Abstract
Rights are central to the theory and practice of planning, and to the practice of struggles for those who are marked by conditions of dispossession and displacement. Those rights are often articulated through planning as property ‘rights in’ and procedural ‘rights to’. Yet when struggles against the dispossessory tendencies of planning become articulated through these rights-based discourses in planning, the potential arises for their immediate limitation and co-optation. This article takes two particular modes of dispossession – Indigenous dispossession under the ongoing processes of colonialism, and displacement as a result of urban regeneration – and exposes why a persistent stance of critique to the promise of rights is so critical.
Introduction
Planning is rather mesmerised by the notion of rights. Planning systems contain rights to be involved in land-use decision-making, rights as property owners, public good rights (which planning appears to ‘protect’ from the vicissitudes of the will to private profit) and rights to develop and enjoy land. Within the struggles and contests that make up the planning arena, the notion of rights shimmers: as an expression of aspiration, as the object of all manner of social struggles and as the source and hope of politics in planning. ‘Rights’ are everywhere in planning.
At the very same time, however, it is clear that planning, as a technical–legal function at least, operates in ways that deliberately transgress rights in all sorts of ways. Some rights transgressions are intentional and progressive, such as the transgression of private property rights when a public good is at risk. Yet they are by no means all progressive. We might conclude, then, a certain duplicity: on the one hand, planning theories, systems and processes uphold and embody rights and their protections; at the same time as with the other hand, they work to regressively disavow the very same rights.
The particular arena of rights transgression I want to look at in this article is that of dispossession. By this, I mean the intentional restructuring of space to (re)fresh spaces of accumulation in ways that work to displace people and their lifeways, livelihoods, memories and sensibilities from space. In the work of dispossession, an area where planning is increasingly active under the conditions of intensifying neoliberal regimes of power, we see particular forms of the transgression of rights as well as attempts and struggles to reconstitute those rights.
Dispossession and displacement have long been a central concern of planning research and theory. Little discussion is needed to prove the dispossessory logics that underpin planning rationalities. The Red Cross estimates that 15 million people are currently displaced due directly to processes of urban development (International Federation of Red Cross and Red Crescent Societies (IFRC), 2012). In the 1980s, Hartman et al. (1982) had done ground-breaking work on displacement from urban renewal in US cities, finding that displacement affected more than 2.5 million Americans. The dispossessory logics of planning have been made abundantly clear in gentrification and regeneration studies (Crookes, 2011; Fullilove, 2004; Hodkinson, 2012; Porter and Shaw, 2009; Slater, 2013), in postcolonial studies (Porter, 2010; Roy, 2003; Yiftachel, 1998, 2009) and in development studies (Hart, 2006; Rankin, 2010). Dispossession is a central feature of planning.
In this article, I look at the effects of contemporary articulations of dispossession and struggles against dispossession in planning theory and practice. This entails a view of space as relational and continually produced (Lefebvre, 1991) by forces, processes, power relations and interventions of different kinds. In this sense, planning is a social field active in the production of space (Porter, 2010), according to tendencies that dissociate, hierarchise and fragment the social under the conditions of neoliberal political economy and most importantly under a framework of liberally conceived rights. In investigating the conditions under which restitution for dispossession is taking place in planning, I will take two particular modes of dispossession and read them as symptomatic of these tendencies: dispossession of Indigenous lands under conditions of colonialism, and the displacement of urban residents under conditions of urban renewal and gentrification.
This is an unusual joining and demands a short explanation because they are not usually seen as part of the same problematic. I am keenly aware there are ethical and political problems in reading them as such, perhaps running the grave risk of diluting the veracity of each, and the claims they appear to make. This is certainly not my intention, for as I aim to show in this article, there is a broader calculus of dispossession at work here, and it is important that critical scholarship grasps that calculus more generally by looking at its specific manifestations. It is for these reasons that I read these stories together, in a sense to see these two modes of dispossession as ‘conjunctural relationalities’ (Rankin, 2010) – articulations of processes and systems that are related, even if as discrete articulations they are separated by time, space, politics and culture.
Over the past 10 years or so, I have been involved, in different capacities, in various cases that are manifestations of these two modes of dispossession. During that time, two troubling dynamics have struck me, dynamics that have been remarkably similar in both contexts. The first is the seductive way that struggles against dispossession too easily become struggles for possession – a problematic that arises in the politics of both these dispossessory instances. Framing the struggle as for possession seems to continually reach conceptual and practical dead-ends. The second is the persistent conundrum of a contradictory, always compromised engagement with state-based planning as the source of the freedoms and the unfreedoms (Scott, 1998) of the dispossessed.
In contemporary planning, and especially in relation to conditions of dispossession, there are two particularly important registers of rights within that struggle: property rights and procedural rights. Property rights might be thought of as ‘rights in’. They position different social subjects on a horizon of differentiated claims to space and place. Planning recognises (and equally often misrecognises) different social subjects as bearers of particular kinds of ‘rights in’, such as rights in the enjoyment of private property, rights in the use of space and rights in common goods. Procedural rights can be conceived as ‘rights to’, as they articulate the modes of social expression that become possible in any given planning system. These are ‘rights to’ be heard, ‘rights to’ participate in decision-making and ‘rights to’ collectively determine spatial futures. Both property rights in and procedural rights to are central to the spatialised claims and identity contests that mark planning practice in the 21st century.
