Jurisdictional imaginaries as contested geographies: A metaphor analysis of reference cases about Canada's Impact Assessment Act

Abstract

Jurisdictional imaginaries, defined as constitutive and productive fictions with real world effects, serve a distinct purpose in the context of debates over Canadian environmental impact assessment. Metaphors are one way in which jurisdictional imaginaries are maintained and contested. In creating associations between entities, metaphors mark storytelling about jurisdiction with the imprints of history and place, and shape thinking about arrangements of authority within contested geographies. In Canadian reference cases (questions posed by governments to courts to seek advice on legislation), the judiciary settle conflicts over jurisdiction through case-by-case assessments based on interpretations of the Canadian constitution in which debates about federalism loom large. Our analysis of two reference cases on Canada's Impact Assessment Act (IAA) evidenced disagreements in court decisions about the scope and significance of provincial and federal authority, which hinged on metaphors of separation and conflict, and drew on two competing imaginaries: a classical imaginary which envisions dualist, hierarchical, and exclusionary orders of authority between provincial and federal governments; and a modern imaginary which emphasizes jurisdictional overlap and flexibility in constitutional interpretation. Reading these divergent imaginaries against a backdrop of legal pluralism and ongoing settler colonialism, we argue that both imaginaries normalize, rather than unsettle, colonial political logics predicated on the replacement of Indigenous sovereignty by European legal orders. The IAA reference cases, far from mere technical assessments of the constitutionality of legislation, highlight political questions about what kind of society Canada is and could become.