Law and Primitive Accumulation: Canadian Settler Colonialism — Jasmine Chorley

Settler colonialism can pose a dilemma for Marxists, especially for those committed to a state that is steered by “the people”. Private property may be theft, but when sovereignty is also theft, how can the state be an agent of emancipation?

In his 2014 book Red Skin, White Masks, political scientist Glen Coulthard examines issues of recognition and self-determination under settler colonialism. [1] After flagging certain difficulties that arise from the application of Marx to Indigenous self-determination movements, he discusses part eight of the first volume of Capital (on primitive accumulation). He finds it to be useful for understanding the settler state’s relationship to land if we shift our analytical focus onto the inherent injustice of colonial rule, not only as a precondition of proletarianization but on its own terms. [2]

This is a short exploratory detour from a paper in progress [3], and I hope it shows how property and sovereignty serve under colonial capitalism as legal expressions of primitive accumulation. I co-examine property and sovereignty [4] for two reasons: first, property and sovereignty are structuring forces of both capitalism and settler colonialism [5]; second, legal sovereignty was shaped to a significant degree by analogy to property. Of the countless ways in which functions of the state’s sovereignty have their roots in analogies from private law, the international law relating to the acquisition of sovereignty over land is where this influence has made itself felt most deeply. [6] This is where I suggest we need to look if we are to determine the sources of Canada’s international legal sovereignty and understand its ongoing relationship with Indigenous peoples.

Because of this genealogy, the literature is replete with homonymic and analogical problems. There are several ways to use “occupation”, for example, all with very different implications. This is further confused by the regular use of concepts as metaphors in polemic–using “slavery” to describe wage labour [7], for instance, or “property” to describe one country’s influential presence in another. This is especially the case in narratives about land in Canada.

The dispossession of Indigenous peoples is often discussed without any legal explanation of the kind of “land” in question, reflecting persistent racist narratives about Indigenous peoples as groups of pre-modern humans rather than members of territorial political societies. Mark Neocleous refers to a comment by Blackstone “that the lord of the manor ‘may enclose so much of the waste as he pleases'”, using it to demonstrate that primitive accumulation is the point at which property law, colonial law, and international law connect. [8] The myth of the New World as a place without owners has two parts: first, that Indigenous people were “uncivilized”, partly because they did not “use” the land, and so could not stake a claim over it; second, that Indigenous peoples themselves had no concept of ownership. The first part is not only racist but factually false–countless societies across the North American continent “used” natural resources in countless ways, including agriculture and the construction of permanent structures. The second part endures today even among those who would cringe at the blatant white supremacy of the first. It is a rhetorical move that is used to presume away Indigenous claims to land. Neocleous suggests that the “ideological charge carried by the concepts of waste and improvement underpinned not only political economy and property law but international law as well”. [9] If dispossession and accumulation are analyzed and spoken of in the register of property and not territorial sovereignty, then any normative analysis will address only half of an injustice (at best) and engender socialist settler colonialism (at worst).

Intertemporality, discovery, the non-international legal nature of treaties between Indigenous peoples and European states–these are some examples of how international law is invoked in the present to explain (as the typical narrative goes) why, as regrettable as colonial violence was, Canada’s foundations were laid in the laws of the past and we must build upon them in the spirit of reconciliation. The international legal principle of intertemporality holds that if colonial territorial acquisition accorded with the laws in effect at the relevant time, such acquisition does not become unlawful because laws have since changed. But by which laws did Canada come to dispossess Indigenous peoples, both from their lands and from their own claims to international legal sovereignty? In short, by its own logic, how does Canada account for its legal sovereignty?

It is important to state that Indigenous laws were and continue to operate concurrently with European and settler laws. I am by no means claiming that these are or were negated. I am concerned here with the operation of state power and its internal legal logic; and I find that even if one accords Canada the most generous starting point, one still cannot produce an explanation of sovereignty that would be normatively acceptable across a wide swath of political ideologies and moral frameworks.

In 2014, the Supreme Court of Canada (SCC) granted a declaration of Aboriginal title over Tsilhqot’in land. The Tsilhqot’in First Nation was recognized as holding ownership rights (akin to fee simple) to 1750 square kilometres of land in the British Columbia interior. [10] The SCC affirmed and clarified the legal test for proof of Aboriginal title established in Delgamuukw [11] and the three criteria of occupation: sufficiency, continuity, and exclusivity. [12] In the decision, the SCC made two determinations with respect to Canadian sovereignty:

1. Terra nullius never applied in Canada. [13]

2. “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in [the province of British Columbia].” [14]

If the land in question was owned by an Indigenous people (as the Tsilhqot’in knew and the SCC decided), and terra nullius was inapplicable, how then did the Crown acquire title by asserting sovereignty? [15] Borrows argues that despite the SCC’s statement that terra nullius never applied in Canada, terra nullius was and remains the justification for Canadian sovereignty over that land.

