REAL RIGHTS

*In Scots Law, ‘Real Rights’ are rights in ‘things’ such as property and land and based on Roman law principles.

‘tradition is not to preserve the ashes but to pass on the flame’ [1]

Real Rights pursues alternative narratives to map the history of our parish of Kildonan, in East Sutherland,  and examines the policies, mythologies and economic and political ideologies which have shaped its subsequent (under)development. Redefining this heritage, and the process of its historicisation, departs from a dogmatic and singular understanding of heritage embedded in modernist values, to activate it for emancipatory future potentials and to question dominant systems of knowledge.

We consider our history through the intersection of colonialism and climate change to investigate land ownership and management, and the fishing and leisure industries, to understand how these legacies reverberate in our present conjuncture. Real Rights moves between the molecular and the macro, including the technical modifications of soil and the architecture of Scot’s Law.

Real Rights breaks from the romanticised image of the Highlands as sublime empty landscapes of brooding heather and mighty stags, and considers the economic and political imperatives which justifies the mythologisation of the Highlands as a singular place of leisure, and the complex entanglement of cultural identity with power, ideology and state. We confront the truth that our region has profited from the extraction of earth’s natural resources and the exploitation of colonised peoples and discuss geo-specific reparations which need to be actioned.  We question the Scottish ancestry industry and its role in promoting a mono-economic tourism strategy for the Highlands, while ignoring the colonial genesis of the Scottish diaspora and marketing a fetishistic national identity.

We investigate land ownership and management at three major periods of disruption and fundamental shifts in society, to question how we are governed by archaic laws written to protect the gentry and why ‘Scotland continues to be stuck with the most concentrated, most inequitable, most unreformed and most undemocratic land ownership system in the entire developed world’ [2]; the expansion of regional agricultural provinces in the later Iron Age to part-feudal landlord tenancies of the early 19th century; the implementation of the crofting lot system, which was developed centuries earlier and transplanted into the plantations in the West Indian colonies; land agitations of the late 19th century and estate sell offs at the beginning of the 20th century.

The fishing and agricultural industries are analysed through their asymmetric divisions of labour and ownership and the complex legislation which acts against sustainable practice and common ownership models. The story of trade and migration in Europe and across the Atlantic, and Kildonan’s position in this network, is told through three locally excavated shards of pottery from three different periods.

Working in partnership with nine European partners, we have faithfully reconstructed three digital models from archaeological, archival and theoretical evidence; Iron Age Roundhouse Settlement (500BC-500AD); Highland Clearances Longhouse Settlement 1813 and Helmsdale Fishing Village 1890, as part of digital heritage research project Connected Culture and Natural Heritage in a Northern Environment (CINE). These models visualise the societal conditions across these periods and are a tool to think through broader questions of climate change and colonialism. This research is led by questions about the impact of digital heritage on engagement, participation and education, and how it can contribute to our constituents’ actively taking a role in producing culture, far from pure spectacle and consumption.

Real Rights is instructed by Walter Benjamin’s model in Theses on the Philosophy of History; history cannot be complete or understood in relation to only itself, but exists as a constellation of past and present with immediate interruptions of revolutionary possibility (jetztzeit), not as a progressive trajectory of continuum. If tradition needs to be rescued from a ‘conformism that is about to overpower it’ [3], Real Rights seizes a multiplicity of images from the past to set them alight for the future.

Real Rights will be activated by a series of multidisciplinary workshops, discussions and responses throughout the project.

[1] Proverb attributed to composer Gustav Mahler.

[2] Jim Hunter Scottish land reform to date: By European standards, a pretty dismal record, 2013

[3] Walter Benjamin, ‘Theses on the Philosophy of History’ (1940) in Illuminations, ed. and with intro. by Hannah Arendt, trans. Harry Zohn, New York 1968, p. 255.

