Thoughts on the project by Amanda Byer, Post-doctoral researcher
I was on my way home when I realized I didn’t have a place to go to. According to the in-flight travel magazine, the islands in the Caribbean were named the Antilles after an imaginary island, Antillia, once inserted on maps. The Caribbean itself is a misnomer, so called after the cannibalistic Caribs (no such people existed – but the Kalinago were one of many Amerindian peoples living in the region). The other name, the West Indies, West of India, amended Columbus’ original belief that he had found a route to Asia, in order to distinguish the region from later European conquests in Asia (the East Indies). Even today, the Caribbean struggles to establish a distinct regional character for itself – is it Latin? Part of America? We are all over the map and yet nowhere at the same time. It’s this placelessness that infuses tourist campaigns – visitors are invited to explore and discover unspoilt paradise, pristine environments with nary a human in sight.
I’m being somewhat facetious, but my doctoral research at the time reviewed the heritage, environmental and planning laws of the English-speaking Caribbean, and revealed that these laws are ineffective in protecting cultural heritage because they are not locally derived, and rely on a very narrow definition of heritage as object or site. Cultural heritage is not divorced from the land, since it is based on cultural understandings of nature, and its uniqueness depends on the heritage creators, and the environment in which they live and interact, or landscape. Landscapes are distinct places, shaped by communities, and manifesting as a public space or a common good. Landscape is always relevant to the sustainability of heritage (Strecker 2018). If the heritage creators and their mutual relationship with the land thrives, so do the heritage resources. Traditionally, the law has not recognized the significance of complex landscapes, because landscapes prevent the expansion of private property.
The role of property rights in the destruction of Caribbean landscapes
Private property forms the basis of the common law system in England and its former colonies, and is characterized by abstract rights that can be alienated, or sold to another who will gain exclusive possession. But land was not defined by exclusive ownership until about 200 years ago (Linklater 2015), at the height of colonialism, when land’s value became tied to its exploitation, rather than its protection. The legal system has facilitated a particular understanding of land that relies on the destruction of place in order to acquire land, and this is very clearly seen in the small islands of the Caribbean, where land was limited but ideal for plantation agriculture.
The idea of the Caribbean as a placeless void enabled a legal system that prioritized abstract rules at the expense of local communities and customs. Slave colonies in the Caribbean required the total erasure of any social linkages to the land, in order to divide the land into plantations. Laws were developed to protect these spaces, but only in the furtherance of imperial pursuits. These laws never considered the features of local natural resources, or their significance to Indigenous communities, as by this time, all non-Europeans were denied access to land.
A very specific definition of land was imposed when Amerindian landscapes were first displaced. Their clan approach to property was not recognized in the common law, and neither were enslaved Africans allowed to access land for their own purposes, since their legal status denied their basic humanity (Grove 1996). Land could only be owned by the plantocracy and was defined by how much it produced in order to profit from trade. Land was treated as mappable space that could be easily converted into bounded parcels and sold to European settlers. In the case of very small islands, this meant virtually all of the land was subsumed by the plantocracy.
Unique landscapes (the places valued by communities and upon which they were dependent for survival) were therefore destroyed to establish plantation agriculture. The law was deployed to undermine communities and their connections to the land, by making placelessness the core value of property. When nature reserves were first established, they served to maintain the plantation, not communities or the environment. This devaluing of the landscape has influenced the design of conservation policies for the Caribbean environment and the way of life for many communities to this day.
Reducing place to property has had cataclysmic social, ecological and spatial consequences. Placelessness fuelled genocide, environmental destruction, colonization and slavery. With the loss of Indigenous societies and the suppression of enslaved and indentured peoples, there have been no alternative approaches to the land-as-ownership model, such as the customary law found in Africa and Asia. Indeed, the loss of an Indigenous community rooted in the land in many islands presents a formidable obstacle to challenging the way land is used, because local communities who have been attached to the land for centuries yet lack legal title cannot even point to customary land use predating the plantation economy (Olwig 2005).
It is ironic that the land today was shaped by successive peoples whose descendants must now prove their authentic ties to that land, while the dominant definition of land was imposed by Europeans as imperialist interlopers, and is not land-derived at all. What a slave colony does is attach land ownership to one’s humanity. As Malcolm Ferdinand notes, this is the ‘double injustice’ inherent in the slave-based plantation system: the denial of access to land, and the resulting denial of an identity, of a self, of an existence in the world’. This characterizes land use and conflict in the Caribbean region, the feeling of being ‘displaced in place’ (Mollett 2014). Land insecurity feeds cultural insecurity for Caribbean people, who cannot feel that they truly belong when their connections to the land are so easily dismissed. It is cultural understandings of one’s place in the land that nurture identity, community bonds and values, and instincts of protection and care for the environment, one’s home(land).
