Review of Powers of Exclusion

Derek Hall, Philip Hirsch, and Tania Li, Powers of Exclusion: Land Dilemmas in Southeast Asia.

Singapore and Manoa: NUS Press and University of Hawaii Press, 2011.  Pp. 257; maps, tables, appendix, bibliography, index.

Reviewed by Keith Barney.

“Entitled to Your Entitlements”

In Southeast Asia, conflicts over land are a hot topic. In part because of rising commercial pressures on land associated with a long boom in demand for agricultural and resource commodities, contests between and among local communities, states, and private actors over access to and control of land resources have arguably never been more pressing or significant. In 2010 the German development agency GIZ estimated that two to three million hectares of land (about 13 percent of the country’s territory) in Lao PDR had been allocated to private investors as concessions by different levels of the state, although the rate of actual project implementation remains far lower. In Cambodia, government insiders have secured land deals well in excess of legal area limits, and in areas of high natural forest. In Myanmar, international NGOs are scrambling to bolster the land administration system in anticipation of economic liberalization and a potential flood of foreign investment into the land and plantation sectors. In Sarawak, there are currently hundreds of cases before the courts involving disputes between communities and state-backed logging and plantation firms and concerning the definition and legal recognition of Native Customary Rights (NCR) land. Less visibly, but no less importantly, untold thousands of individual market transactions in land are occurring across the region—transactions in which local farmers participate, and through which some of those farmers are dispossessed and impoverished. As a means to halt rapid ecological degradation, environmental conservation programs and the management of protected areas are being strengthened, even as the establishment of these exclusive eco-zones is in turn acting as a further squeeze on the land area available for local agriculture and livelihoods.

While researchers have situated these processes as regional manifestations of a new “global land grab”, they do not represent new issues in Southeast Asia. Indeed, struggles over land and resources—between and among local farmers, new migrants, state forestry and environment departments, and resource concessionaires—have deep roots in the region, with histories extending back into the colonial period (Stoler, 1985; Vandergeest and Peluso, 2001). Yet there is evidence that a kind of “last enclosure” of previously common property and untitled lands is underway across rural and upland Southeast Asia (Scott, 2009: 4). The eventual outcome of these struggles over land has profound implications for the future viability of rural communities and cultures in the region, even as the fabric of rural societies are quickly changing in the face of local processes of land ownership consolidation, environmental transformation, out-migration and de-agrarianization.

Demonstrators in front of Wat Botum in Phnom Penh, delivering a petition on behalf of 60,000 Cambodian villagers affected by land disputes, to Prime Minister Hun Sen, May 2010. Photo by Moses Ngeth.

With Powers of Exclusion: Land Dilemmas in Southeast Asia, Derek Hall, Philip Hirsch and Tania Murray Li (hereafter “HHL”), leap directly into this fray. Brought into conversation through a Canada-funded multi-university research initiative (the SSHRC-funded “Challenges of the Agrarian Transition in Southeast Asia” project), co-authors Hall, a political scientist at Wilfrid Laurier University; Hirsch, a geographer at the University of Sydney and the director of the Australian Mekong Resource Centre; and Li, an anthropologist at the University of Toronto and the Canada Research Chair in Political Economy and Culture in Asia-Pacific, each have extensive experience researching agrarian Southeast Asia. And each brings a distinct disciplinary perspective to the book. The eight chapters in Powers of Exclusion are written by all three contributors, although readers familiar with their respective research programs will recognize individual voices in certain sections (for example, Hall on the comparative political economy and ecology of regional boom crops; Hirsch on the geographies of Mekong hydro-power and Thai-Lao land titling programs; Li’s ethnographic work on community-based natural resource management initiatives and small-holder land transactions among upland farmers in Sulawesi). Powers of Exclusion might not offer much in the way of previously unpublished field data or new empirical research from these scholars. Instead, the strength of the volume lies in the crisp, novel analytical framework, detailed comparative discussions of transformations in land access and control, and insightful selections from the literature on the political ecology of land in Southeast Asia. To this reviewer, the result reads very well, as something larger than the sum of what each individual scholar might have brought to the table.