It is patently clear that the landscape of ‘rights in’ and ‘rights to’ is inherently uneven: some rights are more powerful than others. This is hardly news and is an area of continual political and legal contestation within and around planning. Indeed, we might see most progressive attempts in planning as being engaged with increasing the power of those rights consistently marginalised or eroded by those with far more influential rights – for example, advocates of community groups fighting against unwanted and unsustainable development. For those struggling for precisely this kind of rights recognition, the contest over the relative power of different sets of rights (and rights holders) is a very important field of political struggle. And as any good activist knows, wins on that kind of terrain are always compromised, often fleeting and easily transgressed such that socially just politics in planning have to be hard-won over and over again.
Yet around such realities circulate those two dynamics I flagged earlier – a co-optation of struggles against dispossession into the more limiting terms of possession, and the reification of state-based rights recognition as a kind of full and final achievement of justice. A deeper examination, as I will attempt to undertake here, will reveal that those dynamics give rise to a fundamental problem in the assumption of rights recognition in planning as they are currently articulated and practised. This problem is the very liberal–democratic order itself, which persistently works to limit radical claims for space by submitting them to an intimate regulation around which rights are legitimate, who can legitimately hold them and how those who are legitimate can come to be recognised as fully liberal subjects.
My argument, then, is that it is worth taking a more critical, reflexive approach to interrogate specific instances of the effects of planning’s dispossessory tendencies and the politics of rights that unfold. For when the end-game of social struggle under conditions of dispossession is articulated merely for recognition, the spectre of co-optation and a regressive depoliticisation is immediately announced. It turns out that rights as conceived through a liberal hegemonic order are a too-easy seduction under conditions of dispossession. The liberal ‘incitement to recognition’ (Povinelli, 2002) is informed by the ‘belief that inner goodness and original innocence of human beings was a necessary condition for asserting the viability of democracy’ (Mouffe, 2005). The achievement of rights under such a regime is simultaneously the moment those rights dissolve because that regime intentionally ignores the more radical and fundamental claims of the right to space and reduces what should be properly political questions (Mouffe, 2005) to regulation through procedure.
What might this mean for the limits of recognition for those displaced by the dispossessory tendencies of planning? In order to begin this entanglement with the problem with rights to, and rights in, planning, the next section details two emblematic stories of dispossession.
Emblematic stories of dispossession
Dispossession I
In 1835, a small illegal squatter camp, with a handful of men, one woman and a cat (Boyce, 2011), was established on the banks of the Yarra River in what is now known as southeastern Australia. The squatters were British colonists sailing from the colony in Van Diemen’s Land (now Tasmania). They had broken the rules of British colonial expansion, and taken sheep, tents and supplies to the southern Australian mainland to make their fortune on what they knew to be the excellent pastoral country of the region. The mere 3 years that followed saw the conquering of more people and the dispossession of more land than the previous 50 years of colonisation of the Australian continent. This was a colonisation so rapid and so violent that it had dispossessed a total of 20 million hectares of land from its Aboriginal owners within 15 years (Boyce, 2011). Those who survived smallpox, murder and starvation had eventually moved, or been forcibly moved, onto stations, reserves and missions. By the time assimilation became a popular policy in the 1930s, not a single Aboriginal person remained in possession of his or her land in what by then had become the State of Victoria.
This story of dispossession is the founding of Melbourne, Australia. It is the story of an original dispossession, of the ‘primitive accumulation’ Marx diagnosed whereby the mass of people are expropriated from their land and from their control of land, thus heralding the capitalist mode of production. James Boyce’s stunning historical account of the founding of the city of Melbourne charts exactly this process (the link to Marx is mine), showing how the swift and violent dispossession of lands was fundamental to creating a booming, successful agricultural economy and a modern city built off its profits. A culture of land speculation, egged on by the promise of spectacular profits, all built off that original dispossession, has been the story of Melbourne ever since (Sandercock, 1976). In the 180 years or so since, the descendants of those who experienced that original dispossession remain dispossessed. Today, those people continue the struggle for some kind of recognition as First Peoples, and those struggles are centred upon claims for the recognition of particular kinds of property and procedural rights. This is a familiar story, one being played out in many contexts around the world, where Indigenous peoples fight simultaneously within and against the imperial powers that have dispossessed them of land, shattered their ways of life and exposed them to processes of profound precarity and marginality.
Such struggles are increasingly important for planning. This is because the two rights formulations in which Indigenous claims are made link closely with the jurisdiction of state-based land-use planning. Indigenous property rights demand that planning recognise another property ‘interest’, and the procedural rights arising from this demand a specific decision-making jurisdiction around land-use and management for Indigenous people. In Australia, Indigenous people now control over 20% of Australian territory (Altman and Kerins, 2012). This has come about through changes in both case law and statute that has recognised Indigenous title. The most significant change occurred when the Australian High Court recognised the surviving ‘native title’ of Aboriginal and Torres Strait Islander peoples (Mabo v. State of Queensland No. 2 (1992) 175 CLR 1). This has sparked considerable changes in the statutory and policy frameworks that govern planning systems around Australia – systems that now must, even at the level of minimal legal compliance – recognise Indigenous property rights and the jurisdictional authority that arises from those rights.
So significant is that shift that even some recognition of Indigenous rights and title is discussed in undergraduate planning texts. The latest trend is to include a chapter on ‘Indigenous issues’ (Byrne et al., 2013; Thompson, 2007; Thompson and Maginn, 2012), usually in one discrete chapter of the book, outside of which Indigenous rights and interests are never mentioned again. A variety of methods, tools, procedures, policies, guidelines and legal frameworks have been developed in the local day-to-day operations of planning systems to somehow address the assertion of Indigenous rights and title. Contemporary planning, then, in many places around the world as in Australia, is attempting to recognise its coexistence with Indigenous title, rights, culture and law (Howitt and Lunkapis, 2010).
