From Land Dispossession to Land Restitution: European Land Rights in South Africa - PDF

Settler Colonial Studies ISSN: 2201-473X (Print) 1838-0743 (Online) Journal homepage: https://www.tandfonline.com/loi/rset20 From land dispossession to land restitution: European land rights in South Africa Camilla Boisen To cite this article: Camilla Boisen (2017) From land dispossession to land restitution: European land rights in South Africa, Settler Colonial Studies, 7:3, 321-339, DOI: 10.1080/2201473X.2016.1139861 To link to this article: https://doi.org/10.1080/2201473X.2016.1139861 Published online: 15 Mar 2016. Submit your article to this journal Article views: 728 View related articles View Crossmark data Citing articles: 5 View citing articles Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=rset20 SETTLER COLONIAL STUDIES, 2017 VOL. 7, NO. 3, 321–339 http://dx.doi.org/10.1080/2201473X.2016.1139861 From land dispossession to land restitution: European land rights in South Africa Camilla Boisen Department of Political Studies, University of the Witwatersrand, Johannesburg, South Africa ABSTRACT KEYWORDS Behind every colonial and imperial project laid a persistent Colonial political thought; constellation of ideas in which rights, obligations and duties were ‘empty land’; terra nullius; speciﬁed to justify colonialism and establish ownership of land. trusteeship; land rights; South Africa This constellation of ideas provided the reasons for European expansionism, in addition to forming part of the ideological practices of the land-centred settler colonial project of founding new political orders. In this article, I explore the ideologies of land appropriation in colonial South Africa, paying particular attention to the idea of ‘empty land’ and ‘trusteeship’. As well as attending to this partly neglected aspect of South Africa’s colonial history, I argue that land restitution today continues to be informed by norms that were used to justify occupation and the appropriation of lands inhabited by indigenous peoples. In this article, I investigate the moral justiﬁcations for colonisation in South Africa. My study centres on justiﬁcations rooted in two ideas: ‘terra nullius’, or empty land and trusteeship, which by late nineteenth century following the Berlin Conference of 1884–1885 had gained widespread currency as the legitimating rationale of imperialism. Both ideas, in whatever forms they took, were instruments of colonial occupation. The background theory that informed these ideas through different modes and formulations can roughly be summar- ised in the following way: what gave the right of early modern Europeans to appropriate lands overseas was based on a duty imposed by God upon humanity of self-preservation which requires making the earth productive and bountiful. The more efﬁciently this is done the better. To optimise productivity of the soil requires the development of techniques of cultivation, and the establishment of civil society, or sovereignty, to ensure good govern- ance and security in order to protect oneself from harm and to cultivate in safety. Land that ‘appears’ uncultivated can subsequently be deemed ‘empty’ or vacant, available for appropriation. From the outset, however, it should be noted that my focus here is not pointed on investigating (or critiquing) property rights in themselves. This would require a more considered normative defence. Rather, my investigation is centred on the ideologi- cal bent of colonial conceptions of property rights, a topic that is crucial both to the study of colonialism and settler colonialism. They both envisaged land-centred projects establishing new political orders.1 While trusteeship features very little in the history of South African historiography,2 the idea, or ‘myth’ of empty land has featured prominently and persisted in various forms. CONTACT Camilla Boisen [email protected] © 2016 Informa UK Limited, trading as Taylor & Francis Group 322 C. BOISEN Especially in early twentieth-century South African historiography. For the Apartheid regime in particular, it became a convenient way to retrospectively legitimise European settlement by claiming that South Africa had been empty prior to the arrival of Europeans and Africans – both having arrived roughly at the same time; that is, around the time Jan van Riebeeck landed at what would become Cape Town in 1652. As early as 1980 the his- torian Shula Marks appraised actual archaeological evidence to dispel with the myth that the land had indeed been empty.3 Several historians followed suit, including Julian Cobbing, and Clifton Crais.4 Crais discredited the commonplace assumption of the liberal, progressive British as opposed to the conservative racist Boer, by exploring British imperial expansion in the early nineteenth century and their use of powerful political myths, such as ‘vacant land’, thus bringing attention to early ideas of race and ‘racial’ ideol- ogy in South Africa. Debunking such myths is not only a worthwhile scholarly enterprise it is also imperative for, as Crais asserts, ‘such myths do more than simply legitimize a given pol- itical regime; they also function to produce, sustain and “naturalize” a social reality’.5 In many ways, this historical enquiry as well as more recent debates in South African historiography on whether South Africa was treated as ‘terra nullius’ or not, resonates with Australian debates on ‘terra nullius’.6 The focus in South African historiography of dis- crediting the ‘empty land’ myth, which has also entailed the somewhat proleptic task of applying the early twentieth century legal construct of ‘terra nullius’ to South Africa’s colo- nial relations, has arguably detracted from a more in-depth examination of the moral jus- tiﬁcations of land appropriation associated with it; that is, the ‘moral’ reasons given as grounds for dispossessing the indigenous population.7 By critically investigating these ideas of justiﬁcation especially those relating to proven ‘productivity’ and ‘cultivation’, I cast new light on current disputes regarding land restitution. I suggest that in some cases the underlying reason for withholding land restitution are more entrenched in old colonial prejudices than in contemporary ideals of justice (or, at least, the ideals of justice epitomised in the Restitution of Land Rights Act 22 of 1994). Edward Cavanagh, for instance, makes the important observation that ‘the ruling ANC merely took the reins off the National Party, inheriting its former legal traditions and ideas about property rights, along with several other gifts, many unwanted’.8 This disparity has been racialised post-1994 and addressed in those terms, but a conversation about the underlying prin- ciples that shaped and continue to shape it is long overdue. Much has been written about colonialism in Africa, but the intellectual history of colo- nial practices in Africa and, in particular, the history of the ideas that justiﬁed seizures of territories has been relatively under-researched.9 Intellectual history is particularly relevant when studying the justiﬁcations of colonialism.10 Through intellectual history we can identify the principles of colonisation, including those relating to securing title to property, and evaluate the degree to which theory and practice coincided and diverged, and how conceptual change, that is, the manipulation of ideas, continues to propagate inequalities in South Africa. The idea of ‘terra nullius’ It was especially the justiﬁcations of appropriating land that were central to the enterprise of colonisation, and ideas of, for example, ﬁrst sighting, terra nullius, ‘empty land’, con- quest, just war, purchase, the advancement of civilisation, the survival of the ﬁttest, and SETTLER COLONIAL STUDIES 323 trusteeship were frequently invoked to this end. Issues surrounding ownership, occupation and cultivation, including acknowledged signs of appropriation were crucial in gaining the mutual recognition by European states of which held title to what territory, or, as in the case of South Africa, the Voortrekkers staking out their claim to lands in the Cape and Natal against the British. The fundamental question addressed was by what right does the colo- nising nation exercise ownership rights over the colonised territory and its peoples? The- ories of property, how it is acquired, by what signs do one distinguish between mere occupancy and ownership were crucial to minimise possible conﬂict between rival clai- mants. Arguments of land that was said to ‘lay waste’, as in Australia; ‘underused’, as in parts of America, or even ‘inefﬁciently used’, as in New Zealand, came to carry with a reli- gious fervour. It was not only a right, but a divinely sanctioned duty to make the earth bountiful by efﬁcient and productive cultivation; a duty that accompanied that of spread- ing the Gospel to heathen and irreligious savages and barbarians. No uniform principle or doctrine of colonialism was used consistently to justify coloni- sation in South Africa. Most attempts at settlements resulted in de facto conquest, and arguments for colonial presence were often ex post facto. This is akin to Stuart Banner’s point