Colonial Lives of Property in South Australia, British Columbia, and Palestine

The idea of this conversation with Brenna Bhandar was at the base of the editorial process for this issue. Her book, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership (2018) is indeed instrumental in thinking of the laws that enable settler colonialism to be implemented durably, in particular through the conceptualization of private property. As we discuss, the commonalities created by colonialism between distant geographies also allows us to think of new forms of internationalist solidarities between them.

LÉOPOLD LAMBERT: Your book examines how “property laws and racial subjectivity have developed in relation to one another.” Could you please define in a few words your concept of “racial regimes of ownership” in the context of settler colonialism?

BRENNA BHANDAR: Thanks, Léopold, for inviting me to speak with you, particularly for this issue of The Funambulist. The concept of racial regimes of ownership draws on the concept of the racial regime as elaborated by Cedric Robinson in his work. I transpose that concept into the realm of property to examine the ways in which modern laws of property, concepts of race, and processes of racialization are articulated in and through one another. So the concept of racial regimes of ownership is really about finding a way to explain and to illuminate the ways in which in settler colonies and in other colonial contexts as well, modern laws of property emerge in conjunction with concepts of racial difference and racial hierarchies. So for example, in the book, I examine how a commodity logic of abstraction, which is the fundamental basis for modern conceptions of land within capitalist political economies, is formed in and through particular racial abstractions. So that’s an example of looking at how a commodity logic of abstraction operates, both in the realm of property relations and ownership, but also as a means of forming racial hierarchy.

If I give a more concrete example, we can think about how the idea of terra nullius, which is used in the Australian context quite explicitly, is based both on the idea that land is a commodity, it is an abstract form juridically speaking, in which any prior relations of use that don’t conform to the capitalist imaginary—we can talk about things like cultivation later on—are really not recognized or not legible within a system of modern property law. And when we think about terra nullius, as a doctrine, which means uninhabited land, it’s operating both in conjunction with that commodified notion of land, but also in conjunction with a racial abstraction of Indigenous peoples infamously, as the colonial legal authorities described them as being, you know, too low on the scale of civilization to constitute rightful owners of their land. So there are different kinds of abstraction operating in conjunction with one another. And that’s a concrete example of how the racial regime of ownership is working across both concepts of property ownership and concepts of racial difference.

LL: When we talk of “stolen land” in the context of settler colonies, we may not go far enough in describing the economies of land, the way you do. There is, of course, the economy of private settler property (or state settler property for that matter), but there is also its opposite: the economy of reservation land for the Indigenous peoples who survived the original genocide and/or forced displacement. Would you say that these two economies of land cannot go without one another?

BB: Yes, I think this is a really excellent question, because the concept of the reserve, which is absolutely key to how settlers appropriate Indigenous land, really needs to be understood alongside the economy of private property ownership that emerges in the settler colonial context. These two economies of land are again really linked to the particular processes of racialization of Indigenous peoples and First Nations as being conceived of by the colonial State as not rightful or legitimate owners. And so, the economy of the reserve, at least in the Canadian context, and as it’s defined in early legislation, from the mid to late 19th century onwards, becomes a space that is kind of the antithesis of the economy of private property relations. Land on the reserve is not held in individual fee simple. In fact, early on, reserve land is held in trust by the State for First Nations. Land cannot be used to produce in the same way that land has been cultivated by individual proprietors and farmers on the land that’s being stolen or appropriated outside of the reserve. And, of course, the reserve is linked to much more than just how the land is being used and the economy of the reserve, it’s linked to cultural practices that can or cannot be practiced, it becomes a space of real control. I mean, that’s the purpose of it. So of course, what actually happens on First Nations reserves is another matter, but the animus, the intent of the colonial State is to create a very bounded space for Indigenous peoples and First Nations peoples to inhabit. The purpose is to create small bounded spaces in which Indigenous people can be controlled by the colonial State in terms of language, cultural practice, economy, etc. We could think of the reserve as a space that is part of the carceral logic of the settler colony. And it’s something of course, that is used widely across settler colonial spaces: in Canada, the U.S., South Africa, etc..

LL: Your book describes more particularly the settler colonial property laws in South Australia, British Columbia, and Palestine (as well as South Africa in your conclusion). There are, of course, countless specificities to each of these three geographies and you’re very mindful to respect them, but could you tell us what are the common points you have exhumed?

