“Legal enclosure” and resource extraction: Territorial transformation through the enclosure of local and indigenous law

Abstract

This paper examines how extractive firms, using authority delegated by states, have developed initiatives to remake local legal spaces shaped by community-based governance, custom and indigenous law. They do so to produce territories which facilitate extraction in line with the needs and preferences of transnational business. Communities, their governance systems, and their capacity for collective action, can threaten this project. As a result, these corporate initiatives attempt to privatize, dominate and close off local legal spaces such that the populations living in extractive territories lack effective recourse to alternatives when they seek to access to justice in relation to claims involving resource extraction. The article develops the concept of “legal enclosure” to describe this phenomenon. Drawing on the academic and grey literature, this article examines three strategies used in community relations practice in the extractive sector. An illustrative case involving each strategy is outlined and discussed. The cases support a longstanding theme in legal pluralism studies suggesting that efforts to monopolize legality are never perfect or complete. Also, effective enclosure efforts require connections with external legal orders that confirm and support the validity of confining access to justice to local, private legal spaces managed by extractive firms and their agents.