Dispossession II
The second story of dispossession, or displacement as it is more usually named, is about a different manifestation of the same kind of accumulation by dispossession (Harvey, 2003). It is a story about dispossession as a result of urban restructuring and redevelopment, or the displacement that occurs when disinvested urban spaces suddenly fall under the gaze of regeneration policy and programmes.
In the pre-dawn hours of 24 March 2011, the Jaconelli family was evicted by force from their home of 35 years in Glasgow’s East End. Over 80 police arrived, along with the Sherriff’s officers wielding sledgehammers, to break down the doors and windows, after the family protested their expropriation and barricaded themselves into their home. Their displacement, like that of the community around them that had already been removed some years before, was required to enable the land to be transferred to a consortium of private developers who had won the bid to build the Athlete’s Village and associated ‘legacy housing’ for the 2014 Commonwealth Games.
This particular story is a complex one, as stories of urban displacement often are. Over a period of 10 years, this small neighbourhood in Dalmarnock had become systematically disinvested by the housing association and the city council. The Jaconelli’s, and the owners of some of the small shops nearby, found themselves trapped in derelict, boarded-up buildings, the object of a vicious but familiar cycle of disinvestment and reinvestment. Being owners of their homes and shops, those remaining including the Jaconelli family, became subject to a Compulsory Purchase Order. This was rolled out in an especially regressive fashion by Glasgow City Council, who were at the same time negotiating multi-million-pound property deals with major corporate landowners just over the road. The process smacked so loudly of a class remake of this area of the city that the Jaconelli’s refused to acknowledge a process that had rendered them illegal trespassers in their own home with little to no compensation. Their ultimate eviction, which was always inevitable (the Games must go on), was brutal and terrifying.
This story is also a sadly familiar one. When I recently reread the opening lines of Hartman et al.’s (1982) landmark book Displacement, I was struck by the similarities to the story of displacement in Hawaii they re-told (p. 2): of police and bulldozers arriving at daybreak to destroy homes, of frightened angry people huddled together in desperate last-ditch attempts to halt the inevitable, of the heartbreak and loss that displacement of this form involves and of the profits that stood to be gained after the way was cleared. Decades of research into this form of urban dispossession attest to the grotesque, class-based character of its intent and operation (Allen, 2007). It is also related to a form of displacement that is increasingly being played out in cities of the global South, places that have not routinely been the focus of displacement and gentrification research but whose poorest citizens bear the very violent brunt of urban modernisation (Gundogdu and Gough, 2009; Roy, 2003; Winkler, 2009a, 2009b; Yiftachel, 2009; Yiftachel and Fenster, 1997).
People subjected to this form of dispossession also struggle against and within it. They seek recognition from those doing the displacing of the worthiness of their lives and neighbourhoods, of the meaning of their homes and of the impact of displacement on their lives. These are also important areas of planning contestation, and indeed there are whole areas of established planning procedure to ‘deal with’ the fallout of displacement. Utilising written objections, representation at public hearings, courts and tribunals and direct action, anti-displacement movements also seek to confirm the property and procedural rights of those being displaced.
As I said earlier, I have a kind of nervous anxiety reading these two kinds of stories alongside each other. They are very different from one another both in terms of the origins of the injustice and also the political actors and claims each generates. My purpose in reading them together is not to argue that they are the same, but to address a persistent sense I have that the politics at work in each around liberal rights and subjectivities are reminiscent of each other. In the remainder of the article, then, I try to unpick the ‘slippages, openings, contradictions and possibilities for alliance’ (Hart, 2006: 981) in these two modes of dispossession to critically problematise the notion of rights in planning from these two different-yet-related starting points. To begin, then, we need to look carefully at the liberal recognition space planning appears to represent and understand how this space has been conceived in planning thinking.
The recognition space of planning
In planning theory, we have been struggling for some time now with the dilemmas of recognising the subjects and objects of planning. There has been a particularly sustained effort at looking at this problem for planning when planning subjects appear to be incommensurably different. A huge scholarly effort has gone into unpicking and exposing the intimate ways by which planning universalises a liberal subject, produces space in its own image and then systematically excludes and marginalises those subjects determined to be consequentially different from a universal norm (Beebeejaun, 2004; Harwood, 2005; Hooper, 1992; Sandercock and Forsyth, 1992). Many planning scholars have shown how this tendency in planning produces some of the forms of dispossession under discussion here, as well as other forms of socio-economic and cultural marginalisation (Beebeejaun, 2004; Sandercock, 1998; Yiftachel, 1998). Much important work has been done to rethink planning, and the city, arising from those framings (Fainstein, 2010; Fincher and Iveson, 2008; Sandercock, 2003).
My thinking as presented in this article also arises out of these framings, but takes the issues in a slightly different direction in order to unpack more intentionally what happens when our thinking becomes hooked into certain rights-based assumptions. The question of rights, and of recognition as the necessary condition for rights, is clearly at the centre of contests around dispossession. Both those struggling against dispossession and those engineering it speak in the language of rights: rights to a replacement home, rights to be compensated, rights to be a decision-maker and rights to have a say. To date, our tools in planning that attempt to address oppression and marginalisation have been both rights based and procedure based. In the particular instances of dispossession that I am using here as my window into what this offers the dispossessed, ‘rights to’ and ‘rights in’ are both necessary.