‘European opulence… has been nourished with the blood of slaves and it comes directly from the soil and from the subsoil of that under-developed world.’ ^[1]

On 5th August 1583 Sir Humphrey Gilbert landed at St John’s Harbour, Newfoundland. He had in his possession two magical documents… It was the second document which Gilbert possessed which had the real alchemical powers; a royal charter from Queen Elizabeth granting him ‘all the soil of all such lands, countries and territories so to be discovered … with full power to dispose thereof, and of every part thereof in fee simple or otherwise, according to the order of the Laws of England’.^[2] This grant of fee allowed Gilbert to transform unowned land into private property. One simple ritual was required to complete the transformation – the surveying of the land. Gilbert’s tiny fleet of four ships included several surveyors, who immediately began to measure and map the area. Gilbert went down with his ship on the return voyage, but the colony survived and expanded, and was followed by many other English (and then British) colonies in the next century. The emerging practices of private property and colonial territory are seen as one and the same.^[3]

The conception of land as property developed in conjunction with other forms of property that were central to the functioning of colonial trade and settlement, including slavery. For instance, the analogy between cargo and land as equivalent forms of property lay at the basis of Torrens’ arguments for a system of land registration; the analogy between human cargo and inanimate forms of cargo lay at the basis of the treatment of slaves as chattels in English and American law. Mapping the logics of propertisation and their emergence in conjunction with racial ideologies across different colonial regimes illuminates how the specificities of land holding systems and property law, along with particular racial ideologies converged in the settlement enterprises of other colonial powers.^[4]

Scotland

Scotland  has a population of around 5.5 million people, and a land area (excluding seabed) of around 80,000km. Roughly 20% of people live in rural Scotland, which includes 118 inhabited islands and covers 94% of Scotland’s land area. The remaining 6 per cent of land is urban and occupied by 82% of the population.

Responsibility for Scotland’s system of land tenure (below) and administration lie largely with the Scottish Parliament. The Scottish Parliament has some responsibility for land-based taxes, although most tax-raising powers remain reserved to the UK Parliament. Anti-corruption laws are also reserved. The European Parliament has an important influence on land use regulation.

Scotland has an independent judiciary. Disputes about land are usually resolved in the ordinary Scottish Courts and Tribunals System. Some matters may be dealt with by the Lands Tribunal, and some matters relating to agriculture and crofting may be dealt with in the Scottish Land Court.

Scotland’s system of land tenure has three main components^[5]

1. Property laws governing how land is owned;
2. Regulations governing how land is used;
3. Non-statutory public sector measures which try to influence how land is owned and used in the public interest.

Land and property rights can be conceptually divided into use rights, control rights and transfer rights.^[6] Different people have (or share) different ‘bundles of rights’ over land, so that land tenure is often more complicated than the division above. For example, the public have access rights over most of Scotland’s land, whether it is private or state-owned. The general principle in Scots Law is that “the owner of land owns everything above and below land”.^[7] However, the Crown often retains certain mineral and salmon fishing rights over land which is privately owned, and certain below-ground rights can be ‘reserved’ by previous private owners when land is sold or transferred.

Scotland has two primary categories of land tenure:

• Private lands, whose owners may be private individuals or legal entities;
• State lands, whose owners are a public body of some description. That body could be national (for example Forestry Commission Scotland) or local (for example local authorities).

• Some land is owned directly by the public body which manages it.
• Some land is owned by legal entities wholly owned by a public body.
• Some land is owned by a statutory officeholder (for example a Scottish Minister)

Crofting tenure is a third, distinct form of land tenure found mostly in the Highlands and Islands of Scotland, which provides tenancies with secure legal rights of occupation and use over land, and rights of succession and purchase.^[8] Around 25 % of land mass in the Highlands and Islands is under crofting tenure.^[9] Very little remains of Scotland’s historic common lands. Much has been incorporated into private estates, and evidence of former commons are often hard to find.^[10] Common grazings, which are areas of land used by a number of crofters or others who have grazing rights on that land, are one of the few remaining examples.^[11]

Daniel, P. (2018) Towards Land Ownership Transparency in Scotland. Greenock: Community Land Scotland.

Sutherland

A review of the agriculture of the County of Sutherland by the Highland and Agricultural Society in 1880 provides a detailed analysis of the hierarchical structure of land ownership and the unchanging and archaic system of leasing that led to resistance and the land reform movement.

The parliamentary Return of Owners of Lands and Heritages in Scotland, compiled in 1872-3, shows the number and scale of land ownership in Sutherland.

