Restorative Justice and Procedural Environmental Rights as Relational
Hiking in a mountain range near a flowing river brings a sense of awe, beauty, and connection. When walking through this environment, you might find yourself intersecting with a myriad of ecosystems both consciously and unconsciously. There is the raindrop that falls from the tree onto your head, interacting with your own body to cool you off, even if just for a moment. Maybe you arrive at the river during the salmon run, watching as salmon transform and move upstream, all with their own goals to provide nutrients to the next generation of their species. If you are on this adventure, you have likely acquired the products of certain corporations to help you get there – clothes and shoes that allow you to venture into this environmental ecosystem. On the surface, this is all assisting you in reaching a certain goal, whether that be reaching a summit later in the day or just enjoying the beauty of the natural world by escaping the city. However, on looking deeper, it is clear that all of these elements have other connections which the human actor also influences.
When we turn our minds to the ecosystems surrounding us, the relational connection between ourselves and the natural world becomes consciously obvious. These connections are both visible and invisible, co-existing, collaborating and simultaneously working in other relational ways. But what happens when the corporations we invest in and purchase products from become less and less symbiotic to the natural world? What legal recourse do humans have, or do the salmon themselves have, when an industry actor pollutes the river we are all connected to? Is there access to justice? And if so, what do our conceptions of justice look like?
The term ‘Restorative Justice’ (RJ) comes with many definitions and underpinning theories and does not encompass a singular idea or practice. Indeed, various definitions lead to differing programs and practices – a common set of principles does not establish a single practice or model. For example, the European Forum for Restorative Justice is a working group that has been exploring the expansion of RJ into other domains outside of the criminal justice system. In Canada, a recent publication in Nova Scotia is indicative that alternatives are being considered in the environmental context. However, RJ is a topic that has received relatively less attention in the discussion on procedural environmental rights in Canada.
This blog post is informed by thinking of RJ as a relational theory of justice as conceptualized by Jennifer Llewellyn.[1] In this context, relational theory “compels us to take the fact of relationship, of connectedness, as our starting assumption.”[2] In this way, RJ can be seen as an approach to justice that works within the larger relational ecosystem within which we interact. One of the ways in which RJ is being thought of in the environmental context is through Environmental Restorative Justice (ERJ) proposed by Brunilda Pali, Miranda Forsyth and Felicity Tepper:
“ERJ is an ethos and set of values and practices that respond to environmental harm through focusing on healing the harm, repairing relationships, deep listening, participation of everyone involved, and ensuring accountability for the harm caused that prevent its re-occurrence. [ERJ] is based on relationality, both as a matter of inter-existence and as aspiration and on the need to respect and listen to different perspectives; and on an understanding of the need to value and support connections between humans, between humans and more-than-humans, and between humans and nature.”[3]
The aim of this blog is to demonstrate how taking an RJ approach to the implementation of procedural environmental mechanisms under the Aarhus Convention, an international treaty discussed in detail in an earlier post of this blog symposium and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (OECD Guidelines) have the potential to achieve meaningful outcomes for environmental protection and justice.
Linking the Principles of Aarhus, OECD Guidelines and RJ
RJ is a helpful lens through which to view the recent recognition of the human right to a clean, healthy and sustainable environment, as it shares principles with international instruments including Aarhus and the OECD Guidelines. Broadly speaking, the scope of the Aarhus Convention includes connecting environmental rights and human rights, acknowledges future generations, and confirms that sustainable development must include all stakeholders.
Specifically, the pillars of procedural environmental rights include: access to information; public participation in environmental and decision-making processes; and access to justice. Linking the principles of RJ to procedural environmental rights is a thematic practice that could bolster these rights in Canadian law and responsible business practices even though Canada is not a party to the Aarhus Convention at present. Importantly, RJ can inform a procedural environmental rights framework for Canada that is both preventative and reactive, contributing to the potential for meaningful relationships into the future. In this way, relationship as a starting point could play a vital role in shaping environmental policy, decision making and access to meaningful remedies.
Just as there are various definitions of RJ, there are differing principles underlying each. The remainder of this post will consider how an RJ approach to the envionment aligns with the goals of procedural environmental justice aims of Aarhus and the OECD Guidelines, with a focus on several of the principles underlying ERJ embedded within the definition above including: healing the harm; repairing relationships; participation; and accountability to prevent the harm from occurring in the future.