that land transactions between Indians and settlers in North America came about in various ways.11 Even the Berlin Conference of 1884–1885 may be viewed not as an attempt to carve up Africa, or to justify occupation to the Africans, but instead as an agree- ment on what may constitute signs of legitimate occupancy among the European states themselves. Bismarck called the Conference because he, along with other powers, was concerned that it was necessary to establish rules regarding occupation and commerce as the various colonisers potentially came into conﬂict with one another.12 ‘Terra nullius’ as a term used by historians is riddled with anachronisms and conceptual problems, as recent scholarship has shown.13 The historian Andrew Fitzmaurice has made some useful clariﬁcations of the terminological use of ‘terra nullius’, and has traced its con- ceptual shifts and meanings. Having been coined with the carve up of Africa in mind, Fitz- maurice demonstrates how ‘terra nullius’ arose as a concept in relation to international law and the race for the North and South Poles at the beginning of the twentieth century. The way it has been used by historians of empire is as an approximation of the positive use of the law of the ﬁrst taker in natural law to justify dispossession, which by deﬁnition stated that no one could be dispossessed of what they did not own. Fitzmaurice’s distinction here between a ‘positive’ and ‘negative’ use of the law of the ﬁrst taker is compelling. He cites the School of Salamanca with Vitoria as an exemplar of how the law of the ﬁrst taker is used in a ‘negative’ way, denoting the illegitimacy of appealing to the natural law to dis- possess the American Indians of their land.14 It was not until after the Conference at Berlin, which inadvertently formalised the ‘Scramble for Africa’ by its attempt at regulating colonisation and trade in Africa, that ‘terra nullius’ was used to justify appropriation of land. Before, res nullius was mainly used, in line with the Salamanca School in the sixteenth century to assert indigenous populations’ property rights; that is res nullius was employed ‘negatively’ to afﬁrm that indigenous peoples were in possession of their land and goods.15 However, irrespective of asserting indigenous property rights or not, as we shall see, Europeans argued that the indigenous populace had not exercised their natural rights to property, or, as these principles of colonisation became more reﬁned, were incapable of exercising such rights. What I want to emphasise here, attempting to steer clear of the conceptual pitfalls 324 C. BOISEN of ‘terra nullius’, is the various ways the idea of ‘empty land’, informed by the moral obli- gation to cultivate the land, embedded itself in the South African colonial narrative. The idea of ‘empty land’ in whatever terms it was expressed made the acquisition of original title through the establishment of formal signs of ownership an imperative. Daniel Dafoe’s Robinson Crusoe (1719) is illustrative of the internalisation and popularisa- tion of such principles. Crusoe is shipwrecked and confronted with what he believes to be ‘empty land’. Crusoe’s excessive fencing-in and enclosing of territory on the island is an example of the requirement to claim title by visible signs, and the discharge of his obli- gation for self-preservation by cultivation that had been so graphically illustrated by John Locke (1632–1704) in his chapter ‘Of Property’ in the Two Treatise (1689). As Wolfram Schidgen emphasises, Robinson Crusoe ‘displays a certain awareness concerning [the] ideological legitimation of property in human survival’.16 The vacuum of ‘terra nullius’ that Crusoe encounters, however, is also a moral one, in the Aristotelian sense that ‘nature abhors a vacuum’, that empty or unﬁlled spaces are ‘unnatural’ as they go against the laws of nature and physics. It was a moral imperative to colonise and cultivate that Locke vali- dated in his celebrated work, which was invoked profusely in connection with justiﬁca- tions of colonialism in following centuries.17 The way laws of occupation developed in relation to the discovery of ‘new worlds’ opened up a new space for arguing the moral legitimacy of European colonial expansion. The intellectual responses to the discovery of the ‘new world’ are in many ways an example of how political events interplay with political thinking, both provoking and con- straining the development of justiﬁcatory norms. Thinkers such as Hugo Grotius (1583– 1645) and Locke, later revered as ‘liberals’, conceptualised their political theories with reference to the colonial.18 The religious and political upheavals of the sixteenth and seventeenth centuries and encounters with strange new worlds clouded previous cultural and philosophical certainties. In addressing this, the natural law jurists often creatively handled canonical philosophical and legal texts. The outcome was an intellectual repacka- ging of the universal natural law prescriptions for the human condition applied to colonial relations. The idea of ‘empty land’, or ‘waste land’ was a useful conceptual device for Euro- pean expansion because it provided the link between property rights and the moral obli- gation to prosper. The general assertion was that natives too were potential holders of private property rights under the universal natural law. Nevertheless, they failed to exer- cise these rights, by falling short in various ways. Theories of property were fundamental to this effect and illustrate how colonialism was justiﬁed by understanding the European community as universal. It is especially in Locke where we ﬁnd that title to property depends exclusively on cultivation, and that the act of cultivating or tilling the earth is pre- sented as a moral duty.19 The right of Europeans to appropriate land derived from a duty, a duty imposed by God to make the ground productive, thereby giving prominence to cul- tivation and the labour associated with it.20 All the juridical writers reacting to the discovery of the Americas grappled with the notion of a right to ‘uninhabited’ land, which would later feature so prominently in Locke. They related the idea of unoccupied land to the principles of natural law, of exercis- ing one’s right to settle and cultivate the land to fulﬁl God’s plan of making the earth plen- tiful. Ideas of property rights in the early modern period rested on the assumption that God had given the world in common to mankind and that land found to be unused or unoccupied was open for legitimate occupation.21 David Boucher illustrates that Locke’s SETTLER COLONIAL STUDIES 325 originality was developing a universal theory of property without somehow conceding that the Indians owned their land by introducing a limited deﬁnition of labour and making it a moral obligation to engage in that particular type of labour. For him, labour and ownership are restricted to the kind of pursuit that is related to cultivation.22 Whether directly appealing to Locke’s theory of property, the industrial zeal for devel- opment amongst European settlers in America, Australia and Africa was characterised by the distinction between unproductive and productive land.23 Through cultivation and ‘productive’ use they could claim entitlement to it. The rationale for land appropriation was justiﬁed, then, on the basis that settlers merely exercised their rights; rights to land held in common with the ‘natives’, but which the ‘natives’ had not effectively used.24 What is perplexing in Locke is that, although private property does not require the context of civil society, prescribing a speciﬁc mode of production to exercise rights to property necessarily does. Locke therefore links natural rights with the demands of the ‘higher stages’ of civilisation.25 It is a mistake to claim that ‘terra nullius’, as one mode of acquisition, was used to ‘subsequently deny the [ … ] rights of aboriginal people’, as Ülgen asserts.26 It was rather a question of subverting Aboriginal rights to land by con- tending they had not exercised them. By the mid-eighteenth century Emer de Vattel (1714–1767), the eminent Swiss jurist, attempted to alleviate the seemingly contradictory aspects of the legitimacy of appropriat- ing ‘vacant’ land, and the pretexts for occupying it. He believed that unoccupied lands could be colonised, as they were the property of no one. Appropriating ‘wasteland’ is to be done only as a means of sustaining life in accordance with the natural law.27 Vattel’s deﬁnition of what counted as ‘wasteland’ is interesting. It was ‘wasteland’, not because there were no inhabitants, but because they merely ‘roamed’ the land. The Vattelian legal category of ‘wasteland’ was highly inﬂuential in American legal thought relating to the dispossession of the North American Indians. For instance, in Caldwell v. State (1832), it was determined that the Creek Tribe (Muscogee) did not show effective occu- pation. On this account, American settlers had the right to appropriate and take posses- sion of lands that were not ‘in actual or constant use’. For the Alabama judges presiding over the case, the Creek Indians had forfeited any just title to the land