The argument of the book is straightforward and based on a simple observation regarding the politics of land: “exclusion itself is an unavoidable fact of land access and use” (p. 198). Whether one is a neoliberal land titler inspired by the market gospel of Hernando de Soto or a radical, grass-roots, community organizer carrying a well-thumbed copy of Nobel Prize winner Elinor Ostrom’s Governing the Commons, in situations where land is valued, and where productive, sustainable use of land is envisioned, the exclusion of at least some people from access to that land or the resources on it is necessary for any positive, progressive outcome [1]. From this starting point, the authors train their analytical and research skills on the dynamic land sector issues now facing Southeast Asia.

While some Marxist and neo-anarchist writers working in Southeast Asia continue to understand all forms of state-recognized property as ideology, as steeped in blood and founded on histories of organized violence, the authors of Powers of Exclusion would more likely take inspiration from scholars such as Carol Rose (1990), who understands property, and narratives of property, as a more general human cultural technology. For HHL, exclusion is less an ugly distortion of a political ideal of inclusion for all (p. 7). Since a world without any human territorial boundaries or forms of property is just about inconceivable, HHL argue that: “in contrast to these positions for or against exclusion our analysis focused on exclusion’s double edge. Because all productive land uses require exclusion, the critical issue is who will win, and who will lose, from the ways in which boundaries are drawn” (p. 198).

So what are these “powers of exclusion”? In the interests of a concise argument, HHL note four powers that they see as most critical to determining exclusion from access to land, although they are quite open to the inclusion of other powers. These four are regulation, including legal and informal rules; force, including the coercion and violence that can underpin the law; the market, prices for goods and services, both high and low; and legitimation, including justifications of all kinds. (One could easily think of other social-political powers at work—for example, gender, “race”, or ethnicity.) The authors deploy their analytical framework with the aim of better understanding six most important processes and actors at work in Southeast Asian land controversies: i) legal land titling and allocation; ii) environmentalism and conservation; iii) crop booms and agricultural conversion; iv) post-agrarian land conversions, especially in peri-urban zones; v) “intimate” and everyday local land transactions and class formations; vi) collective counter-mobilizations for land. These six processes are the subjects of the core chapters in the book. Examples are eclectic and interesting: from World Bank land titling programs in Laos, to the establishment of protected areas in Sulawesi, community-based resource management in Cambodia, oil palm development in Sarawak, Thai shrimp farming, Vietnamese coffee plantations, peri-urban developments in Jakarta and Cavite, everyday accumulation and dispossession in Java, and indigenous territorial counter-mobilizations across the region.

What all these examples have in common are vexing dilemmas and struggles over the drawing and enforcement of land boundaries. The authors examine how their “four powers” are deployed by specific actors, and how the “double edge” of access and exclusion functions in each of the six major processes of land transformation. Their stated aim is to contextualise these powers in specific grounded contexts, “in order to analyze them in ways that yield some insight into the factors at work at different sites and conjunctures.” For HHL, “exclusion” is a broader conception than enclosure, primitive accumulation, or accumulation by dispossession. While capitalism is recognized as having “chronic, exclusionary effects at its core” (p. 10), exclusion is nevertheless also understood here as encompassing a broader range of processes, some of which are not reducible to the brute logics of capital accumulation and profit (for example, the creation of protected areas, or the establishment of new ethno-territorial zones on the basis of claims of indigeneity).

Note the close relationship between the terms “exclusion”, “access” and “property” in Powers of Exclusion.  HHL are clearly inspired by, but also differentiate their approach from, a 2003 paper by Jesse Ribot and Nancy Lee Peluso entitled A Theory of Access. Ribot and Peluso define access as “the abilityto benefit from a resource” (p. 153, emphasis added). In their framework, Ribot and Peluso noted a similar “bundle of powers”, namely rights-based access, (including illegal access, violence and theft as rights-denied mechanisms of access); and structural and relational access mechanisms, including technology, capital, markets, labour, knowledge, authority, identities, and social relations. Ribot and Peluso also noted that their typology of powers was not an exclusive list; delineating how specific bundles of powers function in regulating access in particular circumstances presents difficulties. Different powers can overlap in practice (consider, for example, military-backed conservation projects with exclusionary effects), and the same powers can be employed by multiple actors.

