Torrens Title: property,race and (infra)structures of feeling in the settler colony

Abstract

This article argues that property law can be understood as a key infrastructure of settler-colonial sovereignty. Rather than a simple importation of British law, the frontier mentality of the colonial outpost allowed for the implementation of a new legal framework for the allocation and registration of land. Taking the example of Torrens Title allows for an analysis of the ‘structures of feeling’ that are generated by, and that naturalise in turn, the possessive claim to property. We consider how the history of property as fungible commodity is entangled with the history of racialisation, and how Torrens Title shows the material and affective dimensions of settler law and of the long struggle to resist its illegal claim to sovereignty. We analyse the 2018 video essay Drawing Rights by Rachel O’Reilly, considering the troubled relationship between white possession and the unbroken sovereignty it denies, yet which remains a constant threat to the settler state. Her work articulates what Ruth Wilson Gilmore calls ‘infrastructures of feeling’, which, we argue, describes the way anti-colonial consciousness can materialise against structures and attachments of settlement.

Keywords

Australia infrastructures of feeling land registration property law Rachel O’Reilly settler colonialism sovereignty Torrens Title

To try and give a definition of property as of an independent relation, a category apart, an abstract and eternal idea, can be nothing but an illusion of metaphysics or jurisprudence.

– Karl Marx, Poverty of Philosophy

Introduction

It is often assumed that the global project of settler colonialism involves the simple exportation of already existing cultural, social, political, and legal forms from the metropole to the colony. There is, of course, some truth to this assumption. Pre-existing ideas and practices concerned with governance, jurisprudence, and property rights, as well as burgeoning ‘scientific’ discourses of race and racial difference informed the colonial world-making project and provided the foundations for settler-colonial societies. In the context of what would come to be referred to as Australia, the legal fiction of terra nullius forms a retrospective justification for the dispossession of First Nations peoples and a framework for legitimating the violent tactics of elimination employed by settlers in the originary act of invasion and the ongoing processes of colonisation. But a focus on the importation of already existing customs and ideas fails to account for the role that colonies play in the production of new infrastructural forms and taxonomies. The frontier logic of the colony allows for a break with the past, creating the conditions for new conceptions of property and ‘structures of feeling’ to be forged.¹

We conceive the development of property law in settler-colonial contexts in infrastructural terms, that is, as something that underpins social relations and the production and exchange of phenomena. We argue that material infrastructures come to shape the national imaginary and provide an affective dimension to private property and possession in the settler colony. Specifically, we are interested in the Torrens Title system of land registration that was developed by Robert Richard Torrens in 1858 in the colony of South Australia. Rather than a simple importation of British law, the frontier mentality of the colonial outpost allowed for the implementation of a new legal framework for the allocation and registration of land, one that broke with existing juridical understandings of property. The ‘vacant’ land of the settler colony provided the conditions for modern property laws to be written and enacted; in turn, property law developed in the colonies – such as Torrens Title – would later be exported back to the metropole. The movement between the metropole and colony is not unidirectional but involves complex and ad hoc loops between the two. As Nussair Hussain has written, ‘questions of law and emergency shaped the conceptualization of the practice of colonial rule’, which in turn, ‘affected the development of Western legality’.² Brenna Bhandar puts it even more directly, when she writes: ‘modern property laws emerged with and through colonial modes of appropriation’.³ We are following this lineage of critical legal scholarship in thinking not only of the construction of property laws in the settler colony but of the crucial role such infrastructural forms play in the production of race and racial difference, and in the naturalisation of settlement through the accumulation of what Raymond Williams calls ‘structures of feeling’. In other words, there is a co-constitutive relationship between the modes of appropriation inherent to settler colonialism and the affective attachments that underscore the assertion of settler sovereignty. We posit that these affective attachments can be understood as structures of feeling that both give rise to, and reinforce, the material infrastructures of the settler colony that enshrine a white possessive claim in law. To critique these structures of feelings and to transform the material conditions that underwrite the social field requires what Ruth Wilson Gilmore calls, ‘infrastructures of feeling’.

In this paper, we focus on how the extractive and abstractive logics of colonial infrastructure – in particular, property law as a key legal infrastructure for the settler colony – not only invisibilise the violence of settlement but are central to the emergence of an ‘Australian’ national imaginary. This national mythos figures Australia as a vast, ‘lucky’ country of continual growth, expansive territory, a suitable backdrop for the good life, and a home for the transformed white subject. The national imaginary can be effectively analysed as forms of attachment that represent the materialisation of ideology that underwrites settler sovereignty.⁴ Via a close reading of the 2018 video Drawing Rights⁵ by the artist/writer Rachel O’Reilly, we consider the ways that settler sovereignty and its structures of feeling are resisted by anti-colonial struggle, and the role of the critical art work in countering the narrative forms that settler subjectivity takes.

Torrens Title: ‘the jewel in the crown’

Torrens Title, also known as title by registration, was designed to replace the common law system which prevailed at the time in England. In the common law system, ownership is understood in hereditary terms – in order to claim title of a parcel of land, one has to, as Alain Pottage writes, ‘trace the “parentage” of an interest back through each of its predecessors to the ultimate root of title’.⁶ Sarah Keenan elaborates: ‘common law concepts of private property and the practices of documentary conveyancing which confirmed title had the effect of naturalising the elite class’s multi-generational ownership of estates’.⁷ On the one hand, ownership was determined by the capacity to evidence the lineage of interest in land; on the other hand the concept of an original owner remained largely ‘mythic’.⁸ The law therefore required proof of successive ownership for sixty years, or the amount of time after which it would be unlikely for a contest of interest to occur. ‘Title documents orient their users (buyers, sellers and others concerned with the legal status of the estate)’, writes Keenan, ‘toward the history of land, spanning back at least 60 years, as that history was expressed by previous owners. They are also determinative of the future of the estate.’⁹ In 1875, and to cope with the demand for a more efficient process of conveyancing as well as a more open market for property, the sixty-year period was reduced to forty, and again to fifteen in 1969.¹⁰

