Environmental Crime and Restorative Justice: Justice as Meaningful Involvement [1st ed. 2021] 9783030690519, 9783030690526

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PALGRAVE STUDIES IN GREEN CRIMINOLOGY

Environmental Crime and Restorative Justice Justice as Meaningful Involvement Mark Hamilton

Palgrave Studies in Green Criminology

Series Editors Angus Nurse, School of Law, Middlesex University, London, UK Rob White, School of Social Sciences, University of Tasmania, Hobart, TAS, Australia Melissa Jarrell, Department of Social Sciences, Texas A&M University - Corpus Christi, Corpus Christi, TX, USA

Criminologists have increasingly become involved and interested in environmental issues to the extent that the term Green Criminology is now recognised as a distinct subgenre of criminology. Within this unique area of scholarly activity, researchers consider not just harms to the environment, but also the links between green crimes and other forms of crime, including organised crime’s movement into the illegal trade in wildlife or the links between domestic animal abuse and spousal abuse and more serious forms of offending such as serial killing. This series will provide a forum for new works and new ideas in green criminology for both academics and practitioners working in the field, with two primary aims: to provide contemporary theoretical and practice-based analysis of green criminology and environmental issues relating to the development of and enforcement of environmental laws, environmental criminality, policy relating to environmental harms and harms committed against non-human animals and situating environmental harms within the context of wider social harms; and to explore and debate new contemporary issues in green criminology including ecological, environmental and species justice concerns and the better integration of a green criminological approach within mainstream criminal justice. The series will reflect the range and depth of high-quality research and scholarship in this burgeoning area, combining contributions from established scholars wishing to explore new topics and recent entrants who are breaking new ground.

More information about this series at http://www.palgrave.com/gp/series/14622

Mark Hamilton

Environmental Crime and Restorative Justice Justice as Meaningful Involvement

Mark Hamilton Faculty of Law & Justice UNSW Sydney Sydney, NSW, Australia

Palgrave Studies in Green Criminology ISBN 978-3-030-69051-9 ISBN 978-3-030-69052-6 https://doi.org/10.1007/978-3-030-69052-6

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: Kevin Schafer/Getty This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

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Victims of Environmental Harm References

1 14

2

Prosecution of Environmental Offending Strict Liability Motive Behind Offending Guilty Pleas Offenders Reoffending Victims Offender and Victim Involvement in Prosecution Sentencing of Environmental Offending Fines Reparative Orders Publication Orders Future References Orders Restorative Justice Activity Orders References

21 22 23 24 25 25 26 30 37 38 38 50 51 52 54

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Contents

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Justice as Procedure and Justice as Outcome Justice as Procedure Justice as Outcome References

57 59 61 73

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Restorative Justice Definitions of Restorative Justice Origins of Restorative Justice Dissatisfaction with Modern Criminal Justice Systems Intervention Points Conference Participants Central Tenets of Restorative Justice Restorative Justice Conferencing as a Resolution Device References

77 78 80 82 86 87 88 92 94

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Restorative Justice in an Environmental Offending Context: Theory and Practice Victoria (Australia) New South Wales (Australia) New Zealand Canada United States United Kingdom Transnational Crime Environmental Harm References

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Restorative Justice Conferencing in an Environmental Offending Context: Case Studies New Zealand Environmental Offending Context The Use of Conferencing in a New Zealand Environmental Offending Context Interflow: A Case Study New South Wales Aboriginal Cultural Heritage Protection Context

99 99 103 105 106 109 113 114 114 117 125 125 130 137 141

Contents

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8

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Williams: A Case Study Clarence Valley Council: A Case Study References

141 148 154

The Benefits and Limitations of Restorative Justice Conferencing Benefits of Restorative Justice Conferencing Limitations of Restorative Justice Conferencing References

157 157 175 179

Overcoming the Barriers to Restorative Justice Conferencing A Legislative Framework Judicial Oversight of Conferencing Outcomes Stakeholder, Practitioner, and Judicial Knowledge Suitability Criteria for Conferencing Conference Facilitation and Follow Up A Restorative Justice Unit Within the NSWLEC Stakeholder Participation References

181 181 185 191 195 202 205 207 209

Environmental Victims and Restorative Justice Conferencing Victim Identification Victim Voice Selection of Victim Representatives (Human Guardians) Nature of Victim Voices References

213 214 220 223 226 231

Justice as Meaningful Involvement and Its Operationalisation Through Restorative Justice Conferencing Recognition Participation Capability (Ir)Relevance of Distribution Meaningful Involvement

235 236 238 239 241 243

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Contents

Operationalisation of Justice as Meaningful Involvement Achievement of a Tripartite Conceptualisation of Justice Concluding Remarks and Future Directions References Index

244 247 252 257 261

About the Author

Mark Hamilton holds a Bachelor of Science (Psychology) and Bachelor of Laws from the University of Wollongong, a Master of Environmental Law and Master of Laws from the University of Sydney, a Master of Politics and Public Policy from Macquarie University, and a Doctor of Philosophy (Law) from the University of New South Wales. He is currently a teaching fellow within the Faculty of Law & Justice at the University of New South Wales, Australia, teaching in the Criminology and Criminal Justice, and Law Programs. Mark has had considerable exposure to, and experience in, local government, planning and environmental law. He was an operational assistant at the Land and Environment Court of New South Wales in 2006 and 2007, before becoming Justice Sheahan’s tipstaff at that same court in 2008. Between 2009 and 2012 Mark worked as a solicitor in a local government and planning practice in a national mid-tier law firm in its Sydney office. In that position Mark was involved in a range of local government, planning, environmental and compulsory acquisition matters. Mark has a strong interest in green criminology, environmental victims, and restorative justice.

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List of Figures

Fig. 2.1

Photo 6.1 Photo 6.2 Photo 6.3 Photo 6.4 Photo 6.5 Photo 6.6

Fig. 8.1 Fig. 8.2

Environmental Service Order/Harm Occasioned Nexus Characterisation Rue Noyer, Akaroa, a street under which Walnut Stream runs Locality of the offending Western side of Rue Noyer Walnut Stream Culvert on Western side of Rue Noyer Culvert on Eastern side of Rue Noyer. Each of these photos was taken by the author whilst on a holiday in New Zealand on 16 December 2018 Framework approach continuum Judicial treatment of restorative justice conference outcome continuum

47

137 138 138 138 139

139 182 185

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List of Tables

Table 2.1 Table 2.2 Table 3.1 Table 6.1 Table 10.1

Reparative Orders under the Protection of the Environment Operations Act 1997 (NSW) Environmental Service Order/Harm Occasioned Nexus Characterisation Justice according to different people Data relating to the use of Restorative Justice Processes in a New Zealand Environmental Offending Context Approaches to Harm under Green Criminology and the Focus of Concern

40 46 58 131 237

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1 Victims of Environmental Harm

Human interaction with, and exploitation of, the environment has led to some devastating impacts on both humans and the environment (inclusive of its constituent parts). These range from human health problems, socially disadvantaged and poor communities living in degraded environments, species extinction, biodiversity loss, and potentially irreversible climate change. These impacts arise from both legal and illegal activity. ‘Green criminology’ (Lynch 1990) is a broad concept under which fits many different approaches which have at the core human/environment interaction and a concern with the impact that human/environment interaction has on both humans and the environment and also a concern about what to do about those impacts (White and Heckenberg 2014: 8–15). Green criminology is a distinctive perspective within criminology which emerged in the early 1990s (Hall 2014b: 103) as recognition of the need to take environmental harm seriously (White and Heckenberg 2014: 13). Notwithstanding, its emergence in the 1990s, green criminology’s conceptual contours have a longer lineage (White © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_1

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2013; for an illumination of ‘the antecedents of green criminologies – before the term ‘green criminology’ was introduced’, see Goyes and South (2017)). Green criminology is a means to traverse issues relating to humans, flora, fauna, ecosystems, and the environment more generally through the study of harm, crime, victimisation, law, environmental justice, environmental regulation, morality, and philosophy (Lynch and Stretesky 2014: 51). Green criminology provides a ‘comprehensive conceptual umbrella’ (Ruggiero and South 2010: 247) under which to theorise and critique environmental harm, which can be the result of both illegal and legal activities (White and Heckenberg 2014: 13). Illegal activities are those specified as unlawful under environmental protection legislation, such as polluting a waterway (e.g. under the Protection of the Environment Operations Act 1997 (NSW), s 120 (‘POEO Act ’)). These illegal activities can be colloquially referred to as ‘the unlawful’ (White and Heckenberg 2014: 3). Legal activities are those permitted under licence such as the release of certain pollutants, in certain quantities, into the environment. For example, an activity that would constitute water pollution may nevertheless be carried on lawfully under an adeptly labelled ‘license to pollute’ (as regulated, for example, under the POEO Act, ch 3). Other lawful activities are simply those which are not prohibited; ‘the lawful but awful’ (Passas 2005; see also, White and Heckenberg 2014: 3). The legal/illegal dichotomy does not mean, despite the temptation to imply such meaning, that the illegal polluting or clearing of native vegetation (or whatever illegal activity) does harm the environment whereas polluting under licence or the clearing of native vegetation with consent (or whatever legal activity) does not harm the environment. Both illegal and legal activities harm the environment, collectively causing ‘environmental harms’. What differentiates legal from illegal harms, and more pertinently the acceptance of legal environmental harms, is the presumption that some harm is necessary or unavoidable for society to function and progress; ‘such harm is an inherent consequence of many industrial activities which provide significant economic and social benefits’ (White 2016: 142). As Skinnider points out, ‘[t]he reality of our age is that much of the economy is based on the exploitation of natural resources’ (2013: 3). This ‘ecological-economic trade-off’ (Lampkin and

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Wyatt 2019) provides that environmental regulation is a balancing of economics and a healthy environment. Under such a balancing act, only the few highly toxic pollutants will be eliminated, with the level of pollution permissible set by governments at levels acceptable to business and the public (Wolf and Stanley 2011: 5–6). For this reason, green criminology’s key focus is environmental crime (White and Heckenberg 2014: 8) (i.e. illegal harms). Indeed, the focus of this book is on illegal (rather than legal) harms. Green criminology is not a theory as such (White 2008: 14), rather it is a perspective (South 1998). This has meant that there is some debate about what it actually means to ‘do’ green criminological research. Hall opines that articulating just ‘what it means to ‘do’ green criminology would be beneficial at this stage of the field’s development…’ (Hall 2017b: 25). Notwithstanding that green criminology is not a theory as such, it does engage with theory. As Brisman (2014) points out, green criminology has both intra- and extra-disciplinary theoretical engagement. Intra-disciplinary theoretical engagement sees micro or individual level, and macro or group level, criminological theories used to explain environmental crime (Brisman 2014: 24–26). For example, strain theory (Agnew 2011, 2012), rational choice and deterrence theories (Stretesky 2006), control theory (Du Rées 2001; Ray and Jones 2011), situational crime prevention and routine activities theory (Lemieux 2014; Lemieux and Clarke 2009; Pires and Clarke 2011, 2012), and social learning theory (Sollund 2011). Extra-disciplinary theoretical engagement is green criminology engagement with theories and ideas outside criminology (Brisman 2014: 26–28). For example, the Treadmill of Production from environmental sociology (Long et al. 2012; Stretesky et al. 2013a, b) and anthropologically-oriented, ethnographically-based study (Kane 2012, 2013). Despite its emergence in the early 1990s and having ‘achieved a significant degree of maturity and acceptance within broader criminological discourse’ (Hall 2017a: 2), green criminology has been slow to engage with victims of environmental crime. This may be because of the notion of environmental crime (and harm) as a victimless crime (the environment rather than people) or a crime of equal distribution, i.e. impacting people within a given locality equally (Hall 2014b: 103). In fact, some

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if not many, saw and indeed may still see environmental crime as ‘soft’ crime and not ‘real’ crime; notions which are particularly attributable to environmental crime being ‘consistently undervalued in law’ (White and Heckenberg 2014: 9). Notions of environmental crime as not being real crime may derive from the idea of environmental crime being ‘applied to specific activities that are otherwise lawful or licensed [and hence not]…intrinsically criminal or ‘bad” (White and Heckenberg 2014: 9). It may also derive from the fact that environmental crime does ‘not always produce an immediate consequence, the harm may be diffused or go undetected for a lengthy period of time’ and in that sense, is ‘victimless’ (Skinnider 2011: 2). Traditionally, this has meant that environmental crimes will go undetected or offenders will escape criminal prosecution, meaning that victims are not recognised as such and do not receive restitution for the harm they have suffered (Jarrell and Ozymy 2014: 563–564). The notion of environmental crime as a mere administrative breach has been rejected by the Chief Judge of the Land and Environment Court of New South Wales (‘NSWLEC’) both judicially (Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299, [226]) and academically (Preston 2007: 93). This traditional view of environmental crime as not real crime meant the devolving of environmental crime to lower courts with a low value being placed on environmental crimes and environmental harms (White and Heckenberg 2014: 256–257; White 2014: 87). In New South Wales, the creation of the NSWLEC as a statutory environment and planning court beginning operation in 1980 has gone some way to rebutting any assumption that environmental crime is not real crime. The NSWLEC has the same standing as the Supreme Court of New South Wales and its practice, procedure and expertise has seen it recognised as a world-class example of an environment court; it is ‘universally viewed as one of the very best operationally independent’ environment courts (Pring and Pring 2016: 21). Acknowledgement of environmental crime as ‘real crime’ (Jarrell and Ozymy 2012: 381–383) is the ever-increasing maximum penalties which can be imposed on environmental offenders, up to $1 million for individual offenders and/or 7 years imprisonment and $5 million for

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corporations (POEO Act, s 119) and an ever-increasing range of alternate sentencing options. This traditionally low value placed on environmental crime and harm has meant that ‘[h]istorically, research on environmental crime has lacked the theoretical and methodological depth that has been undertaken for other traditional crimes’ (Skinnider 2011: 2–3). It has also meant that there is scant empirical evidence engaging with the needs of environmental victims (both human, presently living and future generations, and non-human) (Hall 2014b: 104). Writing in 2012 in an UK context, but which is arguably reminiscent of the Australian actuality, Hall notes that ‘there is at present a serious absence of empirical research in which victims of environmental harm are questioned as to their needs and expectations of a criminal justice (or other) system’ (Hall 2012a: 13; an observation echoed in Hall 2014b: 104; see also, Hall 2013b, 2016: 206). Indeed, ‘the debate on how best to respond to environmental harm has so far neglected to factor in the perspectives of the victims of those harms and, in particular, their need for redress’ (Hall 2016: 203). Hall notes the absence of victims of crime from academic and policy discussions (2014b: 103–104; see also Hall 2012b, 2013a, 2014a; White and Heckenberg 2014: 17). More recently, Hall describes the state of research regarding environmental alternate dispute resolution (including restorative justice) as ‘woefully lacking’ (2017a: 1). There is, however, a recent and growing interest in the use of restorative justice for environmental offending, including this book (see, for example, Al-Alosi and Hamilton 2019; Hamilton 2019a, b; Hamilton and Howard 2020). Traditionally, ‘[v]ictims of environmental harm are not widely recognised as victims of “crime” and thus are excluded from the traditional view of victimology which is largely based on conventional constructions of crime’ (Skinnider 2011: 2). Conventional constructions of crime paint crime as a random but deliberate action of a person (evil, desperate, or otherwise impaired) against an innocent and undeserving victim (notions of Christie’s (1986) ‘ideal victim’ resonate) involving interpersonal violence or theft. Victimology’s default situation is crime involving one, or small number of, offender(s) and victim (s) arising from one

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event (or a small number) resulting in obvious and immediate physical, psychological and/or financial harm (Pemberton 2014: 66; see also Pemberton 2009). Victimhood, when it has been applied to environmental harm, has been cast in anthropocentric terms. That is, the view that humans are the centre of the universe and therefore the most important (for an overview of the Anthropocene, see Steffen et al. 2011; Ruddiman 2013; Lewis and Maslin 2015). An early definition of ‘environmental victims’ is provided by Williams (1996). Namely, ‘those of past, present, or future generations who are injured as a consequence of change to the chemical, physical, microbiological, or psychosocial environment, brought about by deliberate or reckless, individual or collective, human act or act of omission’ (Williams 1996: 21; 1997: 7). Even though, in reality, there may never be a typical crime, as will be seen in the next chapter, environmental crime is committed primarily by organisational offenders (corporations and government entities) as a result of an accident, rather than deliberate offending, resulting in a diversity of victims (humans, environment, communities and commercial operators). Thus, a positive of the Williams (1996) definition is that it contemplates future generations of humans as victims, Indeed, intergenerational inequality may be the result of environmental offending (Preston 2011) and harm (for an overview of the doctrine of intergenerational equity, see Anstee-Wedderburn 2014). Another positive is the acknowledgement that environmental harm can be perpetrated by collectives of humans (such as corporations and governments) as well as individuals. The main limitation of the definition is that it is restricted to human victims (‘those of past, present or future generations…’ (Williams 1996: 21)), thereby not capturing the environment as a victim along with non-human animals. Another limitation is that it is focussed on deliberate and reckless action. As the next chapter highlights, environmental offending is also committed accidentally. One further observation is the notion of injury. The terminology of ‘injured’ suggests some physical, psychological, or economic consequence (i.e. injury). Any concept of injury should extend to aesthetic and recreational loss. For example, bushwalkers no longer able to look at the forest they traditionally hiked