under the principle that ‘Those who live by the chase, must yield to the cultivator of the soil.’28 Throughout the colonial period, whether in the Cape Colony, America and Australia, a Western individualised approached to property rights remained central to claims that sought to exclude indigenous peoples from the lands they inhabited. This property rights approach, Jérémie Gilbert argues, is based on the ‘agricultural argument’ under which only land used with the aim of ‘production’ is protected and valued.29 It was there- fore not only nomadic peoples whose way of life were not considered to fulﬁl the criterion of ‘effective occupation’ of the land. Settled native agriculturalists were also excluded from ownership. The practice of claiming a natural right to appropriate land populated by indi- genous peoples on the basis that it was ‘empty’ or ‘uncultivated’ was applied to the colo- nial context in various ways. How did this work in South Africa? From the 1850s the notion of ‘empty land’ was used to justify the appropriation of lands in creating The South African (Transvaal) Republic and The Orange Free State. Furthermore, the idea of ‘empty land’ was deeply entrenched in Afrikaner mythology and was used well into the mid-1970s to explain how the Voortrekkers had fulﬁlled their divinely ordained manifest destiny to colo- nise ‘the frontiers’ of South Africa. 326 C. BOISEN ‘Empty land’ and ‘terra nullius’ in South African historiography Did the colonial settlers and the British colonial government treat Africa as ‘terra nullius’? Given the scholarly imprecision in using this term, this is a somewhat contentious ques- tion. The legal scholar Patrick Thornberry calls the nineteenth-century practice amongst especially American and English legal writers, of undermining indigenous peoples’ sover- eignty by claiming that their land was uninhabited territory for ‘academic conceit’ not sup- ported by actual state practice.30 He and other scholars base their claims on M. F. Lindley’s 1926 inﬂuential work The Acquisition and Government of Backward Territory in International Law. Writing at the height of international legal positivism, in the 1920s, where questions relating to the acquisition of the Poles were ﬁercely debated and framed by way of ‘terra nullius’ terminology, Lindley claimed that land inhabited by a substantive population was not terratorium nullius, and could not be legally appropriated. For him, a ‘doctrine which denies that International Law recognizes any rights in primitive peoples to the land they inhabit’ had no basis in legal precedent and was of more recent origin.31 The inﬂuential legal historian C.H. Alexandrowicz writes that the reality of the existence of organised political power made it impossible for the European powers to consider the whole African continent ‘terra nullius’.32 T.W. Bennett echoes this claim by arguing that African colonies were seldom treated as ‘terra nullius’, and that this was done for politically strategic reasons. Instead, the British extended their inﬂuence in their Southern African colonies by treaty and purchase of land. Of course many of these treaties, as was the case in North America and Australia, were of a dubious validity.33 Bennett cites the South African liberal historian Edgar Henry Brookes’s History of Native Policy in South Africa (1924) in support of this claim. Using Brookes as a source needs to be carefully con- sidered. Brookes posits a variation of the ‘empty land’ myth that was gaining traction at the time. The Africans were not ‘aborigines’, but conquerors, ‘as foreign to South Africa in 1500 as Europeans were’. Here, Brookes resurrects just war theories to justify European claims in Africa. If force conferred rights on them in taking the land, then the same logic applied to the Europeans’ claim to the land. However, with regards to ‘beneﬁcial’ occupation, Brookes continues, ‘Europeans have the stronger claim: their superior ability and civilisation would have warranted the subjugation’ of the ‘aborigines’.34 Legal historians, such as Alexandro- wicz and Bennett use the term ‘terra nullius’ in this positive sense, that is, to say that a ter- ritory was ‘terra nullius’ and therefore could be occupied, and then claim that was the way in which the term was used to justify colonisation. Albeit it was probably never used in this way to justify colonisation, as Fitzmaurice has so aptly shown. They disregard the frequent uses of ‘empty’, such as Brookes’ use of it, to state that land was occupied by indigenous peoples, but not properly as they did not show effective occupation by industrious use. The idea of ‘empty land’, as already noted, occupies an important ﬁxture in South African historiography. It was ﬁrst and foremost the inﬂuential South African historian George McCall Theal who popularised this myth in his multi-volume of History of South Africa. Theal charac- terised the history of South Africa as a struggle between civilisation and barbarism, which was underpinned by a belief in a hierarchy of civilisations.35 This scale of civilisation had been propagated by Europeans against non-Europeans at least since the discovery of the ‘new’ world. It comprised of savagery, barbarism and civilisation with rights that inhere in the higher, inaccessible to the lower because of some impediment correlative with the stage of human development a people had so far attained, or that may even congenitally SETTLER COLONIAL STUDIES 327 prevent them ever attaining. This European self-appointed guardianship of civilisation, as we will explore in more detail below, were further fuelled by theories of racial and neo-Darwi- nian supremacy in the nineteenth century. To this end, the empty land ‘myth’ would prove especially useful. Theal used it in his writings on colonial nationalism that promoted an idea of a common white South Africa that sought to foster the co-operation between the British and Boer settlers.36 The Voortrekkers had settled on land that was virtually empty, he argued, cleared by the ruinous wars in the 1820s between the Aboriginals in the interior and the Zulus.37 It was this God-sanctioned struggle for survival narrative that was taken up by subsequent South African historians in good keeping with the nationalist historiography of the time. Brookes, as noted above, reiterated the way in which Theal his- toricised South Africa as a struggle for the ‘survival of the ﬁttest’ or, the survival of the civi- lised against the barbarous. T. Maskew Miller’s Short History of South Africa (1909), written by J. Edgar, was mainly drawn from Theal’s work. Recounting the history of the ﬁrst Boer settle- ment in Natal, Edgar wrote, ‘when the pioneers of the emigrants ﬁrst looked upon it, it was a vast waste, almost without people, for the Zulu wars had swept it bare’.38 The myth of originally ‘empty’ land was so important to the Afrikaner political project that as late as 1975 the then leading Afrikaner historian F.A. van Jaarsveld rehearsed Theal’s claim that South Africa had been originally empty, or ‘unpopulated territory’, avail- able for ‘white’ occupation.39 The controversy over the status of the also mythic Mfecane was further reﬁned by the Apartheid regime to retrospectively justify colonising the interior. Shaka’s wars, so the story goes, displaced everyone, who either died, or ﬂed. The Voortrekkers then settled on empty land, cleared by Zulu aggression, or, ‘native’ inﬁghting, rather than European aggression. In the Afrikaner colonial narrative, the Boers had brought peace and civilised development. The ‘empty land’ myth was seminal in the construction of what became a powerful legitimating narrative that pre- sented Afrikaners as ‘the chosen people’ and South Africa as the ‘Promised Land’. Never- theless, regardless of how the idea of empty land was mythologised and reconstituted for later political purposes, it formed part of a set of prevalent arguments frequently used by Cape settlers, missionaries, Cape ofﬁcials, and the Voortrekkers to justify claims to land. The idea of ‘empty land’ in practice There had been a Dutch settlement in the Cape since the mid-seventeenth century, which was based on a land tenure granted from the Dutch Crown. It was the advent of British colonial rule in 1806, which ﬁrst prompted the Cape settlers to address questions of legit- imate land appropriation.40 The expansion of the Cape settlement took place as a gradual encroachment on land inhabited by the San and the Khoekhoe, while the latter part of the eighteenth century saw de facto wars of extermination against the former.41 On occasion, British and Dutch ofﬁcials expressed their discontent with the overall treatment of the indi- genous population, but such criticisms did not excite any attempts on the part of the colo- nists to justify their actions. Growing criticisms of settler societies at the beginning of the nineteenth century launched by missionaries marked a much more proliﬁc defence of set- tlers’ dealings with the indigenous peoples, as the legitimacy of their colonising enter- prises was brought into question. Historians André du Toit and Hermann Giliomee note that it is important to distinguish between