Today, many investment projects and passive governments continue to ignore communities’ connection and contribution to the park or pond or heritage site on which hotels and marinas are constructed. Even where these projects commit to some measure of conservation, they exclude these communities in favour of tourists and researchers, who default, sometimes innocently, to reinforcing that ‘unspoilt’ image of the Caribbean, rather than the lived-in one. Void or paradise, Caribbean communities continue to luck out, as they are forever invisible in the places they created, and have little say in how they are modified.
Spatial Justice in the Caribbean
In the colonial context, conversion of landscapes to private property erased cultures and destroyed societies. But geography also drives injustice, because slavery and colonialism in the Caribbean take on a unique form in these small islands, where entire land masses are devoted to plantation agriculture and Indigenous and enslaved peoples are denied an existence and a past, becoming propertized themselves. While the use of property rights has generated great wealth and significantly expanded economies all around the world, this has been accomplished in environmentally destructive and undemocratic ways. The results are clearly visible in the Caribbean landscape.
Understanding landscape and spatial justice is important, because these concepts challenge the assumption that the law is always objective and fair in application. Spatial justice rejects the idea that all land is homogenous, tradeable and capable of only being optimized through private ownership. It requires the input of communities in the way land is managed and used, and it explicitly recognizes that placelessness (the erasure of landscape) is a threat to a community’s way of life and the sustainability of the environment.
Non-proprietary interests in land, such as the cultural ties, practices and customs between people and place that developed over time remain critical for the sustainable regulation and use of land today. They are not interchangeable. To develop truly sustainable land strategies, stakeholders must be attuned to the dynamics of ecosystems, which will differ from country to country and region to region, because of the diversity of environments and peoples. Respecting local relationships with the land calls for a localization of the law, so that regulations are responsive to the nuances of land use and development.
Recognizing landscapes emphasizes the importance of the relationship between local communities and their environment in the creation of place. Places are different because environments and peoples are different, so the interaction is always unique. When people are denied the opportunity to create landscapes (such as through colonialism and slavery) they are denied the opportunity to create an identity, to form community bonds, supported by specific values and local knowledge, which are important for societal cohesion and environmentally sustainable strategies for development.
Social justice may not always consider the relevance of locally specific land use to delivering fair solutions, and proposing alternatives to environmentally inefficient practices can inadvertently displace a local community. Spatial justice (which moves beyond social justice or environmental justice) protects landscapes. It requires us to think about how specific geographic locations, their resource endowments and their communities, are impacted when our laws ignore lived-in spaces. To be fair and equitable, laws must address geographic disparities so that their putative neutrality avoids a disproportionate impact on the integrity of a place. This is important, because while many former British colonies share similar political histories, their very different material environs determined the type of colonial administrative structures that became embedded, and also qualified the functionality of such structures (Graham, 2011).
Land has social functions, and property constrains our ability to see this by disregarding the landscape. We do not recognize a right to landscape in our laws, but our connection to place is relevant for the sustainable protection of land. Landscapes teach us to respect the limits of our environments, while functioning (and even thriving) in lived-in nature. While there is some recognition of Indigenous peoples’ spiritual and cultural links with the land, everyone lives in, uses and accesses land. Land security is important to everyone, regardless of whether they own land, and whether the land in question is an urban landscape, a pastoral region, or an island outpost of a former Empire.
Without landscapes, we lose sight of the physical limits of our existence, fail to pay attention when we exceed those limits, and compromise in terrible ways to gain more land – devaluing resources, communities, and humanity in the land-hunting, land-grabbing, land-hoarding process of property acquisition and ownership. Instead of prioritizing detachment, alienability, exclusivity, divisibility and tradability, values that are lived in are more relevant to our current existence because they are grounded in the reality of the physical world. We need to know WHERE we are, understand the kinds of environments we inhabit, and develop locally derived mechanisms that keep these environments functioning. Property, however, says where we are does not matter, as long as we can own it.
This is not an ideology that benefits the Caribbean, since this region in particular was detached from its own geographic reality, and re-embedded in maps and the fevered imagination as vacuous space, or fertile Eden. When Amerindian landscapes were subdivided into land grants for European settlers and planters, this destroyed Indigenous communities. The dismissal of landscapes and their exclusion from the law have acted as barriers to local communities’ ability to access and acquire land ever since.