Demonstrators at Wat Botum invoking the image of Prime Minister Hun Sen and his wife Bun Rany, appealing for intervention against rural land grabbing, Phnom Penh, May 2010. (Personalized intervention by powerful individuals in matters of legality and due process is itself a hallmark of a neo-patrimonial state). Photo by Moses Ngeth.

There are therefore some similarities and overlaps between Ribot and Peluso’s “powers of access”, and HHL’s “powers of exclusion.” HHL recognize this, while also arguing that their orientation towards exclusion (defined as “the ways in which people are prevented from benefiting from things”, p. 7) brings the issues of contention and conflict into prominence (p. 8). While this is arguably the case (and indeed the discussion Ribot and Peluso at times seems best suited to a type of value-chain study on the uneven distribution of benefits from a resource), nevertheless a focus on exclusion does have some limitations. One example is a situation in which an individual or group maintains a formal or informal property right to an area of land (that is, the individual or group is are not excluded in a territorial sense) but is at the same time blocked from enjoying the benefits of that resource because of a lack of access to some necessary factor—such as capital, labour, or a clean environment. As Ribot and Peluso (p. 160) note: “This would be an instance of having property (the right to benefit) without access (the ability to benefit)” [2]. In such cases, an analytical orientation towards access as opposed to exclusion arguably carries some advantages. This matter could have been a basis for further reflection in Powers of Exclusion.

In addition, the exclusions from land described and interpreted by HHL are often sharper and more territorial than issue of access rights to natural resources located on land— for which rights can be overlapping, mediated, and multiple. The focus on land and territory lends itself to rigid boundary making and zero-sum rivalries between contestants, whereas a broader focus on land and the valuable natural resources located on or within the land can open up options for compromise— from exclusion to negotiated regimes of access. In that sense, there might be more room for negotiation over these vexing territorial dilemmas than is sometimes realized, and the systems of access to land need not always become more rigid and clearly bounded. One example could be taken from Laos, where the Stora-Enso plantation and paper company [3], a major concession holder, has in response to concerns about food security and livelihoods adjusted its silvicultural regime and opened up spaces for small-holder rice and cash-crop plantings in between rows of pulpwood trees [4].

There is insufficient space here to treat the individual chapters of Powers of Exclusion individually.  Each is excellent. However, Chapters Six, on “Intimate Exclusions—Everyday Accumulation by Dispossession”; and Seven “Counter-Exclusions—Collective Mobilizations for Land and Territory” surely raise the most troubling of the “Faustian dilemmas” described in the book.  In those chapters, exclusion is not something imposed by large and powerful external actors or “big bad corporations.” Instead, exclusion and dispossession emerge “from below”, through the everyday functioning of the land market, or through community-based socio-environmental or ethno-territorial movements. A fascinating example of a pro-poor, conservation-initiated exclusion is described on page 78, on community-based fisheries management programs for the Tonle Sap in Cambodia organized around the creation of permanent village settlements with clear territorial and aquatic boundaries. These new boundary practices, implemented with the aim of better managing fish stocks, nevertheless involve the exclusion of migrant fishers who previously came to the shores of the Great Lake to fish on a seasonal basis.

HHL do not offer prescriptions for grappling with Southeast Asia’s land dilemmas, other than to call for policymakers, programmers and project managers better to recognize and acknowledge the diverse implications of exclusion in contemporary social transformations. The avoidance of policy prescriptions in the volume of course leaves scope for others to articulate a call to action. For me, a crucial question relates to why there are so many land dilemmas in the Southeast Asian region, and why they are seemingly so arbitrary, and so intractable. There is no simple and direct answer. One interpretation might highlight the fast pace of economic growth underway across much of Southeast Asia. Struggles over access are of course much less prevalent in regions that are depopulating in the face of economic restructuring, out-migration, conflict, or environmental degradation [5]. However, surely a key factor in the depth and breadth of land dilemmas in Southeast Asia relates to the lack of an effective liberal legal framework in most of the region’s states. Here the continuing role of the High Courts in legal challenges around Native Customary Land rights in Sarawak is highly  relevant [6].

As David Szablowski (2006) writes: 

“Liberal legal systems derive their legitimacy from a conceptualization of the individual as an active rights-bearing agent who is protected from arbitrary government action by the rule of law and by the principles of procedural fairness. A person is entitled to know the rules she or he faces, and is also entitled not to be dispossessed without the opportunity to present a case which contests the facts and legal interpretations asserted by another party. Within the liberal legal framework, abuse of these rights delegitimizes the result.”

