Land, Property and Colonialism in this Course

Land, Property and Colonialism in this Course

Throughout the year we will examine several features of Canada’s liberal market economy in order to address our central question in the course. One of those features is the economy’s foundation in the colonial dispossession of Indigenous peoples through the institution of property and we will have much more to discuss on this topic this term and next. But colonialism is not only a feature or characteristic of the Canadian economy–it also an ongoing reality that shapes how we learn about law and property, including the frameworks, theories and perspectives we use to make sense of legal rules and disputes. Colonialism shapes the interpretation and application of law, as well as the questions we tend to ask about these processes.

Because colonialism pervades the study of law in Canada, an important component of our course this year is to develop some tools for learning about property as part of an anti-colonial practice. We will take some time during the remainder of this introductory week to begin developing those tools. This is a big topic, but a good starting point is to reflect on how we think and speak about two core concepts at the heart of this course–land and property–and the relationship between them.

At some point early in the first year of law school, most law students confront the somewhat baffling admonishment from their professors that they (along with pretty much every other non-lawyer) have been using the term “property” all wrong. Property, they are told, is not a “thing” like land, or a car, or a bicycle–so it is incorrect and inaccurate to talk about land, cars or bicycles, as we often do, as someone’s “property”. Instead, lawyers use the term “property” to denote a set of legal relationships between people with respect to things. As you read more court cases and other legal materials, you will see that jurists frequently talk about a person holding property in land or other “things”. From the common law’s perspective, the significance of property in land is less about the land itself and more about the relationship between owners (who generally have rights to control or make decisions about the land) and non-owners (who generally don’t).

This way of speaking about land and property helps us to decipher many of the complex legal topics you will encounter in this course, such as the idea of legal possession, or the common law doctrine of estates in land. You will need to keep this crucial distinction in mind in order to understand and apply many of the legal sources we will study throughout the year. But this distinction between “land” and “property” is also an excellent illustration of colonialism’s ongoing influence in Anglo-Canadian law–one that serves to hide or obscure other relationships concerning land and territory in ways that perpetuate and reinforce settler justifications for taking land away from Indigenous peoples. For example, Clifford Atleo and Jonathan Boron contrast the view of land as a “thing” with the understanding by many Indigenous peoples of “land as a relative…with agency and worthy of respect.”1 From this perspective, the crucial distinction between “land” and “property” is not just a conceptual move that drives many of the inner-workings of the common law. This distinction is also one that has enabled and permitted Anglo-Canadian law to transform land into property and thereby sever fundamental relationships between land and Indigenous communities.

One of consequences of this move from “land” to “property” is to dissociate law and land relations from their particular time and place.2 To the extent that a focus on the rules of common law property allow us to abstract away from conflicts grounded in actual places and historical events, the study of property law can too easily justify or cover over both past and contemporary injustices. One way to resist this impulse is to situate the study property as much as possible in the place where we are actually learning and teaching about it.

Three Themes of Colonialism in Law #

There are many ways that we might try to decipher the causal connections between colonialism and law. Below are three recurring themes that often stand out quite clearly in the move from land to property, once we take the opportunity to identify and acknowledge them. Keep these in mind as you complete the exercise that follows and as you begin to read the cases in Unit 2.

  • Ahistoricism. Jurists often demonstrate a distinctive lack of concern for the history of land and of the legal rules, principles and doctrines applied to land. The common law’s tendency to transform “land” into “property” can have the direct effect of dissociating the land from its history and drawing attention away from historical claims and relationships.1 When we cover over the history behind a legal concept like “possession” or “title”, it is much easier to cast that concept as natural and legitimate and fail to ask who experiences their benefits and harms.

  • Invisibility. A second theme sometimes operates in direct conflict with the first, fostering a temptation to think and speak about colonization as a historical set of events rather than as a present reality.2 This perspective attempts to make the ongoing dynamics of colonialism invisible and to render historical obligations as artifacts rather than living relationships. In a legal context, the move toward invisibility drives us to devise “alternative” explanations for legal doctrines that perpetuate rather than confront colonialism.