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through, or the swimmers no longer able to swim in a lagoon which is now polluted. Green criminologists ‘argue that environmental crime victims, and research associated with environmental crime victim experience, remains on the periphery of mainstream criminology’ (Johnson 2017: 89). Johnson’s (2017) content analysis of undergraduate victimology course syllabi obtained from the American Society of Criminology’s Division of Victimology supports this notion. Specifically, eleven textbooks informing the teaching of those courses were analysed. The following items were searched in each book (via the table of contents and index)— ‘environmental crime’, ‘green crime’, ‘critical or radical crime’, and ‘environmental justice’. The analysis found that ‘discussion of green crime occurred in only 3 of the 4288 pages of the eleven textbooks in the sample’ (Johnson 2017: 100). Indeed, only 1 of the 11 books contained green crime content, albeit only 3 pages. The author concludes that ‘[b]ased on the examination of textbooks assigned for victimology courses in higher education, it is evident that environmental victims are underrepresented in Victimology research’ (Johnson 2017: 103). Notwithstanding, green criminology and environmental victims are starting to form part of undergraduate criminology courses in Australia. For example, the first-year introduction to criminology subject (part of the criminology and criminal justice programme) at the University of New South Wales, Australia, includes readings which encompass environmental harms and non-human victims (see White et al. 2019: 104–105). An emerging subdiscipline within green criminology which is concerned with victims of environmental harm is green or environmental victimology. White refers to this subdiscipline as ‘the study of the social processes and institutional responses pertaining to victims of environment crime’ (White 2018: 239; see also 2015). The ‘novelty’ of the research pertaining to the victims of environmental harm, as White labels it, is twofold. Firstly, ‘human victims of environmental harm are themselves not widely recognised as victims of ‘crime” (White 2018: 240). This is a hangover of the notion that environmental crime is not real crime. Secondly, ‘within the category ‘environmental victim’, the nonhuman entity is seldom considered worthy of attention’ (White 2018:

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240). Green or environmental victimology aligns with the framework of radical victimology (for an overview, see Mawby and Walklate 1994: 13–17), ‘which is broadly concerned with human rights, abuses of power, and human suffering irrespective of whether the circumstances are within the ambit of law’ (Williams 1996: 18). This book is concerned with victims of environmental crime, the traditional court processes that respond to such crime (prosecution), and the applicability of restorative justice conferencing embedded in that traditional court process. Although it draws on a four-year study based in New South Wales, Australia (guided by the experience in New Zealand), its application is wider—certainly to the Western world, but arguably beyond. The study utilises adaptive theory (Layder 1998), which is a continual intertwining of theory and empirical data resulting in new theory or expansion or clarification of existing theories through each engagement of theory and empirical data. It represents a middle ground between inductive theories, which are concerned with the generation of new theory emerging from the data, and deductive theories, which are aimed at testing theories. It is the continual cycling between theories and findings which is at the heart of adaptive theory. Data for the study comes from three sources. Firstly, case law analysis. Key information was analysed from 175 NSWLEC pollution offending judgments (110 water pollution and 65 breach of environment protection licence), which were handed down between 2000 and 31 August 2017 (Hamilton 2019b: Appendices 8 and 9). Collectively, these two offences represent over one-third of total prosecutions before the NSWLEC between 2000 and 2015 (Cain and Donnelly 2017: Appendix C) and therefore used as a proxy for environmental offending. Secondly, interviews with a purposive sample of 34 interviewees were utilised (23 in Australia and 11 in New Zealand). The Australian interviewees comprised a cross-section of the judiciary, legal profession and members of NGOs which have an interest in the prosecution of environmental offending. The New Zealand interviewees comprised stakeholders involved in restorative justice conferencing following environmental offending in New Zealand. Thirdly, three case studies were selected which highlight the use of restorative justice conferencing in an

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environmental offending context (both in Australia and New Zealand) and draw out the strengths, limitations, and challenges of that use. This book will unfold over a further nine chapters. Chapter 2 will introduce the reader to the prosecution of environmental offending before the NSWLEC. It will outline the features of environmental offending and its prosecution, such as the nature of the offence (strict liability v mens rea); motive behind offending; guilty pleas; offenders; sentencing options; reoffending; victims; and, offender and victim involvement in prosecution. The analysis reveals that environmental crime is committed primarily by organisational offenders (corporations and government entities) as a result of an accident, rather than deliberate offending, resulting in a diversity of victims (humans, environment, communities, and commercial operators). These characteristics have ramifications for the use of restorative justice conferencing following environmental offending. Chapter 3 explores what justice looks like in the prosecution of environmental offending before the NSWLEC (and by extension prosecution in equivalent jurisdictions). This is because this book is concerned with the prosecution of environmental offending (i.e. illegal activity) and how it is dealt with by the NSWLEC. This is not to imply that prosecution is the only option available to a prosecutorial authority (such as the Environment Protection Authority (‘EPA’)) when faced with environmental offending. The way the EPA responds will depend on the type of incident, supporting legislation, EPA policies, guidelines, and resource considerations. An option is doing nothing at all. Another option is the opening up of dialogue with the offender about their or its conduct in an attempt to ensure compliance with the law; such dialogue can be initiated face-to-face, on the telephone, or through a letter. The EPA could send a warning letter outlining the consequences of non-compliance with the law. A civil penalty could be pursued, for example, the issuing of an infringement notice. Alternatives to prosecution may also be pursued, for example, civil enforcement proceedings and enforceable undertakings. Civil enforcement proceedings may be taken in preference to prosecution when ‘an environmental incident is ongoing and there is a need to restrain the incident and stop any further environmental damage;…the wider range of orders available in civil

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enforcement proceedings compared to criminal prosecution; and…the lower burden of proof in civil enforcement proceedings compared to criminal prosecution’ (Hamilton 2016: 494; for an example, see Great Lakes Council v Lani (2007) 158 LGERA 1). An enforceable undertaking is a commitment by a party alleged to have caused environmental offending in response to such offending. Such undertakings are voluntary, legally binding and made between the EPA and offending party (NSW EPA 2017: 2). The decision to prosecute will involve an assessment as to whether ‘the available evidence establishes a prima facie case’ and it is in the public interest to commence a prosecution (NSW EPA 2020: 6). Prosecution in an environmental offending context achieves a binary concept of justice, consisting of justice as procedure and justice as outcome. Justice as procedure is concerned with the fairness of the prosecution process embedded in notions such as the rule of law; an independent, impartial, and accountable decision-maker; adversarialism; open court; and an enforceable outcome. Justice as outcome is concerned with the fairness of the court outcomes reflected in a court sentence which achieves the statutory purposes of sentencing, is a proportionate expression of punishment and is consistent with other sentences handed down in comparable cases. This binary conceptualisation of justice is being achieved by prosecution before the NSWLEC despite minimal to no offender and victim voice (the ability to express personally, or through a representative, the effect or cause of the offending), interaction (the ability to engage in face-to-face dialogue about the offending), and input (the ability to provide input into the sentencing process). Restorative justice at its simplest is a facilitated dialogue between stakeholders to crime or conflict. Restorative justice is touted as the mechanism through which to facilitate offender and victim voice, interaction and input which is missing in the prosecution of environmental offending before the NSWLEC. Chapter 4 will introduce the reader to the concept of restorative justice through outlining the rise of restorative justice as a reaction to dissatisfaction with modern criminal justice systems. Some of the prominent voices of dissatisfaction are Christie (1977), Zehr (2015a, b) and Braithwaite (1989). Christie argues that crime has been transformed from a conflict between offender and victim,

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to a conflict between offender and the state which means that offenders and victims lose out on resolving their own conflict. Similarly, Zehr argues that modern prosecution excludes relevant stakeholders meaning that victim needs are not met, and the offender is not made truly accountable for their offending. Braithwaite argues that modern prosecution processes and punishment are stigmatising for an offender which can lead to reoffending. This chapter will also explore the origins of modern restorative justice being an encounter in Kitchener, Ontario, Canada in 1974. Various definitions of restorative justice will be explored as well as the central tenets of restorative justice—crime is a violation of people and relationships, responses to crime should be inclusive, and responses to crime should heal and put things right. Finally, restorative justice as a resolution device will be explored. Four elements of that resolution device are communication, education, resolution, and reintegration. Successful deployment of this resolution device can lead to the repair of the harm occasioned by offending, repair of relationships damaged by offending, and provide the way for the offender and victim to move forward with their lives. The purpose of Chapter 5 is twofold. Firstly, it will explore the literature proffering the potential of restorative justice for environmental offending, noting that such literature is scant and underdeveloped. Secondly, the chapter will explore some of the existing uses of restorative justice for environmental harm. These include the use of restorative justice for the formulation of enforceable undertakings to circumvent the need for a prosecution (Hallam Road , Victoria, Australia); as a diversion from prosecution (Alternative Environmental Justice, Canterbury, New Zealand; Community Justice Forums, British Columbia, Canada); and as embedded in prosecution (for the fictitious crime of ecocide, UK; environmental offending, New Zealand; Aboriginal cultural heritage offending, New South Wales, Australia). This book is concerned with the back-end model of restorative justice conferencing. That is, conferencing embedded within the prosecution of environmental offending and not as an alternative to it. Chapter 6 will explore three case studies of conferencing in this context—Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’) (Canterbury, New Zealand), a case involving water pollution;

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and Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’) (New South Wales, Australia), cases involving Aboriginal cultural heritage. These New South Wales cases are the only examples of restorative justice conferencing in the prosecution of environmental offending in Australia. Chapter 7 will explore the benefits and limitations of restorative justice conferencing drawing on the use of the back-end model in New Zealand (including Interflow) and the NSWLEC experience in Williams and Clarence Valley Council . The primary benefit of restorative justice conferencing is the offender and victim voice, interaction and input it provides into the prosecution process. It is the voice, interaction and input missing from the prosecution of environmental offending before the NSWLEC and is needed for justice as meaningful involvement to be achieved. Other benefits include the opportunity for apology and forgiveness, and better outcomes which are more innovative and targeted to repair the harm occasioned by the offending. The use of Environmental Service Orders will be used as an example. Conferencing may be educational for offenders, victims, and other stakeholders, which is a benefit of conferencing. Such education may lead an offender to making improvements to their/its practice and procedure to ensure offending will not happen again in the future, which is also a benefit of conferencing. Providing the opportunity for an offender to make amends for offending, as well as repairing their/its reputation and relationships are further benefits of restorative justice conferencing. Conferencing is not without limitations and Chapter 7 will outline those limitations. Limitations include the fact that the conference is not adversarial. It will be demonstrated that this is actually a misunderstanding of the purpose of conferencing. Conferencing is not actually meant to be adversarial, rather it is designed to be cooperative. Conferencing does not detract from the adversarial nature of court proceedings in which it is embedded and is part of the reason why justice as procedure is still achieved through conferencing. Another misconception of conferencing which could be thrown up as a limitation is the notion that it is a soft option for offenders. This misconception will be challenged. Conferencing could lead to inconsistency in sentencing and non-proportionate

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punishment and therefore could challenge the notions of justice as outcome. There are protocols that can be put in place to ensure this is overcome and they will be explored. Conferencing can be more expensive, take longer and require more energy than traditional prosecution and this could be considered a limitation. In order to reap the benefits of conferencing and for conferencing to operationalise justice as meaningful involvement and thereby achieve a tripartite conception of justice, a matter must actually get to conferencing. The purpose of Chapter 8 is to explore some of the barriers to conferencing. One of the main barriers to conferencing, and arguably the reason for the embryonic state of conferencing before the NSWLEC, is the lack of a necessary architecture for conferencing. That architecture requires a legislative framework, consideration as to the judicial oversight of conferencing outcomes, proliferation of stakeholder, practitioner and judicial knowledge of conferencing, consideration of the selection criteria for participation in conferencing, the actual facilitation of conferencing and follow up, and the potential of a restorative justice unit within the NSWLEC and the role it would fulfil. Chapter 9 is dedicated solely to environmental victims and restorative justice. It seeks to address two pertinent problems, being the problem of victimisation (i.e. ‘court recognition of nonhuman interests (e.g., intrinsic rights, values and status of the nonhuman in court proceedings) and non-human agency (e.g., active role of the nonhuman victim in legal processes)’) and the problem of expertise (i.e. ‘issues of evidence and expertise from the point of view of identifying who speaks for and on behalf of whom’) (White 2016: 143, 146; emphasis original). Chapter 10 questions the sufficiency of a binary conceptualisation of justice, given that it can be achieved in the prosecution of environmental offending with minimal to no offender and victim voice, interaction, and input. Drawing from various approaches to harm under green criminology (environmental justice, ecological justice, climate justice, species justice, and earth jurisprudence/deep ecology) a third conceptualisation of justice is devised—justice as meaningful involvement. Justice as meaningful involvement comprises three facets important to those various approaches to justice under the green criminology umbrella. Namely,

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recognition (the acknowledgement that human/environment interaction can have harmful effects on both humans and the environment alike), participation (the inclusion of a wide range of people, operators, communities, the environment (and its constituent parts) and even countries in decisions involving human/environment interaction that may impact on them) and capability (the ability of those harmed by human/environment interaction to retain (or have restored) that which is essential to their/its functioning). The chapter will explore how restorative justice conferencing can operationalise and thereby achieve justice as meaningful involvement (comprised of recognition, participation, and capability) by providing offender and victim voice, interaction, and input into the prosecution of environmental offending. Vital for the acceptance of restorative justice conferencing amongst the legal profession, government, and judiciary is the fact that it does not displace justice as procedure and justice as outcome, thereby leading to the achievement of justice as a tripartite formulation—procedure, outcome, and meaningful involvement.

References Agnew, R. (2011). Dire Forecast: A Theoretical Model of the Impact of Climate Change on Crime. Theoretical Criminology, 16 (1), 21–42. Agnew, R. (2012). It’s the End of the World as We Know It: The Advance of Climate Change from a Criminological Perspective. In R. White (Ed.), Climate Change from a Criminological Perspective (pp. 13–25). New York: Springer. Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Anstee-Wedderburn, J. (2014). Giving a Voice to Future Generations: Intergenerational Equity, Representation of Generations to Come, and the Challenge of Planetary Rights. Australian Journal of Environmental Law, 1(1), 37–70.

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Braithwaite, J. (1989). Crime, Shame and Reintegration. New York: Cambridge University Press. Brisman, A. (2014). Of Theory and Meaning in Green Criminology. International Journal for Crime, Justice and Social Democracy, 3(2), 21–34. Cain, M., & Donnelly, H. (2017). Transparent and Consistent Sentencing in the Land and Environment Court of NSW: Orders for Costs as an Aspect of Punishment (Research Monograph No 40, Judicial Commission of New South Wales). Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Christie, N. (1977). Conflicts as Property. British Journal of Criminology, 17 (1), 1–15. Christie, N. (1986). The Ideal Victim. In E. Fattah (Ed.), From Crime Policy to Victim Policy: Reorienting the Justice System (pp. 17–30). Hampshire and New York: Palgrave Macmillan. Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Du Rées, H. (2001). Can Criminal Law Protect the Environment? Journal of Scandinavian Studies in Criminology and Crime Prevention, 2(2), 109–126. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299. Garrett v Williams (2007) 151 LGERA 92. Goyes, D. R., & South, N. (2017). Green Criminology Before ‘Green Criminology’: Amnesia and Absences’. Critical Criminology, 25 (2), 165–181. Great Lakes Council v Lani (2007) 158 LGERA 1. Hall, M. (2012a). Environmental Harm: The Missing Victims? Criminal Justice Matters, 90 (1), 12–13. Hall, M. (2012b). Environmental Victims: Challenges for Criminology and Victimology in the 21st Century. VARSTVOSLOVJE Journal of Criminal Justice and Security, 13(4), 371–391. Hall, M. (2013a). Victims of Environmental Harm: Rights, Recognition and Redress Under National and International Law. Oxon and New York: Routledge. Hall, M. (2013b). Victims of Environmental Harms and Their Role in National and International Justice. In R. Walters, D. S. Westerhuis, & T. Wyatt (Eds.), Emerging Issues in Green Criminology: Exploring Power, Justice and Harm (pp. 218–241). Hampshire and New York: Palgrave Macmillan. Hall, M. (2014a). Environmental Harm and Environmental Victims: Scoping Out a ‘Green Victimology’. International Review of Victimology, 20 (1), 129– 143.

