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Jackson, Moana --- "Book Review - Land and Freedom: Law, Property Rights and the British Diaspora" [2002] IndigLawB 54; (2002) 5(19) Indigenous Law Bulletin 22

Book Review

Land and Freedom:

Law, Property Rights and the British Diaspora

edited by AR Buck, John McLaren and Nancy E Wright

Ashgate Publishing 2001


RRP ₤45

reviewed by Moana Jackson

Perhaps it was what Maori people call a ‘tohu’, a predictive signal of something, or perhaps only what non-Maori call a coincidence. However, the arrival of the review copy of this book was marked by two small and seemingly insignificant happenings that have nevertheless resurfaced as a strange background chorus summing up both the difficulties, and shortcomings, of this publication. For as the wrapping paper was removed the first word uncovered on the book cover was ‘diaspora’. The second was that the local Maori radio station began to play Shirley Bassey’s version of the torch song ‘I Who Have Nothing’, with its violin screeching image of someone’s face pressed up against the windowpane, an outsider looking in.

The book itself is a collection of essays canvassing ‘a comparative historical study of property’. It begins with a discussion on the origins of ‘property’ as a concept in Britain, and then focuses on its different meanings and imposition on Indigenous peoples in Australia, New Zealand and Canada. There are also debates on the enclosures in England, the extent of what Margaret Jane Radin calls ‘fungible’ and ‘constitutive’ property in Aboriginal tradition, the nature of squatters’ rights, Lockean views on labour and land improvement, the history of the raupatu or confiscation of Maori land, historical amnesia, and the fiduciary duty of the colonising state. It ends with a somewhat idiosyncratic essay by Paul Havemann on the new ‘property’ of the internet. A typical post-modernist, post-colonial discourse perhaps, so whither the problem with ‘diaspora’ and where does Shirley’s song line fit?

The term ‘British diaspora’ in the title is problematic and its use sums up one of the main problems with the book. The term ‘diaspora’ is now applied to many migrations and histories of exile, although it is perhaps most commonly associated with the long wanderings of the Jewish people in Europe and the dislocation of Africans sold into slavery in the Americas. As such it implies a set of characteristics that mark out a sense of imposed loss, of oppression, of powerlessness in the face of overwhelming populations and systemic hatred.

The ‘British diaspora’ referred to in the book is the transmigration of Britons to other lands in the long history of colonisation. That was a type of exile, and for those individuals who fled persecution to seek a better life in the colonies it was an imposition of sorts. However, when they became colonisers they were in fact the oppressors, and they imposed their power and their values upon millions of Indigenous peoples in a systemic dispossession motivated by greed, and a perverse sense of superiority that easily tipped into a genocidal hatred. Theirs was less a diaspora and more a deliberate process that led to the exile of Aboriginal peoples in their own homelands. To assume the colonisers were diasporic wanderers demeans the term and redefines what colonisation actually was, and is.

More importantly in the particular context of this book, it sets a theoretical base that is perhaps unwittingly, but still persistently, colonising in its approach and its conclusions. The now rarely contested facts about the historical dispossession of Indigenous peoples are critiqued, but the legal, political, and social ‘realities’ they constructed are simply accepted as givens. Thus the colonial notion of property, and indeed the power dynamics it sustains, is only interrogated in terms of how Eurocentric ideas might help an ‘understanding of aboriginal concepts of property’. Similarly, acts of raupatu are considered solely in terms of whether they were a reasonable exercise of the colonisers’ right to punish rebels for treason. The questions of whether both may be illegitimate in terms of ‘aboriginal concepts’ of law, or whether the clearly different Indigenous understandings of land (and power) might have an independent validity, are ignored. Such an approach is at best as unfortunate as the subtitle, at worst it assumes the legitimacy of an ‘empire of property’ even as it seeks to interrogate it.

In that regard the book fits comfortably into the recent deluge of publications on colonisation. In recent years many non-Indigenous people have become self-styled experts on the oppression meted out to Indigenous nations, ever since Columbus stumbled upon the Americas. In post-colonial discourses that consider everything from the role of germs and microbes to military strategies, they deconstruct the numerous ways in which Europe colonised the world, and often tut-tut about the excesses committed in the eighteenth or nineteenth centuries. However, in their own way they continue the colonising process because they continue to privilege a colonising dialectic while cloaking it in a post-modern liberalism of concern and reform.

At a basic level they assume that colonisation has ended when in fact Indigenous peoples are only too aware that its dispossession continues. This is manifested in all sorts of ways, from the ongoing denial of a right of Indigenous self-determination, to the subordination of ‘native title’ to the land titles that the colonisers granted themselves. At another level they seek remedies for colonisation in colonising constructs, and continue to deny the legitimacy of Indigenous notions of law or sovereignty that might in fact be the first means of ensuring a true ‘decolonisation’. As in this book they accept that the denial of Aboriginal notions of property was dreadful, and then seek to remedy it not by recognising those notions, but by twisting colonial constructs to somehow be more ‘sensitive’ towards them. As a result they actually redefine colonisation itself and appoint the colonisers as the judges of their own malfeasance. One is reminded of the strange logic of Humpty Dumpty’s claim in ‘Alice Through the Looking Glass’ that ‘When I use a word it means what I choose it to mean neither more nor less’ because they are giving colonisation the meanings and the possible avenues of redress which they desire. They are preserving (and justifying) all that colonisation has built while pretending to deconstruct it.

And the Shirley Bassey song? There is an ongoing debate among Indigenous peoples about the difficulty of our faces being continually being pressed up against the windowpane of non-Indigenous critiques of our rights and place. It is part of a much wider discourse about the nature and ethics of research, and how Indigenous experience might be validated. It is also part of what Professor Linda Tuhiwai Smith has called a history in which ‘stories about research and particularly about researchers (the human carriers of research) were intertwined with other stories about colonisation and injustice’.[1] The debate does not preclude non-Indigenous study, but it does seek something more than a reiteration of colonising givens, and certainly more than an attempt to see how non-Indigenous ideas might help in the ‘understanding of aboriginal concepts’. Instead it seeks a recognition of those Indigenous concepts in their own right, and an imaginative and brave exploration of how they might again be accorded respect. Regrettably this book fails to do either.

Moana Jackson is the Director of the Maori Law Commission in Aotearoa/New Zealand. His tribal affiliations are Ngati Kahungunu and Ngati Porou.

[1] Linda Tuhiwai Smith, Decolonising Methodologies (1999) 3.

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