Yet they also become powerfully seductive in very costly ways. Following Gayatri Spivak’s (1993) idea that any victory of liberation demands a stance of persistent critique on the dogmas we inherit through those victories, we must not see the attainment of ‘rights to’ or ‘rights in’ as either the strategic end-game or the moment of full and final justice. We ‘cannot not want’ (Spivak, 1993) rights in planning. This would be destructively cynical, ignoring that even as they represent ‘bourgeois “formal freedom”’ it is precisely this mode of freedom that has ‘set in motion the process of “material” political demands and practices’ (Žižek, 2009). So this article is not an essay on why we should not bother with rights. But it is a call to ask about what recognition and rights cost beyond a simple acknowledgement that not all rights are equal rights. It is clear that rights as currently practised in planning spring from a field of recognition that already defines their limits. When the aspiration for a politics around dispossession sees rights and recognition as an end in itself, without asking what recognition costs, then we have failed Spivak’s call to maintain a persistent critique of liberation-become-dogma (Butler and Athanasiou, 2013; Povinelli, 2002).
In the two main sections that follow, I attempt to map the costs of claiming a politics around dispossession that circulate around property ‘rights to’ and procedural ‘rights in’. I focus on these because it is clear that there are four highly regressive tendencies in the rights-based approach of planning under conditions of dispossession. A first tendency is when the social field of rights-based struggle becomes stuck in a mode that seeks parity only within the frame of liberal ‘possessive individualism’ (MacPherson, 1962). Rights under this conception are a bundle of things that can be possessed, held, alienated and exchanged, and express the positionality of a possessing unitary subject.
Second is the tendency to accommodate claims into the existing planning apparatus via the seduction of consensus-based planning, with the political content of spatial production stripped out and reduced to a communicative ‘fix’. I will call this the conceit of procedure, where an uncritical focus on stakeholders, voice and communicative action tends to divert attention away from the processes that result in the actual, material transgression of rights through dispossession.
The cost of this diversion under a fully liberal politics of recognition is the requirement for social subjects seeking rights restitution through planning to perform a certain kind of recognisable being, and then make claims that are recognisably ‘planning’ type claims to resolve. The legibility and authenticity of planning-type performances, then, is a third register in which the costs of recognition become apparent. For, of course, there is a trade-off inherent in this performance. In exchange for a set of compromised rights, this mode of recognition demands the social subject’s inclusion and restitution as fully liberal and fully visible.
Fourth is the paternalistic hailing of planning as a social field of infinitely possible remedialism and betterment for those haunted by the spectre of dispossession. The liberal multicultural condition of remedialism is widespread in public policy, expressing a political epistemology rooted in a ‘desire to fix things up, based on the unqualified conviction that it is possible and necessary for the more knowing and better equipped “us” to do so’ (Cowlishaw et al., 2006). Planning’s principle of ‘betterment’ is profoundly embedded in its political rationality from both left and right perspectives. It is through planning that the twinned projects of improvement and empire are ultimately enabled, and it is to these specificities that I now turn in the next two sections, beginning with the problem of possession.
The calculus of possessory rights
Dispossession is often presented by displacers as a ‘natural’ and necessary upgrading, where one form of property rights is replaced by something better. Betterment, upgrading, advancing the public good – these are discourses familiar to the dispossessed who suffer when they are wielded. The production of colonial space involved erasing property rights deemed inferior (or even unrecognisable) to enable their replacement with a superior and more civilised form of property relations. Urban redevelopment entails the same logic, the erasure of inferior uses, people and spatial relations and upgrading that space with new uses, higher class people and much more private ownership. Struggles over space can thus be usefully read as the ‘long-standing contestation of certain configurations of property rights’ (Blomley, 2004).
There is a narrow property logic that drives these and other instances of revanchist dispossession, one that has become the cornerstone of neoliberal planning: the ownership model. Marxist political philosopher C. B. MacPherson (1962, 1978) outlined the shape, logic and possessory outcomes of this model in his incredibly insightful work. The ownership model reduces property rights to two types of owning: private and public. Private owners are individuals who maintain a legally enforceable claim that exclude all others from use and enjoyment of a particular parcel of land. Public ownership holds land in ‘common good’ by the state but remains a right exercised by individuals. Under the ownership model, then, both private property and common property are conceived as individual rights, held by either natural (private) individuals or artificial persons (states and corporations).
This is a conception of the social contract that recognises only a ‘possessive individual’ as a subject, only one who is ‘proprietor of his own person or capacities, owing nothing to society for them’ (MacPherson, 1962). Intrinsic, then, to liberal democracy are ‘possessive assumptions’ (MacPherson, 1962). Society, precisely as Thatcher imagined, is reduced to a mode of exchange between freely possessive individuals and the state is reduced to the ‘calculated device for the protection of this property and for the maintenance of an orderly relation of exchange’ (MacPherson, 1962). Becoming a recognisable subject under such a model demands that subjects possess, and that they possess actual things. As rights in land have become more absolute, the ‘thing-ness’ of property as land title and the private nature of its enjoyment have become so thoroughly normalised, so common-sense, that its logic is virtually unassailable.
Owning, possession and the possessive individual, operating as normalised logics, frame the legislative and policy framework of modern planning systems and its recognition space for rights restitution. Those systems intimately regulate and coordinate different kinds of property owners and rights, and articulate where those can appear in a system and how they might be treated. Even in the softer, more collaborative moves in planning, rules and guidelines around stakeholder engagement similarly coordinate and regulate through a possessory logic the rights and entitlements to voice and action even as they attempt to accommodate different kinds of owners and non-owners.
The ‘thing-ness’ of property, its narrowed definition as a conflation with private exchange rights and the possessory individual mark the limits of rights under conditions of dispossession. Claims for restitution under dispossessory logics are persistently co-opted into the language of possession: of reconstituting ways of owning and possessing the thing-ness of property. The register of rights-based claims in planning is tethered to the frame of possession.