BB: I think when I was working on the book, I became very interested in these points of commonality. How did the British use different legal techniques to appropriate the land of other peoples in very different places? The commonalities in terms of the legal techniques that were used, the kind of thinking that was employed, and the philosophical justifications for land dispossession, the way that they are employed across incredibly different places, became very interesting to me. In terms of the specificities, what I try and do in the book, is to really look at the property logics that are employed in these different places, and how even where the preexisting life worlds of Indigenous populations—in the case of Palestine, the history of that region is so very different from these other settler colonial places like British Columbia, or South Australia—how even in spite of those massive differences, you still see these same juridical techniques being deployed in order to take control of the land. So in the book, I look at how title by registration, to take one example, is used in all of these different settler colonial contexts as the preeminent form of conveyancing and legal ownership. I looked at how it is used during the British mandate in Palestine, for instance, how it was first used in the colony of South Australia, and then how shortly after that, it travels to British Columbia. These are techniques of ownership that are, again, really rooted in a certain form of common law, and that form of common law is based on both the commodity logic of abstraction that I spoke about earlier, but it’s also based of course, in a notion of civilizational superiority. So, it is based on the idea that the common law in this case, the common law of property, is universalizable—this is something that ought to be imposed in these different contexts, because it is a superior way of relating to land owning of organizing an economy, that this form of the common law of property is what more civilized advanced societies need to employ. And therefore, this is part of a civilizing mentality and really rooted in the notion that this form of common law is superior to other legal systems. And of course, embedded within that kind of thinking is a notion of racial superiority. So these are the kinds of commonalities that we see across these very different places, which I found really quite fascinating to try and draw the thread between these legal techniques that are traveling through very different places, and also being transformed by the local context as well, in some ways.

LL: If I may push you even a bit further on that and talking about the methodology. I feel that within the academic world, operating through comparisons is usually a bit frowned upon. But I think it’s an incredibly useful methodology, as long as we remain very cautious not to flatten all the specificities between these different situations. Could you tell us about this method a little bit and why it may be useful?

BB: I have to say, I feel like when I look at some of the different parts of the book, I feel acutely what they’re lacking, and the problem, as you just pointed out, with doing this, with trying to draw threads between such vastly different contexts, where, of course, scholars spend their entire lives embedded in one small aspect or part of a place and a history that you’re trying to understand for a specific reasons, or that you approach with very specific, bounded questions. And so I think one has to be acutely aware of the limits of one’s engagement with a particular place. I felt that most keenly in terms of the work on Israel/Palestine, because the limits of language for me were very evident. Needing help with translation of Israeli high court judgments, and then needing assistance with any kind of interviews I did, at times needing someone else to be present to translate from Arabic, these were part of the process. And so these limits, I think, are really important to acknowledge and to understand, to see how they are impacting the framework one is developing. I’m trying to be as responsible and as conscious as one can be.

On the other hand, the importance and significance of trying to do this kind of work, and trying to draw the commonalities, the common threads of colonial law, that appear in these contexts is vitally important for thinking about coalitional possibilities for solidarity. Because, despite their differences, there are profound commonalities in how colonial powers dispossess people, appropriate land, and impose a certain economic and racial regime of ownership. So I think it’s very important to say “Hey, what happened over there happened here!” And then what does that mean for our present moment, in terms of trying to decolonize, in terms of trying to imagine and push for a different political, economic order? I think these kinds of analyses are also really important. They’re politically and intellectually vital, I would say. And I think it’s also driven by a frustration that I often have, maybe having grown up on the west coast of Canada, and then having lived in Europe for a couple of decades. Initially when I moved, I always found it very dismaying that people clearly had no idea of the violence of colonial settlement in Canada. I mean, it was either treated as something that had happened in the past and now was done, or Canada was seen as this kind of paragon of liberal multiculturalism. Through these sorts of mythologies about different states, different places can be undone precisely by pointing out the common histories of colonial subjugation. Racism, tracing commonalities and systems of indentured labor or enslavement, this kind of work, I think, is really important for understanding how modern colonialism produced a globalized order.

LL: Yes and when we do this, we do it less for white Europeans to realize this commonality, and more for other people. For instance, I remember being in Palestine with Lakota historian and activist Nick Estes and hearing Palestinians telling him their surprise that Indigenous people were still fighting in North America. And of course this commonality is often created by European colonialism first, but it also often gets transcended by forms of solidarity, as you said.

BB: Yes! . And that’s also something that I find quite problematic when we witness a lack of understanding about what has happened in different places, at this point in time. I think that politically, it’s interesting to reflect on what happened after a period of intense internationalism and internationalist struggle. Glen Coulthard has been doing really interesting work on this recently, exploring how the Red Power movement here, for instance, in Canada, in British Columbia, were very much tied into anti-colonial movements happening in other parts of the world. I think now is a moment (if there ever were one) when we need to reinvigorate and strengthen this kind of internationalism and these forms of transnational solidarity and political work.

LL: You’ve been describing Cheryl Harris’s text “Whiteness as Property” (1993) as instrumental to the way you approached property. Land and personhood are indeed intertwined throughout the book. When talking about property and race, many thinkers would refer to chattel slavery’s legal framing for some individuals to be owned by white settlers. You also point out how landowners, on the contrary, are referred to as “self-possessed.” Can you tell us more about this question of status when it comes to settler colonial property?