By the logic of international law itself, none of the classical modes of territorial acquisition, nor terra nullius, wholly explain the alienation of Indigenous territorial sovereignty from Indigenous nations to European states or Canada. Conquest and cession cannot serve as a source of internationally valid legal title with respect to settler-state acquisition of territory from Indigenous peoples in North America. This is because international law historically denied international legal sovereignty to Indigenous peoples at the time of the “transfer” in question; a derivative title requires a previous, recognized sovereign. Conquest and cession, two oft-invoked hypotheses of title source, instead indicate sources of title to property.

Violent engagements resulting in the subjugation of organized polities certainly occurred in North America, but they cannot be termed “conquest”, in the sense of the acquisitory mode, absent recognition of the state-like status of the conquered. Where such engagements resulted in the dispossession of land, settlement followed. Once in possession, private property title could be acquired through occupation or prescription. Likewise, agreements here cannot be understood by the mode of cession, but by contract. [16] Such a contract could transfer property title, but not create or transfer sovereignty, as a result of which settlers could possess the land in question. Both these processes would transfer title through a sale or through rendering it abandoned. From this possession would then flow property title through occupation or prescription. Simultaneously, the actions and claims of settlers represented the presence of their state, which endowed the latter with occupation or prescription-based sovereignty over the territory.

Respecting land where conquest- or cession-like activities were at issue, it is appropriate to cite occupation or prescription as sources of settler-state legal sovereignty. There remain, however, large parts of the North American continent that were never subject to actions akin to conquest, never governed by treaty, and never had the kind of large-scale settler presence that could give rise to occupation- or prescription-based claims. Where can the source of sovereignty for those lands be located?

Returning to the Tsilhqot’in decision and to Borrows’ puzzle, one of the frustrating conclusions of the decision was that Aboriginal title is not presumed to exist in the same way that underlying Crown title is assumed to exist. [17] The Crown is assumed to have established rights that derive from the assertion of European sovereignty, while Aboriginal title requires recognition in Canadian courts or through agreement with the Crown. [18] This, as Macklem points out, places the onus on Indigenous title claimants to prove that they meet the requirements of exclusive occupation and control of the lands subject to the claim. [19] Primitive accumulation is not an event in time but a permanent and ongoing social relation abetted by what Marx calls “Bloody Legislation”. [20]

Recall that the strongest historic point of contact between the private law and international law is the formation of sovereignty. As Lauterpacht argued, public international law is but private law writ large; the use of Roman Law analogies to craft an international law of territory was intuitive because in the early development of the European state and international law, the kingdom and everything within it was regarded as vesting in the monarch in very much the same way that a land asset vested in a private owner. As Macklem recounts, it was in this patrimonial climate that the legal fiction of original Crown title was created in England to legitimate feudal landholdings. [21]

Canadian property law holds that the Crown (varyingly federal and provincial) enjoys underlying title to all of Canada; this was developed to “extend legal validity to what was then an emergent pattern of landholding occasioned by colonization” [22]–what we can identify as primitive accumulation. Crown title vests in the Crown authority akin to that which vests in an individual property owner. Not only does the Crown enjoy radical underlying proprietary title, the Crown also enjoys territorial sovereignty, from which Crown title is said to derive. [23] Where possession-based sources of property title can be identified, as previously discussed, sovereignty could accrue in turn to a European power by virtue of effective possession as defined in international law. In the absence of such possessiveness, where can the source of legal sovereignty be located?

This dilemma is where Borrows’ account of Tsilhqot’in concludes with terra nullius. Canada does indeed remain “a deeply colonial state built on the vilest of discriminatory tenets” [24]. However, that tenet was not doctrinal, but an ideological climate within which parts of Roman private law were cultivated into principles of public international law with which European powers could acquire lands effectively made legally vacant. [25]

International law is, as Macklem writes, an ongoing enterprise that projects rules and principles into the future, authorizing the creation or reallocation of sovereignty. [26] Britain, France, and Canada have exerted a sustained presence over the territory of what is now “Canada” in a way that could reasonably be interpreted as demonstrating that the land in question belonged permanently to and was controlled by that state to the exclusion of another. This description of possession in the international legal sense, is nearly identical to the test for Aboriginal title used in Tsilhqot’in: sufficiency, continuity, and exclusivity of occupation. [27] Due to the exclusivity of international legal personality and statehood, even when such proof of Aboriginal title can be demonstrated prior to the assertion of Canadian sovereignty through analogous criteria, the SCC’s commitment to reconciling Aboriginal title with Canadian sovereignty [28] necessitates that Indigenous political territoriality is subordinated by its relegation to the stratum of property, and Canadian political territoriality to that of international legal sovereignty.