To see how this works, let us look first of all at dispossession under comprehensive urban renewal. There are two near-universal responses that come from the planning offices of governments that seek to displace and dispossess their citizens of home and livelihood to ‘make space’ for urban renewal. One is that urban renewal and regeneration is itself a public good. The argument goes along the lines of ‘we, the benevolent government are doing this for your own good, although you cannot recognise it yet. Displacement will improve you, in the end’. A second, related, response is that those being displaced are being ‘looked after’ in a myriad of ways by this benevolent state. This help comes in the form of relocation, new homes or business premises, compensation and an attention to their voices through stakeholder engagement, the likes of which they have never before enjoyed.
Consider a recent special issue of Housing Studies that purports to address what the editors and contributors see as an ‘imbalance’ in the literature on displacement. This ‘imbalance’, they argue, is that the literature on displacement is too critical, too negative (actually, they would prefer not to use the word ‘displacement’, and instead offer the more polite ‘residential relocation’ and even give it the acronym ‘RR’). Why is this negativity unwarranted? Because, they argue, things are really not so bad:
… restructuring policies usually enact a range of legally established compensation mechanisms for residents facing a forced move…Such measures are primarily based on a general consensus that forced relocatees should not suffer any negative effects from public policy programs without proper compensation. As a side effect, policymakers hope that compensatory mechanisms, such as a priority status on the rental housing market, facilitate a relatively smooth relocation process within a reasonable period of time. (Kleinhans and Kearns, 2013)
‘Legally established compensation mechanisms’ are presented as the core features of systems of displacement that assure justice and fair treatment to those being displaced. Indeed, the notion of ‘like for like compensation’ was a core political strategy of the singularly best work on fighting displacement that has ever been done in our field – that of Hartman et al. (1982) – and the work done more generally on housing rights (Centre on Housing Rights and Evictions, 2007). These are imperative grounds on which anti-displacement struggles must be waged. The Jaconelli family argued their case on these grounds, by casting their objections and appeals not as political statements (at least at the beginning of their campaign) of anti-gentrification, or anti-displacement, but as a much more polite request that the state compensate them for a burden they were being asked to disproportionately bear.
However, the ‘like for like’ justice approach heralds some distinct problems. First is the fallacy that actually existing ‘like for like’ compensation (financial or otherwise) becomes in practice. I do not have space here to fully expose the grotesque manner by which this supposed ‘justice’ actually comes to play out in the real lives of real people being displaced. It is nothing like as ‘fair’ as many would suggest. There is a significant scholarly and legal debate on the fairness or otherwise of market value compensation in cases of eminent domain or compulsory acquisition of property. Scholars argue not only technical points around valuation methodology (Gruen, 2001) and the particular regulatory framework around compulsory acquisition but also the extent to which different models of valuation produce different kinds of outcomes (Chang, 2013; Lee, 2013).
It is obvious that the technical and legal questions around compensation are tremendously important (see, for example, Chang, 2010, 2013). I have no contribution to make to this debate. Instead, I want to interrogate the regressive possessory logics that such debates around compensation are caught within. Compensation comes in various forms in different systems: a different housing unit in another neighbourhood, financial compensation to purchase new housing in the open market and monetary payouts representing loss and disturbance. It is only out of a narrow logic of possessive individualism that these measures could be deemed appropriate compensation. Possessive individualism constitutes subjects who possess space in a highly atomised, distant manner: it is a ‘logic of severability’ (Blomley, 2010). No relationship with the actual place people are being displaced from is recognisable to this model: ‘like for like’ compensation, even if it were true, contains no recognition of home, affect, sensibility and connection or relationality in its deepest sense. Indeed, it cannot. This is the case even when compensation is paid based on ‘subjective value’ (sometimes called ‘economic value’) of the property in question (see Chang, 2013: 4–6). My charge is not that the law ignores the loss of merely the physical property itself – indeed, it does not ignore this fact and in fact includes a financial mechanism for including that loss in compensation payments. My concern is a much deeper one – that the fundamental proposition that underpins such a regime of compensation is so profoundly thin. My point is not that there is no amount that could ever be enough, but that our capacity to speak only in the language of financial compensation indicates the thing-ness, the paucity, of how we view the rights of citizens to their homes, neighbourhoods and cities – their place in the world.
The dispossessed subject under these conditions are simply dispossessed of that particular location on the planet, and the possessory logic produces a regime that locates justice in their simple replacement. Of course, their replacement will occur in a less obstructive locale on the planet not (currently) such an intense focus of revalorisation. Thus, the dispossessed subject can be possessory and possessing anywhere, in any place, because the possession itself is both individual and thing-ed. It is the title or rental contract – the thing-ness of the property right – that is being dispossessed, not a home, a livelihood, a neighbourhood or a life. There is no genuine space in compensation payment calculus to attend to the loss and grief of a neighbourhood abandoned, the bulldozing of a home, the erasing of memories or the shattering of lives. This is a logic of possession that is ‘rationalizing, extractive, dissociative’ to use a phrase of Mary Louise Pratt’s (1992) in another context. The possession of the thing-ness of property in this case is of property as merely ‘a thing’. It is purely exchange value: the thing-ness of property somewhere can be exchanged for the same amount of thing-ness in another space-time.