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Hall, M. (2014b). Victims of Environmental Crime: Routes for Recognition, Restitution and Redress. In T. Spapens, R. White, & M. Kluin (Eds.), Environmental Crime and its Victims: Perspectives within Green Criminology (pp. 103–118). Surrey and Burlington: Ashgate. Hall, M. (2016). Criminal Redress in Cases of Environmental Victimization: A Defence. International Review of Victimology, 23(2), 203–223. Hall, M. (2017a). Exploring the Cultural Dimensions of Environmental Victimization. Palgrave Communications. https://doi.org/10.1057/ palcomms.2017.79. Hall, M. (2017b). Doing ‘Green Criminology’: Methodologies, Research Strategies and Values (or Lack Therefore?). In M. Hall, J. Maher, A. Nurse, G. Potter, N. South, & T. Wyatt (Eds.), Greening Criminology in the 21st Century: Contemporary Debates and Future Directions in the Study of Environmental Harm (pp. 25–41). London and New York: Routledge. Hamilton, M. (2016). Restorative Justice Intervention in an Environmental and Planning Law Context: Applicability to Civil Enforcement Proceedings. Environmental and Planning Law Journal, 33(5), 487–501. Hamilton, M. (2019a). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Environmental and Planning Law Journal, 36 (3), 197–211. Hamilton, M. (2019b). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Hamilton, M., & Howard, T. (2020, March 1). Restorative Justice in the Aftermath of Environmental Offending: Theory and Practice (Conference Paper, National Judicial College of Australia Sentencing Conference). Jarrell, M. L., & Ozymy, J. (2012). Real Crime, Real Victims: Environmental Crime Victims and the Crime Victims’ Rights Act (CVRA). Crime, Law and Social Change, 58(4), 373–389. Jarrell, M. L., & Ozymy, J. (2014). Few and Far Between: Understanding the Role of the Victim in Federal Environmental Crime Prosecutions in the United States. Crime, Law and Social Change, 61(5), 563–584. Johnson, D. S. (2017). The Status of Green Criminology in Victimology Research. McNair Scholars Research Journal, 10 (1), 89–105. Kane, S. C. (2012). Where Rivers Meet the Sea: The Political Ecology of Water. Philadelphia: Temple University Press. Kane, S. C. (2013). Coastline Conflict: Implementing Environmental Law in Salvador da Bahia, Brazil. In N. South, & A. Brisman (Eds.), Routledge

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International Handbook of Green Criminology (pp. 379–393). London and New York: Routledge. Lampkin, J., & Wyatt, T. (2019). Utilising Principles of Earth Jurisprudence to Prevent Environmental Harm: Applying a Case Study of Unconventional Hydraulic Fracturing for Shale Gas in the United Kingdom. Critical Criminology. https://doi.org/10.1007/s10612-018-9426-7. Layder, D. (1998). Sociological Practice: Linking Theory and Social Research. London, CA and New Delhi: Sage. Lemieux, A. M. (Ed.). (2014). Situational Prevention of Poaching. London: Routledge. Lemieux, A. M., & Clarke, R. V. (2009). The International Ban on Ivory Sales and its Effects on Elephant Poaching in Africa. British Journal of Criminology, 49 (4), 451–471. Lewis, S. L., & Maslin, M. A. (2015). Defining the Anthropocene. Nature, 519, 171–180. Long, M. A., Stretesky, P. B., Lynch, M. J., & Fenwick, E. (2012). Crime in the Coal Industry: Implications for Green Criminology and Treadmill of Production. Organization & Environment, 25 (3), 328–346. Lynch, M. (1990). The Greening of Criminology: A Perspective on the 1990s. Critical Criminologists, 2(3), 1–5. Lynch, M. J., & Stretesky, P. B. (2014). Exploring Green Criminology: Toward a Green Criminological Revolution. Surrey: Ashgate. Mawby, R. I., & Walklate, S. (1994). Critical Victimology: International Perspectives. London, CA and New Dehli: Sage. New South Wales Environment Protection Authority. (2017). Guidelines on Enforceable Undertakings. New South Wales Environment Protection Authority. (2020). EPA Prosecution Guidelines. Passas, N. (2005). Lawful but Awful: ‘Legal Corporate Crimes’. Journal of SocioEconomics, 34 (6), 771–786. Pemberton, A. (2009). Victim Movements: From Diversified Needs to Varying Criminal Justice Agendas. Acta Criminologica, 22(3), 1–23. Pemberton, A. (2014). Environmental Victims and Criminal Justice: Proceed with Caution. In T. Spapens, R. White, & M. Kluin (Eds.), Environmental Crime and its Victims: Perspectives within Green Criminology (pp. 63–86). Surrey and Burlington: Ashgate. Pires, S. F., & Clarke, R. V. (2011). Sequential Foraging, Itinerant Fences and Parrot Poaching in Bolivia. British Journal of Criminology, 51(2), 314–335.

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Pires, S. F., & Clarke, R. V. (2012). Are Parrots CRAVED? An Analysis of Parrot Poaching in Mexico. Journal of Research in Crime and Delinquency, 49 (1), 122–146. Preston, Hon Justice B. J. (2007). Principled Sentencing for Environmental Offences—Part 1: Purposes of Sentencing. Criminal Law Journal, 31(2), 91–100. Preston, Hon Justice B. J. (2011). The Use of Restorative Justice for Environmental Crime. Criminal Law Journal, 35 (3), 136–153. Pring, G., & Pring, C. (2016). Environmental Courts & Tribunals: A Guide for Policy Makers. Kenya: United Nations Environment Programme. Protection of the Environment Operations Act 1997 (NSW). Ray, J. V., & Jones, S. (2011). Self-Reported Psychotropic Traits and Their Relation to Intentions to Engage in Environmental Offending. International Journal of Offender Therapy and Comparative Criminology, 55 (3), 370–391. Ruddiman, W. F. (2013). The Anthropocene. Annual Review of Earth and Planetary Sciences, 41, 45–68. Ruggiero, V., & South, N. (2010). Critical Criminology and Crimes Against the Environment. Critical Criminology, 18(4), 245–250. Skinnider, E. (2011). Victims of Environmental Crime—Mapping the Issues. Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy. Skinnider, E. (2013). Effect, Issues and Challenges for Victims of Crimes that have a Significant Impact on the Environment. Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy. Steffen, W., Grinevald, J., Crutzen, P., & McNeil, J. (2011). The Anthropocene: Conceptual and Historical Perspectives. Philosophical Transactions of the Royal Society, 369, 842–867. Sollund, R. (2011). Expressions of Speciesism: The Effects of Keeping Companion Animals on Animal Abuse, Animal Trafficking and Species Decline. Crime, Law and Social Change, 55 (5), 437–451. South, N. (1998). A Green Field for Criminology? A Proposal for a Perspective. Theoretical Criminology, 2(2), 211–233. Stretesky, P. (2006). Corporate Self-Policing and the Environment. Criminology, 44 (3), 671–708. Stretesky, P. B., Long, M. A., & Lynch, M. J. (2013a). Does Environmental Enforcement Slow the Treadmill of Production? The Relationship Between Large Monetary Penalties, Ecological Disorganization and Toxic Releases Within Offending Corporations. Journal of Crime and Justice, 36 (2), 233–247.

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Stretesky, P. B., Long, M. A., & Lynch, M. J. (2013b). The Treadmill of Crime: Political Economy and Green Criminology. London and New York: Routledge. Williams, C. (1996). An Environmental Victimology. Social Justice, 23(4), 16– 40. Williams, C. (1997). Environmental Victims: Arguing the Costs. Environmental Values, 6 (1), 3–30. White, R. (2008). Crimes Against Nature: Environmental Criminology and Ecological Justice. London: Willan Publishing. White, R. (2013). The Conceptual Contours of Green Criminology. In R. Walters, D. S. Westerhuis, & T. Wyatt (Eds.), Emerging Issues in Green Criminology: Exploring Power, Justice and Harm (pp. 17–33). Hampshire and New York: Palgrave Macmillan. White, R. (2014). Eco-justice and Problem-solving Approaches to Environmental Crime and Victimisation. In T. Spapens, R. White, & M. Kluin (Eds.), Environmental Crime and its Victims: Perspectives within Green Criminology (pp. 87–101). Surrey and Burlington: Ashgate. White, R. (2015). Environmental Victimology and Ecological Justice. In D. Wilson, & S. Ross (Eds.), Crime, Victims and Policy: International Contexts, Local Experiences (pp. 33–52). Hampshire and New York: Palgrave Macmillan. White, R. (2016). Four Problems for Specialist Courts in Dealing with Nonhuman Environmental Victims. In T. Spapens, R. White, & W. Huisman (Eds.), Environmental Crime in Transnational Context: Global Issues in Green Enforcement and Criminology (pp. 139–153). London and New York: Routledge. White, R. (2018). Green Victimology and Non-human Victims. International Review of Victimology, 24 (2), 239–255. White, R., & Heckenberg, D. (2014). Green Criminology: An Introduction to the Study of Environmental Harm. London and New York: Routledge. White, R., Perrone, S., & Howes, L. (2019). Crime, Criminality and Criminal Justice. Docklands, VIC, Australia: Oxford University Press. Wolf, S., & Stanley, N. (2011). Wolf and Stanley on Environmental Law. London and New York: Routledge. Zehr, H. (2015a). The Little Book of Restorative Justice. New York: Good Books. Zehr, H. (2015b). Changing Lenses: Restorative Justice for our Times. Harrisonburg, VA and Kitchener, ON: Herald Press.

2 Prosecution of Environmental Offending

Environmental offending encompasses activity which can be broadly grouped into three categories: pollution, harming, and destruction. Pollution involves some discharge to land, air, or water. An example of pollution is the discharge of contaminants into a river or the ocean. Harming pertains to flora (plants) and fauna (animals). An example of harming is the clearing of native vegetation. Destruction relates to the damaging or destroying of Aboriginal cultural heritage residing in Aboriginal objects and places. This chapter introduces the reader to the prosecution of environmental offending. It does so through the analysis of 175 Land and Environment Court of New South Wales (‘NSWLEC’) judgments handed down between 2000 and 31 August 2017 (‘analysis period’) pertaining to the sentencing of water pollution (n = 110) and breach of environment protection licence offending (n = 65) which can be used as a proxy for the sentencing of environmental offending by the NSWLEC (Hamilton 2019). The analysis reveals that environmental offending in New South Wales is predominantly strict liability, mainly committed by © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_2

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organisational offenders in the context of accidental rather than intentional offending. The majority of offenders enter a guilty plea. Any reoffending which does occur appears to be a function of the size of, and scope of work undertaken by, an offender rather than some deliberate attempt to break the law. The victims of environmental offending include humans (currently living and future generations), communities (Indigenous and non-Indigenous), the environment (and its constituent parts—flora, fauna, and ecosystems), and commercial operators. In the sentencing of environmental offending, the NSWLEC is relying less on its traditional use of fines and more on reparative orders, predominantly environmental service orders. The most recently enacted order, restorative justice activity order, was not used during the analysis period. The NSWLEC relies heavily on publication orders and to a lesser extent, future references orders. In the prosecution and sentencing of environmental offending, offenders and victims have limited to no opportunity for voice, interaction, and input. These characteristics of environmental offending have implications for justice as procedure and justice as outcome (Chapter 3) and justice as meaningful involvement (Chapter 10). Such characteristics also have importance for the application of restorative justice conferencing to environmental offending (Chapters 8 and 9), and accordingly will be explored in this chapter.

Strict Liability Water pollution and breach of environment protection licence offending are ‘strict liability’. Although strict liability offences require proof of the physical activity constituting the offence (the ‘actus reus’), they do not require proof of mens rea, which is a mental element such as intention, wilfulness, or negligence. Strict liability comprises the majority of environmental offences sentenced by the NSWLEC. For example, Cain and Donnelly (2017: Appendix C) analyse the sentencing of environmental offending by the NSWLEC between 2000 and 2015, in which there were 442 strict liability offence prosecutions compared to 9 Tier 1 (mens rea) offence prosecutions.

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Strict liability offences generally prohibit a person from doing something or prohibit some action. For example, a ‘person who pollutes any waters is guilty of an offence’ (water pollution) (Protection of the Environment Operations Act 1997 (NSW), s 120(1) (‘POEO Act ’) and in terms of a breach of environment protection licence, ‘[i]f any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence’ (POEO Act, 64(1)). It matters not whether the activity was done deliberately for the purpose of making the charge out. The fact that environmental offending in New South Wales is strict liability has ramifications for understanding the motive behind the offending and the reason for the entering of a guilty plea. Both of these aspects will be considered now.

Motive Behind Offending An offender’s state of mind gives insight into the motives behind offending. That is, whether the offending was committed intentionally, negligently, recklessly or by accident. It is a circumstance which goes to the objective seriousness of the offence (Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234, [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189, [110]; Plath v Rawson (2009) 170 LGERA 253, [48]). ‘A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed’ (Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121, [42]). During the analysis period, 59.18% of breach of environment protection licence offending was accidental, 24.49% was intentional and 16.33% was committed negligently (Hamilton 2019: Fig. 3). Analysis of the motive behind water pollution offending was not possible because of the principle elucidated in R v De Simoni (1981) 147 CLR 383, which prevents the court considering the offender’s state of mind behind water pollution offending under s 120 of the POEO Act (Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89, [51]–[52] (‘P&M

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Quality Smallgoods’)). That is because there is a more serious alternative to the s 120 water pollution offence where mens rea elements such as wilfulness and negligence are a component. That offence is contained within s 116 of the POEO Act which makes it an offence for the wilful or negligent leak, spill or escape of a substance which harms or is likely to harm the environment. Understanding an offender’s motives behind committing an offence is important to the suitability assessment relating to that offender’s participation in restorative justice conferencing. An offender who committed an offence deliberately may not take responsibility for that offending and may not exhibit contrition and remorse over that offending. Such offenders may not be suitable for conferencing. Conversely, in situations of accidental offending, an offender may reason that there is no utility in them attending a conference because the offending was accidental. However, in such situations it can be explained to the offender that a conference can still have some benefits because conferencing fulfils an educative function whereby an offender can discover the inadequacies in the systems that may have led to the offending, meaning they can rectify those inadequacies to prevent future offending (Chapter 8).

Guilty Pleas Strict liability offences are strongly associated with guilty pleas. Across the analysis period, 95.63% of environmental offending proceeded by way of guilty plea compared to 4.37% which were contested (Hamilton 2019: Fig. 4). There may be a number of reasons why an offender pleads guilty to offending, including: • Inevitability of conviction, especially in a strict liability context where the actus reus is sufficient to make out the offence; • To avail a discount on penalty from 10–25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383, 419 [160]); • The strength of the prosecution case; • To avoid the cost of defending the charge(s);

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• The desire to get the matter finalised quickly (Al-Alosi and Hamilton 2019: 1484–1485); and, • Acknowledgement of guilt. This myriad of reasons makes it difficult to conclude that an offender’s admission of guilt makes them automatically suitable for restorative justice conferencing. Chapter 8 details the suitability assessment process for conferencing.

Offenders Across the analysis period, 79.14% of offenders were corporations, 13.37% were government entities (comprising state-owned statutory corporations, local councils, and government departments) and 7.49% were individuals (Hamilton 2019: Fig. 5). The fact that the majority of offenders in a New South Wales environmental offending context are organisational offenders (corporations and government entities) has implications for the assessment of offender suitability for participating in conferencing, and for how organisational offenders are represented at conferencing. Both of these aspects will be considered in Chapter 8.

Reoffending 27.36% of water pollution offenders had previous convictions, whilst the comparable figure for breach of environment protection licence offenders was 35.19% (Hamilton 2019: Fig. 6). Low rates of reoffending (1–2 previous convictions) accounts for roughly 70% of reoffending. Moderate reoffending (3–9 previous convictions) accounts for roughly 10–20% of reoffending, whilst high reoffending (10 or more previous convictions) accounts for roughly 10–15% of reoffending (Hamilton 2019: Fig. 7). In terms of all offenders charged with offending: 18.87% (water pollution) and 25.93% (breach of environment protection licence) offenders have 1–2 previous convictions; 5.66% (water pollution) and 3.70% (breach of environment protection licence)

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offenders have 3–9 previous convictions; and, 2.83% (water pollution) and 5.56% (breach of environment protection licence) offenders have 10 or more previous convictions (Hamilton 2019: Fig. 6). The presiding judge will consider the nature and size of the offending entity, the number of people it employs, and the number of discharge points authorised by an environment protection licence when considering the history of previous convictions (Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19, [59]). Indeed, the four corporations with ten or more previous convictions are substantial operators—Caltex Refineries, BHP BlueScope Steel, BHP Steel and Orica, which suggests that reoffending is a function of the size and scope of works rather than deliberate attempts to break the law. Such a suggestion, supported by case law, mediates against a notion that the offender was callous or lacked care which should have been remedied after the first conviction. Having said that, one must be open minded when considering the reasons for reoffending and each case is potentially different. Reoffending may be a product of the size of the operation, it may be a product of the dangerousness of the operation, it may be a product of the Environment Protection Authority (‘EPA’) discovering more offending because of closer scrutiny following past offending, it may be a product of poor practice and procedure, and it may be a product of lack of care or callousness despite the size of an operator/operation and the inferences the court draws from that size.