In the industrialised England of the mid-nineteenth century, a number of attempts were made to simplify and centralise land law, including calls for a registry of title. A registry ‘would mean that title would no longer be legitimated by a “base point” in the temporally distant, spatially local past. Instead, the registry itself would provide title with its legal legitimacy.’¹¹ Such a system would drastically reduce the workload necessary in conveyancing, which meant that solicitors opposed the proposed changes for fear of redundancy; the landed class likewise opposed the change for fear of an easier process through which to transfer ownership and therefore wealth. Despite these oppositions, the ‘political momentum against retrospection and toward simpler, faster conveyancing continued to grow’.¹²

While the debate continued in England, on the other side of the world in the new colony of South Australia, Torrens – an Irish-born shipping officer who would later become the colony’s Premier – took advantage of the radically different historical, material and legal situation in his adopted home, and introduced title registration as an experiment in the transformation of property into a fully fungible commodity like any other, as well as an attempt to deny, in law, any claim to prior ownership from Aboriginal people. The introduction of Torrens Title effectively commodified property in a manner conducive to the flows of global capital, speculative finance, investment and trade, as well as constructing a legal framework for the fiction of terra nullius. These two functions of title by registration are, of course, entirely related, as we will briefly summarise.

Brenna Bhandar writes that the ‘drive to render land as fungible as possible, pursued in earnest since the enclosures began, could be secured only with a system of conveyancing that made property ownership and its alienation as secure, predictable, and certain as possible’.¹³ Torrens’s vision, as Bhandar and Keenan observe, was part of this more general ‘logic of registration’ which emerged with ‘the shift to an increasingly commoditized vision of land’.¹⁴ Influenced by his experience working in the shipping industry, Torrens’s vision of landed property was predicated on the logic that underpinned the transport of moveable, fungible property: that is, all property can be understood, fundamentally, ‘as a commodity, abstracted from prior relations of ownership and, to whatever degree possible, from particular and individualized characteristics or traits’.¹⁵ Perceiving land in this way made it easier and less expensive to transfer in title, as well as to parcel, sell, buy and trade. Land figured as ‘unexplored’ and ready for sale was bought by private interests and local companies and resold to settlers, often in the context of formal loan schemes. ‘Colonial settlement’, writes Bhandar, ‘was thus privatized from the very beginning, with the techniques of finance capitalism, such as speculative investment on futures, funding the colonial venture’.¹⁶

This history of the commodity and its circulation – physically or speculatively – across the globe in and as modern logistics is part of the history of racial capitalism. Stefano Harney writes: ‘The Atlantic slave trade was the birth of modern logistics, as it was also the birth of a new kind of war on our species being, and the birth of racial capitalism, which amounts to saying the same thing. This trade entailed the first global movement of mass commodities, voluminous and grotesque.’¹⁷ This modern history of racial capitalism and its expansive marketplace links the commodification of human subjects in the Middle Passage and the parcels of land enclosed by settlers in the colony of South Australia through the conceptual and bureaucratic apparatuses afforded by self-styled laws as well as the practices of racialisation that justified slavery and elimination alike.

The economic benefit derived from the speculatively traded, fungible parcel of land relied on the foreclosure of any prior claim to ownership or custodianship. The specific concept of ownership that was imposed by Torrens Title, writes Bhandar, ‘had as its primary objective to displace the concept of the prior, and prior ownership, from the juridical sphere’.¹⁸ The preclusion of that which was there before, argues Bhandar by way of Patrick Wolfe, ‘is . . . akin to the logic of elimination’ insofar as it erases not only the possibility of a claim to ownership by Aboriginal people but the very fact of occupation, law and custodianship and its extraordinarily long history over at least 60,000 years.¹⁹ The negation of First Nations’ sovereignty in the refusal to recognise prior presence on the land under settler-colonial law is not merely a consequence of the doctrine of terra nullius, but is its very foundation. It is not that the law was unable to recognise First Nations’ sovereignty, but that the law was created in order to deny it, and therefore to facilitate the larger project of dispossession, expropriation and, ultimately, elimination. The importance of Torrens Title to this larger project cannot be overstated. As Keenan notes, citing Robert Home, the ‘Torrens registry has been described as “the jewel in the Crown of colonial land management”’ establishing a system that allowed for new opportunities for expropriation, extraction, exploitation and enclosure across the empire.²⁰ In this sense, Torrens Title can be understood in infrastructural terms, as we elaborate below.

Infrastructural inequality

Infrastructures are notoriously difficult to analyse. As Brian Larkin writes, infrastructures are ‘built networks that facilitate the flow of goods, people, or ideas and allow for their exchange over space’.²¹ Lauren Berlant offers a similarly expansive definition when she writes that infrastructure ‘is the living mediation of what organizes life: the lifeworld of structure’.²² Infrastructure is the ground of social and political formation: it is that which allows affinities and relations to form, and grants (or denies) access to materials that sustain life.²³ Adding to the complexity of any analysis is the fact that infrastructure, as Geoffery Bowker and Susan Leigh Star tell us, has a ‘tendency to disappear (except when breaking down)’.²⁴ This is precisely why the study of infrastructure is necessary. Infrastructure is relational and yet it can make relations invisible. When infrastructures function, they appear as if they have always functioned in this way; that is, they become naturalised as the way things are, and by extension, the way things have always been. As such, we lose sight of the constructedness of both infrastructures and the classification systems that underpin them. We take infrastructure, therefore, to refer to things like electrical wires, highways, water pipes, waste networks, households, pipelines, docks, and bridges, as well as legal and bureaucratic networks that take more distributed forms. Infrastructures enable social relations, and in the settler colony a national imaginary coheres in and even onto infrastructural forms, in particular, those legal infrastructures that produce private property. The family home, the quarter-acre block, and the property investment portfolio are all examples of the settler claim to possession as well as symbolic markers of the ‘good life’.

To consider the law in infrastructural terms is, in part, to analyse how the law and its classificatory practices produce the materiality of the colony as well as its structures of attachment. How does law, and more specifically property law, work to uphold and legitimate the logics of settler sovereignty? How does property law contribute to the production of the racialised subject in the context of the colony? How does the infrastructure of jurisprudence produce and naturalise relations that cast certain subjects as always-already transgressive as well as relegating them to a place outside history? We want to consider not simply how law invisibilises the ideology of the settler state but how legal infrastructures are produced in the first place. More specifically, we are interested in how infrastructural projects – whether paperwork or pipes – give rise to ‘infrastructures of feeling’. We argue that Torrens Title as a legal infrastructure contributes to the production of affective attachments and feelings of entitlement that congeal as what Aileen Moreton-Robinson refers to as ‘the possessive logics of patriarchal white sovereignty’.²⁵ In other words, our contention is that these infrastructural forms do not simply enshrine property rights for some subjects while dispossessing others, but also constitute an affective dimension to possession that is key to the reproduction and legitimation of the settler colony.

