In her landmark essay, Whiteness as Property, Cheryl Harris powerfully demonstrates how racial identity and property claims are co-produced in law. Through a genealogy of law starting with American slave law, Harris reveals how whiteness has evolved from a form of racial identity into a legally acknowledged and protected form of property. In this article I apply Harris’ framework to an analysis of two by-laws passed by the City of Brantford (Ontario) in 2008, in order to reveal a hidden racial logic within the statutory powers vested in municipalities. By analyzing these by-laws, as well as the litigation which followed, I demonstrate how the regulatory and enforcement powers of municipal planning processes can authorize settler colonial claims to property, while at the same time conferring upon municipalities the power to criminalize Indigenous assertions of territorial authority. Ultimately, the planning powers vested in municipalities are shown to play an important role in affirming the sovereignty claims of the settler state, while diminishing the sovereignty claims of Indigenous peoples.
Planning as Property: Uncovering the Hidden Racial Logic of a Municipal Nuisance By-law