Victims Of central concern to the prosecution of environmental offending is the actual or likely harm to the environment (POEO Act, s 241(1)(a)). The language of actual or likely harm filters through a prosecution and judgement rather than the language of ‘victim’ and ‘victimhood’. That harm was triangulated with interviews with those with connections to such offending and the prosecution thereof. This lent itself to qualitative data rather than quantitative data which was used to characterise aspects of the offending as set out above. The triangulation provided a fuller understanding of the victims of environmental offending.

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Interviews, triangulating the cases, elicited a wide range of possible ‘victims’ of environmental offending. Victims can include where a person is physically (INT-34, 20 June 2018: P 2, L 46) or psychologically injured by an environmental offence. For example, ‘pollution by the emission of odours, which affect people in the vicinity…’ (INT-23, 19 September 2017: P 1, L 31), i.e. ‘those suffering from the effects of fumes caused by air pollution’ (INT-22, 12 September 2017: P 1, L 9–10). Such effects could include headaches, nausea, coughing, and vomiting. Another example is where an individual drank polluted river water (INT34, 20 June 2018: P 3, L 90–91). Incidentally, this sort of direct human injury is the closest, conceptually, it comes to ‘victimhood’ as understood in mainstream offending—a direct human victim of injurious behaviour. Yet the fit is not exact because the injury caused to those individuals does not constitute the offence but rather is a consequence of the offence, the pollution of the air and water. Hence, an air pollution or water pollution incident is still an offence even when there are not people injured by the incident. Victimhood also includes where a person’s ability to use an element of the environment is impacted, including the ability to use one’s own ‘land or…property…’ (INT-34, 20 June 2018: P 2, L 45–46). For example, ‘[p]eople who are land holders or who use [the] environment or an aspect of the environment, which is affected by the offending’ (INT-23, 19 September 2017: P 2, L 32–34), could be considered victims of the offending. Another example is downstream uses of a river (INT-24, 09 October 2017; P 1, L 22–23) who may draw water from that river or who fish or swim in that river and are no longer able to do so. Hence, commercial operators may be victims of environmental offending. Take for example a farmer no longer able to draw water to irrigate crops from a polluted river or a tour company no longer able to take visitors on lake tours because of the pollution in that lake. This category of human victims is cast in anthropocentric terms because it is the effect the harmed environment has on humans which is the basis of the victimhood. Collectives of people, not just individuals, were also identified as potential victims of environmental offending. This includes neighbours (INT-19, 21 August 2017: P 1, L 29; INT-22, 12 September 2017: P 1,

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L 6), citizens (INT-25, 18 October 2017: P 1, L 22), communities (INT2, 16 March 2017: P 2, L 61–67; INT-6, 29 March 2017: P 2, L 51–52; INT-19, 21 August 2017: P 1, L 29–30; INT-22, 12 September 2017: P 1, L 8; INT-24, 09 October 2017; P 1, L 22–23; INT-26, 19 October 2017: P 1, L 22), the public (INT-34, 20 June 2018: P 2, L 43), and the world community. The world community is victim where, for example, a matter of world heritage is impacted (INT-22, 12 September 2017: P 1, L 11). Non-living humans (i.e. future generations of humans) were viewed by some interviewees as potential victims of environmental offending (INT-1, 13 March 2017: P 11, L 347–349; INT-2, 16 March 2017: P 3, L 80–91; INT-3, 20 March 2017: P 9, L 367–P 10, L 373; INT4, 23 March 2017: P 6, L 208–P 7, L 216; INT-6, 29 March 2017: P 2, L 56–57; INT-19, 21 August 2017: P 3, L 112–114; INT-24, 09 October 2017: P 2, L 35–38; INT-25, 18 October 2017: P 2, L 36–40; INT-34, 20 June 2018: P 2, L 59–60). For example, where threatened or endangered species are impacted by environmental offending future generations are victims (INT-22, 12 September 2017: P 1, L 13–14) and the reason being that those future generations may or will not get to experience those species of flora or fauna. Various examples of flora and fauna (INT-24, 09 October 2017: P 1, L 30) were identified as victims of environmental offending including animals (INT-1, 13 March 2017: P 10, L 339–341; INT-2, 16 March 2017: P 2, L 72–P 3, L 82) (e.g. koalas, snakes, lizards, and rats) (INT4, 23 March 2017: P 6, L 189–190). In terms of flora, plants (INT-1, 13 March 2017: P 11, L 343–346), trees (INT-2, 16 March 2017: P 2, L 73–P 3, L 75), the environment generally (INT-34, 20 June 2018: P 2, L 39) and the earth were identified as potential victims. The earth, and the countries that make up the earth, can be victims of environmental offending. This is because environmental offending can result in transnational crime (White 2008, 2011). That is, offending in one country can harm the environment in another country. An example of this is the cumulative results of air pollution and water pollution which enters the ocean. The ecosystem, and ‘the elements that go to make up that ecosystem’ is also a victim of environmental offending (INT-34, 20 June 2018: P 2, L 52–53).

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Despite the consensus that environmental offending can result in a wide range of victims, there was qualification by one interviewee who characterised flora and fauna as ‘non-traditional victims’ (INT-25, 18 October 2017: P 1, L 23–24). To talk about diversity within flora and fauna being potential victims of environmental offending is: a very non-traditional view of victims because, victims are ordinarily people. It’s different enough to consider future victims. Or victims in the future. I’d imagine its quite controversial to say also that it’s flora, fauna and biodiversity. (INT-25, 18 October 2017: P 1, L 27–30)

It is apparent from this conversation that there is a tension or uneasiness, at least with this interviewee, to view those injured by environmental offending as ‘victims’ (as one would refer to victims of mainstream offending) rather than simply those affected by the offending. The difference is important because victimhood implies a subjective experience which cannot be explained away in terms of effects or consequences. Indeed, modern environmental offending prosecution is focussed on consequences or effects of offending rather than subjective experiences of victimhood. Notwithstanding such caution, it is positive that many of the interviewees identified such a wide range of victims, albeit conceptually, because as will be highlighted it is the victims’ subjective experience of victimhood which plays a large role in restorative justice conferencing. The diversity of victims of environmental offending—humans (currently living and future generations), communities (Indigenous and non-Indigenous), the environment (inclusive of its constituent parts) and commercial operators—has implications for who can represent those victims at conferencing, where representatives are used—how those representatives are selected, and, the nature of victim voices. These aspects will be canvassed in Chapter 9.

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Offender and Victim Involvement in Prosecution To aid assessment of offender and victim involvement in prosecution, the following criteria are used: • Voice—the ability to express personally (or through a representative) the effect or cause of the offending; • Interaction—the ability to engage in face-to-face dialogue about the offending; and, • Input —the ability to provide input into the sentencing process. An offender’s voice is influenced by the NSWLEC Class 5 Practice Note (2018) which dictates practice and procedure of criminal prosecution. The Practice Note requires evidence to be presented in written form, e.g. affidavit or expert report. Offenders can put on written evidence pertaining to relevant sentencing considerations. For example, a manager or director of an organisational offender may put on an affidavit outlining the circumstances of the offending including the reasons for the offending. Hence the offender’s ‘story’ behind the offending can come through affidavit evidence (INT-1, 13 March 2017: P 13, L 410– 416) addressing sentencing considerations. The offender’s story may also come through ‘the discovery-type processes that are available to prosecutors’ (i.e. investigation and interviewing) and reflected in prosecutor statements filed with the court (INT-24, 09 October 2017: P 5, L 164– P 6, L 167). Further, an offender’s story behind offending can come through a Statement of Agreed Facts (‘SOAF’) (INT-22, 12 September 2017: P 3, L 98–103). A SOAF is prepared jointly between the prosecutor and offender and reflects the matters in agreement between the two. Things such as the events leading up to the offending, the quantity of pollutants discharged and, mitigation and remediation of the harm occasioned can be included in the agreed statement. The agreed statement circumvents the need for the parties to tender evidence and have the court make findings on every factual matter. Offenders do have the opportunity to present evidence orally before the court, provided affidavit evidence has been filed first. However,

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this is generally when the prosecution requires an offender for crossexamination to clear up ambiguity in a written statement, or to try and discredit the witness or their evidence. There may be times when an offender can make an oral statement following affidavit evidence outside the context of cross-examination with the permission of the judge. I infer from interviews that this is not common practice but could not ascertain the circumstances when it would be allowed. One interviewee disclosed that they had been in environmental prosecutions ‘where directors, or managing directors put on statements, or jumped in the witness box and said, we feel pretty bad about this …’ (INT-25, 18 October 2017: P 7, L 238–240). Feeling bad about the offence can be evidence of contrition and remorse which is a sentencing consideration. An interviewee confirmed that the NSWLEC will allow oral statements (e.g. by way of apology) by an offender during a prosecution provided affidavit evidence has been filed first (INT-24, 09 October 2017: P 6, L 187–191); apology can be evidence of contrition and remorse. Another interviewee questioned the need for an oral apology given the NSWLEC requirement for affidavit evidence (INT-26, 19 October 2017: P 4, L 129–135). Notwithstanding the opportunity for an offender to present the story of offending orally, in the opinion of an interviewee a ‘lawyer would always try and keep their client out of the witness box’ (INT-2, 16 March 2017: P 8, L 268). Indeed, as another interviewee explains, sometimes when offenders ‘get in the [witness] box you can understand why they would’ve been better not to, because they make it worse for themselves’ (INT-3, 20 March 2017: P 13, L 524–526). The voice afforded to a victim of environmental offending is influenced by whether that victim is the environment (or a component of the environment), a community, commercial operator, or a human (currently living or future generation). Voice is also influenced by the actual or likely harm to the environment, and the prosecution’s role in establishing that harm through prosecution witnesses. Prosecution witnesses could be EPA employees, EPA retained experts or individuals (or their communities) impacted by the offending. These witnesses give a voice to the victims of environmental offending to varying degrees. However, the effectiveness of the voice given to victims faces some challenges.

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Firstly, it is the role of the prosecution, through prosecution witnesses, to lead evidence to establish the harm to the environment. In the case of a water pollution incident, for example, the harm may be to a river, fish, river gulls, and wetlands to which the river flows. These are components of the environment and can be considered “victims” of the offending even though that terminology is not used in the prosecution of environmental offending. The harm to the environment may also impact on Indigenous communities to whom the river is sacred, individuals who swam in the river and commercial operators who rely on the river to generate an income. These communities, individuals, and operators are also victims of the offending by dint of the harm to the environment which has impacted on them. The effectiveness of the voice given to these victims is contingent on the prosecution actually identifying them, as it is the prosecution that leads evidence on the harm to the environment. It is not the role of the court to seek out the evidence relating to the harm to the environment, as one of the interviewees points out: The court is a responsive organisation, so it responds to the evidence that’s adduced before it. If the prosecutor chooses, for whatever reason, not to adduce evidence of the victims, then that won’t be before the court. (INT-3, 20 March 2017: P 10, L 377–380)

Some harm to the environment might be easier to identify than other harm. In an environmental incident, an obvious fish kill is easy to identify but more remote harm is more difficult to identify—cultural connection, lost recreation, and commercial activities, for example. Arguably the more remote the harm or the less obvious the harm the harder it is to identify and therefore give a voice to. This issue will be referred to as the identification issue. The second issue facing the voice given to victims of environmental offending is the inclusion issue and it flows from the fact that it is the prosecutor’s role to lead the evidence to establish the harm to the environment. Not all victims will be required to give evidence in order to establish that harm. An ecologist may provide a report canvassing the effects of the environmental harm. This means that all aspects of the harm are lumped together meaning that some of the details of the harm

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to different components of the environment are lost. It also means that the individual stories of human loss—connection to a river, recreational loss to swimmers, and commercial loss to businesses using the environment are not presented by those suffering that loss because it is subsumed in the expert evidence going to the actual harm to the environment. In this sense, everything is ‘funnelled through the prosecution’ (INT-34, 20 June 2018: P 5, L 151). Thirdly, evidence given by experts, either scientific evidence by environmental experts (ecologists, biologists, etc.) or lay evidence (given about perception or sensation—‘they saw it and they felt it and they smelt it and heard it…’ (INT-6, 29 March 2017: P 15, L 551–552) is corralled into the rubric of actual or likely harm to the environment. Witness statements are not like Victim Impact Statements where a victim gets to express the subjective experience of victimhood. Interestingly, the legislation which regulates Victim Impacts Statements in NSW does not apply to proceedings before the NSWLEC (Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 2 (‘Crimes (SP) Act ’)). Additionally, Victim Impact Statements would not capture environmental offending because such statements are to be prepared by ‘primary victims’ or family of the primary victim in the case of death (Crimes (SP) Act, s 28). A ‘primary victim’ is ‘a person against whom the offence was committed, or…a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence’ (Crimes (SP) Act, s 26). An environmental offence is directed at the environment rather than a person. Witness statements are a forensic tool to evidence actual or likely harm to the environment. Hence, there is ‘no avenue for someone to put their hand up and say, Hey, I’d like to come along and present evidence on how this has affected me’ outside of that person being called as a prosecution witness (INT-34, 20 June 2018: P 4, L 102–104). This issue will be referred to as the sanitisation issue. This issue has links to ‘discursive subject positions’, a phenomenon of interest to postmodern criminology. Individual stories are repackaged ‘into the language of the courts – ‘legalese” (Bernard et al. 2016: 277). The legalese, so to speak, in environmental offending is the rubric of actual or likely harm to the environment. Legalese, otherwise

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known as ‘[t]he language of the court system expresses and institutionalizes a form of domination over the victim, and this is one reason why victims are so often dissatisfied with the courts’ (Bernard et al. 2016: 277). Although this observation is not directed at environmental offending per se, it can equally apply to the victims of environmental offending. Fourthly, when the prosecution and defence agree on the extent of actual or likely harm to the environment much of the evidence will be sanitised to remove any subjective experience of harm (which incidentally already occurs to varying degree by the focus on actual or likely harm and the reality that harm to non-humans and future generations of humans is made objective by others because the subjective experience of harm cannot be articulated by those individual victims). As one interviewee points out: Often, what happens when the prosecutor and the defendant agree facts, is it does get it watered down, so a lot of the adjectives get dropped out, a lot of the anguish of it becomes a bit more anodyne, and say, 30 people smelt it and got affected in a variety of ways including dizziness, nausea, headache, et cetera. It takes some of the personal expressions of harm from the victims away. (INT-3, 20 March 2017: P 11, L 417–421)

Hence, the agreement on a SOAF compounds the sanitisation issue. Fifthly, procedure as reflected in the NSWLEC (2018) Class 5 Practice Note, which pertains to criminal prosecution, requires evidence to be in written form; expert reports from experts, and affidavits from lay witnesses. Oral presentation to supplement written statements is available but confined to situations where there is some ambiguity or dispute over evidence, or where the defence wishes to cross-examine a witness. Cross examination can be a tool used in an endeavour to discredit a witness or their evidence. If a witness is given an opportunity to orally speak, it is limited in scope and is not an opportunity to express subjective notions of victimhood outside of the scope of the consequences of the actual or likely harm to the environment. This can be referred to as the cross-examination issue.

