Below the Radar Transcript
Episode 211: Colonial Lives of Property — with Brenna Bhandar
Speakers: GABRIEL ALEGBELEYE, Am Johal, Brenna Bhandar
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Gabriel Alegbeleye 0:02
Hello listeners! I’m Gabriel with Below the Radar, a knowledge democracy podcast. Below the Radar is recorded on the territories of the Musqueam, Squamish, and Tsleil-Waututh peoples. On this episode of Below the Radar, our host Am Johal is joined by Brenna Bhandar, Associate Professor at Allard School of Law, UBC. She discusses her book Colonial Lives of Property, and her research in the areas of property law, and the relationship between property law and the histories of colonialism. Enjoy the episode!
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Am Johal 0:45
Hello, welcome to Below the Radar delighted that you could join us again this week. We have a special guest with us today Brenda Bhandar, welcome Brenna.
Brenna Bhandar 0:56
Hello
Am Johal 0:57
Nice to see you better. Why don't we start with you introducing yourself a little bit?
Brenna Bhandar 1:01
Sure I am a... I'm an academic and I teach and work and live on the unceded territories of the Musqueam, Tsleil-Waututh, and Squamish First Nations. My research falls into the areas of property, property law, and the relationship between property law and histories of colonialism and racial formations. I've also done some work on different feminist traditions of thought and action.
Am Johal 1:35
Brenna I'm wondering, before we—I have your book in front of me right here—before we get into the book a little bit, I'm wondering if you can speak a little bit to your own trajectory of how you found yourself on to the topic of your book, colonial lives of property?
Brenna Bhandar 1:50
Sure. Well, I suppose it started with an interest that I developed during my legal education concerning the issues of Indigenous dispossession in Canada, and really also the place of race and racism and gender in that dispossession. And I developed these interests during my PhD research, which was really a critique of legal and political forms of recognition. So it was my, my doctoral research was really focused on section 35 of the Canadian Constitution that recognizes and affirms Indigenous, well, aboriginal and treaty rights is the language that's used. And in my doctoral research, I traced the pitfalls of this kind of legal recognition through Hegel’s theory of mutual recognition. And, it was a very, theory heavy project, I guess you could say. And after that, I went through a process of thinking about how certain kinds of political philosophy and theory, well, thinking about what they had to offer really concrete political problems like Indigenous dispossession. And through quite a fairly circuitous process, I guess you could say, I arrived at quite a shift in my research that came to focus really squarely on property. Property as a form of dispossession, property as the motor force of dispossession, property as a form of political social power. And that's sort of what led me to focus so much on property and the relationship between property and colonial dispossession. But in terms of the concrete cases I look at in the book, I ended up traveling to Palestine, as I was engaging in some more historical research on Canada, and also colonial Ireland. And I was really struck by the similarities in how the law was functioning as a key modality of military occupation and land dispossession. And so the project that unfolded ended up being one where I look at how different legal techniques and different laws travel through different colonial jurisdictions. And, of course, acknowledging and working with all of the differences between these different contexts and historical moments, still being able to pull out a number of similarities in how these legal techniques were functioning.
Am Johal 4:44
And, you know, we see, you know, with the various histories of colonialism, these documents from the church like the Doctrine of Discovery, Terra Nullius, others that kind of work in tandem along with the law and I’m wondering, you know, you tie in the book, the relationship between juridical practices and domination as they've kind of moved through property, as you rightly point out these terms like torrens title that comes out of I guess, Australia is where it gets tried out and brought to Canada in other contexts and in the context of Palestine, where you had the Ottoman Empire that had their own forms of property that was, I suppose, in some way legible to European colonialism. And so it was superimposed on top of something that was there and I'm wondering if you can speak to, you know, what your research kind of uncovered in terms of how the law, property, and colonialism kind of function together.
Brenna Bhandar 5:49
I think one of the key arguments in the book and one of the key insights, if I could say that, is how the logics underlying modern forms of property and modern property laws share a similar structure or conceptual basis with contemporary forms of race thinking. And so what I trace in the book is how in each of these different contexts, the property law justifications for land dispossession emerge with certain forms of racial thinking. So to give you an example, there's a chapter in the book on the idea and ideology of improvement. And we can see, as far back as what the British did in Ireland, and through the work of someone like William Petty, that kind of thinking where the theory of how to value land emerges in conjunction with a… not just a theory of the value of labor value, but but a theory of value that's about the Irish peasantry, you know, who are being dispossessed. And so, you know, the fact that racial modern concepts of race and racial difference emerge in conjunction with modern conceptions of property is one of the main arguments that I traced through these different chapters in the book.
