Fred H. Besthorn - Restorative Justice and Environmental Restoration - Twin pillars of a just global environmental policy: hearing the voice of the victim (2004) The thrust of this paper is to 'suggest a critical way that the Restorative Justice Movement may inform the Environmental Restoration Movement'. According to the author, the Environmental Restoration Movement has a strong anthropocentric bias, sees humans as separate from nature and does not question the instrumental value attributed to nature nor the economic growth imperative. Top-down, centralized solutions in the form of techno-scientific fixes will never bring about the kind of response our suffering world requires. Instead, we have to learn how to listen to the Earth's voice and the voice of non-human inhabitants, who are victims of environmental harms just as humans are, and restorative justice offers us tools to do so. The authors' 2012 publication Speaking Earth: Environmental Restoration and Restorative Justice follows the same argument. Environmental restoration is based on an anthropocentric bias and on the false idea that techno-scientific solutions can provide lasting solutions to environmental problems. Restorative justice teaches us that we should listen to the voice of the speaking earth; the non-human victims of environmental damage. How this 'deep listening' to the Earth in restorative justice settings could be operationalized is not discussed. Recent New Zealand case-law might give an interesting indication of how to operationalize giving a voice to Nature as a victim at Restorative Justice conferences.
Mark Hamilton: Restorative justice intervention in an environmental law context: Garrett v Williams, prosecutions under the Resource Management Act 1991 (NZ), and beyond (2008). The author considers the application of restorative justice intervention to New South Wales (Australia) environmental law, guided by cases of restorative justice conferences in an environmental context from New Zealand and the New South Wales case Garrett v Williams. Important features of restorative justice conferences are the sharing of views between offender and victim and imparting knowledge. If the offender understands the impacts of the offence on the victims this will reduce the chances of re-offending. Also, making apologies, showing remorse and restoring or compensating for the harm done, will help promote the rehabilitation of the offender, which is one of the sentencing goals under criminal law. You can contact the author directly to request this publication.
John Verry et al. - Restorative Justice approaches in the context of environmental prosecution (2005) This conference paper examines the applicability of a restorative justice approach to environmental offenses under New Zealand's Resource Management Act 1991. The benefits of “restorative justice” and “diversion” (dealing with offenders outside the court system which avoides a criminal record) schemes are discussed, as these have been applied by one New Zealand district council. It suggests that a restorative justice approach may offer useful, additional discretion to local authorities when prioritising the resource-intense effort required to successfully prosecute environmental offenses as the means for re-dressing the damage to the environment.
Brian J. Preston - The Use of Restorative Justice for Environmental Crime (2011) Written by the Chief Judge of the Australian New South Wales Land and Environment Court who himself has applied restorative approaches to environmental harms, this accesible yet comprehensive article is an excellent introduction to the topic. The article first explores the different models of restorative justice and the processes and potential outcomes that are available. It then identifies victims of environmental crime and ways they can participate in restorative processes. It particularly explores the idea of the broader community, future generations and the environment being recognised and being able to participate as victims of environmental crime in restorative processes. The article finishes with exploring the types of restorative outcomes available. The central message is that by applying restorative processes to environmental crimes, restorative justice can be transformative for the victim, offender, community, environment and justice system.
Brian J. Preston - Internalising Ecocentrism in Environmental Law (2011) Justice Preston presented this speech at the 2011 Wild Law Conference: Earth Jurisprudence - Building Theory and Practice. He explores ways in which five aspects of regulation - namely: statutory objects; relevant considerations; burden of proof; substantive rights, duties and obligations; and implementation and enforcement - could embrace an ecocentric approach.
Mark Hamilton - Restorative Justice intervention in an Aboriginal cultural heritage protection context: Conspicuous absences? (2014) The author discusses the missed opportunities to build upon the succesful use of restorative justice conferencing in the Garrett vs Williams case. Notwithstanding this succesful intervention, the Land and Environment Court of New South Wales did not suggest restorative justice conferencing in two suitable cases and the New South Wales Parliament missed out on an opportunity to promote restorative justice conferencing for offences against Aboriginal cultural heritage. The value in restorative justice conferencing lies in its communicative function (sharing of viewpoints; imparting of knowledge) and in the opportunity given to the offender to apologise to the victim, with much potential for healing in a genuine apology. You can contact the author directly to request this publication.
