Words: Femke Wijdekop (October 2018)
Image Credits: Femke Wijdekop
Reading Time: 8.5 minutes

THE SCOTTISH LAW FIRM LIVING LAW RECENTLY PUBLISHED an excellent report analyzing legal developments to recognize rights of nature in the jurisdictions of New Zealand, Colombia, Ecuador, Bolivia and India. The report among others describes how rights of nature developments in one country can stimulate recognition of these rights in other jurisdictions, as was the case with New Zealand and India. It analyses rights of nature-developments against the backdrop of the Sustainable Development Goals, climate change and the Earth’s Planetary Boundaries.

The growing momentum for rights of nature is hope giving, but the report also signals recurring challenges in the enforcement of rights of nature-provisions in legislation and judicial rulings. Enforcement of rights of nature is often problematic, especially when rights of nature have to be upheld against well-entrenched property rights. I think that if we strive for rights of nature-provisions and rulings to become the ‘living law’ of the land, rather than symbolic law or sporadic victories, it ultimately comes down to us internalizing the worldview inherent in rights of nature: the realization that we are interconnected with the natural world, that nature is a community we belong to, not a commodity to exploit.  This worldview is native to indigenous peoples who have been the prime advocates for rights of nature-legislation and is gaining ground globally thanks to grass root movement such as the Global Alliance for the Rights of Nature, institutional support by the UN Harmony with Nature initiative, scholarship (refer to the work of Cormac Cullinan, Michelle Maloney, Mumta Ito, Linda Sheehan, Polly Higgins and Valerie Cabanes among others) and movies.

This article looks at the possibility for restorative justice to play a role in this promising development.  As says the ‘Giving Nature a Voice’ report, creative thinking is required to ensure our laws are correctly oriented towards living within planetary boundaries and to prevent environmental and social conflict. Could restorative justice become another avenue to advance the rights of nature? In New Zealand and Australia restorative justice is applied to environmental crimes, which I will shortly discuss in the next paragraph

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Applying Restorative Justice to Environmental Crimes

Restorative justice can be applied to environmental crimes and the defendants’ commitment to make amends can involve restoration of the natural environment. There are several possible restorative outcomes in the case of environmental crimes: apologies; restoration of environmental harm and prevention of future harm; compensatory restoration of environments elsewhere if the affected environment cannot be restored to its former condition; payment of compensation to the victims and community service work. Measures addressing future behavior, such as an environmental audit of the activities of the offending company, or environmental training and education of the company’s employees, are also possible outcomes.

Restorative Justice has been an important element in New Zealand sentencing since 2002. According to a 2012 report of the Ministry for the Environment, between 1 July 2001 and 30 September 2012, a restorative justice process was used in 33 prosecutions under the Resource Management Act in New Zealand. In Australia, the New South Wales Land and Environment Court also uses restorative processes in addressing environmental offences. The Australian Victorian Environmental Protection Agency uses restorative justice conferences in communities afflicted with environmental damage.

Representing Nature in Restorative Conferences

Nature is sometimes recognized as a victim of environmental crime in its own right, and represented in the restorative process. As writes Justice Brian Preston:

Humans are not the only victims of environmental crime.  The biosphere and nonhuman biota have intrinsic value independent of their utilitarian or instrumental value for humans.  When harmed by environmental crime, the biosphere and non-human biota also are victims.  The harm is able to be assessed from an ecological perspective; it need not be anthropocentric (…)
If the environment is recognised as being a victim of environmental crime and is represented in the restorative justice process, it becomes empowered.  The environment is given a voice, validity and respect.  This itself is a transformative act as it recognises the intrinsic value of the environment.  Restorative outcomes that involve prevention of future environmental harm and restoration and reparation of past environmental harm are also transformative.  By giving the environment a voice and recognising and healing it as a victim, humanity’s relationship with the environment is also transformed.”

With respect to the appropriate representative of elements of nature harmed by environmental crime, judge Preston writes:

“The choice of representative will be influenced by the crime and the harmed caused.  For example, for a water pollution offence which affects river quality, the community that uses and benefits from the river, and the river itself which is also a victim, could be represented by a governmental or non-governmental organisation responsible for or engaged in protection of riverine ecosystems. Similarly for offences involving harm to harbours and bays, the community and the harbours could be represented by government or non government organisations responsible for or engaged in protection of the harbours.  For offences involving the cutting of trees or native vegetation without consent, the trees and the vegetation community of which the trees were part could be represented by governmental and non-governmental organisations responsible for or engaged in protection, restoration or regeneration of native vegetation.  (…) Where the environment and non-human biota are the victims, the surrogate victim needs to be able to bring to the restorative process an ecocentric and not anthropocentric perspective.  As with future generations, the fact that the environment and non-human biota are not able to vocalise their claims and concerns is not an insuperable problem.  A representative can be appointed to speak on their behalf.”