International law was not used to extinguish title, but to acquire it, even if colonial actors believed that title had already been acquired through primitive accumulation. This is one example of the Court’s role in reproducing the hegemony of the state. [29] By recognizing the Tsilhqot’in claim, and “giving” the Tsilhqot’in fee simple rights over land, the Court  relegates the “Indian question” to the status of the non-international. Canada performs something akin to autolimitation, situating sovereign power in a historical moment and curtailing Indigenous contestation of sovereignty in an attempt to reconcile land claims with the imperialism inherent in its sovereignty.

[1] Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014), 11–12.

[2] Coulthard, Red Skin, White Masks, 11.

[3] An early version of the project this post emerged out of benefited greatly from the supervision of Patrick Macklem.

[4] While knee-deep in this project almost a year ago, I was delighted to learn that Martti Koskenniemi’s recent research centres on these two concepts, which he calls “the structure of power that is … the real government of the world”. Martti Koskenniemi, “Sovereignty, Property and Empire: Early Modern English Contexts”, Theoretical Inquiries in Law 18 (2017): 389.

[5] Coulthard, Red Skin, White Masks, 11.

[6] Hersch Lauterpacht, Private Law Sources and Analogies of International Law (New York: Archon Books, 1970 [1927]), 91.

[7] The Enlightenment thinkers who used the metaphor of slavery to understand power relations yet wholly ignored the chattel slave economy of the time is discussed thoroughly in Susan Buck-Morss, Hegel, Haiti, and Universal History (Pittsburgh: University of Pittsburgh Press, 2009), 21–26.

[8] Mark Neocleous, “International law as Primitive Accumulation; Or, the Secret of Systematic Colonization”, European Journal of International Law 23 (2012): 952.

[9] Neocleous, “Primitive Accumulation”, 955.

[10] Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 256, para 73; available at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do.

[11] Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; available at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do.

[12] “Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Case Summary”, Mandell Pinder LLP, 27 June 2014; available at http://www.mandellpinder.com/tsilhqotin-nation-v-british-columbia-2014-scc-44-case-summary/.

[13] “Tsilhqot’in Nation v. British Columbia 2014 SCC 44 Case Summary”, Mandell Pinder LLP, 27 June 2014; available at http://www.mandellpinder.com/tsilhqotin-nation-v-british-columbia-2014-scc-44-case-summary/.

[14] Tsilhqot’in Nation, quoted in John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia“, UBC Law Review 48 (2015): 703.

[15] Borrows, “Durability”, 703.

[16] These “contracts” in European/Canadian law were often international legal agreements in Indigenous law, under which European/Canadian signatories held rights and obligations, some to the present day. There are too many excellent works on treaties to list here, but I have found J.R. Miller, Contract, Compact and Covenant: Aboriginal Treaty-Making in Canada (Toronto: University of Toronto Press, 2009) to be a thorough, accessible overview; and Treaty 7 Elders and Tribal Council, Walter Hildeprant, Sarah Carter, and Dorothy First Rider, The True Spirit and Original Intent of Treaty 7 (Montréal and Kingston: McGill-Queen’s University Press, 1996) to be deeply important on the dual life of the Numbered Treaties and the coercive circumstances under which they were negotiated.

[17] Borrows, “Durability”, 729.

[18] Borrows, “Durability”, 729.

[19] Patrick Macklem “The Form and Substance of Aboriginal Rights: Assimilation, Recognition, Reconciliation”, in Peter Oliver, Patrick Macklem, and Nathalie Des Rosiers (eds), The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) 21.

[20] Neocleous, “Primitive Accumulation”, 958.

[21] Macklem, “Form and Substance”, 4.

[22] Macklem, “Form and Substance”, 4.

[23] Macklem, “Form and Substance”, 21.

[24] Borrows, “Durability”, 724.

[25] See Edward Cavanagh, “Prescription and Empire from Justinian to Grotius”, The Historical Journal 60 (2016): 273–99; “Possession and Dispossession in Corporate New France, 1600–1663: Debunking a ‘Juridical History’ and Revisiting Terra Nullius“, Law and History Review 32 (2014): 97–125; Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman Doctrine to Early Modem European Practice”, Law and History Review 28 (2010): 1–38.

[26] Patrick Macklem, The Sovereignty of Human Rights (Oxford: Oxford University Press, 2015), 47.

[27] See generally Tsilhqot’in.

[28] See Macklem, Sovereignty, 13; John Borrows, “Aboriginal Title and Private Property”, Supreme Court Law Review 71 (2015): 91–134.

[29] Pablo Ciocchini and Stefanie Khoury, “A Gramscian Approach to Studying the Judicial Decision Making Process”, Legal Form, 30 November 2017; available at https://legalform.blog/2017/11/30/a-gramscian-approach-to-studying-the-judicial-decision-making-process-stefanie-khoury-and-pablo-ciocchini/.

Jasmine Chorley (@jasminechorley) is a researcher currently based in Edinburgh. She is a recent graduate of the Masters of Global Affairs at the University of Toronto.