 “In Sutherland there are 433 owners of land, the total area of whose property is estimated at 1,299,253 acres, and the gross annual property value at £71,494,7s. Of owners of land whose property extends to or exceeds 1 acre, it claims 85, while of owners of 100 acres and upwards it has only 23. Eleven properties exceed 1000 acres in extent and three Sutherland land owners draw over £1000 a year from land in that country.” (pg. 1)

Of the 433 owners recorded, only 11 owned over 1000 acres and only 3 of the Sutherland land owners had a yearly income of over £1000. The entry for the Duke of Sutherland’s stands out at an estimated 1,176,343 acres grossing a yearly income of £56,395/13/0. An analysis of the percentage shows that over 95% of land holdings were under 20 acres.

“….the Duke of Sutherland owns the whole of the county whose name it bears. His Grace’s dominas in the far north have no limits. He in fact not only owns by several times the largest landed property in the United Kingdom, but possesses more than nine-tenths of the fifth largest county in Scotland.” (pg. 2)

The crofting tenants, who had been displaced from their farms in Kildonan, had taken up leases of land on the coast. The terrain was steep and hilly and they had to work hard to improve the sandy soil for growing crops and fodder for their animals.

“In 1853, there were at that time in the county of Sutherland 2680 crofters. Of these there were 557 in the parishes of Assynt, Eddrachilles, and the western portion of Durness: 704 in Farr, Tongue, eastern portion of Durness, and the part of Reay in Sutherland; 785 in Dornoch, Creich, Lairg and Rogart; and 634 in Clyne, Golspie, Kildonan and Loth……They have no leases, and pay from 15s. to 20s. of rent per arable per arable acre, including hill grazings….” (pg. 87)

The typical “19-year” lease had not changed since before the Clearances and it became a symbol of the unfair treatment of the crofters. The agricultural society’s report alludes to the fact that many of the crofters were “tenants-at-will” with no contractual arrangements with the land owners. It would be hard enough to resist possible eviction or to dispute rent increases with a lease, but without one it was impossible.

“There is little variety in the duration of leases in this county, nineteen years being the general term. All farmers and a few crofters possess leases for nineteen years or a shorter period, but the greater mass of the latter are merely tenants-at-will, with yearly possession from Whitsunday to Whitsunday, the rent being payable in advance at Martimas.” pg. 88)

The soil was an important commodity and it’s capability to generate income from the land owners changed over time with fluctuating markets and the exploitation of resources and demand for commodities.

“Around Helmsdale the soil is light and but fertile, while along the Kildonan Strath there are several small haughs of similar soil, with rather less sand, that yield good crops of oats and turnips. The soil on the higher banks along this strath consists of reddish gritty sand and peat-earth, in which are embedded numerous detached pieces of granite rock or pudding stone.” (pg. 15)

In the last 20 years, land reform has been on Scotland’s policy agenda and the debate around land ownership and management continues to reverberate. Highland communities have taken a more direct role in instigating change through land buyouts and sustainable management methods.

Macdonald, J. (1880) On the Agriculture of the County of Sutherland, transactions of The Highland and Agricultural Society of Scotland, Fourth Series, Vol. XII, 1880

^[1] Frantz Fanon (1968) The Wretched of the Earth, Constance Farrington, trans, Grove Press: New York, p 96

^[2] David Quinn et al. New American World: A Documentary History of North America to 1612 (New York: Arno Press, volume III, 1979) pp 267-8.

^[3] Jones, Henry (2019) ‘Property, territory, and colonialism : an international legal history of enclosure.’, Legal studies., 39 (2). pp. 187-203.

^[4] Bhannar, B. (2018) Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership. Duke University Press: North Carolina

^[5] Land Reform Review Group, The Land of Scotland and the Common Good Report of the Land Reform Review Group, (Edinburgh: Scottish Government, 2014)

^[6] FAO, Land Tenure and Rural Development FAO Land Tenure Studies 3, (Rome: FAO, 2002).

^[7] Land Reform Review Group, 2014: 53

^[8] Scottish Government, Crofting in Scotland, www.gov.scot/Topics/farmingrural/Rural/crofting-policy.

^[9] Scottish Crofting Federation, www.crofting.org.

^[10] A. Wightman, R. Callander and G. Boyd, Common Land in Scotland Securing the Commons No. 8, (Caledonia Centre for Social Development, 2003).