  • Subsummation. The move to subsume or submerge Indigenous legal orders and systems of knowledge–“entire worlds”3–within dominant systems of colonial law and thought is also a pervasive aspect of colonialism. From this perspective, certain allowances or exceptions are offered within the framework of the common law to account for Indigenous interests, while denying any recognition for Indigenous legal orders as legitimate systems in their own right, within a multi-juridical context. At times, subsuming Indigenous laws is achieved by making them invisible, placing Indigenous legal orders beyond the “borders of the Canadian legal imagination”.4 Other times, instead of making Indigenous laws and ways of knowing invisible, subsumation works to obscure deeper contradictions between principles or worldviews by giving them the gloss of “commensurability”. 5. The transformation of “land” into “property” rests heavily on the assumption that all relevant relationships concerning land can be subsumed within principles of common law property.

  1. Eve Tuck and Marcia McKenzie, Place in Research: Theory, Methodology, Methods (New York: Routledge, 2014), 64. ↩︎

  2. Eve Tuck, Marcian McKenzie and Kate McCoy, “Land education: Indigenous, post-colonial, and decolonizing perspectives on place and environmental education research” (2014) 21:1 Environmental Education Research 1, 7. ↩︎

  3. Max Liboiron, “Pollution Is Colonialism,” (Duke University Press, 2021), 54. ↩︎

  4. Patrick Macklem, “First Nations self-government and the borders of the Canadian legal imagination” (1990) 36 McGill Law Journal 382. ↩︎

  5. Ian McKay, “The Canadian Passive Revolution, 1840-1950,” Capital & Class (2010) 34:3, 361, 368-369. ↩︎

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Territorial Land Acknowledgements #

Our class meetings take place in Mi’kma’ki, the lands of the Mi’kmaq. Beginning in 1725, the Mi’kmaq and the British entered into, and periodically renewed, a series of nation-to-nation agreements—the Peace and Friendship Treaties—that remain in force today.

Many of you will be familiar with the concept of a land acknowledgement — the practice of acknowledging the Indigenous territory on which a class, event or meeting is taking place and recognizing or reaffirming the treaty relationships in that territory. A land acknowledgement often used at Dalhousie looks similar to or builds on this statement:

Dalhousie University is located in Mi’kma’ki, the ancestral and unceded territory of the Mi’kmaq. We are all Treaty people.

Statements like these play a crucial role in building awareness and renewing ongoing relationships between settler and Indigenous communities. They are especially important for our course, where we will aim for a nuanced and detailed understanding of legal concepts like “unceded territory”.

One challenge associated with land acknowledgements is that they do not always give the impression of being meaningful or genuine—especially if they come across as formulaic or fail to address the ongoing injustices faced by Indigenous people. That is not a criticism of the practice of land acknowledgements itself. Instead, it is motivation to reflect on the question: what does acknowledging Mi’kmaw territory at the beginning of our property law class mean for how we learn and teach in the course?

Anti-colonialism and Obligations #

title: Building an Anti-Colonial Approach short: ‘Anti-Colonial Approach’ #

Once we start to identify some prominent features of colonialism in law, what tools are available to address them and, more broadly, to pursue an anti-colonial approach to the study of property?

One way is to begin a course like property by identifying and thinking critically about what obligations arise from teaching and learning about property law in Mi’kma’ki–a place with a long and persistent history of colonial abuses, many of which have been perpetuated through the Canadian legal system.

Why focus on obligations? The core idea here is that we are more likely to recognize and confront colonialism in law school if we engage seriously with what Tuck and Yang call an “ethic of incommensurability”3–meaning an emphasis on the contradictions and conflicts that exist within a particular context, rather than first making uncritical attempts to reconcile them. Max Liboiron, a Red River Métis/Michif scholar, offers one way to understand this ethic of incommensurability in terms of conflicting obligations. As Liboiron points out, we all carry a web of different obligations to any pursuit, but some of those obligations “do not share a common ground for judgement or comparison” as the basis for reconciling one obligation with the other.2 According to an ethic of incommensurability, these conflicting obligations should be considered and pursued, but not simply smoothed over in a rush to avoid uncomfortable realities.

  1. Clifford Atleo and Jonathan Boron, “Land Is Life: Indigenous Relationships to Territory and Navigating Settler Colonial Property Regimes in Canada,” Land 11, no. 5 (May 2022): 609, 610. ↩︎

  2. Max Liboiron, “Pollution Is Colonialism,” (Duke University Press, 2021). ↩︎ ↩︎

  3. Eve Tuck and K Wayne Yang, “Decolonization is not a metaphor” (2012) 1(1) Decolonization: Indigeneity, Education & Society 1 at 28. ↩︎