It is a different manifestation of a possessory calculus at work in the recognition politics around Indigenous land rights, for clearly Indigenous claims are intrinsically linked to particular spaces. The whole notion of Indigenous property is that it is inalienable, and cannot be traded for another locale on the planet. The fight to reclaim a land base is also articulated through a logic of (re)possession, for they register the survival of pre-existing and surviving Indigenous title. At the moment of its recognition by the Australian High Court, native title appeared to usher in the possibility of real justice in recognition of Indigenous dispossession. While it is clear that native title rights have progressively transformed social reality for some, the wider experience of native title suggests that possibility was foreclosed even at the very moment it was uttered. Under the native title regime in Australia, two thresholds of proof must be attained by claimants in order to ‘win’ their rights. First is that they must prove their ancestral connection, via genealogical records (usually written by settlers and other Whites) to the territory they claim. Second is that they must prove a ‘continuing connection’ to that territory and demonstrate the existence of that connection through the maintenance of ‘traditional law and customs’. Much has been written on the particular injustice that this extraordinary burden of proof, under the conditions of dispossession that were so prevalent on the Australian continent, metes out (Atkinson, 2002; Povinelli, 2002; Riley, 2002; Strelein, 2003).
Yet it is not the recognition itself that is sometimes proving a locus of change in Indigenous Australia, it is the leverage such title promises within market capitalism. This leverage, and the socio-economic independence it appears to offer, is proving a powerful notion around which public and scholarly debate on Indigenous land rights recognition is currently ossifying. Marcia Langton, one of Australia’s most prominent and well-respected Indigenous scholars, recently gave a series of public lectures. She argued that real social transformation of Indigenous lives can be and is being effected, not through the identity politics of ‘green lefty urbanites’ (as she put it), but from the royalties flowing principally from mining companies who must now negotiate with Aboriginal people, who now control much of Australia’s resource-rich land. To the extent Langton is taking issue with the insufficiency of a paternalistic rights-based approach for redressing persistent structural Indigenous disadvantage and socio-economic marginalisation, I agree.
Yet framing successful recognition – that is, land and social justice – around the size of the income generated from mining giants and its development of an Aboriginal middle class seems a very thin form of justice. Success under this model of recognition arrives as the power to change the socio-economic situation of those persistently marginalised. This power derives from the resources available through market-based outcomes. It is available only once Indigenous lands have been re-calculated, albeit under slightly different conditions, into the grid of capitalist accumulation through investment and development. To win is to (re)possess under the condition that such a repossession will demonstrate the qualities and characteristics of liberal possessive individualism: the will to exchange as rational market actors and the impulse to extract surplus value from the land possessed. To win is to win at an insuperably high cost. That cost is the maintenance of dominant social relations determining those who can exploit land for its surplus value and those who cannot, and the modes of spatial production to which those social relations give rise. Recognising Indigenous property rights under this regime conflates sociality with property ownership, a conflation which serves the very ideological framework that induces the conditions of (post)colonial precarity in the first place (Butler and Athanasiou, 2013).
For what is to become of those who cannot prove their worth across the thresholds of recognition? If a possessory logic is all that can be pursued in the claims for recognition and restitution of the land, cultural and economic rights that neo-colonial appropriation persistently transgresses, then at what cost does this come for social subjects excluded from logics of possessory recognisability? And what about those at further remove from the interest of extractive resource development, where the bargaining levers are missing? The calculus of possessory logic answers that problem with an easy seduction: turn Indigenous property rights into market-based rights to give them leverage as capital (see Hughes et al., 2010). It is a thinking that follows (implicitly) Hernando de Soto’s (2000) influential idea to formally title lands occupied informally so as to enable investment and capitalisation. After all, what use is a property right if it cannot be leveraged in global financial markets to extract surplus value from the land to which it relates?
It is absolutely clear that the restitution of a land base, of homes and livelihoods, is a fundamental condition for spatial justice. But at the very moment when such a restitution is ‘defined by possession and its instrumentalities’ (Butler and Athanasiou 2013: 28), we should immediately feel the pointy end of a politically regressive wedge. This reification of markets and the rights to possess meaningfully in the market economy becomes the object of the struggle for recognition in a system that ontologically valorises ‘ownership’. Implicitly reifying ‘owners’ charts an endless opening out to all kinds of ‘owners’, even owners of communally held ancient title, as long as those owners look as if they recognisably own and possess. A politics of rights recognition framed around possessory rights as ends in themselves leaves us with no critical sensitivity to the structures of power (discursive, material and symbolic) to which the problem of recognition gives rise to in the first place. There are no radical, emancipatory answers to be found when the question is framed as a problem of possession and is enacted under conditions of ‘collective individualism’ (Kuymulu, 2013).
The conceit of procedural ‘rights to’ in planning
It is common to hear procedural rights wheeled out as a compensatory mechanism for processes of dispossession, just as in the quote from the Housing Studies special issue outlined earlier. The argument goes that ‘rights to’ be heard, to participate or to be consulted on the process of change which is bringing about dispossession are part of the way that states make amends. Procedural rights are thus offered up in lieu of the transgression of all sorts of other rights. This simply boils down to the right to participate in the processes of one’s own dispossession. I find this grotesque, and I maintain it should have no place in our discourse about planning and dispossession. What about the right to not have to experience the life and livelihood shattering experience that forced displacement entails? There is no such right as currently articulated in either the theory or practices of stakeholder communication and citizen participation. A ‘right to stay put’, as originally conceived by Hartman et al. (1982), would constitute this kind of more effective right.
