Reconciliation at the Border of Public and Private Law: Rethinking Contract Principles in the Context of Impact and Benefit Contract Principles in the Context of Impact and Benefit Agreements Agreements

Over the past decade, corporate developers have increasingly sought to conclude Impact and Benefit Agreements ("IBAs") with Indigenous groups when undertaking resource projects on traditional lands. Despite this development, significant concerns have been raised about the nature and scope of Indigenous consent, as well as the substantive deficiencies within IBAs. However, less has been written about how legal principles derived from contract law would apply to IBAs in the event of a dispute before an arbitrator or a judge. This article therefore considers the ways in which specific contractual principles can be reconceptualized for IBA disputes. First, it examines the relationship between IBAs, self-determination, and contract law itself. Second, it explores how such agreements depart from traditional commercial contracting: IBAs exist in the shadow of constitutional dynamics and legal pluralism, while balancing a range of sociocultural purposes that cannot be reduced to commercial norms. Third, the article analyzes how principles relating to contractual interpretation and good faith can be applied to give effect to the careful equilibrium at the heart of an IBA. Ultimately, the article concludes that IBAs are, in effect, sui generis contracts that differ in fundamental ways from ordinary forms of contracting. Consequently, adjudicators must adopt a tailored approach to contract law principles that incorporates Indigenous perspectives and that remains sensitive to the dynamics of IBAs.