Restorative Practices in Environmental Law: Part 2

Photo Credit: Mike Kofahl Photo Credit: Mike Kofahl

Restorative Justice for Environmental Offences

January 7, 2020

In the first part of this blog series on restorative environmental law, I advocated generally for restorative justice to be used in environmental law because of its inclusion of communities in justice processes and outcomes. In this post, I will examine restorative justice in the context of environmental offences. 

Restorative justice is achieved in many ways, but often it involves a fairly formalized process through which restorative principles are used and applied to achieve an outcome that is restorative for its participants. This formal process typically involves a person that causes harm (traditionally known as an “offender”) accepting responsibility for their wrongdoing and then coming together with people who were harmed (both individuals and community) in a facilitated restorative process to find solutions that repair the harm. The process should lead to an outcome that restores, builds, and strengthens relationships.  

Restorative justice is already formally used in Nova Scotia for criminal offences. Restorative justice processes have been used in the province for years in some form, with the current Nova Scotia Restorative Justice Program having been in use since 2001. That program started as a pilot program to divert youth (young offenders between 12-17 years of age) from the criminal court system and was recently made available to eligible persons of all ages throughout the province. The program has foundations in Mi’kmaw legal principles and traditions, but the Mi’kmaq Legal Support Network provides restorative justice services for Mi’kmaw persons specifically. 

A person causing harm enters the restorative justice program by referral. This includes referral by police prior to a formal charge, by a Crown lawyer following a charge and plea, by a judge as part of sentencing, or by Correctional Services post-conviction. 

Once a person has entered the program, case workers and other justice workers gather information and identify people who have been impacted by the offence. This work culminates in a restorative justice conference. This is a facilitated gathering of the person (or persons) who caused the harm, persons who were harmed directly, and members or representatives of the community, as well as support persons as necessary. 

In the conference (sometimes informally called a restorative justice circle or a sentencing circle), the person that caused the harm accepts responsibility for their actions and shares their story of what happened and why. Then, each participant is given an opportunity to share how they were impacted. Finally, the group decides together what must be done to repair the harm that was caused.

Repairing the harm is an important part of a restorative justice processes. It involves the creation of a plan and is forward-looking rather than retributive. It may include deciding how the person that caused harm can be supported to make the necessary changes to improve themselves. It may also include identifying underlying issues that need to be addressed to prevent future harm and finding ways to address those issues.

The restorative justice program has been successful because, unlike the court system, it allows for many people who have been impacted by a criminal offence to be included in the process. It allows members of the broader community, who typically play little to no role within criminal court processes, to participate. It also places a central focus on people who have been directly harmed (traditionally called “victims”) and provides them with support and an opportunity to be heard and involved in the outcome. The program has led to low rates of recidivism (the tendency to offend again). 

So, what about environmental offences? Unlike criminal offences like assault or theft, many common environmental offences are “regulatory offences”. This means they are generally considered to be less morally reprehensible and often result in small penalties like fines or withdrawal of approvals rather than measures that restore the environment or repair harm. Even so, environmental offences can often directly impact a greater number of people than many crimes. And many environmental offences have devastating and lasting impacts on human health. 

Unfortunately, there is no formalized restorative justice process for environmental offences in Nova Scotia, and it is likely that persons perpetrating environmental offences would not qualify under the current program. However, it is clear that persons and communities impacted by environmental offences can benefit from a formal restorative justice process, and there are options available to begin transitioning to restorative environmental law. 

For example, British Columbia’s Ministry of Environment and Climate Change Strategy has created the Community Environmental Justice Forum, which is used in instances of non-compliance with environmental legislation that is enforced by conservation officers. The forum is a variation of the restorative justice conference used in Nova Scotia already for crimes. It is a facilitated circle that brings together the responsible party (which must be a regulated company), community members, and the enforcement agency to discuss the offence and collectively come to a formal agreement setting out the appropriate remedies and restitution.  Once the offending company has met its obligations under the agreement, the matter is closed. The Ministry also makes restorative justice processes available to individuals. 

There are opportunities to start using restorative justice in Nova Scotia already, even if a specialized formal process is not immediately available. For example, section 14 of the Nova Scotia Environment Act allows the Minister of Environment to refer a matter to alternative dispute resolution. This would allow restorative practices, such as a community forum or restorative justice circle or conference, to be used to resolve conflicts under the Environment Act.

Restorative justice has potential to give those impacted by environmental offences an avenue to have a voice and find justice, and it should be considered for use in Nova Scotia.

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Mike Kofahl, Staff Lawyer