BB: One of the arguments I make in the book, is really based on the question of status as it relates to Indigenous women in Canada and the Indian Act. But in terms of the larger question of status, there is a significant shift between older notions of status and how status is used in ancient empires, such as the Roman Empire, and how that changes when it comes to modern forms of colonialism. So in the book, what I show is how, within Roman law, concepts of status were very mutable; one’s juridical status could change over time depending on many different factors. What happens in the modern era is that status becomes conceptualized through racial and gendered notions of difference. So status becomes rather immutable and something that is sort of affixed to one’s body in a different way. And status becomes something that is used to control access to land, to control mobility, to control one’s entitlements,vis-a-vis the State one’s rights, etc. And it also becomes something that is then passed along to the next generation, according to a completely artificial construct of racial and gender difference that is legislated by the State.

LL: Property is undeniably mobilizing a detailed and careful analysis of the law. I was wondering however, whether this focus on how the law is built for settler colonialism to hoard the land could not be complemented with the way such a law is enforced and materialized on the land itself. And of course, in this perspective, the built environment (barbed wires, walls, door-lock-key apparatus, and other spatial forms of body control) is also central. Would you agree with this?

BB: As you know, there’s a huge body of work emerging from geographers, from legal scholars, from planners, at that intersection of space, law, and planning. I think that the kind of intersection or this sort of matrix that you’re pointing to is indispensable for thinking about land dispossession. I’ve been thinking over the last couple of years, more about housing in urban contexts. And so, when I think about the built environment, I think very much about the material architecture of different kinds of residential housing. This is also a way of entering the domain of financialization and contemporary forms of capitalist accumulation. Thinking about the relationship between the built environment and law, and land and dispossession, is a portal through which we can start to understand not only laws as they pertain to ownership and planning, but also to the financialization of residential real estate for instance. Thinking not simply, land as property or land as a commodity, but thinking very specifically about residential real estate, and how that is a site where urban planning laws, the politics of ownership, financialization, and investment, social reproduction, all merge not only the physical built structures, but in cities of different sizes and scale. We can also think about all of the other technological infrastructure of the built environment, and whether that be it in terms of financialisation of investment, or the whole world of real estate tech. Thinking about land and ownership etc, within the specific context of the built environment, can yield infinite trajectories of inquiry that are multi-layered and intersecting and help us understand the way in which law, political economy, architecture, planning, all of these things are connected to one another.

LL: In the book’s conclusion, you advocate for a “radically different political imaginary of property,” which also involves another relationship to land itself. This is what we try to address in the LANDBACK part of the issue and I’d love to hear you more on this.

BB: I think there’s a lot of different facets to that idea. One aspect of that, which I think Rafeef and I try and explore in the Revolutionary Feminisms (2020) book we edited together is the different conception of the self and how we relate to one another, which is part of the core of thinking about a radically different political imaginary of property, because private property is so deeply interconnected with modern forms of subjectivity. That’s one aspect of it, but there’s a multitude of different historical examples we could look at all over the world: how people have related to land in a non commoditized way and cared for the land. It’s not just about thinking how land figures in our imagination as something outside of urban contexts, but how people live with one another, in ways that are not bound by a commodity logic of exchange. This is also part of reimagining how to live differently. So historically, there are a lot of different examples we can look at.

In the current moment, things that come to mind are as diverse as the Wet’suwet’en land defenders in central and northern British Columbia, who are trying to halt pipeline expansion and have been engaged in a multi year blockade on their traditional lands to stop this extractivist industry from further polluting and ruining land and waters. Of course, it is not just about the Wet’suwet’en, but it’s really about all of our present lives and futures. We can think about what one of my Indigenous colleagues, Robert Clifford has written about how in the place where I grew up as a child in Victoria, British Columbia, how, the WSÁNEĆ have concepts of land and water and an understanding of the topography or the geography of their traditional lands that are rooted in a completely different ontology and a system of law that is in many ways the antithesis of notions of private individual ownership. He’s one scholar among many who are explaining to people who are not Indigenous , what a different way of relating to land looks like, and we can grapple with these alternatives. And then another very different example is what’s happened in Berlin, with housing activists pushing forward a referendum on the expropriation of residential housing held by corporate landlords. We can look to housing activists in Spain since the 2008 financial crisis, who have been really trying to articulate a different concept of use when it comes to property. They argue that the social uses of property and something as fundamental as the right to housing need to supersede the uses of residential property as an asset for accumulation and profit.

Another example that comes to mind is the work of Cameron Rowland and how his artwork is rooted in a very profound engagement with how to disrupt all of the fundamentals of private property ownership to render land less fungible or non fungible; his work explores how to render property, sort of use-less or how you can deflate the power of the legal techniques that buttress private individual forms of ownership. So, you know, I think there’s so many different things happening around us that show us what different imaginaries of property look like, that I think are really exciting. It’s really about looking at how people, both historically and present are resisting the effects of private ownership and creating alternate forms, alternate ways of living outside of a regime of individual private property. ■