By JONAS BENS
Review of Empire and the Making of Native Title: Sovereignty, Property and Indigenous People, by Bain Attwood
Cambridge: Cambridge University Press, 2020
There are different ways to understand colonialism. One way is to look at it as an overarching structure that governed the world in the past and, as many rightfully argue, still governs the world today. Conceived this way, colonialism is an assemblage of culturally specific (European) legal doctrines, political philosophies, moral principles, and government policies that determine colonial encounters and power relations to the advantage of the colonizer and to the disadvantage of the colonized. This is Colonialism with a capital “C”—colonialism in the macro.
Then one can conceive of colonialism in a less ambitious way, as a phenomenon emerging in a very messy nitty-gritty of concrete interactions between specific actors. Conceived this way, colonialism appears as an assemblage of locally and historically tangible conflicts over power which are more or less framed by larger colonialist discourses. In this view, colonialism does not appear less malign, but maybe less methodical, more haphazard. This is colonialism with a lower-case “c”, more aptly made plural—colonialisms in the micro.
These two perspectives on colonialism are by no means mutually exclusive. Both are able to describe the workings of colonialism pretty accurately. But that does not mean that one sees the same things looking through each lens.
The colonization of what are today Australia and New Zealand, which Bain Attwood analyses in his book Empire and the Making of Native Title, is a case in point. While the British treated the aboriginal inhabitants of Australia as if they had no sovereignty over their territory, they negotiated with the indigenous people of New Zealand, the Maōri, for the cession of land. In 1840, the British Crown entered into the Treaty of Waitangi with Maōri communities in New Zealand, recognized Maōri sovereignty, and received land in exchange. No such legal arrangement was made with Aboriginal peoples in Australia. Although the colonizers dispossessed indigenous land in both cases, the difference in the legal arrangement has become highly significant. While indigenous rights movements in New Zealand have been able to claim breaches of treaty rights enshrined in the Treaty of Waitangi, often with considerable success, their Australian counterparts have been confronted with much greater hurdles for similar claims before the Australian courts.
If one approaches this phenomenon through the lens of colonialism with a capital C, the fact that the British treated questions of indigenous sovereignty and territory so differently in Australia and New Zealand presents a mystery. How can it be explained that the large-scale legal, political, philosophical, and moral principles guiding the colonial endeavor propelled the British to make a treaty with the Maōri but not with the Aboriginal inhabitants of Australia? Attwood gives us a clear answer: it cannot. His central argument is: If we want to know why the modes of legalized colonial dispossession in Australia and New Zealand are so different, it does not suffice to look at Colonialism in the macro; we have to investigate colonialisms in the micro.
Attwood’s approach has important methodological implications. It means to engage in a comparative approach in which the colonizations of Australia and New Zealand must be investigated on their own terms, assessing similarities and differences. This necessitates shifting the gaze to a certain degree away from the colonial center, Britain, and focusing more on what happened in the colonial periphery, the colonies themselves. The question is not how the colonizers treated questions of sovereignty, property, and territory in theory, but in practice. Consequently, Attwood not only focuses on the historical sources in the form of official documents in British government archives but looks further into the historical traces in personal correspondence and minutes on official papers. This methodological approach allows Attwood to present a thick history of the concrete kinds of claim-making that happened at the colonial frontier beginning in the 1770s until the 1850s.
The results are remarkable and present a stark contrast to what one would expect when used to thinking about Colonialism with a capital “C.” Attwood’s story of the colonization of Australia and New Zealand is not linear but a meandering sequence of unexpected events, mundane coincidences, and unintended consequences. It is a story of haphazard colonial dispossession. In Attwood’s telling, particular norms developed by legal experts in London did not necessarily determine how things were handled by the colonizers on the ground in their concrete interactions with the indigenous communities.
Generally speaking, Attwood finds that it was of crucial importance what frontline colonizers practically did in terms of land acquisition in the early phases of colonization. When the British Crown assumed sovereignty of New Zealand, Europeans had already entered into relationships with Maōri actors and purchased land from them. This effectively meant that the buyers acknowledged their contracting partners’ legal right to sell. No such land purchases happened in Australia before the Crown assumed sovereignty. These very early differences created a certain path dependency. As frontline colonizers had already practically accepted indigenous property in New Zealand early on, it was more likely they would consider questions of Maōri sovereignty at a later stage. But this path dependency did not predetermine that the British would formally make treaties with the indigenous communities for the land. As Attwood explains, the landmark Treaty of Waitangi happened in the context of a complicated conflict between colonial officials in London and the New Zealand Company, the interest group of the frontline colonizers—a context in which the question of how the British assessed indigenous sovereignty on the level of legal theory played only a marginal role.