Cape-settler views on colonial legitimation before the 1830s and after. In 1828 Researches in South Africa appeared. It was written 328 C. BOISEN by the head of the London Missionary Society in the Cape, John Philip (1775–1851), who severely admonished the colonists for their conduct towards the indigenous population. What Researches did was to question the legitimacy of the colonists’ settlements by stipu- lating that settler societies in the Cape were based on violent conquest, mistreatment and exploitation of the original indigenous inhabitants of the land.42 Philip and other leading ﬁgures of the London Missionary Society, including prominent social reformers such as Thomas Fowell Buxton (1786–1845), subscribed to a view of empire which was premised on the Victorian humanitarian duty of bringing spiritual and material prosperity to the ‘underprivileged’ races of the world. Central to humanitarian writings, like Researches, were notions of the ‘civilising’ mission which in many ways sought to justify the spread of Empire; the right empire that is. For Philip, empire provided a moral service and was a civic and moral responsibility not to be taken lightly: Wherever the missionary places his standard among a savage tribe, their prejudices against the colonial government give way; their dependence upon the colony is increased by the cre- ation of artiﬁcial wants; conﬁdence is restored; intercourse with the colony is established; industry, trade and agriculture spring up; and every genuine convert from among them made to the Christian religion becomes an alley [sic] and friend of the colonial government.43 Researches sparked several literary reactions in defence of the Dutch Cape settlers. One such defence was The Record (1838–1841) – a set of documents compiled by Donald Moodie, a Cape Colony ofﬁcial, which set out to disprove Philip’s damaging account of the colonial settlers by claiming that the Africans were nothing but untrustworthy barbar- ians whom the colonists had treated equitably.44 Another defence was a lecture entitled ‘Something about the so-called earlier right of ownership to this country of the Hotten- tots’, written by a Cape Colony lawyer J. de Wet in 1838. De Wet denies that Africans have any eminent domain, or sovereignty rights. The ‘Hottentots’, he argues, merely occu- pied the land with their cattle – or ‘wandered with their cattle’, thereby reproducing Vattel’s legal maxim of just title to wasteland. As such, when Jan van Riebeeck landed at the Cape in 1652, purchase of the land or any other transaction essential for rightful ownership was not necessary. De Wet concluded no real property rights to the land existed among its original inhabitants, and thus also that the accusation that our forefathers violated those rights is without any grounds. They did no more than dispose of barren, uninhabited and uncultivated land and make this their property, which [ … ] was what was intended at the establishment of this settlement.45 What is noticeable is the direct appeal to ‘cultivation’ used to justify settlers’ claims to land. These claims were eventually echoed by Paul Kruger (1825–1904), president of the Repub- lic of the Transvaal in his hagiographical account of the Afrikaner struggle for survival in South Africa (1902): During the ﬁrst years of our settlement as well as during our wanderings [The Great Trek] it was our task to clear the recently acquired land of wild animals, which had hitherto roamed about unstrained side by side with the wild races, and thus protect our pastures.46 The use of ‘cultivation’ as a standard of legitimate land-appropriation would feature pro- minently as ideas vindicating Afrikaner colonialism became more reﬁned. It is doubtful whether the Great Trek at the time epitomised a sort of ‘Manifest Destiny’ for the Afrikaner nation, as it would later emerge in the Afrikaner national narrative, but SETTLER COLONIAL STUDIES 329 despite the Voortrekkers’ own misgivings, as Giliomee and du Toit write, one of the upshots of the Trek was that they were aware of the fact that ﬁnding a new settlement in the interior would call in to question their legitimacy.47 Following the Great Trek, more reﬁned ideas of colonisation appeared. The Calvinist doctrine of the sovereignty of God and his tenet that ‘the lord has created the earth to be lived upon and cultivated’ was mentioned.48 Gradually, vindications of their new settlement became manifest rather than apologetic, and by the 1850s the Voortrekkers came to regard themselves as a new settler society with a distinct political destiny. The currency of ‘waste’ or ‘underused’ land as a valid basis of colonial legitimation is also demonstrated in its diverse usage. We see this in David Livingstone’s (1813–1873) account of Boer society. The Boers did show signs of basic productivity in the land, he argued, but largely grazed cattle over huge areas and failed in their duty to cultivate it efﬁ- ciently. Livingstone’s attitude towards the Boers was scathing. Writing in the 1850s, he invoked the principle of husbandry to stiﬂe their claims to new settlements in Natal and the Transvaal. The Boers, he noted, had ‘become exactly like the Blacks, – more pastoral than an agricultural race [ … ]’. Their encroachments differed ‘essentially from the advance of civilised communities into the domain of savages elsewhere’.49 In principle, such impingements into vacant land were perfectly justiﬁable. The Boers’ violence and wrongs committed against ‘the Barbarous tribes’ in procuring these lands, however, further excluded them from legitimate title. For, as Livingstone explained, the primitive charter [the biblical text] contained the conditions that we should ‘subdue and replenish’ the soil. The earth is the original inheritance of the entire species, for it is written, ‘The earth hath He given to the children of men.’50 It was apparent to Livingstone that whomever cultivates a portion of the earth can claim a more legitimate title over it than those who merely hunts over it. People who were ‘willing to toil the soil’ were exercising the rights of a civilised community and were man- dated by God to do so because they had entered into ‘the Divine design to render the earth productive of the greatest amount of good to the greatest possible number’.51 Thus, in their failure to cultivate the land, the Boers were disqualiﬁed and on a par with the indigenous people. Paul Kruger disagreed with Livingstone’s interpretation. The Boers, he thought, had been abused by the famous explorer ‘throughout the length and breadth of England, and slandered in every possible way as enemies of the missionaries and cruel persecutors of the blacks’. As a matter of fact, Kruger contin- ued, ‘the Boers were neither opposed to the mission nor enemies of the natives. Their principle was to allot a district to every tribe that kept quiet and peaceful and was willing to accept civilization’.52 Even Kruger ostensibly subscribed to the need to bring civilisation to the natives, a notion typically associating with the British ‘civilising mission’. In his inauguration address of 1888 he directed some of his remarks to the ‘blacks’ of the republic: ‘You have a right to the protection of the laws of this Republic. Whether you make use of the opportunities given you to acquire civilisation depends upon yourselves.’53 Successive Afrikaner leaders would further reﬁne these ideas, especially those relating to the ‘manifest destiny’ of the Afrikaner volk. In the 1958 celebrations commemorating the Battle of Blood River, the newly elected Prime Minister of South Africa, HF Verwoerd (1901–1966), remarked that: 330 C. BOISEN [a]lthough we no longer trek, we say like the Voortrekker of yore, ‘we can still ﬁght.’ And we shall ﬁght even though we might perish. [ … ] We shall do battle for the survival of the white man at the southern tip of Africa and the religion which has been given him to propagate here. [ … ] We ﬁght not for gold or goods. We ﬁght for the life of our People. [ … ] Why should whites have been led to the southern tip of Africa three hundred years ago? Why was half of the country unoccupied [ … ]. How could they undergo their wars of independence and, win or lose, yet survive as a nation? Why was all that given to us if there was no purpose in it? And I believe this to be the purpose – that we should here be an anchor and a stay for western civilization and the Christian religion.54 What Verwoerd invoked here was an array of ideas that legitimised white minority rule: right to self-preservation, survival of the ﬁttest, the doctrine of predestination – that Afri- kaners were ‘the Chosen People’, trusteeship, the civilising mission, and the idea of orig- inally empty land.55 The principle of appropriating ‘unoccupied’ land became not only emblematic but also instrumental in creating a dichotomy between ‘civilised’ and ‘barbarous’ or ‘savage’ societies on the one hand, and civilised peoples on the other, which was central in shaping relations between European and non-European states. ‘Unoccupied’, as we have seen, came to mean underused or under-cultivated land, implying that the ‘natives’ had failed in their moral duty to