Extraction Contracting: The Struggle for Control of Indigenous Lands

Abstract

This article outlines the contemporary dynamics of “consent by contract,” argued to be a mode of governance that attempts to define the social, political, ecological, and economic relations regarding the use of Indigenous lands solely through confidential bargaining and agreement-making between private extraction companies and First Nations, but in fact affords the state a key role in setting the terms. Ultimately, it is not only that the settler state law sets the context for what can be negotiated between the parties, but also that state actors actively facilitate the agreement-making, influence the parameters of the deal, and are invested in the outcomes. Crucially, the settler state also draws inferences adverse to Indigenous land interests from the very fact of these negotiations. The phenomenon of “extraction contracting,” purported to be a mode of private governance, in fact engages crucial public and constitutional governance questions. I conclude that the contracts are not so much proliferating through autonomous actors seeking to fill a void in the public law regime as the settler law is holding open the gap for the private law mechanisms to fill, because the contractual regime serves a purpose in the settler state’s interests. Specifically, the private contractual regime normalizes and facilitates the state’s provision of access to Indigenous lands for extractive capital. Extraction contracting, then, is a crucial node in the contemporary contest over jurisdiction between the settler state and the surging Indigenous resistance.