Am Johal 7:19
And I guess there's also, you know, the more contemporary forms where, you know, people find their property title, and it says that, that, you know, they're not allowed to sell to Chinese Canadians or South Asian Canadians or non white, non European peoples, which you know, are not that far gone from history here and the way that it still plays out. There's a— you begin with a chapter that talks about property as use, sort of tying I guess into this sort of Lockean notion of a person working the land and making it better or whatever. And it gets brought into planning in a different way around, you know, certain types of property upkeep and others that are used in highly politicized ways. I'm wondering if you can speak to that notion of property as use?
Brenna Bhandar 8:04
Yeah. Well, I think this is also again, a way of framing some really crucial political problems that we are confronting, like if you think about the housing crisis, we can conceive of the housing crisis in terms of a contestation over what kinds of use are valued by current political orders and also by the law. So you know, if we were to prioritize shelter, adequate, safe housing for everybody, then it would require us to have as a society, a conception of use that's related to the question of value. I think I keep coming back to the question of value. That supersedes the concept of use and value that prioritizes profit and individual private property ownership, right. So, you know, looking at the history of what kinds of use have been valued and prioritized allows us to also kind of denaturalize the way that property works in our society or in our world, or, you know, for thinking about a particular urban context or municipal context. And so yeah, I think that thinking about what kinds of use of property, whether it's residential, housing, or whether it's other sites, you know, whether it's if we're looking at forests again, you know, if we think about extractivism, then what kinds of use, are we privileging and, you know, it's a useful way, pardon the pun, to, to frame the kinds of political contestations that are happening all over the place.
Am Johal 9:49
And certainly in the context of BC, where, you know, Treaty 8, in Northeastern BC, or the Douglas treaties, like large parts of it, never came in under treaty, and so is, you know, very much when you look at the Sen̓áḵw development happening, downtown City of Vancouver doesn't really have a say in it zoning or planning, it's really one of the most interesting kind of sites in many ways in terms of how that's playing out with neighboring governments and how to understand that in a sense. In your book, you talk a little bit about this concept of articulation. I think Stuart Hall, reading Althusser, somewhere in that zone. But I'm wondering if you can speak a little bit about that term.
Brenna Bhandar 10:32
Yeah, I sort of borrow that the way in which Stuart Hall uses the concept of articulation to think about the relationship between race and class. And I kind of borrow that concept to think about the relationship between race and property. And essentially, some of the aspects of Stuart Hall's thinking around articulation that I found really generative have to do with the idea that any given articulation—so in his case, he's thinking about articulations, of race and class—are neither inevitable, but are also not completely contingent. You know, and it's that formulation that I think really allows us to understand how particular forms of domination are structural, but in recognizing that they are not inevitable, it allows some space for thinking about, well, what are the weaknesses in this articulation? What are the points of resistance? Where are the points where we can push for some kind of other outcome, you know, or another direction. So that's how I drew on that concept of articulation in the book.
Am Johal 11:58
You speak a little bit as well about the Tsilhqot'in case in the book. And I of course, I grew up in Williams Lake and in the region, and it’s a very, very high profile case, several years ago. And I'm wondering if you can speak a little bit to the implications of it and why it's such an important case to think through in terms of how these questions go forward into the future?
Brenna Bhandar 12:22
Yeah, well, the way I mean, I think it's had major ramifications in a lot of different ways. The way that I take it up in the book is to use that judgment as a way of understanding how… I mean, going back to the limits of recognition point, the limits of legal recognition. That even in a case that makes a legal advance in recognizing Indigenous or Tsilhqot'in forms of use, so that the court accepts that Indigenous forms of use and ownership will not necessarily look like or will not have the hallmarks of an Anglo European conception of ownership and use, right? So they make that advance, but even in making that advance, and going past what was called the postage stamp theory of, you know, Indigenous or aboriginal title, they still reit– you know, reiterate the legitimacy of Crown colonial sovereignty. So that's, you know, the first thing to note, they all—as I argue in the book—they also make this advance about Tsilhqot'in forms of use along the lines of the anthropological category of the semi nomads. So they recognize the Tsilhqot'in as a semi-nomadic people, and on that basis find that, you know, they used the land in this way. And so that's the basis upon which they can expand this idea of aboriginal title. So the argument I pursue in the book is that there's still this fundamental problem with a kind of racial thinking or categorization that's embedded within the judgment. So I think it's, you know, ultimately, this is the particular way in which the court captures that legal claim which is putting forward in an Indigenous conception of ownership and use.
Am Johal 14:30
You mentioned Hernando Desoto, the neoliberal economists, you know, referencing property titling as a part of a development agenda. And of course, there's, you know, other thinkers like, say, Tom Flanagan, at the University of Calgary, Stephen Harper's mentor, who, you know, actively advocating for a kind of system of individual rights as a way of really undermining collective rights, Indigenous rights in terms of a kind of neoliberal right wing approach to these questions. And I'm wondering how this sort of plays out in the contemporary sense, because there's a kind of reactionary politics against collective rights playing out through property titling or attempts at individualizing these rights that have historically been collective in nature?
