In June 2019 one of the UK’s largest water companies was fined £37.7m for dumping raw sewage into the rivers, streams and beaches of Southern England. The pollution, between 2007 and 2017, was said to have been caused by defective equipment and lack of necessary investment by the company, Southern Water (SW).

In addition senior managers took ‘widespread and deliberate’ steps to hide and misreport data about the thousands of spills from some of its wastewater treatment works. The co-ordinated efforts to prevent accurate sampling included routinely driving tankers loaded with sewage from one treatment plant to another to dodge inspections.

‘Exceptionally’ however Ofwat (the Water Services Regulation Authority) reduced this fine to £3m, on the basis that SW undertook to pay £123m to its customers. This sum represented penalties for underperformance that the company evaded in the relevant period. The £123m will be ‘paid’ by way of a rebate on customers’ bills, spread over the next 5 years.

The Environment Agency is investigating SW and expects to start court proceedings soon.Ten environmental groups are demanding that SW pays for the restoration of damage. A representative of The Angling Trust said: “…None of this money will address the long-term environmental damage Southern Water have visited on our rivers and the fish populations they support. Instead, customers are being bribed with rebates on their bills with the support of the water regulator…the rivers and environments that have been affected will not be receiving a penny piece to help repair the damage to the habitat for fish and other wildlife.”

Some possible responses

For anyone who cares about the environment the situation begs a stark question. What would it take to repair and restore the harm done?

In suggesting some answers I should say that I have no special expertise, only practical experience of mediating over 25 years and latterly as a restorative facilitator and as a chair of the UK Restorative Justice Council. Nor is this an attempt to make an in-depth legal analysis, just to highlight some key features.

There is undoubtedly a role here for some form of reparative justice – paying restitution to the victims to make good loss, damage or injury. As well as or instead of a fine, a prosecuting authority might order SW to make good the damage caused e.g. cleaning up the pollution, restocking fish stocks, rewilding the environment.

The Environment Agency (EA) in the UK has considerable powers in relation to environmental damage. It can apply for a remediation order as well as any financial or other penalties. It can issue a restoration notice requiring an offender to put right any environmental harm or damage caused by the offence, to repair the harm done. And it has the power to take action against a corporate body, an individual or both.

What can RJ add?

So what if anything could a restorative process add to such reparative action? Traditional criminal and civil justice does not aim to restore nature, perhaps due to our anthropocentric worldview. Because RJ starts from a different set of questions, it presents an opportunity to bring into the picture a wider set of concerns and to ensure environmental harm is more effectively addressed.

Necessarily a prosecution such as the EA’s will be penal, imposed on the offender by the State. The prosecutor will decide what damage has been done, and how it is to be measured. It will also require the prosecuting authority to decide who are to be treated as the victims.

In any RJ process ‘What harm has been done?’ and ‘Who has been harmed?’ are key questions, often a central part of the exchange between those harmed and those responsible for it. The circumstances of the relevant acts and their consequences can be explored. And a restorative process places responsibility and power with the parties to agree how best to put right the harm done and restore the status quo.

As important as any other element is that the process of dialogue empowers the parties. The fact that ‘victims’ gain a sense of closure, and that ‘offenders’ are discouraged from repeating their offending behaviour is perhaps the best evidence that RJ offers a more appropriate, effective and enduring resolution in the case of environmental harm.

Engagement

So how can we, both the RJ community and wider society, promote and enhance the implementation of RJ in cases such as the case study? What would persuade the directing mind(s) of a corporation to engage with a restorative process? The answer I suggest is three-fold – Litigation, Motivation and Education.

(1) Litigation

The voluntary nature of RJ is a fundamental principle, so this is not a suggestion of litigation to compel the use of RJ. But once court action such as a criminal prosecution compels a party to engage in a legal process, RJ may then be offered either before sentence or as a diversion from the criminal justice system altogether.

(a) This is what the draft law of Ecocide envisages if it is adopted as the fifth Crime against Peace. The draft law, as championed by the late and much-admired Polly Higgins, provides for voluntary engagement in a restorative process, the outcome of which may be taken into account in the sentencing that follows.