The primary objective of settler colonies is the possession of land. Property law, as Bhandar has argued, is a crucial infrastructure for the realisation of this objective. She elaborates:

laws of property also reflect and consolidate language, ways of seeing, and modes of subjectivity that render indigenous and colonized populations as outside history, lacking the requisite cultural practices, habits of thought, and economic organisation to be considered as sovereign, rational economic subjects.²⁶

Our approach to the question of law as infrastructure might be conceptualised in infra-political terms. Here we follow Angela Mitropolous, who writes that ‘the infra-political question . . . embraces the uncertainties of attachment in order to distinguish between, on the one hand, the putative certainties and calculable probabilities of a reproducible capitalist futurity and, on the other hand, the irreducible contingencies of relation that make worlds’.²⁷ If infrastructures produce an idea of the colony as fixed and stable, and yet, following Mitropoulos, are predicated on uncertainty and contingency, an infrastructural analysis requires an engagement with how the settler state comes to appear fixed precisely in order to unfix it, and, therefore, to think about how infrastructures might be organised differently altogether.

Infrastructures of feeling

The concept of ‘infrastructures of feeling’ comes to us from Gilmore, by way of the cultural theorist Raymond Williams, who famously wrote about the narrative structures that articulate the affective dimensions of specific historical moments. Williams’s phrase for what he identified as ‘changes of presence’ in the social atmosphere is ‘structures of feeling’, which he explains are ‘emergent or pre-emergent’ and so ‘do not have to await definition, classification, or rationalization before they exert palpable pressures and set effective limits on experience and action’.²⁸ His use of feeling was deliberate, chosen to ‘emphasize a distinction from more formal concepts of “world-view” or “ideology”’ – although not disconnected from either.²⁹ The concept offers a framework for attending to the way meaning and ideology are experienced and registered as feelings or affects – intensities and forces – that pass between bodies. As Williams puts it:

we are concerned with meanings and values as they are actively lived and felt, and the relations between these and formal or systematic beliefs are in practice variable (including historically variable), over a range from formal assent with private dissent to the more nuanced interaction between selected and interpreted beliefs and acted and justified experiences.³⁰

Gilmore extends Williams’s concept, noting that ‘ages and places have multiple structures of feeling, which are dialectical rather than merely contemporaneous’ and as such, historical moments might be better understood as the ‘accumulation of structures of feeling’.³¹ If, for Williams, the concern is how affective registers can help us to understand the way that material conditions produce social relations – the way that affects attach to the material world and how they are lived and felt – for Gilmore, the related question is how to transform meanings and values through lived and felt action. Infrastructures of feeling refer to the role that imagination and feeling play in resistance movements and the way such things can become material. Gilmore develops the concept in relation to the Black radical tradition, explaining that ‘the infrastructure of feeling is then consciousness-foundation, sturdy but not static, that viscerally underlies our capacity to select, to recognise possibility as we select and reselect liberatory lineages’.³² Our interest is in infrastructures of anti-colonial feeling that seek to trouble the white possessive claim (and its structures of attachment) that underpins settler sovereignty.

We argue that settler colonialism can be read in terms of an accumulation of structures of feeling such as entitlement, possessiveness, rage, fear, anxiety and insecurity. The vacillation between insecurity and a possessive entitlement that often manifests as racialised violence can be traced, as Patrick Wolfe has shown, to a foundational confrontation between First Nations peoples and settlers, which is a confrontation ‘not between claims to ownership but between frameworks for allocating ownerships’.³³ Wolfe continues: ‘It is between sovereignties, which are primordially external to one another.’³⁴ This foundational tension is a crucial piece of the puzzle, but it does not explain how the affective attachments that collectively produce ‘the possessive logics of patriarchal white sovereignty’ come to be, nor what force they exert in the naturalisation of settlement.

The accumulation of structures of feeling, as Gilmore tells us, ‘gather[s] not by chance, nor through a natural process that would seem like a drift or tide’.³⁵ Structures of feeling must themselves be infrastructured. Such structures arise from and, in turn, reinforce the material infrastructural projects of the settler colony – Torrens Title being just one example. Here we encounter the circular logic that the settler colony deploys to affirm its legitimacy: material infrastructures make concrete the white possessive claim which crystallises the affective dimensions of possession in ways that propel further material infrastructural investment. Gilmore writes:

In the material world, infrastructure underlies productivity − it speeds some processes and slows down others, setting agendas, producing isolation, enabling cooperation. The infrastructure of feeling is material too, in the sense that ideology becomes material as do the actions that feelings enable or constrain.³⁶ (emphasis added)

Torrens Title legalises settler possession and First Nations’ dispossession. In addition, it amplifies the felt dimension of this possessive claim, transforming a legal trick into a shared feeling of entitlement that the settler registers as both a right and a destiny. But, as Mitropolous reminds us, to think in infra-political terms is to understand the ‘irreducible contingencies of relation that make worlds’.³⁷ And so, we might ask, what then are the infrastructures of anti-colonial feeling?

Drawing Rights

Drawing Rights, by Rachel O’Reilly, is a 17-minute video essay. The video is part of a larger project, The Gas Imaginary (2013–2021), a collective body of work across different media including poetry and essays, drawing, moving images, and lectures that investigates hydraulic fracturing, or ‘fracking’, the process through which gas is extracted by cracking bedrock formations.³⁸ Drawing Rights was exhibited alongside other works from the Gas Imaginary at UNSW Galleries on Gadigal land (Paddington, New South Wales) in 2018. Infractions (2019), a one-hour documentary that compiles extensive interview material with First Nations activists who organise against fracking interests, represents the final work in the project.