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Voice is given to the victims of environmental offending to varying degrees through the prosecutor. For example, the focus on harm to the environment means that the environment is given a voice, albeit through expert reports and evidence which goes to establish that harm. This evidence establishes the objective environmental harm rather than being concerned with the subjective experience of the individual environmental victims such as the trees, plants, animals, and microbes. Naturally, how one would establish the subjective experiences of victimhood for non-human victims is inherently difficult and would require human representatives. It is perhaps for this reason that prosecution is concerned with objective harm (or likely harm) to the environment rather than subjective expressions of victimhood. Notwithstanding, the environment per se is given a greater voice in prosecution than those victimised as a consequence of the harm to the environment such as Indigenous communities to whom a river may be sacred, a swimmer who can no longer swim in the river, a commercial operator suffering economic loss, or future generations who may inherent a degraded environment. The effectiveness of the voice given to victims is impacted by the identification, inclusion, sanitisation, and cross-examination issues. Offender and victim voice impacts on offender and victim interaction, which is defined as a face-to-face dialogue. Assuming a victim (if human and currently living) or victim representative (if the victim is the future generation, community, or the environment) is present in court when an offender gives oral evidence they may hear the offender’s story behind the offending. However, there are two contingencies which factor against this happening. Firstly, the victim(s) may not have been identified as such (the identification issue, which was canvassed above) and therefore did not know about the court dates and therefore may not be in court when the offender gives oral evidence. Secondly, the offender may not actually present oral evidence, given the NSWLEC preference for written evidence. Even if the victim is in court when an offender gives oral evidence, the victim does not have the opportunity to ask questions of the offender or pass comment on that evidence. Any dialogue will be between the offender, prosecutor, and the court and will be focussed on the evidence going to the sentencing considerations.

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In response to the question, ‘did the court proceedings allow for interaction and dialogue between victim and offender?’ An interviewee responded ‘[c]ertainly not in the court proceedings they didn’t, no’ (INT4, 23 March 2017: P 4, L 120). Another interviewee responded to the same question by saying, ‘not really in the Land and Environment Court’ (INT-1, 13 March 2017: P 5, L 169–P 6, L 172). The opportunity to ask the interviewees whether there was scope for offender and victim interaction and dialogue outside of the court itself was not taken. Therefore, it can be concluded that the sentencing of environmental offending provides no opportunity for an interactive face-to-face dialogue between offenders and victims as part of the court process. This is not because of deliberate action by the court to exclude such dialogue, rather such dialogue is not needed for the exploration of sentencing considerations. Another important consideration is offender and victim input into sentencing. Offenders are provided input into the sentencing process through evidence filed in the proceedings, cross-examination, and instruction to their/its legal representative. It is through legal representation that offenders can have input into the sentencing options a court may utilise. For example, environmental service orders are generally agreed between the prosecution and offender and hence requires offender input into that sentencing option. Likewise, an offender can have input into the wording of a publication order which is another sentencing option. Sentencing options will be considered shortly. Victims are provided input into the sentencing process through any evidence they provide and through the role of the prosecutor as representing the general community and environment. Victims may inform the prosecution of any sentencing preferences they may have but there is no obligation on the prosecution to consider those preferences. Therefore, victim input into the sentencing process is largely tokenistic rather than substantial. The limited offender and victim voice, interaction, and input during and into the prosecution and sentencing of environmental offenders has implications for how justice is defined in that context. Meaningful

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involvement is proffered as the missing component in the prosecution of environmental offending, with restorative justice conferencing operationalising meaningful involvement (Chapter 10).

Sentencing of Environmental Offending The NSWLEC when sentencing an environmental offender can do the following: • Confirm the charge has been proven but otherwise dismiss the charge (Crimes (SP) Act, s 10). It is rarely used in the context of environmental offending (1.59% of charges across the analysis period; Hamilton 2019: Appendix 8 and 9); • Impose a fine; • Impose a custodial sentence. Imprisonment is the sentence of last resort where none of the other sentencing options will suffice. To my knowledge, imprisonment has only been used twice for the sentencing of an environmental offender (Environment Protection Authority v Charles Anthony Lesie Gardner [1997] NSWLEC 169; Environment Protection Authority v Hanna (2018) 235 LGERA 114); • Impose an alternative to a custodial sentence, such as a community service order (‘CSO’) which involves the offender carrying out some kind of activity in the community for the community under supervision. The depiction of ‘chain gangs’ in American movies is a primitive example of a CSO; or • Impose a reparative order. The imposition of one, or more of the above options in combination, forms the ‘sentencing package’ which an offender must obey. The rationale for the imposition of a sentencing package is to achieve the statutory purposes of sentencing. The purposes of sentencing are:

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(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f ) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community (Crimes (SP) Act, s 3A).

Fines This involves the payment of money by an offender, by way of penalty, into the government’s consolidated revenue. Fines have traditionally been the dominant order imposed by the NSWLEC when sentencing environmental offenders (Hamilton 2019: Figs. 8 and 9). Fines were the dominant order imposed in the sentencing of water pollution between 2000–2002 and 2009–2011 with 96.15% and 57.14% (respectively) of sentencing featuring a fine as the dominant order (Hamilton 2019: Fig. 8). Fines were the dominant order imposed in the sentencing of breach of environment protection licence offending between 2000–2002 and 2006–2008 with 100 and 75% (respectively) of sentencing featuring a fine as the dominant order (Hamilton 2019: Fig. 9).

Reparative Orders There are various orders the NSWLEC can make in sentencing environmental offending besides imprisonment (or non-custodial alternatives) and fines. Such orders are referred to by various labels because of the statutory context in which they are found such as ‘court orders’ (POEO Act, Part 8.3), additional orders (POEO Act, 244(2)), and alternative orders (POEO Act, 244(3)). A better descriptor for these orders is ‘reparative orders’. This is a label adopted from White’s concept of ‘reparative justice’ which is concerned with ‘court efforts to make

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defendants repair the harm that they have caused when committing environmental offences’ (White 2017: 118). Such orders can be imposed upon offenders and occurs within a more punitive context then say a restorative justice context which involves ‘consensual agreement and/or ‘conferencing’ methods of negotiation’ (White 2017: 130). The orders collected under ‘reparative orders’ are probably wider than the orders White would associate with ‘reparative justice’. For example, publication orders are arguably more associated with deterrence than repairing of harm. Nevertheless, for simplicity all POEO Act, Part 8.3 orders are collated under the ‘reparative orders’ label because all attempt to repair harm in some general sense, even if not in the sense of direct repair of the physical environment damaged. Since reparative orders are imposed on an offender rather than be imposed consensually, restorative justice activity orders are not truly a reparative order because they need the consent of the offender before they can be imposed (for a discussion on reparative v restorative justice, see Hamman et al. 2015: 64–66). However, for simplicity, whilst acknowledging the above, they will be collated under the reparative orders banner. Table 2.1 depicts the raft of reparative orders available to the NSWLEC when sentencing an offender under the POEO Act (see also, Wright 2018). Publication, future references, environmental service, and restorative justice activity orders are of particular interest and will be subject of analysis below. The use of reparative orders has increased in the analysis period to the point that in the sentencing of both water pollution and breach of environment protection licence offending the use of reparative orders has become the dominant order imposed. An environmental service order (‘ESO’) is an environmentally based reparative order under which money is paid to either an entity which is carrying out a specific environmental project or to the Environmental Trust to be directed for environmental projects. Between commencement of the sentencing option (1 May 2006) and 31 August 2017, 44.64% of water pollution offenders were subject to an ESO; in all of those cases the ESO was imposed in lieu of a fine. In that same period, 55.26% of environment protection licence offenders were subject to an ESO; 95.24% of the ESOs being imposed in lieu of a fine (Hamilton 2019:

Restoration and prevention An order under which an offender is to take such steps ‘to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence’ or ‘to make good any resulting damage’ or ‘to prevent the continuance or recurrence of the offence’ Costs, expenses and compensation at time offence proved An order under which an offender pays to a public authority an amount representing its costs and expenses incurred in connection with ‘the prevention, control, abatement or mitigation of any harm to the environment caused by the commission of the offence’ or in ‘making good any resulting environmental damage’. It also allows the court to order an offender to pay a person (including a public authority) an amount representing the loss of, or damage to, property, or the costs incurred in trying to mitigate such loss or damage

245

246

Description of order

Section 1 July 1999 (on commencement of the Act itself)

Commencement

Table 2.1 Reparative Orders under the Protection of the Environment Operations Act 1997 (NSW)

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Recovery of costs, expenses and compensation after offence proved A similar order to that under s 246 but operates on the expenses and costs expelled, or loss suffered, after the court finds the offence proved Costs and expenses of investigation An order under which an offender pays an amount to the regulatory authority that represents the regulatory authorities ‘reasonably incurred costs and expenses during the investigation of the offence…’ These costs are those incurred ‘in taking any sample or conducting any inspection, test, measurement or analysis, or…[in] transporting, storing or disposing of evidence’ Monetary benefits An order under which an offender pays a penalty equivalent to ‘the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence’

247

249

248

Description of order

Section

Commencement

(continued)

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Publication orders An order under which an offender is to take specified action to publicise, or notify specified persons of, ‘the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person’ Future references order Can accompany an environmental service order (‘ESO’) and requires that any future reference to the funding of an ESO include the disclaimer that the funding was part of an order imposed by the NSWLEC Project order An order under which an offender is ‘to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit’ Environmental audit An order under which an offender is ‘to carry out a specified environmental audit of activities carried on by the offender’

250(1)(a)&(b)

250(1)(d)

250(1)(c)

Description of order

Section

Table 2.1 (continued) Commencement

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Environmental service order An order under which an offender is to ‘pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes’ Training attendance An order under which an offender is to ‘attend, or cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court’ Training establishment An order under which an offender is ‘to establish, for employees or contractors of the offender, a training course of a kind specified by the court’ Financial assurance Applicable only if the Environment Protection Authority (‘EPA’) is a party to the proceedings, under which the offender ‘provide[s] a financial assurance, of a form and amount specified by the court, to the EPA, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment’

250(1)(e)

250(1)(h)

250(1)(g)

250(1)(f)

Description of order

Section 1 May 2006

Commencement

(continued)

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Description of order

Restorative justice activity An order under which an ‘offender [is] to carry out any social or community activity for the benefit of the community or persons that are adversely affected by the offence…that the offender has agreed to carry out’

Section

250(1A)

Table 2.1 (continued) 1 January 2015

Commencement

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Table 7). In terms of water pollution offences, there has been increasing use of ESOs since 2006 as a sentencing option. In terms of breach of environment protection licence, there has been an increased use of ESOs between 2006 and 2014, and then a drop-in use between 2014 and 31 August 2017 (Hamilton 2019: Fig. 10). The increased use of ESOs in the sentencing of environmental offending can be attributed to increased awareness of the order by prosecutors and offenders (INT-26, 19 October 2017: P 8, L 253–254; INT-34, 20 June 2018: P 12, L 358–365) and because ‘[t]he court has become used to them, and sees them as being useful’ (INT-25, 18 October 2017: P 14, L 455). Generally, an ESO project is agreed between the prosecutor and offender (INT-34, 20 June 2018: P 9, L 286–288), having been nominated by either the former (INT-24, 09 October 2017: P 8, L 257; INT-25, 18 October 2017: P 11, L 364) or latter (INT-22, 12 September 2017: P 3, L 131–132; INT-23, 19 September 2017: P 5, L 131). It is not the role of the NSWLEC to derive projects suitable for an ESO—‘the court doesn’t have its own grab bag of projects. It couldn’t possibly. [It doesn’t]…know where the offences are coming from. I mean, [it’s]…not geared for that’ (INT-26, 19 October 2017: P 7, L 214–216). A way of characterising an ESO is to look at the nexus between the harm occasioned by offending and the project subject of the ESO. There are seven ESO/harm occasioned nexus characterisations which fit within ratings of direct, strong, moderate, and weak. Each of those characterisations and an example (water pollution) of each are set out in Table 2.2. Graphically, this is represented in Fig. 2.1. The first characterisation (which forms a direct nexus) is where there is repair/enhancement of the actual environment harmed. During the analysis period, 12% of ESOs made in water pollution sentencing had a direct nexus (Hamilton 2019: Fig. 12, Appendix 13). There were no ESO projects with a direct nexus to the harm occasioned by breach of environment protection licence during the analysis period (Hamilton 2019: Fig. 13, Appendix 13). A strong nexus rating occurs when there is repair of similar harm within the locality of the actual harm or within the same suburb (second

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Table 2.2 Environmental Characterisation

Service

Order/Harm

Occasioned

Nexus Id

Characterisation and example

1

Repair/enhancement of actual environment harmed Example—Pollution of River A results in a fish kill. ESO project involves restocking of fish in River A Repair/enhancement of similar harm within the locality of actual harm Example—Pollution of River A results in a fish kill. ESO project involves planting of vegetation along River A’s banks. Repair/enhancement of similar harm within the same suburb Example—Pollution of River A results in the killing of parts of the riverbank vegetation. River B is located within the same suburb as River A. ESO project involves the planting of vegetation along River B’s banks Repair/enhancement of similar harm not within same suburb Example—Pollution of River A results in the killing of parts of the riverbank vegetation. River C is in an adjacent suburb to River A. ESO project involves planting of vegetation along River C’s banks Repair/enhancement of dissimilar harm at the locality of actual harm Example—Pollution of River A results in the killing of parts of the riverbank vegetation. Treated sewage flows legally into River A. ESO project involves the upgrade of sewage treatment plant responsible for the discharge of treated sewage into River A Repair/enhancement of dissimilar harm within same suburb Example—Pollution of Lake A has resulted in a fish kill. Beach A is located within the same suburb as Lake A, but Lake A does not flow into the sea and hence is not connected to Beach A. ESO project involves stabilisation of the sand dunes on Beach A to encourage nesting sea birds Repair/enhancement of dissimilar harm not within the same suburb Example—Pollution of Lake A has resulted in a fish kill. Beach B is in the adjacent suburb. ESO project involves stabilisation of the sand dunes on Beach B to encourage nesting sea birds

2

3

4

5

6

7

Nexus

Nexus rating Direct

Strong

Strong

Weak

Moderate

Weak

Weak

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Fig. 2.1 Environmental Service Order/Harm Occasioned Nexus Characterisation

characterisation). This might occur when there is no actual environmental damage caused by the offending, say to a river, but existing degradation of the river is repaired. Another example might involve repairing a different aspect of a river than that degraded by current offending. During the analysis period, 24% of ESOs made in water pollution sentencing had a strong nexus (Hamilton 2019: Fig. 12, Appendix 13). The comparable figure for breach environment protection licence was 19% (Hamilton 2019: Fig. 13, Appendix 13). The recognition of harm to the victim and community (a purpose of sentencing) is strong because repair/enhancement of the direct victim (e.g. a river) is still occurring, albeit either upstream or downstream of the actual offending or to a different component of the river. Recognition of harm to the community (an indirect victim) is still occurring because the river is being repaired/enhanced for the enjoyment of the community. A moderate nexus occurs when an ESO project involves works within the locality of the harm but of a dissimilar nature to the works required to repair the harm occasioned. During the analysis period, 12% of ESOs made in water pollution sentencing had a moderate nexus (Hamilton

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2019: Fig. 12, Appendix 13). The comparable figure for breach environment protection licence was 5% (Hamilton 2019: Fig. 13, Appendix 13). A weak nexus is assigned to scenarios where there is an ESO project which purports to undertake work unrelated to the work required to repair the harm occasioned. Such work might be within the suburb of the harm or another suburb. Another weak nexus is when an ESO project contemplates the work required to repair the harm occasioned but directs it to a different locality, e.g. a river in a different suburb. During the analysis period, 52% of ESOs made in water pollution sentencing had a weak nexus (Hamilton 2019: Fig. 12, Appendix 13). The comparable figure for breach environment protection licence was 76% (Hamilton 2019: Fig. 13, Appendix 13). With a weak nexus, there is little to no recognition of the harm to the victim, e.g. a river, because no repair or enhancement of the victims occurs under the ESO. Additionally, there is little to no recognition of the harm to the community (the indirect victims) because their enjoyment of the river is reduced by dint of the offending and not remedied by the ESO. Interviewees agree that a direct nexus between the harm occasioned by an offence and the project subject of funding under an ESO is desirable (INT-3, 20 March 2017: P 24, L 946–972; INT-19, 21 August 2017: P 8, L 282–289; INT-22, 12 September 2017: P 4, L 145; INT-23, 19 September 2017: P 6, L 164–165; INT-24, 09 October 2017: P 12, L 389–391; INT-25, 18 October 2017: P 12, L 373–376; INT-26, 19 October 2017: P 7, L 223). An interviewee explains that they will ‘always try and match the project to the crime’ (INT-3, 20 March 2017: P 20, L 806) which involves looking beyond the mere agreement of the parties to that project (INT-3, 20 March 2017: P 24, L 946–965). However, it may not always be possible to get a direct nexus between the harm and the ESO project (INT-3, 20 March 2017: P 20, L 807–P 21, L 827; INT24, 09 October 2017: P 12, L 389–391; INT-34, 20 June 2018: P 10, L 293–295). In a situation where a direct nexus is not possible, one would hope that the ESO project ‘was commensurate with the seriousness of the offence’ (INT-34, 20 June 2018: P 10, L 293–295). A reason for not being able to get a direct nexus is because ‘the impact of the offending was ephemeral and so there’s nothing more that can be done to remedy the impact of the offending, and there is