^[11] Wightman et al, 2003:9.

European colonialism was both preceded and accompanied by expeditions that aimed at charting the territory and classifying its natural resources, in turn paving the way for occupation and exploitation. To be sure, the supposed discovery and subsequent naming and cataloguing of plants—which were of course already known to the indigenous population—disregarded and obliterated existing indigenous plant names and botanical knowledge, imposing the Linnaean system of classification with its particular European rationality and universal ambitions.

Orlow, U. (2018) Theatrum Botanicum. Edited by Shela Sheikh and Uriel Orlow. Berlin: Sternberg Press.

Major advancements of Western medicine coincided with escalating global colonialism and bioprospecting for European pharmacopeia was an extremely profitable business. Colonialists both sought indigenous herbal medicine practices and erased them by implanting Western classification systems to universalise and rationalise the practices. Bush medicine was widely practiced in Guyana and the indigenous populations, Amerindians of Carib and Arawak language-families, exploited the medicinal properties of plants for centuries before European colonial forces arrived.

Native, biodiverse forests and crops were cleared to build the monocultural sugar plantations, to produce a lucrative plantation economy. Walter Rodney’s Plantation Society in Guyana and Jay Mandle, Plantation Economy: Population and Economic Change in Guyana, 1838-19  detail the labour, trade and economy of the plantations under colonial rule and after independence in 1966. 

Trade and Migration

Pottery is one of the most useful diagnostic indicators of cultural change and the study of human activity in the past. The most useful attributes are the material and form indicating the methods of manufacture and date. The interpretation of pottery is based on detailed characterisation of the types present in any group, supported by comparisons between assemblages. This can lead to an understanding of the patterns of distribution and the modes of consumption and the ways in which populations interacted with material culture and each other. 

Iron Age in Kildonan

As the Iron Age progressed through the first millennium BC, strong regional groupings emerged, reflected in styles of pottery, metal objects and settlement types. In some areas, ‘tribal’ states and kingdoms developed by the end of the first century BC.

Earlier studies of the British Iron Age tend to see foreign invasions as being responsible for the large-scale changes that took place during this period. Modern research has found little evidence to support these theories and the emphasis has switched towards mainly indigenous economic and social changes. However, archaeology can demonstrate that the trading and migratory networks between Britain and mainland Europe that had developed in the Bronze Age continued throughout the Iron Age.

The pottery found in Kildonan from this period was mostly handmade from local clay and fired in kilns or shallow pits.These vessels consisted of bowls, jars, beakers, cups and cooking pots. The lifestyle of Iron Age people was very labour intensive and far more sustainable by today’s standards; they made everything they needed and bartered with neighbouring communities for special items like flint arrowheads, iron axes and decorative jet bead necklaces. The appearance of new pottery styles and decoration can be interpreted as evidence for the arrival of new groups of people and ideas and improved agricultural practices.

Kildonan in the early nineteenth century

In 2013, Timepsan and Orkney College conducted an archaeological investigation of a pre-Clearances longhouse in Caen, in Kildonan. It had been inhabited up until the time of the Highland Clearances and was unoccupied by 1825. The excavation revealed many interesting objects, including a significant and diverse pottery assemblage. These discoveries greatly added to the limited body of information about the material culture of these upland subsistence farming communities in the North East Highlands.

An unusual find was made during the 2013 excavation, when a piece of pot was unearthed from the floor of the house, and was identified as a piece from a Mocha ware brose bowl, made in one of the Staffordshire potteries in the early 19th century. It was decorated with an unusual frond-like or ‘seaweed’ pattern, created from a chemical process using tobacco and iron oxide. The trade in pottery from the south, using Tobacco from the West Indies, is an example of the far reaching impact of the colonial trade, in the far north of Scotland.

Helmsdale in the nineteenth century

The herring fishing industry had reached its peak by the latter half of the nineteenth century and shipments of fish from Helmsdale had been transported as far as the West Indies, the Baltic and Europe. It brought some prosperity to the families involved in the industry and new opportunities for commercial trade and employment to the area. The established fishing communities on the Banffshire coast were encouraged to move to Helmsdale to take up employment with the numerous curers who had built fish processing yards along shore Street.