cultivate the land, a duty imposed by God upon Adam and Eve on expulsion of the Garden of Eden.56 Crais refers to this principle by subsequently noting that the notion of vacant or empty becomes an ‘elision’ or ‘emptying’ of the humanity of the African and the formulation of a set of negative stereotypes, was embedded in this creation of empirical fact – the observation of the apparent materiality of an empty land.57 In the seventeenth century, the American Indians were seen as being subject to the uni- versal laws of nature. By the nineteenth century, the same was also true in Africa, where, following the Conference at Berlin in 1884–1885, the idea of trusteeship as the most soph- isticated legitimising rationale of empire became the principal colonial reasoning for expropriation. Here, it was conceived that Africans had failed to progress up the ladder of civilisation, and prosperity and civilisation were only attainable through the guidance and aid of more civilised peoples, who were duty-bound in this respect. Trusteeship and the civilising mission The idea of trusteeship legitimised the social order of empire by clothing it in aspirational principles of emancipation and salvation. Trusteeship had emancipatory potential and envisaged ultimate sovereign independence for peoples and nations. This obfuscated key political and economic interests invested in such ‘assisted development’. Making the land as productive as possible remained a ﬁxed feature in the colonial justiﬁcatory nar- rative, which was to ensure that a native workforce could fully exploit the resource poten- tial of the land. As with the idea of ‘empty land’, cultivation was constitutive of trusteeship through its corollary relationship with property. What trusteeship formally did was to sep- arate the connotations of ‘right’ and ‘dominion’, thereby making the enjoyment of a thing held in trust something distinct from exercising control over that thing. The criterion of ‘productive cultivation’ in the economic behaviour of foreign subjects acted as a key measure of the level of ‘maturity’ they would have to attain before they could be thought to manage their sovereign affairs in international relations, that is, without the SETTLER COLONIAL STUDIES 331 assistance of an imperial trustee. This criterion became the prescribed pattern of relations that the European powers employed in dealing with ‘native tribes’, and was institutiona- lised with the Berlin Conference in 1884–1885, thereby establishing international legal obligations concerning the welfare of Africans.58 Lord Lugard (1858–1945) claimed that: In conquered countries, where Government has claimed the control of the land, it would seem that that control cannot be better justiﬁed, or exerted with greater beneﬁt to the people, than by imposing such restrictions on the transfer of lands as may preserve an ignorant peasantry from the consequences of its own improvidence.59 Thinking about the moral justiﬁcation of ‘trusteeship’, regarding what was held in trust by the Europeans, the self-appointed guardians of civilisation were not ultimately concerned with land. Indeed, Lugard used an epigraph from Joseph Chamberlain on the cover page of The Dual Mandate, stating upfront: ‘We develop new territory as Trustees for Civilization, for the commerce of the world.’ In 1888, the Institut de Droit International, the leading forum for debate over inter- national law in the nineteenth century, met to discuss the legal principles that arose from the Berlin Conference and distil them into regulations of international law. Impor- tantly, one new doctrine to be recognised was the idea of territorium nullius. The legal term of territorium nullius seems to have disappeared from the legal vocabulary, but given the political context in which it arose, it carved a conceptual and political space for the idea of trusteeship by conceding the possibility of property rights existing without sovereignty. The legal bar was set high into what counted as ‘sovereignty’. Peoples were placed on a developmental ladder, as they invariably had been since the six- teenth century and, as Fitzmaurice notes, ‘their position on that ladder would determine the degree of colonial intervention that could be justiﬁed’.60 One of the Institute’s members, F. de Martitz, a German professor of law at Tübingen who had been present at the Berlin Conference noted that ‘it is an exaggeration [ … ] to talk about the sover- eignty of savages or half- barbarian peoples’.61 Although his views proved controversial at the time, the notion of territorium nullius conveniently allowed colonisers to establish sovereignty over territories while recognising the property rights of indigenous peoples. It was then the political and moral framework of trusteeship that determined how these property rights were to be exercised (or not, as it usually proved to be the case). Even if its meaning changed through time, trusteeship has been used to justify rule over foreigners at least since Edmund Burke used the term to account for the obligations the British Crown owed its Indian subjects in the 1780s. The political theorist William Bain has argued that the story of trusteeship reminds us that the history of empire cannot simply be reduced to a story of domination and exploitation, as this story stops short without emphasising the importance that the ‘civilising’ measures played in the history of empire.62 Thomas Fowell Buxton explained that ‘[o]ne part of our national debt to Africa has already been acknowledged by the emancipation of our colonial slaves. There remains yet, however, a larger debt uncancelled, – that of restitution to Africa itself’.63 Buxton and his counterparts aimed to substitute the trade of slaves with that of commercial goods coupled with the good news of the gospel. This necessarily entailed a particular system promoting security and stability. Introducing commerce into Africa invited questions of property that gave new scope to its application and theorisation. British colonial secretary Earl Grey (1802–1894), who 332 C. BOISEN pushed for an informal mode of empire that integrated spiritual and commercial ideals, wrote that only the ‘civilising effect of commerce and of missionary enterprise’ could bring about security and order in the Cape colony.64 These sanguine hopes were crushed by the Kat River Rebellion in 1851. The Cape liberal ideals of universal progress, civilisation, and salvation, further reﬁned with the inﬂux of the missionaries to the colony in the 1830s were premised on native industriousness and cultivation of the land. In the justiﬁcatory narrative of trusteeship then, we ﬁnd a perfect accord in ‘emanci- pation’ and ‘economic development’. Trusteeship and appropriation of land in South Africa The gradual introduction of Cape liberalism, which took hold during the ﬁrst decades of British administration of the Cape, instituted various measures to formally recognise abori- ginal title. In 1828, Ordinance 50 was passed. It guaranteed equal legal rights to all free persons of colour to acquire land on par with the European settlers. Later, in 1853, repre- sentative government was granted throughout the colony. Why the Cape should have put in place such a relatively open franchise has been the subject of historiographical contro- versy. Older liberal historians tended to frame this as a manifestation of Cape liberalism. More recently, revisionists have stressed the ambiguities and contradictions of Cape liber- alism, and have seen the franchise as a less signiﬁcant, unexpected outcome of various issues.65 Ordinance 50 formally enabled Khoekhoe ownership of land by abolishing pass laws. It also released Khoekhoe from any ‘apprenticeship’ requirements. However, severe social displacement meant that these changes could not be enforced. Most of the Khoekhoe were landless and few could afford to buy land.66 Ordinance 50 was fol- lowed by a lack of consistent government policy in recognising the indigenous land system. Indeed, lands occupied by the Khoekhoe were considered Crown land, and indi- genous title depended instead on Crown grants. In this way the Khoekhoe had only per- missive rights of occupation, which undercut any title they could claim. These were based on the so-called government ‘Tickets of Occupation’, where Khoekhoe lands were adminis- tered as mission stations and farms, and were considered to be held in ‘trust’ for them by the government and missionaries.67 Qualiﬁcation for these land tenures carried certain conditions that made various pre- sumptions about recognisable modes of agriculture, which the Africans inevitably fell short in complying with. One such settlement was the Kat River Settlement. Giving testi- mony to The Select Committee on Aborigines, in 1830, Philip praised the ‘coloureds’ of the Kat River Settlement for their progress. It was an ideal picture of the achievements of Chris- tianised, educated and civilised indigenous people. The ‘Hottentots’, he noted, worked hard to cut canals and to grow ‘an abundance of pumpkins, Indian corn, peas, beans, etc.’; and had enthusiastically taken to churchgoing.68 In this account of the conditions to attain