Conflicts about environmental jurisdiction are a common feature in Canada, where the authority to regulate environmental issues is shared among federal, provincial, territorial, and Indigenous governments. Impact assessments - planning tools to inform decisions about proposed industrial projects – are vulnerable to such conflicts, particularly as new legal instruments and collective rights come to the fore.  

Drawing insights from critical legal geography (Delaney 2010, Valverde 2009) and legal rhetorical analysis (Berger 2007), this presentation highlights the central role of metaphor in shaping legal responses to jurisdictional conflicts. In Canada, the ultimate responsibility for settling conflicts over jurisdiction rests with the courts who make interpretations based on the Canadian constitution. In advancing arguments about appropriate legal jurisdiction, courts make use of culturally salient metaphors which powerfully shape collective thinking. Metaphor analysis invites scrutiny of the interactions between symbolic and social orders, and provides insight into the power dynamics that inform and shape environmental governance in the Anthropocene. 

We examine a recent reference case submitted by the Alberta government to the Alberta Court of Appeal (ABCA 165). Reference cases are questions posed to courts by governments seeking advice on legal issues. Typically reference cases involve questions about the constitutionality of legislation. A few months after Canada’s new impact assessment act (IAA, 2019) was passed into law, the Alberta government submitted a reference case to the Alberta Court of Appeal questioning the constitutionality of this act. In a majority opinion, the Alberta judges claimed that the IAA is unconstitutional because it permits federal encroachment into provincial jurisdiction. Trojan horse was a guiding metaphor used to describe the IAA by the Alberta government and the majority of Alberta Court of Appeal judges. As a counterbalance, the sole dissenting opinion in the reference case used the metaphor of a rowboat to describe the division of powers in a federal state. Situating these metaphors – trojan horses and rowboats - in broader cultural and legal contexts, we ask: what do these metaphors reveal about the assumptions guiding Alberta’s approach to impact assessment, and to provincial / federal relations more broadly? Conceptually and empirically, this presentation contributes to Canadian environmental governance literature by highlighting the power of law in shaping jurisdictional landscapes, and the power of metaphor in shaping how courts determine the boundaries of jurisdictional authority. 

References

Alberta Court of Appeals. 2019. Reference re Impact Assessment Act, 2022. ABCA 165. September 10, 2019. 

Berger, L. (2007). Of metaphor, metonymy, and corporate money: rhetorical choices in supreme court decisions on campaign finance regulation. Mercer Law Review, 58(3), 949-990.

Delaney, D. (2010). Home as nomic setting: Seeing how the legal happens. English Language Notes, 28, 79-99.

Impact Assessment Act (2019). Available online at: https://www.laws-lois.justice.gc.ca/eng/acts/I-2.75/page-1.html#h-1160079

Valverde, M. (2009) Jurisdiction and scale: Legal ‘technicalities’ as resources for theory. Social and Legal Studies, 18(2), 139-157.