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some aspect of the environment that’s crying out for some resourced improvements or mitigation’ (INT-23, 19 September 2017: P 6, L 172– 175). This is reflected in the fact that some of the ESO projects in the strong nexus rating category are implemented following offending that has not resulted in actual environmental harm. In those instances, it is not possible to get a direct nexus because the ESO project does not address the harm occasioned because there was no actual harm. Notwithstanding, the ESO repairs similar harm within the locality of the actual offence or within the same suburb, hence giving it a strong rather than direct nexus. A reason for a moderate or weak nexus may be poor project selection by the parties—‘Too often, I think, they dish up orders, which bear no relation to that [the harm occasioned], just because that happens to be a pet project of the particular government agency, or a particular connection that they have’ (INT-3, 20 March 2017: P 22, L 860–862). Indeed, an interviewee conceded that in their ‘experience, more often than not, the environmental service order is for a project that is, at best, only tangentially related to the aspect of the environment that was harmed or potentially harmed by the offending, and quite often can be simply an offset exercise’ (INT-23, 19 September 2017: P 6, L 166– 170). This is potentially reflected in the fact that 64% of ESO projects had a moderate to weak nexus rating in water pollution matters across the analysis period (Hamilton 2019: Fig. 12, Appendix 13); the comparable figure for breach of environment protection licence offending was 81% (Hamilton 2019: Fig. 13, Appendix 13). Another reason for a weak or moderate environmental harm/ESO project nexus is because the offender has repaired the aspect of the environment harmed by offending before the prosecution was brought before the NSWLEC or the fact that there was no actual environmental harm caused by the offending or the harm was transitory. This is often the case when a breach of environment protection licence offence results in a discharge to air and may explain why there is a higher percentage of weak nexus ratings in breach of environment protection licence offending compared to water pollution offending. Despite these observations, interviewees opine that a lack of nexus (i.e. reflected in a moderate to weak nexus rating) between the harm occasioned and ESO project should not preclude the use of

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an ESO (INT-24, 09 October 2017: P 12, L 389–391; INT-25, 18 October 2017: P 12, L 373–376; INT-26, 19 October 2017: P 7, L 223). Indeed, the nexus ratings derived for this analysis are not meant to reflect the usefulness or otherwise of ESO projects in absolute terms. Rather the nexus rating is directly related to the functioning of ESO to achieve the purpose of sentencing of recognition of harm to the victim and the community. It is acknowledged that even an ESO project with a weak nexus to the offending can bring some incredible good to the environment generally. An interviewee opines that the NSWLEC should be more bespoke in the selection of ESO projects following environmental offending. According to the interviewee, ‘[o]ne way you could get more bespoke is getting the victims to come and talk about it, and including people who say, this is the particular environment that’s been affected, and therefore, what this environment needs is to do this’ (INT-3, 20 March 2017: P 22, L 863–866).

Publication Orders Publication orders specify that an offender publicises the offences to either the general public (generally via a newspaper) or to specified persons (e.g., via a notice in the offender’s annual report). Sources of publication orders include: • National newspapers (e.g. Sydney Morning Herald (Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146) and Australian Financial Review (Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64)); • Local newspapers (e.g. Braidwood Times (Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131 (‘Big Island Mining ’)), Cobar Weekly (Environment Protection Authority v Peak Gold Mines Pty Limited [2013] NSWLEC 158) and Singleton Argus (P&M Quality Smallgoods); • Industry magazine/journal (e.g. Australian Mining Magazine (Environment Protection Authority v Coal and Allied Operations Pty Ltd

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[2013] NSWLEC 134; Big Island Mining ), Australian Pipeliner (Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18) and Journal of Chemical Engineering and Process Technology (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) (2014) 206 LGERA 239)); and • Publications specific to the offender (e.g. Annual Report (Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299) and lodgement of an Adverse Experience Reporting Form with the Australian Pesticides and Veterinary Medicines Authority (Environment Protection Authority v Ross (2009) 165 LGERA 42). There has been an increase in the use of publication orders for environmental offending over the analysis period. In the period 2000–2002, there was no use of publication orders in an environmental offending context by the NSWLEC as represented in water pollution and breach environment protection licence offending. In 2015–2017, 89% of water pollution and 85% of breach environment protection licence sentencing involved a publication order (Hamilton 2019: Fig. 14, Appendix 14). Most publication orders follow a similar format which includes: • General background, e.g. the NSWLEC found X company guilty of Y offence under Z legislation; • The offender’s operations and the particulars of the offending behaviour; • The actual and likely harm to the environment; and • The orders handed down by the NSWLEC.

Future References Orders A future references order is a publication order which is applied to an ESO. It generally takes the following form: all future references by the Council to its funding of the [ESO] Project are to be accompanied by the statement that “Hawkesbury City Council’s

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contribution to the funding of the ‘Windsor Downs Nature Reserve – Stormwater Mitigation – Gross Pollutant Trap’ is part of a penalty imposed on it by the Land and Environment Court of NSW after it was convicted of one offence against s 120(1) (water pollution) and two offences against s 64(1) (contravention of licence condition) of the Protection of the Environment Operations Act 1997 (NSW)”. (Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, [84(5)])

The use of future references orders for water pollution offending increased from 17% in 2006–2008, to 100% in 2009–2011, before dropping off to 75% usage in 2012–2014 and 33% in 2015–2017. In terms of breach of environment protection licence offending, the use of future references orders increased in usage from 2006–2008 (0%), through 2009–2011 (60%) and 2012–2014 (100%), before dropping off in 2015–2017 (29%) (Hamilton 2019: Fig. 15, Appendix 15).

Restorative Justice Activity Orders A restorative justice activity (‘RJA’) order first became a sentencing option for offences under the POEO Act on 1 January 2015. An RJA is ‘any social or community activity for the benefit of the community or persons that are adversely affected by the offence…that the offender has agreed to carry out’ (POEO Act, s 250(1A)). Conceivably any activity that an offender agrees to carry out for the benefit of the community or persons affected by offending could be made into an RJA order, and such activity is wider than any activity that can be ordered under a reparative order. Smith and Bateman (2014) give as an example of an RJA the provision of ‘community facilities in a local park, or swimming facilities near a local river that has been affected by pollution’. Another RJA could involve an offending company, through senior management or a member of the Board, talking at various workshops, conferences, and trade shows about the importance of effective environmental controls. An RJA could involve student education about the environment or

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work within communities on issues of environmental importance. Essentially, the scope of RJA orders is only constrained by imagination and usefulness. The scope of RJA orders is wider than reparative orders because they seek to address the harm to all victims of environmental offending. This has led me to characterise RJA orders as ‘the first truly “restorative” type order in New South Wales environmental and planning law…’ (Hamilton 2015: 559). As discussed above, the label ‘restorative’ rather than ‘reparative’ is better applied to an RJA order because such an order cannot be imposed without the offender’s consent. Given the potential scope of RJA orders, it is a surprise that they have not been used as a sentencing option by the NSWLEC. The reason an RJA order has not been made, at least in the opinion of some interviewees, is because the parties (INT-26, 19 October 2017: P 11, L 343) including the prosecution (INT-3, 20 March 2017: P 28, L 1119–1121) have not asked for it. It is suggested that the NSWLEC is very much guided by prosecution and defence suggestions regarding sentencing options (INT-26, 19 October 2017: P 11, L 344–346). In this respect, the NSWLEC, albeit innovative at times, is a responsive entity which is guided, but not bound in any way, by the suggestions of the parties with regard to sentencing options. Another reason why RJA orders have not been made is because of ‘relative unfamiliarity’ with the order by both the judges and parties (INT-34, 20 June 2018: P 14, L 442–444). Despite these observations, an interviewee opined that if a good (i.e. suitable) case comes up they would suggest the use of an RJA order (INT-26, 19 October 2017: P 11, L 348–351). Another said they ‘[w]ould absolutely consider’ using an RJA order if the parties come up with one (INT-34, 20 June 2018: P 15, L 447–448). Despite the enactment of the RJA order power on 01 January 2015, it was not utilised during the analysis period. Having explored the pertinent characteristics of environmental offending in New South Wales before the NSWLEC, the next chapter will explore what justice looks like in the prosecution of such offending.

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References Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. Bernard, T. J., Snipes, J. B., & Gerould, A. L. (2016). Vold’s Theoretical Criminology. New York: Oxford University Press. Cain, M., & Donnelly, H. (2017). Transparent and Consistent Sentencing in the Land and Environment Court of NSW: Orders for Costs as an Aspect of Punishment (Research Monograph No 40, Judicial Commission of New South Wales). Crimes (Sentencing Procedure) Act 1999 (NSW). Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121. Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19. Environment Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131. Environment Protection Authority v Charles Anthony Lesie Gardner [1997] NSWLEC 169. Environment Protection Authority v Coal and Allied Operations Pty Ltd [2013] NSWLEC 134. Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146. Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64. Environment Protection Authority v Hanna (2018) 235 LGERA 114. Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39. Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) (2014) 206 LGERA 239. Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Ltd [2017] NSWLEC 89. Environment Protection Authority v Peak Gold Mines Pty Limited [2013] NSWLEC 158.

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Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18. Environment Protection Authority v Ross (2009) 165 LGERA 42. Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299. Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189. Hamilton, M. (2015). “Restorative Justice Activity” Orders: Furthering Restorative Justice Intervention in an Environmental and Planning Law Context? Environmental and Planning Law Journal, 32(6), 548–561. Hamilton, M. (2019). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Hamman, E., Walters, R., & Maguire, R. (2015). Environmental Crime and Specialist Courts: The Case for a ‘One-Stop (Judicial) Shop’ in Queensland. Current Issues in Criminal Justice, 27 (1), 59–77. Land and Environment Court of New South Wales (NSWLEC). (2018). Practice Note—Class 5 Proceedings (29 March 2018). Plath v Rawson (2009) 170 LGERA 253. Protection of the Environment Operations Act 1997 (NSW). R v De Simoni (1981) 147 CLR 383. R v Thomson; R v Houlton (2000) 49 NSWLR 383. Smith, C., & and Bateman, B. (2014). Expanded Powers and Tougher Penalties for Environmental Offences in NSW . Clayton Utz Knowledge (online, 12 June) https://www.claytonutz.com/knowledge/2014/june/expanded-pow ers-and-tougher-penalties-for-environmental-offences-in-nsw. Accessed 12 January 2020. White, R. (2008). Crimes Against Nature: Environmental Criminology and Ecological Justice. London: William Publishing. White, R. (2011). Transnational Environmental Crime: Towards an Eco-Global Criminology. London and New York: Routledge. White, R. (2017). Reparative Justice, Environmental Crime and Penalties for the Powerful. Crime, Law and Social Change, 67, 117–132. Wright, S. (2018). Re-examining the Approach to Alternative Sentencing Orders in New South Wales Pollution Law. Environmental and Planning Law Journal, 35 (5), 606–634.

3 Justice as Procedure and Justice as Outcome

An important consideration when an offender is being prosecuted and sentenced for environmental offending is the indicia against which ‘justice’ is measured? To ask that question in a slightly different way— what does justice mean in the prosecution of environmental offending? This chapter explores what justice looks like in the prosecution of environmental offending before the Land and Environment Court of New South Wales (‘NSWLEC’) (and by extension, equivalent jurisdictions). The concept of justice is complex and multilayered which is deserving of considerable study. As the Hon. Justice Warren AC (Chief Justice of Victoria, Australia) aptly remarks, ‘What is justice? For different people at different times it means different things’ (2014: 2–4), as reflected in Table 3.1. The Chief Justice has captured some of the debates which ensue when talking about the meaning of justice. The differences in approach to justice highlight that the meaning is highly contested. Some see justice served when an ‘offender is adequately punished for the offence’ (Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a) (‘Crimes (SP) Act ’)) (retributive justice); that is, justice is served when an offender gets their © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_3

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Table 3.1 Justice according to different people Justice according to

What justice means

Ordinary person—John and Joan Citizen Popular media

‘due punishment when a criminal is sentenced for a crime’ ‘harsh punishment primarily focused on strong retribution and deterrence’ ‘a mix of fairness and safety’ ‘fairness: a fair hearing, a fair sentence that punishes not too harshly and offers hope’ Morality and fairness ‘the application of the rule of law, that is the certainty of applying legal rules developed over centuries to resolve disputes between citizens and the citizens and the state’ ‘application of the rule of law without fear or favour, affection or ill will’

Politician Accused person

Philosopher Lawyer

Judge

‘just desserts’ (White et al. 2019: 490–491, 509–510, 513). Others equate justice with deterrence (Crimes (SP) Act, s 3A(b)), rehabilitation (Crimes (SP) Act, s 3A(d)), and restoration of harm (restorative justice). For others, justice is about fair criminal procedures for an accused (procedural justice) (Tyler 1988) drawing on notions of justice as fairness. Fairness for Rawls is the ‘fundamental idea in the concept of justice’ (1958: 164). Fairness may lead to compliance with the law. Indeed, Tyler (1990) found that people are more likely to comply with the law when they view their treatment by the criminal justice system as fair and procedurally just. Two central foci arise from the above perceptions of justice. Justice as procedure (embedded in concepts such as fairness and the rule of law) and justice as outcome (embedded in concepts such as punishment, retribution, and deterrence). This book asserts that justice is conceptualised in the prosecution and sentencing of environmental offending as a binary concept comprising justice as procedure and justice as outcome. Essentially, this is a fair process for the offender leading to a sentence which is consistent

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with sentences handed down in similar fact scenarios, representative of proportionate punishment and achieves the statutory purposes of sentencing.

Justice as Procedure Justice as procedure incorporates several notions and concepts, but essentially it entails the procedures to ensure that the prosecution process is fair. Such notions and concepts associated with justice as procedure include the rule of law, an independent, impartial, and accountable decision-maker, adversarialism, the use of open court and the use of an enforceable outcome. The rule of law is a fundamental feature of common law legal systems the world over and means that nobody is above the law. In other words, every person, corporation, entity, government employee or department can be subject to prosecution. In environmental prosecution, the rule of law is reflected in the fact that individuals, corporations, and government entities are subject to prosecution. Being a government entity does not exclude it from prosecution. For example, the Forestry Commission of New South Wales was prosecuted by the Environment Protection Authority for water pollution (Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101; for other examples, see Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80; Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 (‘Hunter Water Corporation’)). Indeed, a local council who in one instance functions as a prosecutorial authority may in another instance be an offender in a prosecution brought by the Environment Protection Authority (see, e.g., Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88; Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39). An independent, impartial, and accountable decision-maker is a feature of justice as procedure. This decision-maker should be able to apply the law to the facts of a given case without fear or favour. In

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New South Wales, and indeed other common law countries, independent decision-making is ensured through the separation of powers. That is separation between the executive (i.e. government), the legislature that makes the law and the judiciary that enforces the law. The strict separation between the legislature and the judiciary in New South Wales means that those that make the law do not enforce the law. Enforcement is left to the judiciary which is the interpreter and arbitrator of the law. Judges of the NSWLEC are independent, impartial, and accountable decisionmakers. They have the same status as judges of the Supreme Court of New South Wales and are able to apply the law to the facts of a given case without fear or favour. This is ensured as NSWLEC judges, like other judges in common law countries, have tenure of employment meaning that they cannot be dismissed from their judicial appointment before retirement except for ‘proved misbehaviour or incapacity’ (Constitution Act 1902 (NSW), s 53). This means NSWLEC judges can make decisions which are unpopular with either the government or others without fear of being removed from office. NSWLEC judges are impartial and a party to proceedings can request a judge recuse themselves if felt they will not bring an impartial mind to a decision (for an overview of the principles, see Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulatory v O’Haire [2019] NSWLEC 158, [22]–[29]). A judge of the NSWLEC is accountable by dint of the fact that their decisions can be appealed to the New South Wales Court of Appeal (Land and Environment Court Act 1979 (NSW) (‘LEC Act ’), ss 57 and 58) or New South Wales Court of Criminal Appeal (Criminal Appeal Act 1912 (NSW), ss 5AB and 5D) (for a further overview of some of the characteristics of an independent and impartial judiciary, see Preston 2012: 180–181). Adversarialism is an element of justice as procedure and is tied in with an independent, impartial, and accountable decision-maker in that court proceedings are a ‘contest’ between the parties based on admissible evidence through which the decision-maker assesses whether the prosecution has proved its case beyond a reasonable doubt. The rules of evidence (e.g. under the Evidence Act 1995 (NSW)) are strictly applied in criminal proceedings and the NSWLEC’s Class 5 Practice Note dictates the timing and format of evidence (NSWLEC 2018). Offenders have a right to present their or its case personally or through a legal representative

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(LEC Act, s 63). All offenders are presumed innocent until proven guilty or plead guilty. A further element of justice as procedure is the fact that proceedings are heard in open court which are open to the general public. This perpetuates the notion that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices; Ex parte McCarthy [1924] KB 256, 259; see also, Russell v Russell (1976) 134 CLR 495, 520; Spigelman 2000a, b). Proceedings in closed rooms give the impression that deals are being made or decision-making is being influenced by fear or favour. All proceedings before the NSWLEC are to be in open court (i.e. are public), unless the court orders otherwise (LEC Act, s 62). The NSWLEC publishes court lists on its website to assist not only the parties but also the general public access court times and locations.1 The final element of justice as procedure is the sentencing process should lead to an enforceable sentence. A sentence which is not enforceable will not achieve the purposes of sentencing. NSWLEC sentences are enforceable because of the availability of contempt proceedings for noncompliance with court orders (Supreme Court Rules 1970 (NSW), pt 55; Land and Environment Court Rules 2007 (NSW), r 5.1 and 5.2; LEC Act, s 67; for an example, see Environment Protection Authority v Waight (2003) 125 LGERA 399).