We initially saw Drawing Rights in its installation at UNSW Galleries, which is housed at the University where we both work. Subsequently, we have engaged with the video via the hosting site Vimeo; it is now archived online.³⁹ Our reading of Drawing Rights is partly informed by our conversations with the artist, which started back in 2018 at the time the video was installed at UNSW and has continued in ebbs and flows via email. Partly, too, our reading is informed by the artist’s own research and her framing of the project. On her website, O’Reilly gives an account of the resources that informed her making:

The film draws on recent research on Torrens Title (Brenna Bhandar, Sarah Keenan and Renisa Mawani), white possession (Aileen Moreton-Robinson, Goenpul) and ongoing dialogues of The Gas Imaginary project with Gooreng Gooreng elders (esp. Juliri Ingra and Jackie Johnson), environmental and Aboriginal activists and historians (esp. Roxley Foley, Gumbaynggirr).

In addition, we read O’Reilly’s work as contributing to the examination of property law as settler infrastructure: first, the video describes, through its visual and essayistic mode of storytelling, the process through which Torrens Title becomes foundational to a particular mode of expropriation which finds one current expression in the pursuit of fracking; second, the work of art is able to synthesise the very complex entanglement of Torrens Title, private property and dispossession by visually rendering through the combination of text and moving image the structures of feeling that texture both settlement and the infrastructures of feeling that are central to anti-colonial resistance.

The video moves between visuals generated from 3D risograph drawings and architectural plans (O’Reilly worked with Pa.LaC.E – Valle Medina and Benjamin Reynolds – to produce the computer-generated graphics), and footage shot by drones. The drone footage documents already existing gas infrastructure in the Surat Basin in Western Queensland, as well as houses, highways and waterways (all key links in the gas extraction supply chain). The result is an interplay of two distinctly mediated visions: the computer-generated graphics, through which large-scale construction and infrastructural projects render land an abstraction, an a priori commodity on which to project fantasies of settler futurity; and the aerial perspective of the drone, whose high-definition representation of the landscape flattens it into an uncanny survey. Accompanying these two distinct visions is O’Reilly’s voiceover, which narrates a poetic essay that opens with speculative finance and the role of transnational corporations in the continued expropriation of land and resources (the world-historical context for the establishment of Torrens Title in the nineteenth century), and ends with a short meditation on carbon as the unit of exchange in planetary processes that far exceed the span of a human’s life, or indeed, the span of human life in its totality. The video closes with an aerial shot of arid land punctuated by small geometric dams for industrial run-off that fades to white (see Figure 1).

Figure 1.

Rachel O’Reilly with Pa.LaC.E (Valle Medina and Benjamin Reynolds), Drawing Rights, 2018, HD Video, Editing: Sebastian Bodirsky; Sound: Tyler Friedman; Advisory: Roxley Foley, Sarah Keenan. Courtesy of the artist.

In an essay for e-flux, O’Reilly writes about the ‘artist’s impressions’ that are produced as part of the proposal stage for mines.⁴⁰ ‘Weaponized images of dignified-looking but no longer collectively-bargaining laborers, exaggerated job figures, fetishized New Machines, and particularly pernicious laminations of corporate-sponsored settler household[s]’ populate these computer-generated images, which, as O’Reilly argues, act as symbols for extractive industries.⁴¹ In Drawing Rights, the graphics produced by Pa.LaC.E depict these figures, showing, at different times, groups of men working amidst networks of pipes and fixtures, abstracted diagrams of gas extraction sites, and quarter-acre blocks with securitised houses and neat front gardens. The diagrams employ the visual language of computer aided design and drafting that are central to real estate speculation and infrastructure. The images are stripped of most traces of life other than the human figures that populate these unsettling scenes. The landscape is rendered in topological and geometric terms in order that we might intuit, as quickly as possible, the possibilities and challenges of constructing a built environment on the surface of, as well as underneath, the ground. Houses appear on vacant planes, pipes run underneath (see Figure 2).

Figure 2.

The art historian W. J. T Mitchell argues that depictions of landscape in art are not merely objective images of the natural world concerned with moving towards the purification of the visual field (as associated with modernism) nor are they necessarily allegorical images to be decoded for their psychological or ideological themes (as associated with postmodernism). Mitchell proposes a third way of understanding landscape, one that changes the term ‘from a noun to a verb’.⁴² He suggests that representation of landscape can be understood as ‘a process by which social and subjective identities are formed’.⁴³ Mitchell calls this the production of the imperial landscape:

Landscape . . . doesn’t merely signify or symbolize power; it is an instrument of cultural power, perhaps even an agent of power that is (or frequently represents itself as) independent of human intentions. Landscape as a cultural medium thus has a double role with respect to something like ideology: it naturalizes a cultural and social construction, representing an artificial world as if it were simply given and inevitable, and it also makes that representation operational by interpellating its beholder in some more or less determinate relation to its givenness as sight and site.⁴⁴

If Mitchell’s theses on imperial landscapes were focused on landscape paintings, then the representations of land that O’Reilly and Pa.LaC.E deploy in Drawing Rights can be understood as playing with the visual language of the imperial landscape in the age of speculative finance and 3D computer rendering. Architectural renderings of the type used in the video transform the landscape from a noun to a verb with the designer who sits in front of the computer able to configure and reconfigure the abstracted landscape with the click of a mouse. Houses are made to appear as if by magic or they are effortlessly cut and pasted from one place to another. The particular qualities of a place – its history and mythology, the complexity of its ecosystem – are flattened and erased in such diagrams. This mode of speculative drawing naturalises the ‘possessive logics of patriarchal white sovereignty’ by depicting land as that which is always awaiting use, ready to be ‘improved’ and made productive. The figures that populate these imagined scenes affirm this possessive logic: depictions of family and leisure; industry and innovation; enclosure, privatisation and securitisation. The affective dimension of settler claims to place can be identified in everyday actions large and small: the 2005 Cronulla riots, in which white settlers attacked Muslim and other non-white people while chanting the phrase ‘we grew here, you flew here’; the paternalistic justification for the Northern Territory Emergency Response (more commonly, the ‘Intervention’) which appealed to fear, outrage and disgust in order to reproduce a racialised conception of Indigeneity that was presumed to be the antithesis of a white moral order.⁴⁵

Yet each of the scenes is slightly askew. The quarter-acre block is shown in a state of disarray: a cot is on the lawn with a small infant inside, flanked by a woman on her knees as if appealing to God or the police. The sublime engineering of a container ship is suddenly threatened by a glitchy sea which breaches the edges and causes a wreck of digitally rendered boxes. A model that outlines a parcel of land is flipped from front to back, showing its underside to be an identical abstraction to its surface. These images, which quickly depart from the slick, corporate visuals of the architectural rendering, appear to visualise the absurd and contradictory logic on which Torrens Title relies: the simulation, in other words, is not of the settler fantasy in which the worker, wife, house and mine co-exist to ensure the good life, but of a settler nightmare in which the terms of ownership disappear on contact. The graphics reconfigure the affective register of the ‘artist’s impression’: the smiling, future inhabitant at home or work becomes the unsettled figure denaturalised by abstraction.

