Earth Restorative Justice
Restorative approaches to ecological harms

Introduction

Across the globe, the natural world suffers from escalating threats such as species extinctions, toxic pollution, deforestation, mining, and rapidly changing climate. Many of these harms rise to the level of “co-violations,”[1] which occur when governments or industries violate both the environment and human rights with the same polluting action. Human beings are inextricably connected to their environment. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of human rights, including the rights to life, health, food, water and sanitation. At the same time, the exercise of human rights such as the right to information, participation and remedy, is vital to the protection of the environment.

The rise of co-violations of the environment and human rights has led to an increase in climate litigation, the international coordination of law enforcement against environmental crimes and transnational civil litigation against multinational corporations.

Many of these legal responses stress the community-dimension of violations of the environment. Environmental harms disrupt community life and can lead to individual and collective psychological pain and trauma, in addition to pollution and material losses. This website explores if restorative justice, a new paradigm in (criminal) justice, could play a role of importance in addressing environmental harms.

Restorative Justice

Restorative justice is a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by criminal behavior. This is a contrast to the punitive aims of traditional retributive justice systems that enforce a regime of punishment for offenders. A core value of restorative justice is healing: it is relational, reparative, procedurally fair, nurturing of apology and forgiveness. It brings together the community, victims and offenders to discuss the crime and the harm caused with the aim of repairing the harm. It is “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”.[2] Restorative justice approaches crime as a violation of people and relationships[3], and invites one to see the world relationally.[4] The benefits of restorative justice are seen to be its emphasis on active agency (people doing things for themselves), cost-efectiveness (compared with detention or imprisonment), victim recognition and engagement (often through face-to-face meetings with ofenders), and community benefit (through participation and through community service). [5]

Restorative justice’s emphasis on the healing of damaged relationships, its search for the roots of harmful behavior and its community- and forward looking orientation might make it well positioned to address ecological harms. Under traditional environmental law enforcement, victims of environmental violations – which include the environment itself and future generations – have little opportunity to be heard and vindicated. Perpetrators of environmental violations who pay off their ‘ecological debt’ through fines are not reintegrated into the community and animosity remains, though offenders and victims continue to live in- or make use of the same natural environment.

Restorative justice takes a deeper look at what is needed to restore both the environment and fractured relationships. It empowers individuals to exercise their rights to participation and remedy, and strengthens community identity and resilience. Environmental agencies such as the Australian Victorian Environmental Protection Agency have started to use restorative justice conferences in communities afflicted with environmental damage. New Zealand courts have applied restorative justice in a number of environmental cases, in which also natural elements such as rivers and trees were successfully represented by a surrogate victim in restorative justice conferences.

In my background articles, I take a look at restorative justice's potential to address the harm caused by environmental crimes and to advance the rights of nature.

If you want to read more about Restorative Justice: The Little Book of Restorative Justice by Howard Zehr and Ali Gohar is a good introduction. The United Nations Handbook on Restorative Justice is a helpful resource for a more in depth study of the subject.

[1] Co-Violations of Rights, Earth Law Center, https://www.earthlawcenter.org/co-violations-of-rights/. Visited 28 March 2018 at 12:30 pm.
[2] Marshall TF (1996), “The evolution of restorative justice in Britain”, 4 European Journal on Criminal Policy and Law 21 at 38.
[3] Zehr, H. (1990). Changing Lenses: Restorative Justice for Our Times (25th anniversary ed). Virginia: Herald Press, p. 183.
[4] Llewellyn, J. (2011). Truth Commissions and Restorative Justice. In Johnstone, G. & Van Ness, D (Eds) Handbook of Restorative Justice (pp. 351 – 371). New York: Routledge, p. 356.
[5] White R., 'Indigenous communities, environmental protection and restorative justice', Australian Indigenous Law Review, 18, (2) pp. 43-54. ISSN 1835-0186 (2014)