an industrious civilised society the notion of ‘cultivation’ featured prominently. The story of the Kat River Settlement illustrates the variability of the applications of prin- ciples of colonial justiﬁcation. When the ‘coloureds’ of the Kat River Settlement rebelled in 1851 it was not to attain independence, but rather to claim rights as subjects of the empire – their rights as British subjects. The founding missionaries of the Kat Settlement, James Read and his son James Read Jr., who was coloured, saw the rebellion as ruining their SETTLER COLONIAL STUDIES 333 life work and went out to try to dissuade individuals from joining the rebellion.69 In January 1851 they wrote: Let the Hottentots remember the blessings they have enjoyed under the British Government and what is now in jeopardy, viz., the elements which constitute social and political happiness, – Christianity, civilisation, and British Institutions.70 What truly doomed the Rebellion was not a divide between the ‘coloureds’ who embraced European civilisation and those who rejected it, as Robert Ross suggests arguing that the rebellion was an early expression of ‘Hottentot Nationalism’.71 Rather, it cut at the heart of trusteeship, at the disingenuous gap between the equality that the ‘coloureds’ had been promised and domination. The Kat River ‘coloureds’ disagreed about what ‘civilisation’ entailed. They believed they had complied with the conditions of trusteeship and had thus reached the standards for independent, rational autonomy that had been used to legitimate imperial rule over ‘uncivilised’ peoples. ‘Civilisation’ was an effective reference for both oppression and resistance. Another example that illustrates how conditions of ‘effective productivity’ undercut any meaningful indigenous title to land and how the principles of husbandry informed the practice of trusteeship is the administration of the Transkei Territories (part of the Eastern Cape). Instilled with the sort of Victorian civilising ideal that Philip was promot- ing, the Transkei administration developed in the 1880s as a result of settler expansion. It comprised of several magisterial districts, each under the administrative and judicial control of a magistrate, and authority was exercised directly by the Natives Affair Department. Initially, it was decided not to open up the Transkei to white immigration. These new territories were to be governed differently from the Cape, by recognising local customary law, provided that it was ‘compatible with the general principles of humanity observed throughout the civilized world’, as was declared in the ofﬁcial Cape Proclamations 110 and 112 of 1879.72 Thus, as Bennett notes, local customary laws that did not conﬂict with British interests were allowed to continue. But where they stood in conﬂict, they were superseded under the guise of universal natural prin- ciples, which were then used as a baseline for British interests. Colonial legitimacy was thus asserted by prescribing speciﬁc standards for ‘uplifting’ the ‘natives’ to British notions of civilisation, thereby undermining local chieﬂy authority by removing their power over the land.73 By the 1920s, the ‘Transkeian tradition’ of Victorian benevolent paternalism had reached ‘quasi-mythological status’.74 One ofﬁcial, Frank Brownlee, noted that it was the earlier ‘settling and civilising effect of missionary effort’ that formed the cornerstone of its later administration.75 Throughout the Transkei territories, the ‘liberal’ education that the colonial administration, indirectly, sought to provide was informed by a vision of progressive detribalisation, leading to the unconditional accep- tance of the ‘civilising’ ideal. In short, the Africans were educated to become integrated, good Europeans. And of course, sedentary agriculture and urbanisation were markers of a ‘civilised’ proprietary system.76 Indeed, for Sir George Grey (1912–1898), who took up the colonial governorship of the Cape in 1855, the only solution to radical assimilation, or ‘amalgamation’ as he termed it, was exposing the native races to Western justice, education, health care and (importantly) agricultural techniques.77 Such scheme required the insertion of European settlers and the destruction of indigenous culture. As Grey self-assuredly explained: 334 C. BOISEN Talented and honourable European gentlemen being brought into daily contact with the [Xhosa] chiefs, and interesting themselves hourly in their improvement and advancement will in degrees gain an inﬂuence over them which will in the course of time induce them to adopt our customs and laws in place of their own, which the system I propose to introduce will gradually undermine and destroy.78 The intent was to assist the ‘well-to-do Natives who may wish to better themselves in lines of civilized development’.79 Through the nineteenth century and the beginning of the twentieth, the assumption that Africans had no real recognisable title to land was further entrenched in colonial discourse and imperial jurisprudence. Here, the seminal 1919 Privy Council decision Re Southern Rho- desia became the deﬁning case deciding on the question of Crown title and the land rights of indigenous people. In land appeals, the Judicial Committee of the Privy Council (JCPC) were regularly called upon to determine the Crown’s underlying title, that is, its ‘radical title’. The central question related to the extent of indigenous communal ‘usufructuary’ land rights imposed on the Crown. The case of Re Southern Rhodesia concerned the legal status of lands in Mashonaland and Matabeleland. These lands comprised of ‘native reserves’, ‘unsettled country’, in addition to land occupied by the British South African Company. The JCPC in Re Southern Rhodesia upheld the supremacy of Crown title, and for- mally rejected claims that recognised aboriginal title on the basis of the natural and devel- opmental inferiority of aboriginal peoples.80 Here, Lord Sumner notoriously asserted: The estimation of the rights of aboriginal tribes is always inherently difﬁcult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.81 Ndebele land rights (part of modern day Zimbabwe) were dismissed on the basis that the lands were effectively ‘empty’. It was recognised that the idea of individual ownership was unknown to African culture.82 ‘It would be idle’, Lord Sumner stipulated, ‘to impute to such people some shadow of the rights known to our law and then to transmute it into the sub- stance of transferable rights of property as we know them.’83 As Jérémie Gilbert argues ‘[i] ndigenous notions of property were deemed too “primitive” to be recognised under “civi- lized” laws’.84 Conceptually, Re Southern Rhodesia wielded a trusteeship position of a kind: The ‘maintenance of [Ndebele] rights were fatally inconsistent with white settlement of the country’, meaning that the indigenous system of law was not sufﬁcient to secure indi- genous rights: Chief Lobengula’s duties, if describable as those of a trustee, were duties of imperfect obli- gation. Except by fear or force he could not be made amenable. He was the father of his people, but his people may have had no more deﬁnite rights than if they had been the natural offspring of their chieftain.85 ‘Terra nullius’ understood in a ‘positive’ sense was thus not part of ofﬁcial British colonial policy in Africa. Nevertheless, ofﬁcial colonial policy and settler rationale appealed to a nor- mative standard of ‘emptiness’ that denoted speciﬁc qualiﬁers in claiming title to land, such as proven ‘productivity’ and ‘cultivation’; qualiﬁers, which Africans ultimately fell short in meeting. Overall, what remained central in this period was the necessary judge- ment on the progress and advancement of the ‘native races’ against a ‘universal baseline’. This universal baseline followed ideas of ‘terra nullius’ and trusteeship that appealed to a stadial model of civilisation based on a principle of husbandry. SETTLER COLONIAL STUDIES 335 ‘Cultivation’ and South African land reform after 1994 The marginalisation of intellectual history as a ﬁeld of enquiry into South Africa’s colonial past has been accompanied by a pervasive discrediting of the historiography dealing with principles of colonisation. This discrediting coincides with a more pragmatic and politically motivated approach to restorative justice that jettisons issues of land dispossession pre- 1913. The Restitution of Land Rights Act 22 of 1994 was commissioned to provide equi- table compensation to victims of racially motivated land dispossession, and considers claims that were made after the 1913 Land Act. The latter act was aimed at regulating the acquisition of land by Africans. To many commentators, the 1913 Land Act was the ﬁrst instance of ‘Apartheid’ legislation.86 Although the conceptual framework of the Res- titution Act provides recognition of Aboriginal title, there is no statutory corrective mech- anism for pre-1913 land rights restitution.87 This is deemed incompatible with a ‘new’ South Africa that seeks to counteract years of systematic racially motivated discrimination by various constitutional and land reform policies. But as we have seen, what