Rob White, Indigenous communities, environmental protection and restorative justice (2014) The author analysis notable features of the Garrett v Williams case to investigate in which situations a restorative justice approach to environmental and cultural (indigenous) harm is appropriate and effective. He argues that the legal acknowledgement of the intrinsic rights of nature when there is no 'unity' between the affected land and humans who give voice to the environmental harm, restorative justice might be less suitable as a conlict resolution method. Restorative justice involves certain key elements, such as mutual membership of community, exercising agency on each side, and processes of giving and forgiving. Where the perpetrator is disembodied, as in the case of the non-human corporate entity (which nonetheless may have legal status as a ‘person’), and the victim is non-human such as a river or a tree (that is not culturally and historically merged with the identity of indigenous peoples who are intrinsically harmed by the harm done to the land and its biotic elements), it is much harder to build into the justice process the needed humanity that will make it a personal process involving mutual exchanges. He argues that here the emphasis ought to be on dealing with chronic recidivism, and on ‘making things right’ through reparative action. You can download the article here: Indigenous communities Environmental Protection and Restorative Justice.pdf
Mark Hamilton - Restorative justice intervention in a planning law context: Is the “amber light” approach to merit determination restorative? (2015) This article explores whether a practice developed in the Land and Environment Court of New South Wales (NSWLEC), the “amber light” approach to merit determination, is restorative. It concludes that it is, because "the airing and consideration of consent authority, objector and NSWLEC concerns with a development proposal and the ability to incorporate those concerns into an amended proposal, via the amber light approach to merit determination not only leads to a better planning outcome but also a more restorative outcome". Restorative justice interventions are applicable not only in the aftermath of crime but also in the aftermath of conflict, including conflict around development proposals, which is the subject of this article. You can contact the author directly to request this publication.
Mark Hamilton - “Restorative justice activity” orders: Furthering restorative justice intervention in an environmental and planning law context (2015) This article welcomes the amendments to the Protection of the Environment Operations Act which commenced on 1 January 2015, arming the New South Walews Land and Environment Court with the ability to order an offender to carry out a restorative justice activity. It sees these restorative justice activity orders are the first truly “restorative” type orders in New South Wales because its scope includes indirect victims of environmental offending, such as the broader community. This means that the activities ordered are not confined to the immediate environment directly harmed by the offending, but can include broader social and community activities. The author concludes that restorative justice conferencing is the ideal vehicle through which offender and victim can come together to discuss environmental and planning law offending and formulate restorative justice activities which can be proffered to the NSWLEC to be made as orders. You can contact the author directly to request this publication
Mark Hamilton - Restorative justice intervention in an environmental and planning law context: Applicability to civil enforcement proceedings (2016) This article argues that restorative justice conferencing is an ideal vehicle through which 'remedy and restrain' orders can be formulated. The Australian New South Wales Land and Environment Court, under civil proceedings, has broad powers to issue such orders in response to breaches of environmental protection legislation. This broad power, combined with the lower standard of proof required to prove a civil breach, make civil enforcement proceedings a viable alternative to criminal prosecution. Restorative conferencing fulfilling communicative, educative, resolving and integrative functions results in remedy and restrain orders which are truly “restorative”. You can contact the author directly to request this publication.
Aiden Stark - Environmental Restorative Justice (2016) Using Justice Preston's article, the author analyzes the potential of applying restorative justice to environmental crimes within the United States legal system. He gives a clear analysis of the current enforcement mechanisms for environmental laws in the USA (both through criminal and civil law) and points to perceived shortcomings in Carrie C. Boyd's 2008 article on environmental crimes, restorative justice and therapeutic jurisprudence: Boyd Restorative Justice Environmental Crimes.pdf. The author also addresses the concern of environmental racial injustice - signaling that environmental law is based on 'white middle class' standards instead of standards that protect 'vulnerable etnic and racial groups', and argues that the democratic and participatory nature of environmental restorative justice processes could eliminate these inequalities. You can download the PDF here: Environmental Restorative Justice Aiden Stark.pdf
Nicola Pain et al. - Restorative Justice for Environmental Crime: an antipodean experience(2016) This paper, written by judges and researchers of the New South Wales Land and Environment Court, discusses the concept of restorative justice and outlines the benefits of applying it to environmental crime. It outlines in a concise and highly informative way the current utilisation of restorative justice as a response to environmental crime in the Australian states of New South Wales and Victoria and New Zealand. It finishes with a description of possible challenges in implementing restorative justice and their solutions.