The drone footage, which O’Reilly obtained from anti-fracking activists, counteracts the simulated vision with something else, something like what Michael Richardson calls ‘drone witnessing’,⁴⁶ technologically mediated practices of testimony and truth-telling that convey a machinic vision. The drone footage surveys the land from above, flattening the environment and the objects and bodies contained within it into a single plane. This vision presumes neutrality, and such image-making practices have become central to contemporary modes of surveying, used by both extractive industries and activists opposing the continued expansion of these industries. But the title of O’Reilly’s video – Drawing Rights – works against this presumption of neutrality, pointing us to the constructedness of land claims and the legal infrastructures that uphold them.

Drawing Rights presents a series of interconnected material infrastructures: gas pipelines, dams, roads and highways, container ships, ports, houses. These material infrastructures have, as Hannah Appel, Nikhil Anan and Akhil Gupta note, ‘long promised modernity, development, progress, and freedom to people all over the world’.⁴⁷ But the promise of infrastructure is unevenly distributed, and the underside of modernity, development, progress and freedom is dispossession, neglect and subjugation. O’Reilly’s work brings law into the infrastructural matrix, showing us that the construction of property law in the settler colony is central to the capacity to expropriate Indigenous land and, in turn, undertake infrastructural projects (such as fracking) focused on capital accumulation. The video traces the complex history of settler-colonial law and its transformation of land into property, considering both the historical contingencies that contributed to the settlement of what would come to be called Australia, and the contemporary context in which the struggle for First Nations sovereignty is inextricably tied to the fight for land rights and land management practices. By tracing this history and by showing the perversity of the settler fantasy of ownership, which is predicated on pulling the curtain over the question of the prior, the artwork suggests the possibility of infrastructures of feeling that precede and unsettle the colonial project.

Entangled abstractions

Drawing Rights highlights the relation between different forms of abstraction: the transformation of land into 3D renderings and aerial footage; the transformation of landed property into a paperwork registry; and the production of racial taxonomies and racism. These abstractions cannot be considered separately. The process of mapping land was integral to the Torrens Title system. Yet within a system that ‘effectively reduces land to paper’⁴⁸ – that is, represents the materiality of land in paper infrastructures such as maps, laws, registries – the map remains open to revisitation. Quoting James Scott, Bhandar tells us that ‘the surveying and mapping of territory, “when allied with state power, enable much of the reality they depict to be remade”’.⁴⁹ Here the map can be understood as a technique of remarcation rather than simply demarcation. The consignment of property to the infrastructure of the state-run registry means that this archive is the sole source of all information related to the property in question. So while the mapping of land was left open to revisitation, once entered in the registry, a title would be guaranteed by the state and thus rendered indefeasible.⁵⁰ The establishment of a state-run registry marked a fundamental transformation in the conception of land in two related ways: it transformed the sale of land as a commodity from a contractual relation between buyer and seller to one mediated by bureaucracy; in turn, this marked a significant shift in temporal understandings of property by severing land from a retrospective relation to ownership (see Figure 3).

Figure 3.

The Torrens system operates according to ‘mirror’, ‘curtain’ and insurance principles. The ‘mirror’ principle designates that only the interests that have been entered into the registry can be reflected by it. It is a principle concerned with the representation of land in bureaucratic infrastructures, but this act of representation is selective and partial. As such, any interest that is not included in the register can be legally ignored. Importantly, and as Keenan cautions, this does not mean that other ‘relationships with and interests in land do not exist’, but rather that the principle of the mirror erases these relationships in the eyes of the law.⁵¹ The ‘curtain’ principle extends the erasure enacted by the ‘mirror’ by ensuring that any interest not included in the register is unable to stake a legal claim to the title or future title-holders. The ‘curtain’ principle affirms the registry as the sole source of information concerning the land which, as Keenan explains, allows a ‘metaphorical curtain’ to be drawn ‘across all prior and existing interests in the land that do not appear in the “mirror”. Any interest hidden behind the curtain will not take effect in property law and can be ignored by prospective purchasers.’⁵² This principle legalises the wilful dismissal of prior interests in land, such as those of First Nations people. Finally, the insurance principle confirms the state’s investment in the register by mandating that the state is responsible for the accuracy of the registry and that it will act as a guarantor to any title-holder who suffers a loss through error due to a flaw in the registry.⁵³ Taken together, these principles legally enshrine a break with the prior, which is a crucial aspect of the project of naturalising settlement and narrativising the dispossession of First Nations people as part of an inevitable (and legally justified) march of progress. This, as O’Reilly narrates in Drawing Rights, is ‘the legal comb-over of history’.

The legal comb-over of history is central to the structures of feeling that underscore settlement itself, feelings that are enabled by the curtain principle’s capacity to obscure history. This legal comb-over is the foundation upon which the colony is built, but this foundation – designed to obscure the prior – is unstable and shaky. As such, the structures of feeling that emerge from this lack of transparency create a dialectical tension: on one hand, they are generative of a sense of entitlement to possession; and on the other, anxious and insecure about when and where the unbroken sovereignty of First Nations peoples will assert itself in ways that pull back the curtain. In other words, the curtain acts as the threshold between denial and recognition, presence and absence. What is beyond the curtain cannot be said to legally exist, and yet persists as that which haunts the law.