lay behind these pre-1913 dispossessions were highly sophisticated and effective colonial tropes: ‘the civilising mission’ and its corollary, cultivation.88 South Africa faces many challenges in its attempt to rectify past wrongs. It is widely acknowledged that land reform and land distribution in post-apartheid South Africa are failing.89 One explanation for this inability to resolve the land question is the disingenuous gap between ideals of justice and public policy, politics and state security. This is partly illustrated by the subsequent quantiﬁcation of proven ‘productivity’ and ‘cultivation’, which continue to inform and prejudice questions of land entitlement in South Africa (among other norms and expectations related to food security and economic viability). These standards are invoked now by ANC governmental institutions as a condition that ‘disadvantaged’ Africans must comply with in order to qualify for land restitution. There are at least two recent cases that exemplify this, the Baphiring case and the Mhlan- ganisweni case (Mala-Mala). Both hinge on the question of ‘cultivation’. In these instances, the ‘feasibility’ mentioned in Section 33 of the Restitution of Land Rights Act 22, was inter- preted to mean ‘proven ability’ to use the land proﬁtably, often deﬁned in terms of levels of production prior to restoration. Ruth Hall has asserted, ‘feasibility in section 33 of the Resti- tution Act was originally concerned with the possibility of restoring land, rather than whether it was convenient or cost-effective to do so’.90 This places huge onus on claimants to demon- strate potential for proﬁtable use, as a precondition for restoration, which is why the Legal Resource Centre, acting for NGOs as amicus curiae, have been contesting both cases. In the Baphiring case, the Land Claims Court (LLC) initially rejected the Baphiring community’s claim for the return of their land partly on the basis of their inability to take over commercial farms. This ruling was appealed in the Supreme Court of Appeal on land claims, which has subsequently overturned this decision and referred the claim back to the LCC.91 Concerns with ‘proven ability’ seems somewhat odd in light of the letter of South Africa’s Constitution, given that the constitution only makes reference to the 1913 Land Act and restoration and associated historical wrongs. The Baphiring judgement exempliﬁes how notions of ‘econ- omic viability’ or ‘commercial viability’ are applied as criteria for land restoration and are used as markers for determining ‘feasibility’ in cases of land restoration. This reﬂects a shift in government policy, as Ruth Hall argues, ‘away from restoration of rights toward econ- omic concerns that have nothing to do with righting individual wrongs’.92 336 C. BOISEN Attending to the ideological histories of dispossession, their evolution as well as their relation to the practice of colonialism, we get a sense of the false justiﬁcations of the past and how they have resulted in a legacy of domination that still functions in ways that should be recognised. This study highlights the degree to which current social inequalities persist because of the ‘intellectual’ legacy that ‘black’ South Africa inherited in 1994. The explicitly colonial principles justifying land appropriation have been formally abandoned, and yet, they continue to distort the opportunities for restoring titles to ancestral land. Notes 1. See Lorenzo Veracini, Settler Colonialism – A Theoretical Overview (New York: Palgrave Macmillan, 2010). 2. Christopher Allsobrook and Camilla Boisen, ‘Two Types of Trusteeship in South Africa: From Sub- jugation to Separate Development’, Politikon - South African Journal of Political Studies, doi:10. 1080/02589346.2015.1121623. 3. Shula Marks, ‘South Africa – “The Myth of the Empty Land”’, History Today 30, no. 1 (1980): 7–12. 4. Julian Cobbing, ‘The Mfecane as Alibi: Thoughts on Dithakong and Mbolompo’, Journal of African History no. 29 (1988): 487–519; Clifton Crais, ‘The Vacant Land: The Mythology of British Expansion in the Eastern Cape, South Africa’, Journal of Social History 25, no. 2 (Winter, 1991): 255–75. 5. Crais, ‘The Vacant Land’, 256. 6. In Australia, the debates over Aboriginal dispossession, have been known as the ‘history wars’. See Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Sydney: UNSW Press, 2006); Michael Connor, The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia (Sydney: Macleay Press, 2005); Keith Windshut- tle, The Fabrication of Aboriginal History – The Stolen Generations 1881–2008 (Sydney: Macleay Press, 2009). See also Kevin Williams, ‘Critique: A Historian Said Terra Nullius Was an Invention – I’m a Blackfella Lawyer Who Has Serious Concerns about His Lack of Understanding and Knowl- edge of the Common Law’, Newcastle Law Review 10, no. 1 (2008): 37–48. 7. See, for instance, Özlem Ülgen, ‘Developing the Doctrine of Aboriginal Title in South Africa: Source and Content’, Journal of African Law 46 (2002): 131–54; T.W. Bennett ‘African Land – A History of Dispossession’, in Southern Cross: Civil Law and Common Law in South Africa, ed. Rein- hard Zimmermann and Daniel P. Visser (Oxford: Clarendon Press, 1996), 65–94; C.H. Alexandro- wicz, The European-African Confrontation – A Study in Treaty Making (Leiden: A.W. Sitthoff, 1973). 8. Edward Cavanagh, Settler Colonialism and Land Rights in South Africa: Possession and Disposses- sion on the Orange River (London: Palgrave Macmillan, 2013), 8. 9. There are exceptions, of course. See André du Toit, ‘No Chosen People: The Myth of the Calvinist Origins of the Afrikaner Nationalism and Racial Ideology’, The American Historical Review 88, no. 4 (October 1983): 920–52. Legal scholars have explored aspects of terra nullius and land rights in South Africa: Ülgen, ‘Developing the Doctrine of Aboriginal Title’ Bennett ‘African Land’. 10. An exception is P. Vale, L. Hamilton, and E.H. Prinsloo (eds.), Intellectual Traditions in South Africa: Ideas, Individuals and Institutions (Pietermaritzburg: UKZN Press, 2014). 11. Stuart Banner, How the Indians Lost Their Land – Law and Power on the Frontier (Cambridge, MA: The Belknap Press of Harvard University Press, 2005). 12. Wolfgang Reinhard, A Short History of Colonialism (Manchester: Manchester University Press, 2011), 206–7. 13. See, for instance, Lauren Benton and Benjamin Straumann, ‘Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice’, Law and History Review no. 28 (2010): 1–38. 14. Andrew Fitzmaurice, Sovereignty, Property and Empire 1500–2000 (Cambridge: Cambridge Uni- versity Press, 2014); Andrew Fitzmaurice, ‘The Genealogy of Terra Nullius’, Australian Historical Studies no. 129 (2007): 1–15, 10. 15. Fitzmaurice, ‘The Genealogy of Terra Nullius’, 9. SETTLER COLONIAL STUDIES 337 16. Wolfram Schmidgen, Eighteenth-Century Fiction and the Law of Property (Cambridge: Cambridge University Press, 2002), 48. 17. David Boucher, The Limits of Ethics in International Relations – Natural Law, Natural Rights, and Human Rights in Transition (Oxford: Oxford University Press, 2009), chap. 4. 18. David Armitage, ‘John Locke, Carolina, and the Two Treatises of Government’, in Political Theory 3, no. 5 (2004): 602–27, 602–3. Exploring the link between empire and Liberalism, see Jennifer Pitts, ‘Political Theory of Empire and Imperialism’, Annual Review of Political Science no. 13 (2010): 211– 35. 19. David Boucher, ‘The Law of Nations and the Doctrine of Terra Nullius’, in War, the State and Inter- national Law in Seventeenth-Century Europe, ed. Olaf Asbach and Peter Schröder (Farnham: Ashgate Publishing Ltd., 2010), 63–82. 20. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988) Chap. V, see also I, 144–5; II, 291–2. 21. Boucher, ‘The Law of Nations and the Doctrine of Terra Nullius’, 71. 22. Boucher, The Limits of Ethics, 127–9. 23. On Locke and colonialism, see Armitage, ‘John Locke, Carolina, and the Two Treatises of Govern- ment’; Barbara Arneil, John Locke and America The Defence of English Colonialism (Oxford: Clar- endon Press, 1996); James Farr and Duncan Ivison, ‘Locke, Liberalism and Empire’, in The Philosophy of John Locke, ed. Peter R. Anstey (London: Routledge, 2003), 86–105. 24. Boucher, ‘The Law of Nations and the Doctrine of Terra Nullius’, 79. 25. Camilla Boisen, ‘The Changing Moral Justiﬁcation of Empire: From the Right to Colonise to the Obligation to Civilise’, History of European Ideas 39, no. 3 (2013): 335–53, 341–2. 26. Ülgen, ‘The Doctrine of Aboriginal Title’, 134. 27. Emer de Vattel , The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, trans. Charles G. Fenwick (Washington, DC: Car- negie Institute of Washington, 1916), book I, chap XVIII, 208–9, 85. 28. Cited in Tim Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sover- eignty of Native American Nations (Athens: Georgia University Press, 2002), 160. 29. Jèrèmie Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights’, Human Rights Law Review 7, no. 4 (2007): 681–716. 30. Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002), 75. 31. M.F. Lindley, The Acquisition and Government of Backward Territories in International Law Being a Treatise on the Land and Practice Relating to Colonial Expansion (London: Longmans, Green, 1926), 12–20. 