Rob White, Reparative Justice, Environmental Crime and Penalties for the Powerful (2016) The author describes the benefits of applying reparative justice to environmental crime, illustrated by recent cases heard in the Australian New South Wales Land and Environment Court. He explains the difference between reparative justice (which is part of a punitive context) and restorative justice, and shortly discusses the application of restorative justice in environmental matters in New Zealand, while giving good references to articles on environmental crime, restorative justice and indigenous communities. You can download the PDF here: White Reparative Justice 2017.pdf
Mark Hamilton, Restorative Justice Conferencing in an Environmental Protection Law Context: Apology and Corporate Offending (2017) Environmental offending can have devastating consequences for victims, including future generations of humans and non-humans, such as flora (trees and flowers), fauna (animals), ecosystems and the environment more generally. The application of restorative justice conferencing to address the harm caused by environmental offending is an expanding area of practice, particularly in New Zealand. Apology and forgiveness can play an important role in restorative justice conferencing, as a way of repairing the harm caused by offending. The application of apology and forgiveness to environmental offending may face particular challenges especially where offenders are corporations and victims are non-human or non-living (ie., future generations of humans). This paper undertakes an exploration of the first challenge, that being offending where the perpetrator is a corporation. The role of apology and forgiveness in such a context is explored. A manager or director can apologise on behalf of a corporation. This does not mean that the corporation as an entity can feel sorrow or regret. Nor does it mean that every employee, manager, director or shareholder feels sorry or regretful. What it does mean is that an individual of sufficient standing can express and represent the sorrow and regret of the directing mind and will of the corporation. The paper also includes a helpful table depicting the use of restorative justice conferencing in a New Zealand environmental and planning law context in 33 cases. You can contact the author directly to request this publication.
Rob White, Green Victimology and non-human victims (2018) The author explores the tensions and interplay between human and non-human environmental victims from the point of view of eco-justice. From an eco-justice perspective, victimhood can be conceptualised in terms of environmental justice (the victim is human), ecological justice (the victim is specific environments) and species justice (the victim is animals, and plants). Hierarchies of victims between and within each of these categories can be identified. One response to these hierarchies is to assert the notion of ‘equal victimhood’ (based on the notion, for example, that all species should be considered equal or that the natural environment has its own intrinsic worth). However, the eco-justice approach adopted in this article argues that context (both social and ecological) is vital to understanding and responding to specific instances of environmental victimisation. The article provides a great introduction to green victimology and also a clear (and welcome) explanation of the differences and commonalities between newly emerging legal perspectives such as "Earth law", "Rights of Nature", "Ecocide" and "Animal Rights". You can download the PDF here: White Green Victimology and Non-Human Victims.pdf.
Susan L. Podziba, Mediating conflicts over sacred lands (2018) Mediating conflicts over sacred lands has commonalities with environmental restorative justice, both being Alternative Dispute Resolution mechanisms and concerning humans relationship with Nature. In this article, the author explains how mediating sacred lands-conflicts requires sensitivity to the concept of the sacred and the unique contexts within which they occur. Sacred lands disputes may emerge from competing incompatible commercial and religious uses, demands for exclusive use, and efforts to undermine religious legitimacy. These aspects of conflicts over sacred lands require mediator consideration of their peculiar dynamics, including clashes of worldviews, indivisibility, and territorial access to the divine.
Chaitanya Motupalli, Intergenerational Justice, Environmental Law, and Restorative Justice (2018) The author argues that we are not equipped to address the current climate crisis using existing environmental law. He seeks to demonstrate the contributions of the restorative justice framework to the discussion of intergenerational justice, and how restorative justice can address not only environmental crime, but also the harms that future generations will experience because of climate change. The article is written by a scholar in the field of Ethics and Social Theory which gives a refreshing perspective, however the author's analysis of environmental law's scope and applicability to crime and the legal basis of climate change cases is not entirely correct. The section discussing Restorative Justice's contribution to intergenerational justice in the light of climate change, however, makes it a worthwile read.
Judgement of the New South Wales Land and Environment Court in the case Chief Executive, Office of Environment and Heritage v Clarence Valley Council, 21 December 2018. This case is the first time after the Garrett v Williams-decision from 2007 that the NSWLEC allowed for a restorative justice conference, this time to address the damaged relationships between the Clarence Valley Council and the Aboriginal community after the Council destroyed a scar tree sacred to the local Gumbaynggirr people. The restorative agreement included measures by the Council to increase awareness and cultural sensitivity among Council staff about sacred Aboriginal objects, public education about the scar tree, improve Aboriginal consultations procedures in planning and development and improve Aboriginal employment opportunities. The same judge, Brian Preston, and the same facilitator were involved as in Garrett v Williams. You can read the judgement here: NSWLEC Scar Tree.pdf.
In spite of all the farmer's work and worry, he can't reach down to where the seed is slowly transmuted into summer. The earth bestows.