all started, and if we don’t stand up for that we lose it all. We are the sovereigns - we have the appropriate law that applies to this land.

IW: So you think it’s either/or; you don’t think there’s a point in between where we can be reconciled?

RT: We need to have a treaty. We’ve got to have an end to the war on our people. Our people are still wounded. They’re still afraid of these people. There’s still that sort of fear. Now, how can you deal with people in an honest and fair way with your rights and your future when they’re still under that duress? We’re not getting free and informed consent. We can’t possibly make decisions about our long–term future in such a short time. We’ve only had government bureaucrats doing our business on our behalf, and it’s just been a battle for our people on the ground to fight that off.

Even when you look at the history of native police and the government in this country, that’s where it’s all at. They control everything.

IW: Do you think we still have contemporary forms of native police operating in our communities?

RT: Absolutely. You can even take it down to the dole. If you’re taking money off the government, they are sort of like your boss, aren’t they? If you’re touching their money, you’re dirty. You need to be treated with suspicion if you’re an Aboriginal customary law person. If you’re getting government money, you can’t come into our camp talking sovereignty. You can’t come into our camp talking law. You have to cut yourself right off from it.

And native police – well that’s ATSIC. ATSIC was imposed upon Aboriginal people wasn’t it? They haven’t got the right to make laws for our people. They haven’t got a treaty, and everything they do, takes us a little bit further down. I don’t know if you’re aware of the Victorian Land Titles Validation Act of 1995 and 1999, or ‘98, which just extinguished all the native title the Victorian Aboriginal people ever had. It just knocked it all out. When Kennett was in, he handed out fifteen thousand packages of titles, all crown land, to all these multi-national companies and logging companies and oil companies. Now he’s gone, and he did it with this Land Titles Validation Act. There are no Aboriginal people in Victoria who can claim native title.^[4]

People should realise Jeff Kennett wrote the constitution for this country. Victoria got a new constitution in 1995 which will be the blueprint for the other one, the national constitution. And they’ve done that because they stood over our native title. And they got away with it down here. Richard Court tried to do it in Western Australia, but the whole country jumped on Richard Court, and they let Kennett do it.

IW: How do you see the treaty process?

RT: Well, the treaty gets written by our people, and signed by white-fellers. Our elders are to put it into place. The treaties are written by our people, and the white-feller signs it because he’s on our land, and that’s the deal. We write it. We write it in aboriginal language, we write it in white-fella language, and we write it in Latin if you want it. We’ll get the interpretation deadly, because we’ll do it. We’ll interpret it; it’s our treaty. We’re allowing it to happen; it’s up to us to consent to this. You know what I mean? Otherwise they’ll remain the illegitimate bastard-child of England, Australia. That’s what they are.

^[1] [No 3] (1997) HCA (Unreported, Kirby J, 12 June 1997).

^[2] Ibid.

^[3] [1999] FCA 1192; 165 ALR 621.

^[4] Thorpe v Kennett (1999) VSC 442 (Unreported, Warren J, 15 November 1999).