Conclusion: Spatially Just Property?
Dependence on the land (and each other) is nurtured by an awareness and understanding of the landscape. This is relevant for all human beings, because we are all land-based. The local knowledge and locally developed attachments to the land are critical for stimulating a sense of belonging, a sense of place, and the care and affection for that place. Landscape supports the maintenance of community bonds of kinship and connection to each other and the land.
Because the common law was introduced to regulate land in ways that countered the local community’s understanding of land, pretending property law is neutral in application and effect is singularly unhelpful, especially in light of the threats of sea level rise, pollution, food insecurity and biodiversity loss for small island states in the Caribbean. What is relevant is that global problems manifest locally, and so our tools must be informed by and respond to local conditions. Land laws that are geographically sensitive, that put the mutual dependence of communities and ecosystems at the centre of land conflict, are less likely to result in regulatory failure. They will be attuned to the workings of the landscape and recognize that the need to maintain functioning landscapes is the key to addressing the challenges facing our societies. They will be flexible given the complexity of ecosystems and the spectrum of interests in land, proprietary and non-proprietary, Indigenous and local.
I’ve mentioned the Caribbean as magical Antillia because this idea of a place created in space means it belongs nowhere, except in our imaginations. When a complex, layered, diverse place such as the Caribbean was represented as naturally bountiful yet culturally primitive, this set the trend for the way it would be represented for centuries to come. Bereft of material form, it had no boundaries capable of being breached, and absent an advanced cultured civilization (in Eurocentric terms), there were no people to respect or laws to adhere to. Since it was paradise, ecosystem collapse was unthinkable.
Ignoring the Caribbean’s geography while hyper-inflating its Edenic qualities demonstrates why it is so imperative to ask about the location of the law’s impact (Bartel 2013). When property cannibalized the landscape, communities defined by their use of land became meaningless. In the small Caribbean islands, Amerindian landscapes were absorbed to create plantations, and enslaved Africans working on those plantations had no rights to the land they shaped. Ecosystems and people were driven to the brink of exploitation and exhaustion in a process that is unique to the small island slave colonies. Yet on the surface, these activities were considered legal land transfers, no different from those being conducted all over the Empire.
So, we have to think beyond property and look at WHERE land is located to determine bottom up solutions that are community-driven and ecologically relevant. Where is the law being applied, and what are the consequences for working landscapes that manifest and proliferate across the globe in a multitude of relationships, ecosystems, institutions, and practices? The assumption that the law is just, without acknowledging that justice has a geography, underpins this project and the question of how law drives spatial justice and injustice in its conceptualization of land as property.
Seeing land only through the property lens (abstract rights that are exclusively owned and traded) rather than the root of our identity can have dire consequences for place, and therefore the quality of human existence. Property is not an adequate substitute for landscape, and that’s the problem.
Robyn Bartel, Nicole Graham, Sue Jackson, Jason Hugh Prior, Daniel Francis Robinson, Meg Sherval and Stewart Williams, ‘Legal Geography: An Australian Perspective’, Geographical Research, 11/2013, Volume 51, Issue 4.
Malcolm Ferdinand, ‘Ecology, identity, and colonialism in Martinique: The discourse of an ecological NGO (1980-2011)’ in C Campbell and M Niblett (eds.), The Caribbean: Aesthetics, World-Ecology, Politics (Liverpool University Press, 2016) 174-188.
Nicole Graham, Lawscape: Property, Environment, Law (Routledge-Cavendish, 2010).
Richard Grove, Green imperialism: colonial expansion, tropical island Edens and the origins of environmentalism, 1600-1860 (Cambridge University Press 2005).
Antonia Layard, ‘What is legal geography?’ (University of Bristol law school blog, 11 April, 2016), <http://legalresearch.blogs.bris.ac.uk/2016/04/what-is-legal-geography/> accessed 15 April, 2021.
Andro Linklater, Owning the Earth: The Transforming History of Land Ownership (Bloomsbury 2015).
Sharlene Mollett, ‘A Modern Paradise: Garifuna Land, Labor, and Displacement-in-Place’,
Latin American Perspectives, 11/2014, Volume 41, Issue 6.
Kenneth Olwig, ‘Introduction: the nature of cultural heritage, and the culture of natural heritage-northern perspectives on a contested patrimony’, International Journal of Heritage Studies, 01/2005, Volume 11, Issue 1.
Amy Strecker, Landscape Protection in International Law (Oxford University Press 2018).