In order to formalise the break with the prior, the twin abstractions of mapping land and reducing it to paper rely on the abstraction of race and the shifting processes of racialisation that produce it. These entangled abstractions work to co-produce modern conceptions of private property and racial hierarchies. The construction of the Torrens Title system of registration depended on an a priori conception of property as fungible in the newly founded free settlement of South Australia. The trade in parcels of land in a speculative economy that operated from the metropole relied upon a wilful denial by colonial conveyors of acknowledging the presence of Aboriginal people living on the land and their existing relationships to place. This denial, encapsulated by the doctrine of terra nullius, was justified via an appeal to dominant racial logics that assert the supremacy of the European, as given in the universal figure of ‘Man’. The native/settler binary reproduces the racialising logics of the nature/culture binary, casting the settler as a sovereign subject marked by the capacity to possess both self and land, against the native who remains in an undifferentiated ‘state of nature’.

The construction of racialising logics and racial hierarchies is indebted to John Locke’s theorisation of possession as linked to improvement. A Lockean conception of property posits that ownership is linked to improvement, which applies not only to land but to the possession of the self: the inability to possess (and improve) land according to Eurocentric understandings of agriculture was taken also as the inability for self-possession. The racialisation of First Nations people involves a prior conceptualisation of the savage as in a state of nature, as well as a negation of any prior relationship to land which, once commodified, is property. By extension, racial difference is conceptualised as quantifiable property, and so can be located and eliminated in the ongoing process of colonisation. The legal fiction of terra nullius is therefore necessary to create the conditions for the mirror and curtain principles to be articulated in the Torrens Title framework, since if the negation of Aboriginal sovereignty via Lockean conceptions of property allowed for land to be made fungible in advance of settlement, it is the process of racialisation as a condition of settlement that allows Aboriginal people themselves and their relations to land to be unrecognisable (which is to say invisible) in the mirror, and therefore perpetually shrouded by the curtain. Gilmore has argued, ‘racism is a practice of abstraction, a death-dealing displacement of difference into hierarchies that organize relations within and between the planet’s sovereign political territories’.⁵⁴ Torrens Title, then, not only formalises but legalises racism, which describes acts that produce the fiction of race as well as a mode of rationalisation (including structures of feeling) that naturalise such acts.

O’Reilly invites us to think about the materiality that these processes of abstraction often obscure. If racial capitalism involves ‘the invention of new types of forgetting’, as O’Reilly tells us, via the accumulation of structures of feeling, then the video is an invitation to look behind the curtain at the myriad inequalities that arise from these entangled abstractions. The advent of the Torrens Title system reproduces a logic of racialisation that externalises the Aboriginal person from their own land, circumscribing them to what Denise Ferreira da Silva refers to as ‘the horizon of death’.⁵⁵ This horizon can be understood as that which brings together the juridical, the economic and the symbolic into a single and inseparable plane. The circumscription of Aboriginal people to the horizon of death, and the naturalisation of this spatio-temporal zone through settler infrastructures such as the law, rationalises the continued dispossession of Aboriginal people from their lands, extra-legal killing by the police, chronic under-resourcing of First Nations communities, the mismanagement of the environment, and more. At the same time, these infrastructural operations are central to the expansion of extractive economies and the economic growth of the contemporary settler state. The wealth of the colony depends on these industries and their increasingly global reach through logistics. What is at stake within these logics of abstraction is a matter of life and death. ‘Salt and toxins turn on and off what kinds of lives and deadness are available at the top soil’, narrates O’Reilly.

Infrastructures of anti-colonial feeling

O’Reilly’s video traces a connection between the introduction of Torrens Title in South Australia and the construction of a brand new, transnational gas extraction site in Gooreng Gooreng Country 160 years later. ‘How do we read these images’, she asks, over drone footage of the Condamine river, ‘that show the shallowness of land law turned back towards the fragility of land itself?’ In other words, how do we understand the short history of settler property law at odds with the long history of First Nations peoples’ relationship to Country, and in the context of a condensed history of industrial capitalism and its catastrophic environmental impacts? One way to read these images, captured in the corporate pamphlet or by the drone’s surveying vision, is to read them as evidence of the ever-accumulating archive of abstractions that seek to shore up, but also always threaten, the juridical framework of the illegal state. But what these images also show us is the way that the infrastructure of the law gives rise to structures of feeling that both legitimate and obscure the violent extractivism central to settler colonialism (and, inversely, the codes of belonging and entitlement that underscore colonial world-making as a speculative project). The ideology of the settler colony emerges from a complex circular logic between the base and the superstructure. As Fanon puts it: ‘In the colonies the economic substructure is also a superstructure. The cause is the consequence; you are rich because you are white, you are white because you are rich.’⁵⁶ What is produced by this interplay of infrastructures is a collective, felt experience of possessiveness that is protected by state power, and which, when threatened, gives way to manifold forms of violence (from the everyday acts and affects that reproduce settler sovereignty to the death-dealing operations of sovereignty as statecraft).

In 1964, Donald Horne famously called Australia the lucky country.⁵⁷ He didn’t mean it as a compliment; he meant that the luck was undeserved and unlikely to last. But luckiness has also been claimed by proud nationalists as fundamental to the national imaginary: what luck to end up here, rather than anywhere else, to become owners of the spoils that the earth holds and grows. This national imaginary that privileges the accidental hero or lucky rascal is captured in the figures of the convict, the battler, the larrikin, the digger and the lifesaver. At the heart of these figures is the echo of the settler who makes a life in an unforgiving yet beautiful country, who transforms bushland into a burgeoning pastoral economy, who defends the border by occupying the beach, who is both British and antagonistic to a stuffy Britishness. This self-styled mythology gradually emerged as the penal colony transformed into a ‘free’ agricultural settlement, and it obscures what Elizabeth Povinelli calls the ‘long history and ongoing set of violent extractions, abandonments, and erasures of other forms of existence’ so central to liberalism in both its emergent and contemporary forms.⁵⁸ The settler sense of belonging and entitlement was formalised through infrastructures such as Torrens Title which, as we have been arguing, upholds regimes of race that, in turn, produce spatial imaginaries and affective realities in which Indigenous subjects are forever relegated beyond the frontier, towards the horizon of death.

Of course, as Moreton-Robinson reminds us,

the sense of belonging, home, and place enjoyed by the non-Indigenous subject – colonizer/migrant – is based on the dispossession of the original owners of the land and the denial of [Indigenous peoples’] rights under international customary law. It is a sense of belonging derived from ownership as understood within the logic of capital, and it mobilizes the legend of the pioneer, ‘the battler’, in its self-legitimization.⁵⁹

The promise of belonging is given in the property relation. The figures of the convict, the battler, the larrikin, the digger and the lifesaver – in their wandering, roaming, defending, and discovering – provide a mythical backdrop to the project of settlement which is, of course, primarily concerned with the security and enjoyment of landed property. These archetypal figures are narrative containers that give form and shape to the structures of feeling that define the ongoing project of settlement.