In 2011 in the Supreme Court in London two oil company executives were tried under the law of Ecocide. The trial was simulated and the defendants were actors, but the issues were real – involving extraction operations in the Athabasca Tar Sands in Canada – and the jury’s verdicts unscripted.

The defendants were convicted and given the opportunity to participate in an RJ conference. One, the Chief Executive of the fictitious Global Petroleum Company (‘GPC’), accepted and the other did not. In the course of the day-long RJ meeting that followed, an action plan was developed by the participants, and the judge incorporated its principles in the sentence that followed.

In this way the criminal law acted as a ‘stick’ that drove the perpetrator to an awareness of RJ and encouraged him to engage in a restorative process.

(b) In real life such an outcome is possible right now in England and Wales. In any adult crime the Crime and Courts Act 2013 gives the court power to defer sentencing for RJ to take place (always subject to the victim and offender agreeing). If the prosecution anticipated in the case study goes ahead, the EA could instigate an RJ process with the agreement of the parties, the outcome of which could legitimately be taken into account in mitigating sentence. Equally in other prosecutions around environmental harm e.g. Health and Safety, regulatory and planning offences, the offer of an RJ process could be incorporated in existing procedure.

(c) In Australia, New Zealand and Canada there are other examples of existing legislation supporting the implementation of RJ in environmental offences.

A familiar example is in New South Wales in 2006[1] where the director of a mining company was prosecuted for carrying out unlicensed works causing damage to a designated Aboriginal Place and destroying Aboriginal objects. Following a recommendation from the Chief Judge of the Land and Environment Court an RJ process took place before sentencing. Participants included the director of the company and his family, representatives of the Aboriginal people and their families and of various state government departments.

Outcomes included both formal and informal ongoing contact between the parties, consultation with the Wilyakali people before further works were undertaken, and agreement to foster indigenous employment opportunities at the mine. The judge found evidence of genuine contrition and remorse on the part of the defendant, and a financial penalty was imposed.

(d) In an wider context the International Criminal Court has declared its intention to include environmental crimes in its remit. It was reported[2] that:

“The ICC said on Thursday it would prioritise crimes that result in the “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land. It also included an explicit reference to land-grabbing.

The ICC can take action if the crime happens in any of the 124 countries that have ratified the Rome statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

Reinhold Gallmetzer, a member of the ICC working group who drew up the policy document, said: “We are exercising our jurisdiction by looking at the broader context in which crimes are committed. We are extending the focus to include Rome statute crimes already in our jurisdiction.”

While RJ processes don’t appear to sit naturally with crimes of genocide and war crimes, the ICC has power to order reparations. Part of the mandate of its Trust Fund for Victims is to implement those reparations. The TFV may provide ‘physical and psychosocial rehabilitation or material support’ to victims of crimes within the Court’s jurisdiction. This assistance may be awarded to a range of victims, whether or not they result from a particular crime, and even if there has not been a conviction by the Court, in the light of the rights and wishes of the victims and their communities, to help promote reconciliation within divided communities (emphasis added).

Taken with the Court’s approach to environmental crime, the TFV’s assistance programme could encompass RJ processes as a way of addressing harm to individuals and property resulting from crimes over which the court has jurisdiction – and beyond.

(e) Even in civil litigation involving environmental harm there may be opportunities to implement restorative elements.

In a recent case a purchaser of land that included a former petrol filling station sued its previous owner (an oil company) for undisclosed environmental damage, namely hydrocarbon contamination of the land. A chain of prior owners was joined as defendants. Following mediation the parties arrived at a resolution which as well as financial compensation included a undertaking to restore the land to a healthy condition.

(2) Motivation

Nevertheless one should not underestimate the resistance that individuals or a company might have to engaging with RJ. It is axiomatic that participation requires an admission of guilt, or at least responsibility. Many directors and executives will be reluctant in the extreme to make such admissions or accept such responsibility, not least because it may impinge on their employment. So as well as the ‘stick’ of court action what carrots might motivate a company or individual to engage in RJ?