In the nine chapters of his book, Attwood presents a masterful narrative of the decades-long history of such forms of haphazard colonial dispossession. As such, this book is an indispensable resource for understanding the legal frameworks that the British established to treat indigenous sovereignty and property in Australia and New Zealand. But Empire and the Making of Native Title is also an important contribution to the theory of colonialism and the complex of legalized colonial governance more generally. Two of his points are particularly important in this respect. First, Attwood convincingly argues that in order to understand legal colonial governance one must come to terms with the fact that it is the result of a relational entanglement of the colonizer and the colonized. Second, he convincingly shows that “the colonizer” is actually a diverse set of actors with different, often conflicting, interests.
The first point concerns Attwood’s conceptual starting point. His book is about “the making of native title.” His approach to understanding indigenous rights is relational. Still too often, one reads of colonial dispossession only in terms of denying indigenous communities property rights to their territories. This is a problematic reductionism. The colonial encounter is a situation of normative pluralism. Emerging colonial legal systems are confronted with pre-existing indigenous conceptions of sovereignty and land ownership. The resulting conflict of indigenous and colonial normative orders competing for hegemony remains relevant until today. Over the course of history, colonial legal systems began to accommodate the fact that indigenous communities remained connected to their land—sometimes to a lesser and sometimes to a greater degree; sometimes not at all. One such form of accommodation is “making native title,” or, as in the case of Australia, not making it. Colonial dispossession cannot be reduced to denying property rights to indigenous communities inside the colonial legal system. It begins with the imposition of a racially biased colonial legal system on indigenous communities in the first place.
As a consequence, one cannot understand legalized forms of colonial governance without understanding in detail the shifting relationships the colonial actors have with the indigenous communities throughout the colonial encounter. As Attwood makes convincingly clear, these power relations between the different actors can vary drastically depending on the historical context. In the case of New Zealand, they led to a legal framework that took indigenous sovereignty into account to a larger degree than in the case of Australia. This difference can only be explained by mapping how power dynamics differed depending on different relations the relevant actors had with each other in concrete settings.
Attwood’s second important point concerns the question of how exactly to conceive of this field of actors in the colonial encounter. Theories of Colonialism with a capital “C” tend to highlight how the dualism of colonizer and colonized fundamentally structures the colonial situation. This is especially true for Settler Colonial Studies which take much inspiration from the work of Australian anthropologist Patrick Wolfe. Without denying the explanatory power of this approach to the theory of colonialism, it becomes clear from Attwood’s book that such a strong emphasis on a dualism of actors—the colonizer against the colonized—makes it difficult to account for the different forms of British colonial governance in Australia and New Zealand.
Consequently, Attwood emphasizes that the indigenous communities were not confronted with a unitary colonial actor on the British side but with several parties: the colonial office in Britain, the colonial administration in the colonies of Australia and New Zealand, and the private colonization companies. These colonial actors had at times very different interests. While the colonization companies were often interested in profiting from large-scale expansion, the colonial office in Britain was rather interested in restricting the companies in order to retain control of the colonial projects. The colonial administration in the colonies sometimes sided with the colonial office, sometimes with the companies. These shifting dynamics and changing economic interests are a main factor for understanding how colonial legal frameworks developed differently depending on the concrete situation.
Attwood’s claims in Empire and the Making of Native Title and their consequences for the theory of colonialism bring an important question to the fore: If we accept the idea of haphazard colonial dispossession—that colonial projects can be less determined by a well thought out method of colonization but rather by a lot of mishaps and coincidences—is there not a danger of banalizing and belittling colonial systems of governance? If we accept that colonialism is often a multiplicity of small things rather than one big thing, does that mean that colonialism was (and is) not so bad after all? I believe the opposite is true. If colonialism was only a macro-phenomenon, driven by specific rules, doctrines, philosophies, and moralities which are easy to identify, it would probably be less dangerous than it is.
Only thinking of Colonialism with a capital “C” might lead us to underestimate the intricacies of colonial dispossession and suggest that one would simply need to invert colonial logics in order to abandon colonial systems of governance. If this were the case, colonial power relations would not have proven to be as resilient as they are. In order to think beyond colonial modes to organize the world, it is necessary to get into the nitty-gritty of what colonial dispossession means in the concrete interactions between people at a certain time and in a certain space. This is a challenging task, for sure. Bain Attwood’s brilliant account of the colonization of Australia and New Zealand in Empire and the Making of Native Title is an excellent example of the kind of scholarship that takes up this challenge.
Posted on 31 March 2021
JONAS BENS is a Research Fellow at the Department of Social and Cultural Anthropology and Freie Universität Berlin. His books include The Indigenous Paradox: Rights, Sovereignty, and Culture in the Americas (University of Pennsylvania Press, 2020) and The Sentimental Court: The Affective Life of International Criminal Justice (Cambridge University Press, 2022).