White possession, which comes by way of Indigenous dispossession, is both about the establishment of sovereignty in the name of the British Crown and the accumulation of capital. Extraction is central to this logic of accumulation. Legal infrastructures such as Torrens Title scaffold the spatial imaginary of the settler state, naturalising their extractive logics (both in the literal and expanded senses) and creating the conditions for capital to continually find and appropriate its outside. This we can see in the ever shifting forms of racialisation that the state deploys – for example: Native Title legislation and its impossibly narrow criteria; the state of exception that accompanied the ‘Intervention’ in which the Racial Discrimination Act (1975) was suspended and Aboriginal land rights were significantly altered, limited or abolished; and, more recently, in fears about ‘Chinese’ investment in the competitive housing market at the same time that foreign capital is continually solicited for transnational industry – in order to secure the possession of land for extractive purposes. The mirror and curtain principles of Torrens Title do not merely establish a system for the transfer of fungible parcels of land but naturalise the nation state itself, establishing a mechanism to legally ignore the prior occupation and custodianship of First Nations people and producing the sense of collective belonging that allows the state to continually regenerate itself via an always future-oriented transfer of land.

Drawing Rights reminds us that the map is not the territory, the paper is not the land, the category is not the person. We must look at and under infrastructures in order to understand what they obscure, how they naturalise, and what feelings they enable. When we do, we find property law not to be an a priori framework imported to the colony from the metropole but rather that which emerged within colonial rule in order to uphold the otherwise shaky foundation of settler sovereignty, a shakiness that requires this foundation to be continually reinforced through a complex network of infrastructures, policies, discursive practices and feelings. In O’Reilly’s video essay, the constructedness of the possessive claim (and its consolidation through representation) is deconstructed before our eyes. This is an example of how we infrastruct consciousness, as Gilmore would say: to analyse the material conditions that give rise to structures of feeling, and to materialise in turn our transformative desire against those very structures. To denaturalise the vision that abstracts land into property helps us to practise ways of imagining an anti-colonial future. It also helps to remind us that when we struggle for a just future, we require ways of being together, of forming attachments, of understanding the shared and interdependent terms of solidarity; when we struggle for a just future, we study the history and structure of feelings as we devise methods and practices of transformation. O’Reilly hints at the shared project of imagining a different future by, firstly, resignifying the 3D renderings of infrastructures of extraction as part of settler colonial property relations rather than abstract promises of ‘progress’ and wealth, and, secondly, by engaging documentary archives of activists. These two ways of seeing suggest an infrastructure of feeling against the settler claim to possession, a way of bringing together concepts and resources towards a new world.

The question, then, is not how settler law can be expanded or reformed to better reflect the interests of the prior, that is, First Nations people. No such reform is possible as Indigenous sovereignty is fundamentally external to settler sovereignty. Confronted with this reality, we must demand the abolition of colonial infrastructures that enshrine the white possessive in law. Such a struggle is not a struggle that can be won in the courts, but is one that is continually asserted in First Nations’ struggles that foreground relationships to place. ‘A geographical imperative’, writes Gilmore, ‘lies at the heart of every struggle for social justice; if justice is embodied, it is then therefore always spatial, which is to say, part of a process of making a place.’⁶⁰ The enduring resistance of First Nations people to the violent extractivism of settler-colonial rule is articulated in the assertion of a prior relation to place, and this assertion continues to trouble and haunt the settler state with the spectre of its own illegitimacy.

Footnotes

Andrew Brooks is a writer, artist and teacher living on unceded Wangal land, who lectures in Media Studies in the School of Arts and Media, University of New South Wales (UNSW). Homework, co-written with Astrid Lorange, was published by Discipline in 2021. He is a founding member of the Infrastructural Inequalities research network and one half of the critical art collective Snack Syndicate. He co-edits the publishing collective Rosa Press.

Astrid Lorange is a senior lecturer at UNSW Art & Design. Her research focuses on how critical reading practices/publics come to navigate power, transform social relations, and imagine a better future; she co-wrote Homework with Andrew Brooks. She is a founding member of the Infrastructural Inequalities research network and one half of the critical art collective Snack Syndicate. She co-edits the publishing collective Rosa Press.

References

R. Williams, Marxism and Literature (Oxford: Oxford University Press, 1977).

N. Hussain, The Jurisprudence of Emergency: colonialism and the rule of law (Ann Arbor: The University of Michigan Press, 2006), p. 3.

B. Bhandar, Colonial Lives of Property: law, land, and racial regimes of ownership (Durham, NC and London: Duke University Press, 2018), p. 3.

R. W. Gilmore, ‘Abolition geography and the problem of innocence’, in Gaye Theresa Johnson and Alex Lubin, eds, Futures of Black Radicalism (London: Verso, 2016), p. 237.

Drawing Rights is part of The Gas Imaginary, a multi-form project by artist/writer Rachel O’Reilly that has used poetry, drawing, moving images and lecture formats to explain the legal, aesthetic and technical conceits of ‘unconventional’ gas, and links between racialising property law and current forms of ecocide, in ongoing dialogue with Gooreng Gooreng elders and women environmental activists. Rachel O’Reilly with Pa.LaC.E (Valle Medina and Benjamin Reynolds), Drawing Rights, 2018, HD Video, Editing: Sebastian Bodirsky; Sound: Tyler Friedman; Advisory: Roxley Foley, Sarah Keenan. Courtesy of the artist. Project website: https://gasimaginary.net/Index.

A. Pottage, ‘Evidencing ownership’, in Susan Bright and John Dewar, eds, Land Law: themes and perspectives (Oxford: Oxford University Press, 1998), p. 139.

S. Keenan, ‘Smoke, curtains and mirrors: the production of race through time and title registration’, Law Critique 28 (2017), p. 91.

Keenan, ‘Smoke, curtains and mirrors’, p. 90.

Keenan, ‘Smoke, curtains and mirrors’.