(a) Some corporate officers might of course participate out of a genuine concern for the environment – provided they know what RJ has to offer. Others might be encouraged to be consistent with the terms in which they describe themselves. In the case study Southern Water describes itself as “looking for new ways … to protect and enhance the environment”. It is conceivable that the new Chief Executive might appreciate the opportunity offered by RJ in this regard.

There may also be a Corporate Social Responsibility policy, or ‘corporate conscience’. Under such a CSR policy, the firm aims to further some social good beyond the interests of the firm. Conceivably this could encourage it to use RJ to make a positive impact on the environment.

SW’s ‘Corporate Responsibility Policy’ claims that “meeting social, economic and environmental responsibilities…is integral to our business”. Invoking that policy might well help encourage engagement with victims of environmental damage, whether for higher ethical reasons or a need for more positive public relations.

An obstacle

But the issue of corporate image raises an inhibiting factor that might discourage corporate engagement in RJ – that is the name ‘Restorative Justice’. Antoine Brossier, with more than 30 years’ experience in the chemical industry and a mediator, points out that to those in business the word Justice is “quickly associated with court/tribunal/lawyer/penalty/sentence”. To promote a more cooperative response from industry, he suggests instead the use of terms such as Restorative Social Responsibility, Restorative Environmental Care or Responsible Care, a well-established concept within the chemical industry. By way of example:

In 2010 a local council was intending to hold Britain’s largest Air Festival for the third year running. The council argued strongly for the financial and marketing benefits to the town and its residents, but was concerned that many of its residents and local environmental groups were opposed to it on the grounds of the environmental damage from pollution, traffic, noise etc. In addition it had made a commitment to Sustainable Development.

A process was facilitated to give all stakeholders an opportunity to be heard. In effect it was a restorative dialogue, but it seemed crucial in gaining buy-in that it was described not as Restorative or Justice but as a ‘symposium’. A consensus was reached as to how to manage this and similar future events, including practical steps to reduce the environmental footprint of the Air Show, and an improvement fund to help offset its environmental impact.

(b) More influential, however, than the CSR Department – and better funded – is a firm’s Marketing Department, which is inherently concerned with public image and perception. If a Director of Marketing believes that an environmental issue is affecting the corporation’s image, s/he is usually quick to act. In the case study the most effective way to secure SW’s engagement in RJ might be to highlight the reputational damage to its public image.

(c) In the corporate world the most potent public pressure seems to be corporate profitability, and its reflection in its share price.[3] If public concern about environmental harm is mobilised and grows, pressure to engage with a restorative process is increased because it affects the bottom line, profits and the share price – and also impacts on directors’ bonuses.

In 1995 Shell UK, supported by the British Government, proposed to dispose of a redundant oil platform, the ‘Brent Spar’, by sinking it the North Sea[4]. An energetic media campaign, accompanied by boycotts, led to a mediation where Shell withdrew their plan. They later had the Spar dismantled (some of it being recycled by the Stavanger Port Authority).

A poll of the British public showed that a majority were opposed to Shell’s dumping plan. Shell’s choice to engage in the mediation must have been based to some degree on the effect of the adverse publicity on their share price, perhaps an object lesson in ‘shareholder power’. By way of postscript, Shell’s advertising in the UK has now started to declare how much of its energy is ‘green’.

Indeed it was for this reason that one of the participants in the Ecocide RJ, the Chair of the GPC Pension Fund (in real life a Pension Fund trustee), was persuaded to support a restorative solution, since the company’s pension fund, a significant shareholder in the company, would be directly impacted by a dip in its share price.

And any attempt by a multi-national to avoid responsibility for the actions of its foreign subsidiary is likely to be defeated by the recent UK Supreme Court decision in Vedanta Resources v Lungowe[5]. A UK company carrying out open-cast mining through its subsidiary in Zambia was found to be responsible for acid spills polluting rivers, particularly where the claimants were unlikely to obtain justice locally because they had no access to funding or suitable legal expertise.