32. Alexandrowicz, The European-African Confrontation, 12–13. 33. Bennett, ‘African Land’, 69. Arguably, treaties were few and far between and it its more apt to say that conquest was prevalent. Fitzmaurice argues that treaties were yet another instrument of colonial occupation. ‘Genealogy of Terra Nullius’, 13 fn. 37. 34. Edgar Henry Brookes, History of Native Policy in South Africa (Pretoria: J.L. Van Schaik, 1924), 502. 35. Desirée Lewis, ‘Self-representation and the Reconstruction of Southern African Pasts: Bessie Head’s A Bewitched Crossroad’, in Deep Histories: Gender and Colonialism in Southern Africa, ed. Wendy Woodward, Patricia Hayes, and Gary Minkley (Amsterdam: Rodopi B.V. Editions, 2002), 267–82, 269. 36. Benedikt Stuchtey, ‘In Search of Lost Identity: South Africa Between Great Trek and Colonial Nationalism 1830 – 1910’, in Across Cultural Borders: Historiography in Global Perspective, ed. Eckhardt Fuchs and Benedikt Stuchtey (Boston: Rowman and Littleﬁeld, 2002), 53–74, 63. See also Deryck Schreuder, ‘The Imperial Historian as Colonial Nationalist: George McCall Theal and the Making of South African History’, in Studies in British Imperial History: Essays in Honour of A.P. Thornton, ed. Gorden Martel (London: Macmillan Press, 1986), 95–159. 37. Donald Wright and Christopher Saunders, ‘The Writing of the History of Canada and of South Africa’, in The Oxford History of Historical Writing: Volume 4: 1800–1945, ed. Stuart Macintyre, Juan Maiguashca, and Attila Pók (Oxford: Oxford University Press, 2011), 390–409, 401. 338 C. BOISEN 38. J. Edgar, T. Maskew Miller’s Short History of South Africa & Its People (Cape Town: T. Maskew Miller, 1909), 128. 39. F.A. van Jaarsveld, From Van Riebeeck to Vorster, 1652–1974: An Introduction to the History of the Republic of South Africa (Pretoria: Academica, 1975), 54. 40. Ülgen, ‘The Doctrine of Aboriginal Title’, 137. 41. Indigenous cattle herders of Namaqualand in the Cape Colony called themselves ‘Khoekhoe’ in the Namaqua dialect. The derogatory term used by Europeans was ‘Hottentots’. 42. André Du Toit and Hermann Giliomee, Afrikaner Political Thought: Analysis and Documents 1780– 1850, vol. one (Cape Town: David Philip, 1983), 196. 43. John Philip, Researches in South Africa – Illustrating the Civil, Moral and Religious Conditions of the Native Tribes (London: James Duncan, 1828), x; see also Du Toit, ‘No Chosen People’, 937–8. 44. Wright and Saunders, ‘The Writing of the History’, 400. 45. J. De Wet ‘Something about the So-called Earlier Right of Ownership to This Country of the Hot- tentots’, in Het Nederduitsch Zuid-Afrikaansch Tijdschrift, 1838, Afrikaner Political Thought: Analysis and Documents 1780–1850, vol. one, ed. André Du Toit and Hermann Giliomee (Cape Town: David Philip, 1983), 212–13. 46. Paul Kruger, The Memoirs of Paul Kruger, ed. Dr A. Schowalter (Toronto: Morang, 1902), 17. 47. Du Toit and Giliomee, Afrikaner Political Thought, 200. 48. H.T. Bührmann ‘Which Country Is in More Rightful Possession of the Descendants of Europeans than Our Country?’, Afrikaner Political Thought 5, no. 10 (1860): 226–9. 49. David Livingstone, ‘The South African Boers and Slavery’, ed. I. Schapera (Cape Town: Van Rien- beeck Society, 1974); 67–95, 76. 50. Livingstone, ‘The South African Boers and Slavery’, 75–6. 51. Livingstone, ‘The South African Boers and Slavery’, 76–7. 52. Kruger, Memoirs, 40. 53. Kruger, Memoirs, 41, fn. 1. 54. Cited in T. Dunbar Moodie, The Rise of Afrikanerdom – Power, Apartheid and the Afrikaner Civil Religion (Berkeley: University of California Press, 1980), 284. 55. In the 1960s it was common for nationalist Afrikaners to appeal to the Calvinist doctrine of pre- destination to justify racial segregation. This was based on the idea that God had preordained salvation for some and eternal damnation for others. See Susan Rennie Ritner ‘The Dutch Reformed Church and Apartheid’, Journal of Contemporary History 2, no. 4 (October 1967): 17–37, 24. André du Toit has convincingly shown how ‘the Calvinism paradigm’ – the view that that the Afrikaner religio-political convictions of the mid-twentieth century have their roots in Calvinism – is a political construct of the 1920s and 1930s. See du Toit ‘No Chosen People’. 56. Boucher, ‘The Law of Nations and the Doctrine of Terra Nullius’, 69–70, 77. 57. Crais, ‘The Vacant Land’, 257. 58. Cited in William Bain, ‘Repaying the National Debt to Africa: Trusteeship, Property, and Empire’, Theoria – A Journal of Social and Political Theory no. 133 (December 2012): 1–20, 2–4. 59. Lord Frederick Lugard, The Dual Mandate in British Tropical Africa , 5th ed. (London: Frank Cass, 1965), 294. 60. Fitzmaurice, ‘The Genealogy of Terra Nullius’, 14. 61. Cited in Fitzmaurice, ‘The Genealogy of Terra Nullius’, 11. 62. Bain, ‘Repaying The National Debt to Africa’, 6. 63. Cited in Bain, ‘Repaying The National Debt to Africa’, 6. 64. ‘Grey to Governor Cathcart’, 2 February 1852 (no. 23), A & P, 1852, XXXIII [I428]: Correspondence relative to the outbreak on the eastern frontier, 256–9. 65. See, among others, Phyllis Lewsen, ‘The Cape Liberal Tradition – Myth or Reality?’, Race XIII, no. I (July 1971): 66–80; Stanley Trapido, ‘From Paternalism to Liberalism: The Cape Colony, 1800– 1834’, The International History Review 12, no. 1 (February 1990): 76–104. 66. Edna Bradlow, ‘Emancipation and Race Perceptions at the Cape’, South African Historical Journal no. 15 (1983): 10–33. 67. Ülgen, ‘The Doctrine of Aboriginal Title’, 138. SETTLER COLONIAL STUDIES 339 68. Report from the Select Committee on Aborigines (British Settlements) with the Minutes of Evi- dence, British Parliamentary Papers (1836, Evidence; 1837, Report), 7, 61–4. 69. Robert Ross, ‘Ambiguities of Resistance and Collaboration on the Eastern Cape Frontier: The Kat River Settlement 1829–1856’, in Rethinking Resistance: Revolt and Violence in African History (Leiden: Brill, 2003), 117–140, 136. See also Robert Ross, The Borders of Race in Colonial South Africa: The Kat River Settlement, 1829–1856 (Cambridge: Cambridge University Press, 2014). 70. James Read Jr., The Kat River Settlement in 1851 Described in a Series of Letters Published in the South African Commercial Adviser (Cape Town: A. S. Robertson, 1852), 28. 71. Robert Ross, ‘Missions, Respectability and Civil Rights: The Cape Colony, 1828–1854’, Journal of Southern African Studies 25, no. 3 (September 1999): 333–45. 72. Cited in Bennett, ‘African Land’, 71 fn. 53. 73. Bennett, ‘African Land’, 71. 74. Saul Dubow, Racial Segregation and the Origins of Apartheid in South Africa, 1919–1936 (Oxford: Macmillan, 1989), 99. 75. Frank Brownlee, ‘The Administration of Transkeian Territories’, Journal of the Royal African Society XXXVI, no. 144 (1937): 337–46, 338. 76. Bennett, ‘African Land’, 71. 77. James Gump, ‘The Imperialism of Cultural Assimilation: Sir George Grey’s Encounter with the Maori and the Xhosa, 1845–1868’, Journal of World History 9, no. 1 (Spring 1998): 89–109. 78. Cited in Gump, ‘The Imperialism of Cultural Assimilation’, 90 (Grey’s italics). 79. Cited Dubow, Racial Segregation and the Origins of Apartheid, 88. 80. Bonny Ibhawoh, Imperial Justice: Africa in Empire’s Court (Oxford: Oxford University Press, 2013), 127–8. 81. Re Southern Rhodesia A. C. 211, 233. 82. Bennett, ‘African Land’, 68, n. 23. 83. Re Southern Rhodesia, 234. 84. Jérémie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational, 2006), 95. 85. Re Southern Rhodesia, 234. 86. See Ülgen, ‘The Doctrine of Aboriginal Title’, 137. 87. See Edward Cavanagh, ‘Land Rights That Come with Cut-Off Dates: A Comparative Reﬂection on Restitution, Aboriginal Title, and Historical Injustice’, South African Journal of Human Rights no. 28 (2012): 437–57. 88. Further readings on contemporary legal controversy regarding land restitution see B. Cousins (ed.), At the Crossroads: Land and Agrarian Reform in South Africa into the 21st Century (Bellville, South Africa: PLAAS, 2000); Mark Everingham and Chrystal Jannecke, ‘Land Restitution and Democratic Citizenship’, South Africa Journal of Southern African Studies 32, no. 3 (September 2006): 545–62. 89. See, for instance, Hans P. Binswanger-Mkhize, ‘From Failure to Success in South African Land Reform’, African Journal of Agricultural and Resource Economics 9, no. 4 (2014): 253–69. 90. Ruth Hall, Afﬁdavit – In the Supreme Court of Appeal of South Africa (Court A Quo Case No: 9391/ 2007) (November 18, 2012, unpublished material), 38. 91. I am indebted to Ruth Hall for these references and for her insightful comments. See also Ruth Hall, ‘Reconciling the Past, Present and Future: The Parameters and Practices of Land Restitution in South Africa’, in Land, Memory, Reconstruction and Justice: Perspectives on Land Restitution in South Africa, ed. Cherryl Walker, Anna Bohlin, Ruth Hall, and Thembela Kepe (Athens: Ohio Uni- versity Press, 2010), 17–40. 92. Hall, Afﬁdavit, 37–8. Notes on contributor Camilla Boisen is a Postdoctoral Research Fellow in Political Theory at the University of the Witwatersrand, Johannesburg, South Africa.

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