The recent use of a Community Justice Forum in a case involving Teck Metals Ltd., arising out of a mercury spill, indicates that restorative justice is now an accepted alternative to enforcement proceedings under various environmental statutes.
A Community Justice Forum involves a group decision of stakeholders, regulators and the alleged offender on how to resolve the matter in issue and how to prevent a further occurrence. A trained mediator assists the parties achieve resolution.
The process is entirely voluntary, but it is a precondition that the alleged offender accept responsibility for the event. Both the investigating agency and the alleged offender must agree to enter into the Community Justice Forum process. Typically there are meetings beforehand to agree on such matters as the amount the alleged offender is to pay and the recipients of those funds. The amount of the fine an offender would likely be required to pay if the matter proceeded to enforcement is a guide to setting the amount, but restitution and rehabilitative costs are also considered in finalizing the amount.
The pool of stakeholders will include the alleged offender, the investigating agency(s) and the victim where there is one. Representatives from local government, homeowner associations, environmental and conservation groups and other resource users impacted by the alleged offence may also be invited to participate in the process.
Typically the Forum takes place over one or two days. The parties are not represented by legal counsel. The alleged offender is expected to have present the appropriate corporate representation, usually high ranking executives and lead operational personnel, who will fully explain the event, mitigation efforts and operational changes to prevent a future occurrence. The Forum may also discuss victim impacts, environmental and human health impacts, mitigation requirements and environmental enhancement opportunities. At the conclusion of the Forum a simple agreement outlining the results is signed and the general public is informed of the result through a press release.
The Community Justice Forum benefits an alleged offender because no conviction is registered for breach of an environmental statute. This is significant because of the escalating fines for subsequent offences under most environmental statutes. An ancillary benefit is maintaining and rebuilding a positive relationship with the regulators and community. In most cases there will be a cost saving for the alleged offender.
The regulatory agencies benefit from a cost and time saving by avoiding lengthy litigation over the charges and, at the same time, obtaining an acceptance of responsibility without the risk of an acquittal in a trial process. There is also the obvious benefit of funding for environmental restoration and enhancement projects. In this instance, Teck agreed to pay a total of $325,000 to such projects.
The Community Justice Forum process has been used by BC Ministry of Environment in previous cases, but the Teck case was the first for Environment Canada. The Canadian Environmental Protection Act and Species at Risk Act have incorporated such alternative measures into legislation while the Fisheries Act and the Provincial Environmental Management Act have not. Committing to the Community Justice Forum under the latter two Acts is purely voluntary and is premised upon all parties acting in good faith.