The will to procedure has been a central focus of planning theory and practice in recent years. It is marked by a sustained search in planning research, theory and practice for the right decision-rules (Huxley and Yiftachel, 2000) that will give rise to a more progressive politics. That search has taken planning theory into the realms of public participation, communicative action, deliberative politics and identity politics. In practice, it has been stabilised and institutionalised in a variety of procedural dimensions such as citizen participation forums, statutorily required consultation with ‘stakeholders’ and legal dimensions such as objection and appeal rights within systems of development control.
The incitement to social subjects to pursue their rights claims through due legal process mischievously works the ‘hopes and optimisms’ (Povinelli, 2002: 184) of liberal subjects. In proffering the opportunity of rights, it works a sensibility that rights are possible, that protection is available if only an individual can achieve a certain level of proof, a certain rationality. Siting progressive social change in planning through process misrecognises the nature of rights-based claims. It says, come to the table which we have constituted to be ‘about’ planning, come as our ‘Other’ that can help us see ourselves as better and come without expecting anything really to change. Procedural fixes are planning’s conceit, and they come with considerable costs.
One cost is that the claims of dispossessed subjects have to be made legible and recognisable to the state. At the same time, the decidability of those claims is retained within the state, ensnaring citizen-subjects in a web of devastating, calculated dependence. Those targeted by dispossessory logics are required to provide a measure of proof of their worthiness to remain, or to be compensated, or to be treated with at all, in exchange for (conditional) rights protection.
That worthiness is predicated on the extent to which the law recognises the legitimacy of the subject. Take the example of laws of trespass, a form of protection of the rights of possessing subjects to exclude all others from territory. The assertion of trespass is a fictive determination of property rights based on an arbitrary shift in title. That shift is entirely constructed on the premise of the sovereign power doing the asserting: it is trespass because the state declares it is trespass. If someone is declared to be trespassing, due to the arbitrary shift in title from one owner to another, then that person is subject to the full violence of legal enforcement of possessory rights under trespass laws. For people like the Jaconelli family in the East End of Glasgow, beyond the point at which title is arbitrarily transferred, one is no longer a citizen but now a trespasser, a definition of a subject that is marked by the exclusion–inclusion dialectic that Agamben (2005) identifies. A trespasser is at once outside the realm of law in the sense of no longer being able to claim protection from the rule of law, yet at the same time radically subjected to the law, via its violent enforcement.
It was to the law of trespass that Richard Bourke, then Governor of the New South Wales colony, turned in 1835 to attempt control of the unsanctioned settlement of what is now Melbourne by private squatters (Boyce 2011). 1 Yet Bourke’s critically important despatch of 1835 did much more than attempt to quell that expansion. It declared, in one swoop of his pen, a vast area of land from Cape York to Wilson’s Promontory to be Crown lands, and anyone found on them without licence to be trespassers. This included the Aboriginal owners of these lands, who were immediately rendered trespassers, thus giving full effect to the foundational myth of terra nullius. Precisely the same logic of possessory rights, and the impossible requirements of worthiness and proof they demand, is at work right now in the Negev where the Bedouin people have asserted their title over lands deemed ‘illegal settlements’ by the Israeli state. That claim was quashed by the courts in early 2012, the judge refusing the Bedouin’s claim for recognition as Indigenous peoples with land titles. Consequently, they remain defined by the Israeli state as trespassers (Yiftachel, 2009). This subjects them to constant evictions, threats and the physical demolition of homes and towns.
The demand for recognition and rights thus calls up a process of profound inspection of individual subjects to determine the worthiness or otherwise of their demands and their citizenship status (Povinelli, 2002). Will the poor who are the target of displacement through urban development be a deserving poor? Will Aborigines be sufficiently traditional and perform their traditions in ways that do not confront the established order? Who will come to count as recognisable, as a viable human subject worthy of legal protection or not? Such a politics is one where the citizen-subject is ‘fundamentally dependent upon terms that one never chose in order to emerge as an intelligible being’ (Butler and Athanasiou, 2013: 79). The risk is of being broken by the very laws that only moments before appeared to offer protection.
The second cost of this procedural conceit is its tendency to evaporate the political content of planning. It does so by first making the social field (in this case, planning and its dispossessory tactics) dissolve. Through the conceit of process, planning as a political mode of spatial production simply disappears from view. Spatial rationalities and cultures, and the edifice of liberal political economy from which planning emerges, recede to become the backdrop against which differently positioned stakeholders clamour for recognition. This disappearance of the politics of planning is not innocent. It is a deliberate dissimulation of the seat of power (Brigg and Murphy, 2011), and for that reason any framing that allows the modes by which planning produces space and its citizen-subjects should be the focus of a persistently critical stance in planning research.
A further way that the political tends to evaporate is because procedural fixes offer a measure of accommodation, not of transformation. Rights can come to be accommodated within a moderately adjusted framework. Indigenous people that pursue a right to be at decision-making tables about their traditional territory do so within the confines of existing legal–technical and social orders. Citizens threatened with eviction due to urban redevelopment are offered procedural rights like appeals, or a right to negotiate compensation amounts. Procedural fixes in planning – processes that apparently give ‘voice’, stakeholder presence and rights of objection and appeal – reinculcate the value of citizenship and a certain liberal, economic morality. Dispossession is never itself the subject of contest, but merely the rights around how it will be materialised, who will do it and whether the conditions will be more or less benevolent: ‘the legal-ideological matrix of freedom-equality is not a mere “mask” concealing exploitation-domination, but the very form in which the latter is exercised’ (Žižek, 2009: 125, my emphasis). The terms of engagement are always those of that ideological matrix, and never themselves the subject of recognition and rights-based politics.