(d) The ultimate expression of shareholder power is a divestment strategy, where public and institutions start to divest themselves of investments in ‘offending’ corporations e.g. the Australian National University which has been a leader in fossil fuel divestment. It is not fanciful to suggest that such manifestations of shareholder power have great potential – as both stick and carrot – for influencing corporate participation in an RJ process.

Linked with this is the growth in litigation based on the failure of companies, particularly in the industrial and financial sectors, to disclose physical or liability risks. This growth parallels the development of attribution science linking environmental harm with climate change.

(e) The opportunity to influence is even greater if the corporate has a culture of consultation with its share- and other stake-holders. The International Atomic Energy Agency increasingly sees stakeholder involvement as fundamental in managing nuclear power programmes.

To prepare for decommissioning a nuclear power station in Southern England, the regulatory body initiated a facilitated ‘stakeholder dialogue’. The process was in essence restorative, seeking consensus on how to pre-empt the human and environmental harm that might result from the decommissioning process. Participants in the dialogue included local individuals, community and interest groups, environmental activists, the industry itself, scientific bodies and government agencies.

The IAEA definition of stakeholders also includes the media, the public at large, other States (particularly neighbouring States) and, significantly, ‘future generations’.

Who Speaks for the Victims?

A further challenge in engaging RJ in environmental harm is the delicate question – as in any RJ process – of identifying the participants. Precisely because animals, plants and the natural world are not perceived as having a voice, who speaks for them? How would a court for example decide who speaks with authenticity for nature? Should they go to big organisations like the RSPB, World Wildlife Fund – or scientists and researchers – or species by species advocacy groups – or local wildlife and conservation organisations? In the case study are the quoted environmental groups the appropriate representatives of other interests not present?

This is particularly relevant when we know that RJ works best when the real and direct victims speak for themselves. The challenge to move RJ forward in this area may be to identify how to build consensus around the legitimacy of different actors to speak for the victimised environment, and thus to be included in the process. And then to find individuals who can speak for nature with authenticity and credibility. Perhaps different models need to be tested out to see if they deliver different outcomes.

An example at one end of the scale is the finding of the North Indian Uttarakhand court in March 2017 that the Ganges and Yamuna Rivers should be accorded the status of living human entities. There the court ordered that a management board be set up, and appointed three officials as legal custodians to conserve and protect the rivers. Earlier that month a New Zealand court granted the Whanganui River the same legal status. In this model the court ordered the appointment of two guardians to act on behalf of the river, one from the Crown and the other from the Whanganui iwi. At the other end of the scale might be the role of inter-species communicators. Whether through electronic, non-verbal or intuitive means, individuals are able to communicate directly with animals, plants and other living beings, as indigenous peoples have long asserted. Potentially they could articulate directly on behalf of other species.

In the Ecocide RJ conference referred to above, role-players were chosen to try to give voice to all those elements that had been harmed directly or indirectly. In addition to the facilitators the participants included representatives of GPC – namely its CEO, its Chief Sustainability Officer and the Chairman of its Pensions Trust. There were also representatives of Indigenous Peoples, Wild Birds, Future Generations, Wider Humanity, and a Guardian ad litem on behalf of the Earth.

It seemed obvious that the first choice of participants should be a representative of those indigenous people who had been harmed. By a stroke of Providence Gerald Amos, a First Nations leader, was passing through London when the RJ conference took place, and he spoke compellingly and from first-hand experience. At the same time one should not assume that all those individuals harmed share the same interests and objectives.

Although it was a role-play, most participants spoke with passion and conviction. The selection of participants, which naturally depends on context, would probably be refined in a real-life setting. For instance Government was not represented in the circle. Yet as has been pointed out by Liz Rivers “it is clearly a key element in the wider system as the creator of the policy and regulatory framework which licenses the extraction activity.”[6]

(3) Education

The challenge for RJ has long been to raise awareness of its existence and what it can offer. In the context of environmental harm a pre-requisite of engagement is that the ‘directing minds’ of companies are made aware of the principles and potential benefits for them of RJ. Developing that awareness seems to need a multi-faceted approach, through familiar means such as publications, news items, articles in visual, social and print media, talks, presentations, lectures and seminars.

