Restorative Practices in Environmental Law: Part 3

Photo Credit: Mike Kofahl Photo Credit: Mike Kofahl

A Restorative Approach to Environmental Decision-Making

January 7, 2020

In the second part of this blog series, I highlighted opportunities for restorative justice to be used for the purposes of finding justice when environmental offences have been committed. In this part, I discuss the role for restorative approaches in decision-making processes where no offences have occurred. The focus of this post is on restorative process as a tool for education and engagement. 

Restorative practices are typically used, at least those that are more formal, where a crime has been committed. However, more broadly, restorative practices are used for any conflict where a harm occurs or can occur. For instance, family lawyers may be familiar with family group conferences, and educators may be familiar with the use of restorative circles for teaching. The reason that restorative practices are so appropriate for such a wide array of issues is the broad focus on repairing harm and on relationships. 

Restorative practices, or processes, have already been used in Nova Scotia for a wide range of issues outside the realm of “criminal law”, including to resolve conflicts that have an environmental or human health component. As highlighted in A Report on the Relationship Between Restorative Justice and Indigenous Legal Traditions in Canada, the use of restorative justice for environmental conflicts also has strong support in Indigenous laws, which place importance not only on the relationships between people, but also on the relationship between people and the environment. 

I want to focus on the potential for restorative justice, as both a process and an outcome, to enable better government decision-making. As an example, I will draw on Nova Scotia’s environmental assessment process, which is set out in Nova Scotia Environment Act and its corresponding Environmental Assessment Regulations.

Nova Scotia’s environmental assessment regime requires certain types of proposed projects (called “undertakings”) to undergo an environmental assessment before beginning. There are various steps that must be taken during every environmental assessment process, and there are additional steps that may be taken, depending on the undertaking, with some of those steps requiring additional work by the proponent, the government, and the public. Much of that work involves information-gathering and analysis. 

Like in other types of government decision-making processes, it is common for issues, and even conflicts, to arise during the course of an environmental assessment. These can include procedural issues like lack of engagement or education and few opportunities for community participation. Environmental assessment processes also generally suffer from an imbalance of power due to the capacity and available resources of government as final decision-maker compared to citizens, as well as the fact that certain environmental assessment processes are proponent-led, giving proponents considerable control over the production and release of information. This power imbalance results in communities that are most impacted having little or no power over the process or outcome of environmental assessments. 

These issues may, at least partially, be resolved using restorative practices that are readily available to be used. In Nova Scotia, the Minister of Environment may refer an undertaking, in part or in its entirely, to alternate dispute resolution at various points in the environmental assessment. Arguably, “alternate dispute resolution” includes restorative justice. 

What might a restorative approach in environmental assessment look like? There are many restorative techniques or processes that might be useful in an environmental assessment, each dependent on the circumstances and the conflicts or issues. One restorative process, called a “fishbowl”, which is a variation of a traditional restorative justice circle, would provide opportunities for engagement and education. 

A fishbowl involves having two circles of participants. The inner circle might include representatives of the proponent and members of the impacted communities; the outer circle might include government representatives and agencies involved in decision-making. The inner circle would be facilitated first, with each participant taking the opportunity to voice their concerns or identify questions. The job of participants in the outer circle would be to listen and identify ways to address issues raised by the inner circle. Once the inner circle was completed and dismissed, the outer circle would be facilitated, with each participant again having the opportunity to share ideas and be heard. 

The objectives of restorative justice are to repair harm caused by the breakdown of relationships and to create new relationships that allow for social cohesion. In a democratic society, government must always have a relationship with its citizens; however, sometimes in a process involving the government, like an environmental assessment, this relationship deteriorates, weakening the legitimacy of the decision-maker’s final decision. Having participants of an environmental assessment, including citizens, government, and the proponent, come together and provide their stories in an equitable and safe process would help to facilitate trust and allow the development of a forward-looking plan to address concerns and identify solutions. 

The power of face-to-face encounters, similar to restorative justice in more formal criminal settings, would lead to creative solutions, help strengthen relationships, and build communities based on equitable dialogue and fair process. 

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Mike Kofahl, Staff Lawyer