Earth Restorative Justice
Restorative approaches to environmental harms

International Journal of Restorative Justice special edition on Environmental Restorative Justice

In the first article of this special issue on environmental restorative justice, Miranda Forsyth and her colleagues, all based at the REGNET Institute at the Australian National University, take forward the legacy of the work of John and Valerie Braithwaite, and explore the role that restorative justice can play as part of the regulatory mix in the environmental area. In addition, they launch an open ‘dialogue and debate about what an agenda for environmental restorative justice may take, in order to maximise its impact’. The tasks Forsyth and colleagues set themselves in drawing the contours of that agenda are: first, understanding the existing shape of the environmental regulatory landscape, to ensure that environmental restorative justice is not viewed as a noisy interloper, but rather as a valued fresh approach that respects, and builds upon, the histories of success and failure experienced in the field; second, making environmental restorative justice legible and accessible as philosophy, practice and principles; and third, acknowledging ‘that environmental regulation raises specific conceptual challenges that are not present, or that manifest differently, in other domains where restorative justice has been used’.

Next, establishing conceptual alignments with the fields of green criminology and green victimology, Gema Varona decides to write about ‘green restorative justice’ rather than ‘environmental restorative justice’. She defines green restorative justice ‘as a restorative justice focused on environmental harm’, whereby she understands harm as a concept that can encapsulate both criminalised and non-criminalised and individual and collective behaviours and activities. The framework Varona proposes embraces harms on ecosystems, human and non-human beings. Besides establishing these vital alignments, Varona investigates the challenges posed to the development of green restorative justice by the cultural and social movement of transhumanism. This movement, which fosters fantasies of unlimited technological progress, impedes social and moral accountability in relation to environmental harms. Transhumanist ideas have to be challenged, argues Varona, since ‘cultural values are a precondition for the practice of restorative justice about ecosystemic harms and harms to animals’. Varona is thinking about the role of green restorative justice in terms of restoring limits – limits to hubris, to desmesura, to domination. But more than that, she thinks of the role of green restorative justice also in terms of restoring response-ability, so profoundly endangered by different demobilising trends such as catastrophism, ecological techno-utopism and extreme-right integral ecologies.

Political scientist Angèle Minguet explores the role and place of restorative justice within worldwide environmental justice movements and their attempts to transform environmental conflicts. Based on the analysis of thousands of environmental conflicts collected by the Environmental Justice Organizations, Liabilities and Trade (EJOLT) project, and more specifically on two emblematic environmental conflict cases, in Nigeria and in Ecuador, she argues that it is essentially due to the inherent characteristics of environmental conflicts, and due to the fact that they almost never find a satisfying resolution through traditional criminal justice, that environmental justice movements ask for a restorative approach, and that restorative justice is a sine qua non condition to truly repair environmental injustices. Along with the necessity to identify all the actors who have caused the harm and to listen to multiple victims’ stories and the meaning they give to these stories, Minguet identifies as one of the biggest challenges for restorative justice the necessity to engage businesses and public administrations voluntarily in a reparation process and thus make them acknowledge their responsibility.

Mark Hamilton’s article explores the use of restorative justice conferencing in an environmental offending context in New Zealand and the use of restorative justice conferencing by the Land and Environment Court of New South Wales, Australia in the Aboriginal cultural offending context, highlighting the differences and similarities in jurisprudence while making suggestions for the future. Despite the significant presence of indigenous peoples in both Australia (Aborigines) and New Zealand (Māori) and their strong connection to the environment, New Zealand’s legislations and policies seem to take a broader view of the environment which includes its physical aspects but also the social, economic, aesthetic and cultural connections embedded within that environment. In comparison, Australia’s definition is relatively limited and focusses mostly on the physical components of the environment such as land, air and water, organic and inorganic matter and any living organism, also including human-made or modified structures and areas, while excluding the human utility in the environment or the culture embedded in the environment.

Inspired by the New Zealand and Australian experiences, Carlos Frederico Da Silva has analysed the different legal discourses arising from the collapse of the mining tailings dam in the city of Brumadinho (Brazil) in 2019. Whereas in the civil lawsuit context, legal professionals (judges, lawyers, prosecutors) acknowledged the damage to the ecosystem and the people who live in areas close to the collapse site, foregrounding the centrality of the victims’ interests and the urgency of the need for environmental reparation, in the criminal procedure, similar institutional actors were not able to produce agreed responses to the same problematic situation due to their focus on retribution and competition of argumentation. The author contends that we need innovations in jurisprudence and legal cultures based on a new type of penal rationality where we integrate restoratively oriented transdisciplinary concepts and principles which may guide the legal decision-making process towards environmental restorative justice responses.

Next, Orika Komatsubara sets herself the task of imagining a community that includes non-human beings, by exploring the 1990s Moyainaoshi Movement in Minamata (Japan) which was created by the local government, groups of victims, victims’ supporters and unaffected Minamata citizens, aiming to rebuild the community after severe and long-term pollution and contamination caused by the Chisso Co. Ltd factory in the early 1950s. Despite the extensive legal actions, compensation and area restoration undertaken throughout the years, it was the need for the restoration of a fractured community itself that was articulated by the movement. Komatsubara delves into the depths of the movement to find restorative justice traces, but also to nourish our imagination as to what the ethics of this movement could mean for environmental restorative justice in other contexts and for imagining an interspecies and intergenerational community.

Besides these rich and varied analyses and accounts, it is imperative to move the engagement in the field forward by undertaking small-scale pilot projects where experience can be slowly built until it turns into robust knowledge and expertise. In Notes from the Field, such pioneering initiatives and experiences are presented. Annette Hübschle, Ashleigh Dore and Harriet Davis-Mostert introduce an exciting pilot project that seeks to apply restorative justice principles to wildlife crime offences in South Africa and share lessons learnt for future initiatives and projects. Jordi Recordà Cos describes a small-scale pilot project in France which was initiated with the aim to protect the environment and address conflicts within local communities affected by disseminated pesticide pollution. English mediator Lawrence Kershen, who was involved in the mock ecocide trial organised by Polly Higgins, presents his reflections based on the ‘Action for Bhopal’ movement and restorative processes from within Extinction Rebellion. Environmental artist and activist Maria Lucia Cruz Correia narrates her experience with developing a restorative court for ecocide through artistic interventions, resulting in a proposal of the caring function of ‘guardian of nature’.

For the Conversation series, Albert Dzur talks to world-renowned criminologist Rob White, whose work on green criminology, indigenous justice and what he calls ‘reparative justice’ in the environmental area is extremely important (White, 2013, 2014, 2017). The conversation highlights the personal and professional journey of White, also showing his critical look at the process of institutionalisation of environmental restorative justice. Nevertheless, the use of the term ‘reparative justice’ for this approach would not be completely uncontroversial and there are other scholars, such as Margaret Urban Walker (2006), who use the term ‘reparative justice’ rather differently, for example to challenge the focus on material aspects and to focus on the relational repair. Finally, the Book Review section presents a review by Tanya Jones of the recent book by Ben Almassi, Reparative environmental justice in a world of wounds (2020), whose work is based upon Walker’s concept.

Source: Brunilda Pali and Ivo Aertsen, ' Inhabiting a vulnerable and wounded earth: restoring response-ability ', (2021) The International Journal of Restorative Justice 3-16.

Sun, 02 May