One role of vital initiatives like that of the EFRJ may be to gather evidence of the value of RJ in the specific context of environmental harm, and to disseminate it. And that awareness has to reach both decision makers, e.g. Government and legislators, and the grassroots, the public at large. As well as top-down encouragement and bottom-up initiatives there is also a need for what John Braithwaite has characterised as ‘middle-out’ pressure, the support of business people, journalists, lawyers and others.

Then there is the need to encourage its take-up. Experience suggests that a key strategy in achieving this is the personal approach to those involved where environmental harm has taken place, to encourage them to engage in RJ.

The collapse of Samarco’s iron ore tailings dam in 2015, was Brazil’s worst environmental disaster, killing 19 people and displacing many more, and fatally contaminating the Doce river. The wave of toxic mud destroyed 650km of flora and fauna.

Vale and BHP Billiton, the owners of Samarco, agreed with the Government to set up and fund the Renova Foundation for ‘remediation and compensation’. The companies have committed $hundreds of millions in funding (while the government dropped a $5.3bn law suit) and created a number of programs.

Renova’s process however is explicitly reparative. The mandate does not require either consultation or dialogue, stating only that “It is also [the] function of the Committee to establish channels of participation of civil society and may, for this, call specific meetings and listen to interested organizations.”

Significant numbers of victims have expressed frustration and anger – that homes are slow to be rebuilt, compensation not paid, health issues not acknowledged. As the President of the Renova Foundation said recently: “Perhaps the greatest challenge lies in the design of compensation for the victims, including those in the informal economy… Meanwhile whether inside or outside the governance structure, people affected by the disaster continue to vocalise their pleas in different ways.” [7]

Happily, however, Renova engaged Dominic Barter, who has worked extensively with RJ in Latin America and elsewhere, to design restorative processes for different aspects of their work. One aspect looks at the organisation as a whole, creating dialogue spaces for people in decision-making roles.

The work has also been to design specific restorative practices for responding to the many moments of conflict that were arising in the local communities. Part of this has been to empower and strengthen the dialogue teams who go into the communities to work on dialogue and learn from the community.

On this occasion Renova has been open-minded enough to look for other forms of resolution, and has had the vision and fortitude to take on restorative approaches. Equally this cultural shift could not have happened without Dominic’s work and persistence over a period of years. It seems an object lesson in the effectiveness of a personal approach, building relationship and trust over time so the principles of RJ can be understood and adopted.

Climate change litigation – a restorative approach

Increasingly citizens are calling Governments and companies to account for their inaction on climate change. There seems to be a real shift in awareness of our relationship and interdependence with the natural world – that it is a living organism rather than a mere resource. Of course this awareness has long been a part of the wisdom traditions of many indigenous peoples. The impact of movements like Extinction Rebellion demonstrates these growing concerns.

Climate change litigation as a tool to strengthen climate action continues to expand, principally led by NGO’s. By July this year climate change cases had been brought in at least 28 jurisdictions around the world, as well as the European Court of Justice and other international courts[8].

Some of the issues necessitate a court ruling e.g. Urgenda Foundation v. State of the Netherlands, requiring the government to adopt stricter emissions reduction targets, and Future Generations v. Ministry of the Environment and Others recognising the Colombian Amazon as a “subject of rights”. Increasingly however these lawsuits are targeting fossil fuel companies and other sources of climate-related harm.

What if RJ were to be introduced and implemented in these cases? What would it take for litigation, even where the defendants are governments, to incorporate the option of RJ? There is a real opportunity for the RJ movement to be at the forefront of this global shift. So that pressure is not only for action on climate change, and compulsory or punitive solutions for states and corporations, but for a restorative lens to be applied – one that allows citizens and future generations, other species and the natural world to be understood as real stakeholders in decision-making, and invites corporations and institutions to become part of the solution.

This article was first published by the European Forum on Restorative Justice.