Models of planning that propose merely a consensual practice of deliberation, whether that be rational or otherwise, ‘presupposes the very disappearance of what constitutes the vital core of democracy’ (Mouffe, 2005: 29). That vital core is the political. The liberal terrain of rights recognition that has come to structure the domain of dispossession and displacement through planning process fails to ask about the costs of recognition. When it gives rise to a seductive promise of full and final recognition, it signals the end of politics. It is towards this problematic tendency that planning theory must retain a vigilant, persistent stance of critique.
If not rights or procedure, then what? 2
I have argued in this article that the modes by which contemporary planning incorporates struggles against dispossession do two regressive things: first, it recalibrates that struggle in the terms of possessive individualism, and second, it aggrandises procedure as if process itself can achieve a final justice. People struggling against dispossession suddenly find themselves constituting their claims as rights to possess, occupy, enjoy and participate as liberal, legally recognisable subjects. It is a political terrain that recognises humans as fully functioning selves and subjects only through the register of possession. It demands that possession be borne like a trophy – won, and guarded carefully.
Simultaneously, planning’s procedural conceit shimmers as a promise of full and final recognition, and we find ourselves persistently seduced by the prospect of what a benevolent, freeing state might offer. Always realising that it will be compromised, less than ideal, imperfect and transient, we persistently hold out for a more progressive (or dare even we dream it, a more radical) moment of recognition, where the rights of the poor and dispossessed are considered as more important than those pursuing profit and exploitation.
I am profoundly dissatisfied with these powerful, seductive tendencies. Yet, it is clear they are dimensions that cannot be ignored. Even as I write this rather oppositional account, I do not have sufficient imagination to think through an Indigenous alterity politics that does not entail recognition of a pre-existing rights and title. Nor could I ever wish to imagine an anti-displacement oppositional struggle that does not hold at its core a basic right to human shelter. The core promise of rights, then, cannot be critiqued away (even as I have just attempted to critique them away …), much as relations of power cannot be transcended by procedural fixes.
This leaves me, and perhaps you the reader, in a profoundly paradoxical position. Rights seem necessary (where else would we start?), yet thoroughly insufficient for the reasons I have attempted to unpick in this article. Where, then does this leave us? Where do we turn if we cannot situate hope in the ‘utopian promise of political legal reform’ (Lattas, 2006)? Where can we possibly locate our hopes, if we have acknowledged that there is no possibility of standing outside all forms of hegemony? Is it enough to see struggles against dispossession as always contingent, partial and compromised, as the state of our ‘freedoms and our unfreedoms’ (Scott, 1998), and just leave it at that? Should we simply conclude that flawed, liberal, possessive rights are at least better than no rights, that recognition is better than non-recognition?
It is undoubtedly remiss of me that I am going to singularly fail to answer any of these questions. For the time being, they are food for thought and perhaps further debate. The following concluding thoughts might contain some useful starting points.
Conclusion: surviving the incitement to liberal recognition
I have not left sufficient space in this article to properly explore lines of thinking, methods of practising and ways of struggling that might offer productive alternatives to possessory politics and the conceit of procedure. In this too-brief conclusion, then, I want to flag some possibilities and then leave their discussion for another time. It is likely that to survive the ‘cunning of recognition’ (Povinelli, 2002) under conditions of dispossession demands an entirely different conception of the terrain of rights and recognition, and the modes through which it might become possible. There are many avenues through which we might develop this. At the heart of our endeavour should be what Ananya Roy (2006) calls an ‘ethic of postcoloniality’. This is a commitment to exposing planning’s complicity with dispossession in all its dimensions to build a practice of ‘accountability to’, rather than ‘liberal responsibility for’ those whose existence is marked by dispossession. Let us look very briefly at how this might look in relation to the two kinds of rights I have been discussing in this article.
Property rights under certain conditions are repressive and dispossessory – that much is evident. Yet it need not be so, especially if we re-imagined property outside of the narrow (neo)liberal exchange rights version that has come to be dominant. As Marx showed, property is not reducible to private exchange rights but instead ‘comes freighted with an array of historically layered and often contradictory possibilities’ (Blomley, 2004: xix). The rich seam of critical legal geography around questions of property is enormously instructive for planning to think its way out of the bind of the ownership model to rethink property in a radically expansive, multivalent way that valorises use rights over exchange rights (Butler, 2012; Lefebvre, 1996). A different language of property, such as Blomley (2008) suggests through a proper conception of the commons, would force an acknowledgement of property rights extending well beyond the unitary title of a single possessing individual, thus allowing property to become ‘unbundled and distributed’. Such a reconceptualization of what property actually is might shift the register of those politics in a more radically emancipatory direction, one that links together struggles against dispossession and precarity under different conditions. Clearly, property is not a thing but a relation of claims. This is standard fare for any student of property law. How, then, does that relation of claims come to be so easily reconstructed into the ownership of things, ignoring the properly political sense of property both in its relationality and its central agonistic constitution as an endless renegotiation of rights claims?
Agonistic politics, broadly building on the work of Laclau and Mouffe in Hegemony and Socialist Strategy (Laclau and Mouffe, 2001), is building momentum in planning theory (Hillier, 2003; McClymont, 2011; Mouat et al., 2013; Pløger, 2004). It is worth continuing conversations in planning theory in and around this framing, because agonism potentially recuperates the political. An agonistic politics of recognition under conditions of dispossession would demand debate about the costs of recognition, who bears them and whether (or not) they can be considered bear-able. It would eschew procedural fixes, while acknowledging the importance of process as a fundamental element of the political.
None of these are ‘answers’ in the straightforward sense of solutions to policy or legal problems. But they might at least be features of the kinds of alternatives planning theory and practice must be alive to under conditions of dispossession.