Justice as Outcome Justice as outcome can be reduced to a tripartite understanding which attaches to a court sentence. A court sentence should achieve the statutory purposes of sentencing, be a proportionate expression of punishment, and be consistent with other sentences handed down in comparable cases. The statutory purposes of sentencing are found in the Crimes (SP) Act, s 3A and are retribution, deterrence (both individual and general), community protection, rehabilitation, offender accountability, denunciation, and recognition of harm. Although the NSWLEC will consider other ‘factors’ in the sentencing of environmental offending besides the statutory purposes of sentencing, it is argued that it is the achievement

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of those statutory purposes of sentencing which is the yardstick against which justice as outcome is measured. Those other sentencing exercise ‘factors’ include the consideration of the objectives of the legislation against which the offender has offended, the objective circumstances of the offence, such as the objective harm or likely harm occasioned by the offending, the maximum penalty available for such offending, and subjective circumstances, such as the state of mind of the offender. In regard to this last consideration, although mens rea is not relevant to the making out of a strict liability offence, mens rea elements may be relevant to the sentencing of a strict liability offence—a ‘strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed’ (Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121, [42] (‘Rae’)). Also important for the sentencing exercise is the consideration of the other subjective characteristics of the offender, such as prior criminality and character (Preston 2007). Given the centrality of the statutory purposes of sentencing to justice as outcome it is worth considering each in turn. The first statutory purpose of sentencing is ‘to ensure that the offender is adequately punished for the offence’ (Crimes (SP) Act, s 3A(a)). Retribution is what most people would commonly associate with punishment; an offender getting what they deserve, taking their medicine because that is what they deserve. ‘Retribution for the harm which has been done by an offender will also be an important aspect of sentencing environmental offences. The community must be satisfied that the offender is given his just desserts’ (Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234, [158]). Another purpose of sentencing offenders is ‘to prevent crime by deterring the offender and other persons from committing similar offences’ (Crimes (SP) Act, s 3A(b)). Hence there is an element of specific deterrence (the individual offender) and general deterrence (other potential offenders). The rationale behind deterrence is the notion that if the benefits of committing a crime do not outweigh the punishment imposed should one be caught, then crime will not be committed. This assumes that crime is committed rationally by someone possessing free will, a notion underscoring classical criminology and rational choice

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explanations of crime (for an overview, see Bernard et al. 2016: 37– 53). Deterrence and retribution are linked because it is the punishment forming the retribution, be it in the form of imprisonment, fine, or reparative order, which deters future offending by impacting on the cost/benefit analysis of crime. Both retribution and deterrence are being achieved by the NSWLEC through the use of imprisonment, fines, and reparative orders. Imprisonment is an option of last resort and has only being used by the NSWLEC on two occasions (Environment Protection Authority v Charles Anthony Lesie Gardner [1997] NSWLEC 169; Environment Protection Authority v Hanna (2018) 235 LGERA 114). Notwithstanding, it is a punishment which is available to use if necessary and therefore provides a theoretical deterrence to offending. Fines have traditionally been the dominant penalty imposed by the NSWLEC following environmental offending (Hamilton 2019: Figs. 8 and 9). Fines along with imprisonment are what most people would most readily associate with retribution. There has been increasing maximum penalties for environmental offending over recent times. Naturally, how effective increases in maximum penalties are for punishment and deterrence depends on the readiness of the NSWLEC to impose such maximums. Poisel explores the statutory maximum fine and the maximum fine imposed by the NSWLEC for, inter alia, Tier 2 (strict liability) environmental offences (2013: Table 1). Between 2003 and 2006 the statutory maximum fine was $250,000. In that same period the maximum fine ordered was $150,000 representing 60% of the statutory maximum. For the period 2006–2012 (the date at which Poisel’s analysis ends) the statutory maximum was $1m with the highest imposed being $125,000 representing 12.5% of the statutory maximum. In terms of water pollution and breach of environment protection licence from 2013–31 August 2017 (the end of the analysis period), the maximum statutory fine was $1m (Hamilton 2019: Appendices 8 and 9). The maximum fine imposed by the NSWLEC was $400,000, representing 40% of the statutory maximum (Hamilton 2019: Appendix 8, Case 109). Even though the fine was higher in absolute terms, it represented a lower percentage of the maximum fine than that ordered between 2003 and 2006. Hence, there is no logic in assuming that higher maximum penalties will always

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result, or automatically result, in higher penalties. Naturally, this analysis is simplistic because as will be revealed below there has been a move away from the imposition of fines to the imposition of reparative orders such as environmental service orders. Additionally, the fines imposed once the statutory maximum was changed to $1m may simply reflect the fact that there was no offending post 2006 which was deserving of a fine towards the upper end of the statutory maximum. Many have, and still do, argue that the way to deal with environmental offending is to have a proactive regulatory authority who can yield a ‘big stick’, i.e. can prosecute before the NSWLEC who can impose large fines. Poisel supports such a conclusion where he states that ‘the most effective way of enforcing environmental crimes and increasing general deterrence effect is the use of the “big stick” on corporate officers’ (2013: 77). Indeed, as White points out, ‘[u]nless substantial penalties are put into play, there is little deterrent’ (2017: 118). An Environmental Service Order (ESO) requires the payment of money to an organisation or entity for the undertaking of some environmental project. Recipients of funding through an ESO can include local council, government departments and authorities, government river catchment authorities, Landcare, and other groups for specific projects (Hamilton 2019: Appendix 16). ESOs have replaced fines as the dominant order made by the NSWLEC following environmental offending (Hamilton 2019: Figs. 8 and 9). The purpose of money expended under an ESO is to repair or enhance the environment. Although ESOs direct money away from the Government’s consolidated revenue, they have clear environmental advantages and may be less stigmatising for an offender than fines. Despite the advantages of ESOs over fines, at the end of the day they have the same effect on an offender. That is, the expenditure of money and hence fulfil the same functions as a fine (INT-22, 12 September 2017: P 4, L 150–151). The quantum of an ESO made by the NSWLEC will be comparable to a fine the NSWLEC would have been minded making in that case. In situations where the monetary value of projects subject to an ESO is less than the fine the NSWLEC would be minded imposing, it can order the difference be paid to the Environmental Trust (see, e.g.,

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Hunter Water Corporation; Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146). Hence, ESOs from an offender’s point of view would be considered retributive because it entails the expenditure of money just like a fine. In this sense, an ESO has an element of retribution about it. However, it may take some effort to convince the public that the payment of money under an ESO is ‘punishment’ or a form of retribution. ‘[P]eople understand “fine” fully. That is, “pay money across”, but pay money in the nature of a secondary service, might not catch the community’s imagination as being equivalent to a fine’ (INT-25, 18 October 2017; P 14, L 450–452). Two issues arise with the making of orders which involve the expenditure of money by an offender (be that in the form of a fine or an ESO) which are relevant to environmental offending. Both issues impact on notions of retribution and deterrence. Arguably the expenditure of money ordered by the court can be a deterrent because the expenditure of such money can cause financial pain (i.e. it is retributive) and therefore that specific offender and other potential offenders may seek to avoid such pain. The first issue relates to the expenditure of money by way of fine or ESO being too small in quantum to achieve retribution and deterrence. The second relates to the justification for retribution and the utility of deterrence in a strict liability context where there was no intention by the offender to commit a crime. No matter how large the financial costs of an order imposed by the NSWLEC following environmental offending there will always be some offenders who can absorb such costs. This may be the case for large corporations. In such situations those financial obligations may not be viewed as retributive and have no deterrent effect. In a true sense they may be viewed as a cost of doing business or a mere licensing fee to operate a business with detrimental effects on the environment; ‘construed as simply part of the cost of doing business…’ (White 2017: 118). Hence the financial consequences of offending do not disrupt the economic calculus of environmental offending. In such instances other orders may have greater retributive and deterrent effect. One such order is a monetary benefits order which is ‘an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the

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amount of any monetary benefits acquired by the offender, or accrued to the offender, as a result of the commission of the offence’ (Protection of the Environment Operations Act 1997 (NSW), s 249 (‘POEO Act ’)). A monetary benefits order will take from an offender the ill-gotten gains from offending. A second issue arising from the imposition of financial costs on an offender in the form of fines and ESOs following environmental offending is the justification for retribution in the context of strict liability offending where there may have been no intention to offend, and the deterrent effect of such orders in that context. In situations where an offender did not understand their or its behaviour to be criminal (or where such behaviour was accidental) there is still a retributive purpose in imposing a financial cost on an offender. This is because they or it ‘ought to’ have known what actions constitute an offence, which is embedded in the common notion that ignorance of the law is no defence, and they or it ‘ought to’ have had sufficient practices and procedures in place to ensure environmental offending does not occur. Deterrence also works on the same ‘ought to’ level. The particular offender, and other potential offenders ‘ought to’ understand their or its obligations under the law and ensure sufficient practice and procedures are in place to ensure that environmental offending does not occur. Publication orders also play a retributive and deterrent function following environmental offending (POEO Act, s 250(1)(a)&(b)). In the opinion of an interviewee, ‘environmental offenders, particularly if they are businesses, hate publication orders, and consider it a major part of their punishment…’ (INT-23, 19 September 2017; P 9, L 284– 286). Publication orders could affect a corporation’s ability to tender for contracts and may affect consumer confidence and loyalty, and therefore profits. Hence, in addition to the punitive aspect of publication orders, ‘they also serve a significant aspect of the general deterrence function that sentencing for offences…fulfil by bringing to broader attention the consequences of acts [which constitute offending]’ (Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64, [163]; INT-22, 12 September 2017; P 4, L 162–164; See also Environment Protection Authority v Incitec Limited (2003) 131 LGERA 176, [61]; Environment Protection Authority v Biosolids Management Pty

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Limited [2004] NSWLEC 90, [32]; INT-23, 19 September 2017; P 9, L 289–290). Even though future references orders, which can attach to an ESO, may take a similar form to a publication order and the mechanics of such are the same, the purpose of a future references order is not retributive nor deterrent. Rather the purpose is to ensure the retributive and deterrent effect of an ESO is not displaced. It ensures that the public understands that the work carried out subject to an ESO is ‘carried out as a result of the order…[Hence, is] being undertaken as a result of the offender committing an offence and not for other reasons, such as the offender being an altruistic citizen’ (Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732, [141]). Another purpose of imposing penalty on an offender is ‘to protect the community from the offender’ (Crimes (SP) Act, s 3A(c)). When considering the statutory purposes of sentencing it must be appreciated that environmental offending was not at the forefront of consideration in the drafting of those statutory purposes. Rather, mainstream crime (for want of a better descriptor) such as murder, assault, and rape are crimes in which the community may need to be protected from an offender. Notwithstanding, the NSWLEC does have the option to imprison environmental offenders if community protection is required. Imposing a penalty on an offender may ‘promote the rehabilitation of the offender’ (Crimes (SP) Act, s 3A(d)) and is premised on a positivist conception of offending in that some biological, psychological, or bio-social factor is influencing offending (for an overview, see Bernard et al. 2016: 62–108). Such factors may include mental illness, personality disorders, and alcohol and drug abuse/dependence. This purpose of sentencing is premised on the response to offending being therapeutic. The need for offender rehabilitation may not be as obvious in the sentencing of an environmental offender then say assault and robbery where an offender committed the crime because of a drug dependency. However, offender rehabilitation may be tangentially relevant to environmental offending when the offending occurred because of inadequate environmental systems. The prosecution culminating in sentencing may educate an offender as to that inadequacy—‘Oh, okay. I’ve got to improve my systems’ (INT-23, 19 September 2017; P 9, L 272). If the offender

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goes forward and improves those environmental systems to eliminate (or at least reduce the risk of ) future offending then they have been rehabilitated in a sense. A purpose of sentencing an offender is ‘to make the offender accountable for his or her actions’ (Crimes (SP) Act, s 3A(e)). Clearly the language is directed at individual offenders (‘his or her’) but it can be extended to corporate or other entity offending. Offender accountability is arguably the vaguest of all of the purposes of sentencing. In a traditional prosecution what does it mean to make an offender accountable through the sentencing process? Offender accountability is reducible to a tripartite series of actions—the laying of charges, the prosecution of those charges and the punishment of an offender when they or it are found guilty of the charge(s) or plead guilty to those charges. Therefore, in a true sense the imposition of penalty on an offender is the crystallisation of their or its accountability for offending which began with the laying of charges. Prosecution before the NSWLEC achieves accountability in this tripartite sense. Notwithstanding, as will be explored in Chapter 4, one of the reasons for the rise of restorative justice was a belief that this traditional legal view of accountability was too narrow. According to Zehr, true accountability involves an offender facing up to what they have done, appreciating the harm that the offending has caused not only to the victim, but also society, and taking steps to repair that harm, to make things right (2015a: 24; 2015b: 47). Such accountability is difficult to achieve with the limited to no victim and offender voice, interaction and input which is a feature of prosecution before the NSWLEC, as explored in the previous chapter. To ‘denounce the conduct of the offender’ is another purpose for which an offender is sentenced (Crimes (SP) Act, s 3A(f )). The sentence handed to an offender is recognition of the public’s condemnation of an offender’s wrongdoing; an acknowledgement that such offending is not appropriate, is not acceptable, and will be punished. Arguably, every order made by the NSWLEC during sentencing of an environmental offender has a denunciating effect (Rae, [8]). Indeed, the process of bringing charges against an alleged offender, the bringing of the alleged offender before the NSWLEC, and the sentencing on establishment of guilt is part of the denunciation process. Publication orders can also play

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a significant denunciating role because of the number of people such publication can reach. The final statutory purpose of sentencing is ‘to recognise the harm done to the victim of the crime and the community’ (Crimes (SP) Act, s 3A(g)). Criminal proceedings are brought by the government, through its prosecutorial authorities, on behalf of the community and victim. Embedded within any sentence is the acknowledgement that crime has deleterious effects on victims and the community. Recognition of the harm done to the victim of the crime and the community has links to denunciation and offender accountability as part of the process of identifying and charging of environmental offending conduct, the laying and bringing of charges before the NSWLEC and the sentencing of guilty offenders. Recognition of harm is also embedded in the various reparative orders which seek to repair/enhance the environment, acknowledging the fact that many of the victims of environmental offending are not currently living humans. ESOs are a reparative order which have the potential to function as recognition of harm occasioned by environmental offending. As well as comprising a sentence that achieves the statutory purposes of sentencing, justice as outcome requires that punishment be proportionate to the gravity of the offence committed. Proportionate punishment is punishment which is reflective of the objective gravity or seriousness of the offence. A ‘sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances’ (Preston 2007: 142: see also Veen v The Queen (No 2) (1988) 164 CLR 465, 472, 485–486, 490– 491, 496; Baumer v The Queen (1988) 166 CLR 51, 57–58; Hoare v The Queen; Easton v The Queen (1989) 167 CLR 348, 354; R v McNaughton (2006) 163 A Crim R 381, 387 (‘McNaughton’ ). Further, ‘the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence…’ (Preston 2007: 142; see also R v Dodd (1991) 57 A Crim R 349, 354; R v Nichols (1991) 57 A Crim R 391, 395; R v Allpass (1993) 72 A Crim R 561, 563; R v Murray (NSWCCA, 29 October 1997), 6–7; R v Whyte (2002) 55 NSWLR 252, 277; R v Scott [2005] NSWCCA 152, [15]; McNaughton, 387). In an environmental offending context, ‘the more