It is arguably this component, of a broad-based conception of entitlements and legal legitimacy, lodged within the rule of law, due process, and the principles of justice and fairness, that is either missing entirely or only quasi-functional in many Southeast Asian contexts. Elite actors and institutions governing land access and exclusion in Southeast Asia often remain unaccountable to rural communities, and there are still major constraints on the ability of many rural people to progress into a future modeled at least partially on their own terms. As Kassimir and Latham (2001) write with respect to another geographical context— “If this sounds like a call for a legitimate, capable, and accountable state, attribute it to our sense that in contemporary processes of globalization, and the transboundary connections they engender, the public projects associated historically with states remain critical to everyday life.”

With Powers of Exclusion, Hall, Hirsch, and Li have developed a useful set of conceptual tools and presented a penetrating analysis of the wide range of land dilemmas critically shaping the every-day life and livelihoods of countless people across the Southeast Asian region. They should be congratulated on this excellent book.

Keith Barney is Postdoctoral Fellow in the Centre for Southeast Asian Studies, Kyoto University. 

Notes

1. Recall the first nostrum of the recipe for common property management success proposed in Ostrom (1990)—“group boundaries clearly defined.” The right of exclusion is widely regarded as the sine qua non of property as a legal concept.

2. For a useful example, see the documentary, “Witness: To the Last Drop”, on Alberta’s oil sands development. Quoting Allan Adam, Dene Chief, Fort ChipewyanAlberta, regarding concerns over the accumulation of oil sand industry carcinogens in the wildlife hunted by his community for food and furs (http://www.youtube.com/watch?v=nQrWZzBOCoc, starting at 18:35): “This is a very unique life that we continue to live. It’s in jeopardy. We have rights to hunt, we have rights to trap, and we have rights to livelihood. What good is all that rights gonna be, when, everything is taken away from us. We will have a treaty with all our rights, with no place to practice it.” In this case, the ability of the Dene to enjoy their treaty rights to hunting and trapping is endangered by industrial tar sands pollutants, absorbed into the bodies of the boreal forest animals, and indeed of the Dene people themselves. 

3.  See  http://asiapacific.anu.edu.au/newmandala/2011/03/04/china-and-the-mekong-region-beyond-the-territorial-trap/ .

4.  While the eventual success of this effort remains to be seen (and while it of course it hearkens back to the colonial-era taungya system of teak planting in Burma), it does represent an attempt to recognize and to address a corporate-community territorial dilemma.

5. See, for example, http://www.theatlantic.com/infocus/2012/03/a-world-without-people/100264/ .

6. See the Web-site of Native Customary Rights lawyer and Sarawakian opposition politician Baru Bian, at http://www.barubian.net/ .

References

Kassimir, Ronald, and Robert Latham. “Toward a New Research Agenda,” pp. 267-278 in Callaghy, T., R. Latham ,and R. Kassimir, eds., Intervention and Transnationalism in Africa: Global-Local Networks of      Power. Cambridge: Cambridge University Press, 2001.

Ostrom, Elinor. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press, 1990.

Peluso, Nancy Lee, and Peter Vandergeest. “Genealogies of the Political Forest and Customary Rights in Indonesia, Malaysia and Thailand.” Journal of Asian Studies LX, 3 (2001): 671-812.

Ribot, Jesse, and Nancy Lee Peluso. “A Theory of Access.” Rural Sociology 68,2 (2002): 153-81.

Rose, Carol M. Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory. Yale Law School University Faculty Scholarship Series. Paper 1822 (available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2821&context=fss_papers), 1990.

Scott, James C. The Art of Not Being Governed. New Haven: Yale University Press, 2009.

Stoler, Ann Laura. Capitalism and Confrontation in Sumatra’s Plantation Belt, 1870-1979. New Haven: Yale University Press, 1985.

Szablowski, David. “Who Defines Displacement? The Operation of the World Bank Involuntary Resettlement Policy in a Large Mining Project.” Pp. 33-60 in P. Vandergeest, P. Idahosa, and P. Bose, eds. Development’s Displacements.Vancouver:University ofBritish Columbia Press, 2006.