10.

Keenan, ‘Smoke, curtains and mirrors’, p. 92.

11.

Keenan, ‘Smoke, curtains and mirrors’.

12.

Keenan, ‘Smoke, curtains and mirrors’, p. 93.

13.

Bhandar, Colonial Lives of Property, p. 85.

14.

Bhandar, Colonial Lives of Property, p. 86; Keenan, ‘Smoke, curtains and mirrors’.

15.

Bhandar, Colonial Lives of Property, p. 88.

16.

Bhandar, Colonial Lives of Property, p. 94.

17.

N. Cuppini and M. Frapporti, ‘Logistics genealogies: a dialogue with Stefano Harney’, Social Text 36, no. 3 (136) (2018), p. 96.

18.

Bhandar, Colonial Lives of Property, p. 95.

19.

Bhandar, Colonial Lives of Property; P. Wolfe, ‘Settler-colonialism and the elimination of the Native’, Journal of Genocide Research 8 , no. 4 (2006), pp. 387−409.

20.

Keenan, ‘Smoke, curtains and mirrors’, p. 99.

21.

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22.

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23.

See: L. Grealy et al., ‘Introduction: tending a social infrastructure’, Infrastructural Inequalities Journal 1 (2019), https://infrastructuralinequalities.net/issue-1/introduction/.

24.

G. C. Bowker and S. L. Star, Sorting Things Out: classification and its consequences (Cambridge and London: The MIT Press, 2000), p. 34.

25.

A. Moreton-Robinson, The White Possessive: property, power, and Indigenous sovereignty (Minneapolis and London: University of Minnesota Press, 2015), p. xi.

26.

Bhandar, Colonial Lives of Property, p. 3.

27.

A. Mitropoulos, Contract and Contagion: from biopolitics to oikonomia (New York: Minor Compositions, 2012), pp. 116–17.

28.

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29.

Williams, Marxism and Literature.

30.

Williams, Marxism and Literature.

31.

Gilmore, ‘Abolition geography’, p. 237.

32.

Gilmore, ‘Abolition geography’.

33.

P. Wolfe, Traces of History: elementary structures of race (London and New York: Verso Books, 2016), p. 34.

34.

Wolfe, Traces of History.

35.

Gilmore, ‘Abolition geography’, p. 237.

36.

Gilmore, ‘Abolition geography’ (emphasis our own).

37.

Mitropoulos, Contract and Contagion, p. 117.

38.

For other works by the artist, see R. O’Reilly, ‘Dematerializations of the land/water object’, e-flux 90 (2018), https://www.e-flux.com/journal/90/191918/dematerializations-of-the-land-water-object/; R. O’Reilly and D. Butt, ‘Infrastructures of autonomy on the professional frontier: “Art and the boycott of/as art”’, Journal of Aesthetics and Protest 10 (2017), https://joaap.org/issue10/oriellybutt.htm; R. O’Reilly and D. Butt, ‘Desedimentation, delamination, deconstruction: boycotts unseen, or that never eventalize’, Humans of the Institution, Dutch Art Institute Roaming Assembly (2017), https://vimeo.com/258758641; R. O’Reilly and T. Birch, ‘Art, mine power and the cultural work of climate justice’, Form x Content, Monash University (2021), https://www.youtube.com/watch?v=SYvE_QWMe8U.

39.

R. O’Reilly, Drawing Rights, 2018, see: https://gasimaginary.net/Index.

40.

R. O’Reilly, ‘Dematerializations’.

41.

R. O’Reilly, ‘Dematerializations’.

42.

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43.

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44.

Mitchell, ‘Imperial painting’, pp. 1−2.

45.

The Northern Territory Emergency Response (NTER), more commonly known as the Northern Territory Intervention, was introduced by the Australian government (under the leadership of Prime Minister John Howard) in 2007. The Intervention was a response to the ‘Ampe Akelyernemane Meke Mekarle Report’ (‘Little Children are Sacred Report’) which detailed allegations of child sexual abuse and family violence in First Nations communities in the NT. The Intervention saw the army installed in First Nations communities across the territory as an ‘emergency’ measure. A legislation package included restrictions on alcohol and pornography for First Nations people, as well as changes to property rights and social policies. Several existing laws, including the Racial Discrimination Act 1975 and the Native Title Act 1993 were suspended in order for the Intervention legislation to be mobilised. The Intervention occurred only two months after the initial report was published and did not engage in consultation as the report stipulated. It is widely considered to have been a knee-jerk, paternalistic and racist response with far-reaching consequences. Current Intervention legislation expires this year, in 2022.

46.

M. Richardson, ‘Drone’s-eye view: affective witnessing and technicities of perception’, in Kerstin Schankweiler, Tobias Wendl, and Verena Straub, eds, Image Testimonies: witnessing in times of social media (New York: Routledge, 2018).

47.

H. Appel, N. Anand and A. Gupta, ‘Temporality, politics, and the promise of infrastructure’, in Nikhil Anand, Akhil Gupta, and Hannah Appel, eds, The Promise of Infrastructure (Durham, NC and London: Duke University Press, 2018), p. 3.

48.

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49.

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50.

Keenan, ‘Smoke, curtains and mirrors’, p. 92.

51.

Keenan, ‘Smoke, curtains and mirrors’, p. 95.

52.

Keenan, ‘Smoke, curtains and mirrors’, 96.

53.

Keenan, ‘Smoke, curtains and mirrors’.

54.

R. W. Gilmore, ‘Fatal couplings of power and difference: notes on racism and geography’, The Professional Geographer 54, no. 1 (2002), p. 16.

55.

D. Ferreira da Silva, ‘No-bodies: law, raciality and violence’, Griffith Law Review 18, no. 2 (2009), pp. 212–36.

56.

F. Fanon, The Wretched of the Earth, trans. Constance Farrington (London: Penguin Books, 1967), p. 40.

57.

D. Horne, The Lucky Country (London: Penguin, 2008).

58.

E. Povinelli, ‘Horizons and frontiers, late liberal territoriality, and toxic habitats’, e-flux 90 (2018), https://www.e-flux.com/journal/90/191186/horizons-and-frontiers-late-liberal-territoriality-and-toxic-habitats/.

59.

Moreton-Robinson, The White Possessive, p. 3.

60.

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