Brenna Bhandar 15:20
Yeah, well, I think the thrust of that kind of thinking is, is the idea that individual private property ownership and commodified or commoditized conceptions of land are civilizational progress, and represent a kind of civilizational improvement that everyone should be brought into. I mean, that is definitely the logic behind Desoto's thinking and others. And you know, as many other scholars have, have examined and written about, the attempts to turn informally held land in impoverished communities in a variety of places, into individually titled parcels of land so that those people could become private property owners and use their homes as collateral to, you know, enter the credit, debt economy, etc, don't actually lead to better outcomes for people at all. And so that's, you know, I think, a different point from the one you mentioned, which is that this is also clearly a drive to undermine collectivized or collective forms of ownership. So I think we really need to be thinking about other models of how we hold and relate to land. And you know, that I think that is happening in some places, obviously, there are huge land back movements all over Turtle Island. There are movements to expropriate residential rental housing in major cities in Europe from corporate landlords and to bring more of that kind of property back into the hands of communities. So I think there are and there have always been, you know, different kinds of resistance to the logic of individual private property ownership.
Am Johal 17:19
In the case of Palestinian contexts, for example, it is layered and complicated in terms of where the legal overlay over West Bank and Gaza is different than East Jerusalem or say the Bedouin in the Negev, or a series of unrecognized villages within the Israeli state currently, and how the state can dispossess in different ways, even in the same geographical area. And I'm wondering, in terms of your time spent there, how you read the forms of dispossession?
Brenna Bhandar 17:55
Yeah, I think there's some really brilliant work being done by Palestinian scholars looking at the different land and military regimes in what has become a very fractured Palestine. And some of the really interesting work that is being done actually shows how the land and military regimes that have been used to dispossess Palestinians of their land are part of a unified project, right? So I think especially in the post Oslo period. The fragmentation of Palestinian territory is, of course, very severe. But what I think is interesting in the resistance to that, is a drawing out of the commonalities in the legal regime that's been used in all of these different sites, you know, despite their profound differences in terms of the on the ground realities. In the book, I end up looking at the situation of the Bedouin in the Naqab in part because having spent quite a bit of time in the West Bank, I felt that the situation of the Bedouin in the Naqab most clearly— Well, there were many similarities with the other sites that I was exploring in the book. And that's why I ended up focusing on that for the purposes of the book, but yeah.
Am Johal 19:28
Now I want to speak with you, you've written also in 2020, a volume: Revolutionary Feminisms with some colleagues and collaborators wondering if you can speak about that project.
Brenna Bhandar 19:40
Yeah, that was an entirely different project from the colonial lives of property book, my colleague and friend and collaborator, Rafeef Ziadah and I interviewed a number of feminists over, I think the book, I think we did it over a period of about six years, or maybe, you know, maybe seven years. And the aim of that book was really to bring certain kinds of feminist thought and action in a way to not necessarily just a younger audience, but you know, an audience of people who were just kind of coming into anti-racist, anti-capitalist forms of feminist thinking. And I suppose there was a little bit of a feeling that some of this work and some of this thinking was obscured somehow. And so we really wanted to, to just collect this work in one volume and put it out there. We thought an interview format would be an engaging way of bringing a lot of this thinking and histories of activism to light and would be an accessible way of bringing a lot of this work out. And it was also, you know, alongside the fact that Rafeef and I were doing this project together. I think the whole interview format really lent itself to what felt like a collaboration. So, the feminist method was really embedded in the whole project.
Am Johal 21:14
And can you speak a little bit to some of the people that you interviewed in the book?
Brenna Bhandar 21:19
Yeah, sure. So we interviewed let's see, we started off with Avtar Brah and Gail Lewis and Vron Ware, who are located in Britain, and who each brought very different kinds of work and their own histories of activism to the table. And then we also interviewed Sylvia Federici, Gary Kinsmen, Himani Banerjee, and Leanne Betasamosake Simpson, and then finally, we interviewed– well, Sylvia Federici is also based in the US. But then we interviewed Angela Davis, Ruth Wilson Gilmore, and Avery Gordon. And with those three scholar or militant scholars to use Ruthie’s term, having engaged a lot with the prison industrial complex and politics of abolition and, and things like that.
Am Johal 22:18
And I know that you earlier also worked on a project on the work of Catherine Malabou, how did you fall into that project?