The area was opened up through improved roads and bridges built by the landowners to establish Helmsdale as a bustling port and encourage business to take up the generous ninety nine year leases on offer for lease by the landowners. By 1890, Helmsdale was a busy commercial centre with outlets selling the latest in decorative ceramics and domestic wares as demonstrated by the two different pieces of pottery from the Glasgow and Staffordshire potteries, unearthed from the old village rubbish ground adjacent to the harbour.

The Scottish trade in pottery was extensive and the industry relied on burning fossil fuels to fire thousands of kilns, releasing large quantities of Carbon Dioxide into the atmosphere. A study by Svante Arrhenius “On the influence of carbonic acid in the air upon the temperature on the ground” was the first to quantify how carbon dioxide affects global temperature. A newspaper article in 1912 makes the link between the burning of fossil fuels and the cause of global warming. 

“The furnaces of the world are now burning about 2,000,000,000 tons of coal a year. When this is burned, uniting with oxygen, it adds about 7,000,000,000 tons of carbon dioxide to the atmosphere yearly. This tends to make the air a more effective for the earth to raise its temperature. The effects may be considerable in a few centuries.”

(Rodney and Otamatea Times, Waitemata and Kaipara Gazette, 14 August 1912.)

It has taken nearly a hundred years since this article was written for the world to take climate change seriously and to lobby governments’ to take more stringent measures to combat the imminent threat.

The sheep farms created by the Sutherland landowners during the Highland Clearances, covered about half the total area of the estate. The remodeling of the estate involved (re)moving the small farming tenants to the coast to work in the newly developed fishing industry at Helmsdale and to rent croft land on the steep hillsides on both sides of the village. The Strath of Kildonan was leased to six commercial sheep farmers from the south of Scotland. The price for sheep and wool rose dramatically in the 1790s and 1800s when trade with Spain was interrupted by war and in 1809 it already stood at twenty-five shillings a pound. This was industrialised agriculture and the local tenantry couldn’t compete with the capital-intensive, scientific and economically savvy sheep-farmers.

The fall came in the 1830s when wool prices shrank by a quarter and continued to slump over the next few decades, until the 1860s when new suppliers from New Zealand, Australia and Argentina came to dominate the market, putting an end to the prosperity made from sheep farming in the Highlands.

The advert on display promoting sporting holidays in Scotland, depicts shooting and fishing motifs and the stately Monarch stag, all of which came to represent the Highlands of the latter decades of the nineteenth century. Following the downturn in sheep farming estates had to diversify their sources of income and the trend towards game fishing, shooting and stalking began a long process of conversion from sheep farms to sporting leases.

The “sporting” exploits of the Royals at Balmoral were soon emulated across the Highlands starting with Loch Choire, Ben Armine and along the Helmsdale River. The popular travel diaries of Queen Victoria includes her trip to Dunrobin Castle in September 1872 where she records daily waggonette trips to nearby lochs and straths capturing the tranquil scenes in words and watercolor paintings. The myth of the “lazy” and “primitive” farming tenant of decades earlier, as deliberately perpetuated by the landowners, had given way to the diligent and gaily dressed Highland figure that was created for the occasion.

By the end of World War One there were attempts by the government to address the continuing state of depopulation and underdevelopment in the Highlands, through resettlement schemes aimed at ex-servicemen and women. The solution to the “Highland Problem” was to bring the work and the workers into effective relations. Such initiates would require public money and state aid to carry out development plans and the reconstruction of the Highlands. It advocated a vision of the Empire where the patriotism of the workers would be summoned to create regeneration in the Highlands of Scotland.

The Highlands and Islands Development Board (HIDB) was set up in 1965 to tackle these same issues and to offer financial support to develop initiatives that would bring jobs and economic opportunity to the Highlands through cornerstone industries, including tourism, oil fabrication and fish farming.

The HIDB produced a number of public information films to entice visitors to trek north to experience the wild and beautiful landscapes and the welcoming Highland hospitality of the people. The trend for tartans that had begun almost a hundred years earlier by royal approval was reborn and liberally garnished holiday guide books and souvenirs and gifts, for a new generation of travellers. Slogans like “Hail Caledonia” and “Haste ye Back” fitted a more flamboyant version of the Highlands that flaunted escapism and adventure.