Aarhus
Aarhus adopts a rights-based approach which has the aspiration of “protecting the right of every person of present and future generations to live in an environment adequate to health and well-being.” Just as Aarhus is looking toward the future with an emphasis on the interconnectedness of relationships, ERJ is also used preventatively, with a view toward the future.[4] Indeed, Aarhus emphasizes the relationship between governments and people. Environmental protection and human rights are thus not siloed and require the participation of various stakeholders and rights holders – an approach that ERJ embraces. In the context of this blog, rights holders include more than humans, encompassing relations with the environment and more-than-humans. Public participation in Aarhus concerns “the right of the citizens to participate in preparing plans, programmes, policies and legislation that may affect the environment.” Applying ERJ to this process could enhance environmental protections by ensuring the participation of all parties and respecting different perspectives of each rights holder involved.
By opening up the process to all impacted stakeholders, an ERJ approach can also help increase access to justice and remedies. One of the aims of Aarhus is to enhance access to justice relating to the environment. When the starting point to justice is relational and the focus turns to healing, participation and accountability, access can become more encompassing and preventative. Taking an ERJ approach to access to justice under Aarhus leads to the embrace of who the stakeholders and rights holders are and what each needs within the relationship to achieve meaningful justice. In this way, access to justice can change, adapt and evolve based on the specific stakeholders involved.
OECD Guidelines
The OECD Guidelines contemplate another relationship – the corporation’s role in sustainable development. The Guidelines apply to business practices of enterprises that operate within and from the 51 state adherents. Certain provisions are of particular relevance when considering ERJ. For example, the OECD Guidelines require states to create a National Contact Point (NCP) with one of the purposes being the creation of a non-judicial grievance mechanism. This is where ERJ can play an essential role in repairing harm, holding accountability and ensuring the participation of all relevant parties including the corporation, governments, and those impacted including humans, nature and more-than-humans.
Additionally, the OECD Guidelines contain both a human rights chapter and an environmental chapter. The obligations outlined in the human rights chapter refer to “human rights impacts.” The environmental chapter refers to “environmental impacts” which include “climate change, biodiversity loss, degradation of land, marine and freshwater ecosystems, deforestation, air, water and soil pollution, mismanagement of waste, including hazardous substances.” An ERJ approach would recognize that the environmental impacts and human rights impacts contemplated by the OECD Guidelines are often relational, creating the opportunity to address issues arising from business practices more effectivley.
Other relevant provisions of the Guidelines are section 7 in Chapter IV which states that corporations should “contribute to the development of environmentally responsible and economically efficient public policy, for example, by means of partnerships or initiatives that will enhance environmental awareness and protection.” Paragraph 66 of Chapter IV states that achieving the environmental objectives outlined in this chapter requires the participation of the whole of society. These provisions are inherently relational in that they recognize the need for participation in developing suitable policy that helps protect the environment and promotes the important participation of corporations in achieving these objectives.
Conclusion
This post helps to draw connections between RJ and international instruments including Aarhus and the OECD Guidelines using ERJ as an example. Each reflects a proactive approach to environmental protection and a recognition of the participation of various stakeholders including individuals, government and corporations. An RJ approach to the environment can help bolster procedural environmental rights in policies and mechanisms by starting at the intersection of relationships between humans, more-than-humans and nature. While each of these approaches to procedural environmental justice is distinct, this brief post served the purpose of drawing a connection between the shared goals to help promote RJ as a proactive approach to environmental protection in the implementation of international procedural environmental rights instruments. Indeed, this approach better recognizes the person on this hike as being in relation to the ecosystem to which they are surrounded.
[1] Jennifer J Llewellyn, “Restorative Justice: Thinking Rationally About Justice” in Jocelyn Downie & Jennifer J Llewellyn, Being Relational: Reflections on Relational Theory and Health Law (Vancouver: UBC Press, 2012) 89-108 at 90.
[2] Ibid at 90.
[3] Miranda Forsyth, Brunilda Pali & Felicity Tepper, “Environmental Restorative Justice: An Introduction and an Invitation” in Miranda Forsyth, Brunilda Pali & Felicity Tepper, The Palgrave Handbook on Environmental Restorative Justice (Switzerland: Springer Nature, 2022) 1-23 at xi, 3-4.
[4] Ibid.