Brenna Bhandar 22:26
Well, so I think I mentioned that my doctoral research, where, you know, was a kind of staging and engagement with Hegel's theory of recognition. And one of the most innovative I think, contemporary philosophers who's worked on Hegel is Catherine Malabou. And so I ended up becoming very interested in her work, and along with my friend and conspirator, Jon Goldberg-Hiller, ended up sort of deciding that it would be really amazing to bring a group of interdisciplinary scholars who for the most part, I think, with the exception of one person is not a philosopher, but engaged in a variety of different kinds of critical theory together to think about Catherine’s work, and in particular, her concept of plasticity, and also her work on materialism. And we did that and it was a very interesting workshop because there were a lot of very generous but critical engagements with her work. And we we ended up collecting the papers and going through a very long intensive editorial process as usually these kinds of edited volumes demand and in our introduction really worked through I think the well that question that I mentioned earlier, you know, how does one engage in— how does one engage philosophical discourse and a certain kind of philosophically informed critical theory in relationship to really present, you know, material political problems? And so for me, it was really an invaluable kind of thinking through that question. And I think that's why the Colonial Lives of Property books ends up being really a kind of, you know, sort of engagement with a, with a kind of more historical materialist tradition.
Am Johal 24:28
Yeah, I took a class with Catherine Malabou, actually a couple of times around the time that your book came out probably about 2013/2014, just prior. And I remember the first 15 minutes I sat in class with her. She brought up Foucault’s definition of biopolitics and Derrida's definition of it and Agamben and then within 15 minutes, she basically said, they don't know what they're talking about. Then she went into her own definition, it was like, quite like, whoa, that's like, it was fantastic
Brenna Bhandar 24:57
She’s brilliant
Am Johal 24:58
She really, really is.
Brenna Bhandar 24:59
Yeah, she's amazing. And it was just a really wonderful workshop as well, just to have that intensive engagement over the course of a few days where, you know, she was, she was so present for each of the papers that were delivered. And as I said, many of them were very critical of her work. And it was, I think, a very generative and generous gathering. So for me, those are, that's like academia at its best, you know.
Am Johal 25:31
She came to speak at UBC a few years back, and there was a reading group that was set up at a small artist-run center, and we did a whole engagement with her when she arrived. People have been reading her work for a few months. And, yeah, it's really I find a lot in her work, and particularly the plasticity part. Wondering if you can speak a little bit to what you are working on now, Brenna?
Brenna Bhandar 25:52
Oh, well, I'm continuing with some of my work on property. And I'm, I've actually been working with some other people on the specific doctrine of preemption, which I cover very briefly in the book, but hadn't really dug into, in terms of the history of this doctrine, and where did it come from? And what does it mean? And so the doctrine of preemption is basically the doctrine which allows settlers to come to British Columbia and literally just take Indigenous land. So it's really what enables the creation of a market in private property. And so I'm, you know, exploring the origins of that doctrine and where it came from, and how it was used. And some of the things that we're discovering through this research are really fascinating, because we see how even on the terms of colonial law, it required a lot of extralegal violence to enact and execute preemption. And so, you know, that may not be a huge surprise to anybody. But I suppose from, from the point of view of looking at how colonial law operates, I think it's often assumed that the, you know, the law itself was the source of violence, you know, like the idea of law fair, for instance. But I think what we're seeing through this research is that it's not only that the law itself was, you know, the colonial law of preemption itself was based in a kind of racist colonial logic, but even to bring that into being required extralegal violence. So, for example, there's a lot of documentary evidence of land that was clearly settled and cultivated, and, you know, by Indigenous communities, which was not supposed to be preempted. So according to the law, preempters, individual settlers were not allowed to preempt that land. And we see lots of evidence of settlers just coming in and destroying people's homes. Destroying, you know, evidence of cultivation, like we see in other contexts in the present moment, sort of. And kind of making the land into that Lockean fantasy of wasteland, and thereby making it open for preemption. So we're kind of tracing these sorts of violent histories, I guess, of law and property.
Am Johal 28:40
That's a lot to go on. Is there anything you'd like to add to Brenna?
Brenna Bhandar 28:46
Yeah, I mean, I'm quite interested in making the links between, you know, the power of property to dispossess when it— in relationship to colonial contexts like British Columbia, but thinking about the power of property to dispossess in other contexts as well. Sort of, we talked about housing before. I'm really interested in how one might draw the connections between these different sites, because I think that they are most definitely connected to one another, or kind of working off the same logics. So yeah.
Am Johal 29:23
Brenda, thank you so much for joining us on Below the Radar.
Brenna Bhandar 29:27
It was a pleasure. Thank you for having me.
Gabriel Alegbeleye 29:34
Below the Radar is a knowledge democracy podcast created by SFU’s Vancity Office of Community Engagement. Thanks for listening to this conversation with Dr Brenna Bhandar. Check out the show notes below to find resources related to the episode discussion. Make sure to follow us on Instagram at sfu_voce to stay up to date on our newest podcast releases. Tune in next week for a new episode of Below the Radar.