Indigenous - corporate private governance and legitimacy: Lessons learned from impact and benefit agreements

This paper argues that impact and benefit agreements (IBAs) between Indigenous groups and resource companies are properly understood as a form of private governance. Viewing IBAs through a private governance lens generates important insights for both governance scholars and for scholars interested the structuring of Indigenous-corporate relations in the context of resource development. In order to develop this argument, we present a case study of a specific arrangement between a Canadian First Nation and a multi-national mining company with a particular focus on the governance elements of the contract and the implications for legitimacy that arise from the arrangement. Our central claim is that IBAs, as a form of private governance, require a theory of legitimacy that goes beyond contractual consent, but must account for both procedural and substantive legitimacy demands. We then identify the key lessons that can be taken for indigenous law and governance scholars and private governance scholars from our analysis.