Trees and rivers have been represented by a surrogate victim in a few New Zealand restorative justice conferences:

In Auckland City Council  v  12 Carlton Gore Road Ltd and Mary-Anne Catherine McKay Lowe (Auckland District Court (McElrea DCJ), 11 April 2005) and in Rodney District Council and Sam Josh Tupou (Auckland District Court (Judge JP Doogue), 28 February 2005) the environment affected by destruction and cutting of trees without resource consent was represented by the local council which was responsible for administering the laws protecting vegetation in the area. In these cases, the trees were considered a victim in their own right and represented as such at the conference.

In the Waikato Regional Council  v  Huntly Quarries Ltd and Ian Harrold Wedding case (Auckland District Court (McElrea DCJ), 30 July 2003 and 28 October 2003), a river was represented at a restorative justice conference as a victim in its own right. In this case, sediment laden storm water was illegally discharged from the offender’s quarry affecting the river quality of the Waikato River, a river of particular cultural significance for the local Maori Taiui people.  The river was represented at the restorative justice conference by the chairperson of the Lower Waikato River Enhancement Society. The outcome of the restorative conference was that the offender had to make a donation to the Lower Waikato River Enhancement Society in lieu of a fine. The offender complied and was then discharged without conviction.

In Auckland City Council v G B Shaw and B & C Shaw Limited, (Auckland District Court (McElrea DCJ), 2 March 2006) the restorative outcome of the conference involved restoration of the physical environment. A developer felled a protected pohutukawa tree for gain. At the conference where the defendant apologised publicly, it was agreed that the defendant would plant a new pohutukawa tree on the property, pay for an arborist to maintain it for five years under an enforcement order, make a donation of $20,000 to the community for the purchase of 200 trees for planting in the neighbourhood and contribute to Council’s costs. At sentencing the outcome plan was accepted by the judge as a starting point and the recidivist defendant avoided three months imprisonment (in part because of the restorative justice process) but was fined $80,000.

This case-overview is concise but it shows the potential of restorative justice to advance the recognition of nature as a victim and to vindicate nature’s rights. Will these early New Zealand examples of representing nature at restorative justice conferences stimulate similar practices in other countries, as was the case with the recognition of the rights of the Whanganui-river? With the growing support for rights of nature, the time seems ripe for ecocentric-perspectives to become integrated in restorative responses to environmental crimes.

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Conclusion
Could a community and connection-oriented method of addressing environmental damage such as restorative justice, with human guardians representing the natural elements victimized by pollution, advance the rights of nature and the ecocentric worldview which underpins it? Restorative justice is a more systemic way of addressing the harm cause by crime. Rights of Nature equally looks at environmental harm from a system-perspective; the system being the wider Earth community. Both restorative justice and rights of nature have indigenous roots. In decision-making processes of for example the Moluccan indigenous people, the Earth and future generations are represented.

The fact that restorative justice uses indigenous processes such as (peacemaking) circles can create a conducive environment for rights-of-nature approaches to gain strength. To repeat the words of Justice Brian Preston, ‘If the environment is recognised as being a victim of environmental crime and is represented in the restorative justice process, it becomes empowered.  The environment is given a voice, validity and respect.  This itself is a transformative act as it recognises the intrinsic value of the environment.’

Restorative Justice allows a wide range of values, including spiritual and emotional values, and needs to be expressed and culturally appropriate procedures to be followed. Thanks to this ‘open’ character, it could be well suited to give space for rights of nature-approaches to what constitutes an environmental violation, who can be a victim of such a violation, and what ‘restoration’  could look like. Offender’s confrontation with the harmful effect of his/her actions on the natural world, in the ideal case, might contribute to his/her ecological awakening. This confrontation can help the offender to start to relate differently to the natural world and to begin to internalize the values inherent in rights of nature. In the words of Judge Preston, ‘By giving the environment a voice and recognising and healing it as a victim, humanity’s relationship with the environment can be transformed.”  As such, restorative justice seems to hold great potential as an avenue to advance the rights of nature.

FEMKE WIJDEKOP is a Legal Researcher at the Institute for Environmental Security and a Senior Expert in environmental justice at IUCN Netherlands. Previously, she worked as a researcher in the fields of international and constitutional law at the University of Amsterdam. She is a co-litigant in the Urgenda climate case and writes about topics such as the emerging ecocentrism in law, Ecocide, and the protection of Environmental Defenders. Read more about Femke’s work on EARTH RESTORATIVE JUSTICE HERE.

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