“Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership” - A Discussion

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By Jeff Shantz 

Brenna Bhandar’s newly released book Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership promise to open up important ways of thinking about property within capitalist colonialism (historically and currently). Some of that promise was on display over several hours of discussion during the book launch at Simon Fraser University University’s (SFU) Harbourfront campus (unceded Coast Salish territories) on the evening of April 9, 2019.

In addition to the author, discussants included Nick Blomley of SFU, Irina Ceric of Kwantlen Polytechnic University (and member of the Social Justice Center), and Glen Coulthard of the University of British Columbia, author of the influential Red Skin, White Masks. The event was chaired by Davina Bhandar of Athabasca University.

The book broadly examines the invention of property and the formation of property law in capitalist colonial projects (emphasizing that property is a social product, not a natural category). Brenna Bhandar first introduces the new book, why it is framed as it is and what was intended with it. She relates that she had been asked at a conference by an academic legal scholar if what she referred to as colonial violence was really appropriation (not expropriation, note). She began asking what it really means to appropriate land (and all that goes with it) that is someone else’s (home). Other assumptions (racism, for example) went along with that appropriation. Science, economy, cultural production, philosophy, law—all went along with the projects of appropriation.

All of this led her to focus on the role of property law in colonial endeavors. Bhandar notes that law shapes the formation of proletarian subjects, property, racial subjectivities. Hegemonic paradigms of ownership also contain moments of rupture, refusal, resistance, though these are perhaps underplayed in the book, as the discussion would suggest.

Today, Bhandar asks, how can property be “de-propertized”—what are the ruptures of the present. How might we “dethrone” the commodity form property, in her words? These tasks need to be taken up collectively, as Bhandar suggests.

 The Respondents

All of the respondents were in agreement that this is an important work. Nick Blomley appreciates that Bhandar argues that modern property law emerges with and through colonial appropriation (and violence). He notes that under capitalist colonialism property is justified with reference to those who supposedly have the technology to use it (in which the technologies and uses of colonialism are all that count). Blomley suggests that too many property theorists elide questions of race and colonialism. And if they do mention race, they ignore the specific work that property law does.

Blomley asks how property law affects the lived realities of coloniality? Racial subjects and modern property are produced together. Blomley turns to works on foreclosure to point out that foreclosure in the colonial United States became a means of theft of Indigenous land through Indigenous debt.

Blomley refers to Frantz Fanon, who in Wretched of the Earth notes that the colonial world is one divided into compartments in which the Native learns to stay in its place. Blomley argus that in so-called British Columbia, the watchful eye of property owners backed by the state, more than agents of the state themselves, turned Indigenous people into trespassers on their own lands. Trespass is itself culturally and historically constructed. It is connected to land in the modern period—through enclosure and through colonial encounter. 

Blomley points out that we can see racialized regimes of property in the killing of Colten Boushie, an Indigenous youth, by white farmer Gerald Stanley in Saskatchewan. Stanley’s lawyer invoked intrusion and trespass (on settler occupied land, not of settlers on stolen Indigenous land) along with racist assumptions of Indigenous people as threats to white property.

 Irina Ceric kept a focus on specific legal tools—especially injunctions, her area of work. Bhandar points out in the book that settler colonialism requires flexibility in legal devices. Ceric notes that while injunctions are not part of property law, they are about property. She offers that BC has a long history of using injunctions against Indigenous people and social movements. Lawsuits are used as means to secure injunctions alone—they are not cases intended to go to trial. Ceric quotes the late Secwepemc activist Art Manual who has described injunctions as “legal billy clubs.” She reminds the audience that use of force is inherent in the public-private partnerships of extractives companies, police, and courts.

Ideas of use also underly injunctions and are part of colonial histories of property. Ideas of using or “improving” land are invoked that give corporations and industry a trump card in getting injunctions (their use is privileged). Ceric takes the discussion to injunctions against Wet’suwet’en land defenders 

Glen Coulthard also found much in agreement with the book. He begins by asking about exclusions in the text—especially around resistance to colonial regimes of ownership. The text, in his view, is not focused enough on real world alternatives.

Coulthard suggests the need for a focus on the forms of social relations, land tenure, etc. that needed to be erased by colonial violence (according to the colonizers) in order to construct colonial property, law (and property law). What were they?

Coulthard pushes the discussion in the direction of understanding the nature of the state. Are the issues identified in the book property issues or issues of territoriality more broadly (and of sovereignty through the state). How much of this is constitutive of the state form itself? Here Coulthard significantly brings in the works of the anarchist Peter Kropotkin in relation to primitive accumulation—as a constituent feature of the state as such. This is a crucial moment in the discussion that bears further development.

Debates on De-Propertization

Questions included issues of identity and law, the impacts of the United Nations Declaration on the Rights of Indigenous Peoples, duties to consult, consent, etc.

Bhandar responded by acknowledging her need to think further about technicalities of law and how they are shaped through racial regimes. She notes that in the UK injunctions are used all the time on university campuses—to stop student protests.

Despite recognizing the limits of the law and the violence inherent in law (and its separations and containments) Bhandar says she is not ready to give up on the law. Ceric offered a bit of friendly pushback on this but I would have liked this discussion to be pursued a bit further (and to hear from Coulthard more on this given his reading of Kropotkin who wrote extensively on law). An audience member pointed out that injunctions are also most used in labor disputes to stop unions or to break strikes. This is about propertization for capital—not or the workers who work in a struck property.

Blomley returned to the fact that private property is a production of the state. A discussion began around the state-property relation which could not be fully be pursued in the time available.

There were also unanswered questions around what the de-propertization of property would entail and look like. Bhandar offered some on the ground examples. Occupations of urban sites offer examples. She noted that Occupy London argued for indefinite occupation of the area around St. Paul’s Cathedral—after they were taken to court over an injunction. This confronted property law’s emphasis on definite periods of occupation in her view. After the Grenfell Tower fire, people took over a property no longer used by an art gallery. They wanted to stay there indefinitely. Coulthard responded by pointing out that the character of these acts changes if they are transposed to New York or Oakland where they would be claims made on stolen Indigenous lands. 

We still need to work out a common politics that is anti-capitalist and anti-colonialist. Key in this are Indigenous resistance, resistance to enclosures of various sorts. The discussion based off of Colonial Lives of Property suggests that it makes a contribution to expanding our understandings of promises and problems.

 

Further Reading

Bhandar, Brenna. 2018. Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership. Durham: Duke University Press

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