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serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty’ (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 701). Justice as outcome, as well as requiring sentences which achieve the statutory purposes of sentencing and are reflective of punishment which is proportionate, requires consistency in sentencing. Consistency in sentencing is not as simple as ensuring that like incidents receive the same sentence because there is often a ‘wide divergence of facts and circumstances’ to consider in each case including the objective circumstances of a case and the subjective characteristics of an offender (Preston 2007: 156; see also, Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, 365). Therefore, the proper approach to consistency in sentencing requires consideration of ‘whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of the range’ (Preston 2007: 156; see, R v Morgan (1993) 70 A Crim R 368, 371; Capral Aluminum Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 641). It is common practice in criminal matters before the NSWLEC for the prosecution and defence to make submissions relating to the sentencing of the offender and drawing the court to sentencing decisions in similar matters. This assists with consistency in sentencing and proportionate punishment. Further, the importance of such sentencing considerations is reflected in the terminology and structure of typical NSWLEC judgements relating to the prosecution of criminal offending (which invariably include reference to consistent sentencing and proportionate punishment) and in Preston CJ’s extra-judicial writings (2007). The NSWLEC has access to statistical data for criminal matters which can be displayed in graphical form through the Judicial Information Research System (‘JIRS’). This data includes objective and subjective sentencing considerations, the elements which make up the total penalty (such as fines, other orders and costs orders), and ‘elements devoted to such matters as remediation, removal of economic gains and cost savings, restitution to communities and moral blame’ (Preston and Donnelly 2008: 214). It

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is opined that the JIRS database will improve consistency in sentencing (Preston and Donnelly 2008: 235; Preston 2010). The NSWLEC’s focus on consistency in sentencing and proportionate punishment, aided by the JIRS database, aids the achievement of justice as outcome by the NSWLEC in the sentencing of environmental offenders. However, that does not mean that there is no room for improvement relating to proportionate punishment and consistency in sentencing. Burke (2018) argues that remediation and publication orders imposed by the NSWLEC in the sentencing of criminal offending creates an impediment to transparent, consistent, and proportionate sentencing. The reasoning behind this argument is that the costs of remediation and publication orders are often unknown at sentencing. The argument is built on, and furthers, the observations of the Judicial Commission of New South Wales which found that orders for legal costs are the same impediment to sentencing (Cain and Donnelly 2017). The nub of the argument is essentially if a criminal sentence cannot be precisely quantified and expressed, ‘then offenders will be left not knowing exactly how much they must pay, and whether their sentence is consistent with other sentences for similar offences or whether their sentence is proportionate to the seriousness of their offence’ (Burke 2018: 530). Indeed, a common order in the NSWLEC sentencing of an environmental offender is that the legal costs of the prosecutor are ‘as agreed or assessed’ (Hamilton 2019: Appendices 8 and 9). Hence the quantum of the legal costs awarded was unknown at the time of judgement. The quantum of expenses associated with a publication order is not stated in the court judgement and therefore inferably not known to the sentencing judge at the time of judgement. Although the overwhelming majority of ESOs have the costs quantified there are examples in the analysis period where costs are not quantified (Hamilton 2019: Appendices 8 and 9). Even though Burke is directing his argument to remediation orders and not ESOs per se, the same argument can be applied to the latter order (and indeed all reparative orders) when the quantum is not known. With regard to legal costs there are two possible avenues to deal with the above issues. The first avenue is to make it a requirement that legal costs be known at the time of sentencing (Cain and Donnelly 2017: v). The other avenue is the one suggested by Burke. That is, ‘cease

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requiring offenders to pay the prosecutor’s legal costs’ (Burke 2018: 535). This avenue is suggested by Burke primarily as a response to concerns over legal costs leading to disproportionate punishment typified by those ‘cases where the seriousness of [the] offence is relatively low but the legal costs are relatively high due to legal complexity or the length of the case. In these cases, even if the fine is reduced to zero, high legal costs can lead to a penalty that is disproportionately high by comparison to the seriousness of the offence’ (Burke 2018: 535). Deciding to remove legal cost orders from the NSWLEC criminal jurisdiction requires careful consideration, consideration which is beyond the scope of this book. Therefore, it is desirable to adopt, with caution, the recommendation of Cain and Donnelly where possible and have legal costs quantifiable at sentencing, noting that further research is needed in this area. Likewise, in terms of reparative and publication orders it is desirable that reforms be implemented ‘which would allow for the total penalty to be quantified in dollar terms at the time of sentence…’ (Burke 2018: 540). This would enable an assessment as to the consistency of the sentence with like offences and whether the punishment is proportionate to the seriousness of the offence. Having established that the prosecution of environmental offenders before the NSWLEC achieves justice as a binary conceptualisation (justice as procedure and justice as outcome), the adequacy of that conceptualisation must be questioned because it is achieved with minimal to no offender and victim voice, interaction and input (as explored in Chapter 2). This sits uneasily considering that offenders commit the crime and victims suffer because of it. Surely, they are entitled to voice, interaction, and input in the prosecution process. Indeed, the criticisms of the modern criminal justice system levelled by Christie and Zehr centre on the lack of voice, interaction, and input, leading to the rise of restorative justice (as will be explored in Chapter 4). By questioning the adequacy of a binary conceptualisation of justice one is able to look beyond the criminal justice system for a different conceptualisation of justice (Chapter 10).

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Note 1. Land and Environment Court of New South Wales(Web Page). www.lec. justice.nsw.gov.au.

References Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. Baumer v The Queen (1988) 166 CLR 51. Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234. Bernard, T. J., Snipes, J. B., & Gerould, A. L. (2016). Vold’s Theoretical Criminology. New York: Oxford University Press. Burke, A. (2018). Fairness, Justice and Repairing Environmental Harm; Reconciling the Reparative Approach to the Sentencing of Environmental Crimes with Sentencing Principles. Environmental and Planning Law Journal, 35 (5), 529–541. Cain, M., & Donnelly, H. (2017). Transparent and Consistent Sentencing in the Land and Environment Court of NSW: Orders for Costs as an Aspect of Punishment (Research Monograph No 40, Judicial Commission of New South Wales). Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. Capral Aluminum Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Constitution Act 1902 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW). Criminal Appeal Act 1912 (NSW). Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121. Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90. Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732.

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Environment Protection Authority v Charles Anthony Lesie Gardner [1997] NSWLEC 169. Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146. Environment Protection Authority v Hanna (2018) 235 LGERA 114. Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64. Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101. Environment Protection Authority v Greater Taree City Council [2014] NSWLEC 88. Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39. Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76. Environment Protection Authority v Incitec Limited (2003) 131 LGERA 176. Environment Protection Authority v Waight (2003) 125 LGERA 399. Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80. Evidence Act 1995 (NSW). Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulatory v O’Haire [2019] NSWLEC 158. Hamilton, M. (2019). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Hoare v The Queen; Easton v The Queen (1989) 167 CLR 348. Land and Environment Court of New South Wales (NSWLEC). (2018). Practice Note—Class 5 Proceedings (29 March 2018). Land and Environment Court Act 1979 (NSW). Land and Environment Court of New South Wales (Web Page). www.lec.jus tice.nsw.gov.au. Accessed 12 January 2020. Land and Environment Court Rules 2007 (NSW). Poisel, T. (2013). (Environmental) Crime Does Not Pay: The Effectiveness of the Criminal Prosecutions Under Pollution Legislation in NSW. Local Government Law Journal, 18(2), 77–92. Preston, Hon Justice B. J. (2007). Principled Sentencing for Environmental Offences—Part 2: Sentencing Considerations and Options. Criminal Law Journal, 31(3), 142–164.

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Preston, Hon Justice B. J. (2010). A Judge’s Perspective on Using Sentencing Databases. Journal of Court Innovation, 3(1), 247–258. Preston, Hon Justice B. J. (2012). The Enduring Importance of the Rule of Law in Times of Change. Australian Law Journal, 86 (3), 175–188. Preston, Hon Justice B. J., & Donnelly, H. (2008). The Establishment of an Environmental Crime Sentencing Database in New South Wales. Criminal Law Journal, 32(4), 214–238. Protection of the Environment Operations Act 1997 (NSW). Rawls, J. (1958). Justice as Fairness. Philosophical Review, 67 (2), 164–194. Russell v Russell (1976) 134 CLR 495. R v Allpass (1993) 72 A Crim R 561. R v Dodd (1991) 57 A Crim R 349. R v McNaughton (2006) 163 A Crim R 381. R v Morgan (1993) 70 A Crim R 368. R v Murray (NSWCCA, 29 October 1997). R v Nichols (1991) 57 A Crim R 391. R v Scott [2005] NSWCCA 152. R v Sussex Justices; Ex parte McCarthy [1924] KB 256. R v Whyte (2002) 55 NSWLR 252. Spigelman, Hon Justice J. J. (2000a). Seen to be Done: The Principle of Open Justice—Part 1. Australian Law Journal, 74 (5), 290–297. Spigelman, Hon Justice J. J. (2000b). Seen to be Done: The Principle of Open Justice—Part 1I. Australian Law Journal, 74 (6), 378–383. Supreme Court Rules 1970 (NSW). Tyler, T. R. (1988). What Is Procedural Justice?: Criteria Used by Citizens to Assess the Fairness of Legal Procedures. Law & Society Review, 22(1), 103–136. Tyler, T. R. (1990). Why People Obey the Law. Princeton, NJ: Princeton University Press. Veen v The Queen (No 2) (1988) 164 CLR 465. Warren, A. C., & Hon Justice, M. (2014, 20 August). What Is Justice? Newman Lecture, Mannix College. White, R. (2017). Reparative Justice, Environmental Crime and Penalties for the Powerful. Crime, Law and Social Change, 67, 117–132. White, R., Perrone, S., & Howes, L. (2019). Crime, Criminality and Criminal Justice. Docklands, VIC, Australia: Oxford University Press. Zehr, H. (2015a). The Little Book of Restorative Justice. New York: Good Books. Zehr, H. (2015b). Changing Lenses: Restorative Justice for our Times. Virginia and Ontario: Herald Press.

4 Restorative Justice

Whilst the green criminology movement was taking form, another movement was also on the rise: restorative justice. It arose from dissatisfaction with modern western criminal justice systems which were beginning to find voice in the 1970s (Christie 1977; Zehr 2015a: 18–19). Two central themes permeate such dissatisfaction. Firstly, the lack of inclusion of the key stakeholders to offending in the resolution of the harm occasioned by that offending. Secondly, the effect that shame arising from offending, and the criminal justice system response to offending, has on an offender (Braithwaite 1989). Essentially, restorative justice is a collective response to harm (be it criminal or civil) which involves all relevant stakeholders. This chapter will introduce the concept of restorative justice as a reaction to dissatisfaction with modern criminal justice systems, explore various definitions, and its central tenets—crime is a violation of people and relationships, responses to crime should be inclusive, and responses to crime should heal and put things right. Restorative justice as a resolution device will be explored. Four elements of that resolution device are communication, education, resolution, and reintegration. Successful deployment of this resolution device will lead to the repair of the harm occasioned © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_4

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by offending, repair of relationships damaged by offending, and provide the way for the offender and victim to move forward with their lives.

Definitions of Restorative Justice Restorative justice is a complex concept, ‘with debate ensuing over exactly what it is and what it involves and, indeed, what it isn’t’ (Hamilton 2015: 164; for an overview of some of the normative questions pertaining to, and debates within, restorative justice, see Aertsen et al. 2013: 3). Notwithstanding, one of the most widely adopted definitions is that of Marshall which views restorative justice as ‘a process whereby all of the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’ (1996: 37). Another useful definition, adopted by the United Nations Office on Drugs and Crime (‘UNODC’), provides that a restorative process is ‘any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator’ (United Nations Economic and Social Council 2002: Annex [2]). Zehr proffers a similar working definition, whereby ‘[r]estorative justice is an approach to achieving justice that involves, to the extent possible, those who have a stake in a specific offense or harm to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible’ (2015a: 48). The use of the word ‘offence’ in the Marshall and Zehr definitions and ‘crime’ in the definition adopted by the UNODC imply that restorative justice processes are only applicable in the aftermath of crime. Yet experience shows that restorative justice processes have been successfully employed in the aftermath, or in the face, of non-criminal conflict in the workplace (Pranis 2006),1 school (Morrison et al. 2005; Ahmed and Braithwaite 2012),2 and university (Karp and Conrad 2005; Kara and MacAlister 2010; Karp and Sacks 2014; Dzik 2017) environments.

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There are even moves to establish restorative cities (Bankhead and Barry 2018; Martin 2018). Aligning with the debate over what restorative justice is and is not, is disagreement over conceptualisations of restorative justice. One conceptualisation of restorative justice views it as a social movement, with the goal being ‘to transform the way contemporary societies view and respond to crime and related forms of troublesome behaviour… [through the use of ] community-based reparative justice and moralizing social control’ (Johnstone and Van Ness 2011: 5; see also Sherman and Strang 2012). Another way to conceptualise restorative justice is as a process. Johnstone and Van Ness describe this as the encounter conception of restorative justice—‘victims, offenders and other “stakeholders” in a criminal case should be allowed to encounter one another outside highly formal, professional-dominated settings such as the courtroom’ (2011: 9). This process or encounter conceptualisation of restorative justice aligns with a purist definition of restorative justice which is reflected in the Marshall, UNODC, and Zehr definitions presented above. Of utmost importance for this conceptualisation is the process of restorative justice, that is the coming together of affected stakeholders to engage in dialogue about the crime/conflict, its effects, and its resolution. A third conceptualisation is restorative justice as intention, which is described by Johnstone and Van Ness as the reparative conception of justice, which is concerned with outcome—‘the response to crime must seek to repair the harms resulting from crime’ (2011: 17). Reparative sanctions can be ordered outside of a restorative justice encounter and administered by criminal justice professionals (Johnstone and Van Ness 2011: 14). This conception fits within a maximalist definition of restorative justice. Maximalists disagree with the primacy given to process by the purists (for an overview of the maximalist model, see McCold 2000). Rather, central to the maximalist approach is intention. This means that ‘every action that is primarily oriented toward doing justice by repairing the harm that has been caused by a crime’ is restorative (Bazemore and Walgrave 1999: 48). Therefore, it is possible to conceptualise a wide range of initiatives, services, and even punishments, as restorative ‘as long as they are focused on the goal of repairing the harm crime

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causes’ (Bazemore and Walgrave 1999: 48). Hence elements of ‘obedience (retribution/deterrent) and treatment paradigms’ are incorporated into the maximalist approach. Such paradigms are not included in a purist conception of restorative justice (McCold 2000: 358). One way an offender can repair the harm to community caused by offending is through court-imposed community service, which has been described as the ‘cornerstone of the [m]aximalist approach…’ (McCold 2000: 377). Through community service the ‘community itself is restored through the material results of the services rendered and through the peace-restoring gesture of the offender’ (Walgrave 1999: 139). At least two connotations flow from the words ‘court imposed’. Firstly, there is no need for the coming together of the stakeholders to an offence to engage in dialogue and work collectively to resolve the harm occasioned by the offending. Secondly, there is no need for an offender to voluntarily accept to undertake the activity/action said to resolve the harm caused by the offending/conflict. Hence restorative justice, according to the maximalists, can be coerced on participants. They espouse that ‘restorative justice need not be limited to completely voluntary processes…’ (Bazemore and Walgrave 1999: 47; for an overview of the purist/maximalist debate see Zernova and Wright 2011: 91–96). Voluntary participation is another underpinning of the purist model of restorative justice—voluntary participation by an offender; voluntary participation by the victim and other stakeholders; and voluntary agreement to undertake any activity/action directed at repairing the harm occasioned by the offending/conflict. This book is concerned with the use of restorative justice conferencing as a face-to-face coming together of stakeholders to environmental offending. This is reflective of the purist definition of restorative justice in which process and encounter are of central importance.

Origins of Restorative Justice The birthplace of modern restorative justice practices is said to be an encounter in Kitchener, Ontario, Canada in 1974 (Zehr 2015b: 159– 160) being the forerunner to victim-offender mediation (King 2008:

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1104). Following the vandalising of 22 properties the judge presiding over the prosecution allowed a victim-offender mediation following the suggestion of Dave Worth, Coordinator of Voluntary Service Workers for Mennonite Central Committee, and probation officer Mark Yantzi (Zehr 2015b: 159–160). The encounter between offenders and victims resulted in the offenders offering to pay restitution to the victims (King 2008: 1104). Subsequently, victim-offender conferencing began in the US ‘through a project started in Elkhart, Indiana, in 1977-78’ (Zehr 2015b: 160). In the southern hemisphere, family group conferences have been the default response to most juvenile offending in New Zealand since 1989 in response to Maori concerns that the ‘imposed, alien, colonial system…’ (Zehr 2015a: 6, 62) of criminal justice was ‘culturally inappropriate and failed to address underlying issues’ (King 2008: 1104). Police-mediated conferencing in Australia began with a programme in Wagga Wagga in 1991. It was a community initiative influenced by the family group conferencing occurring in New Zealand and the reintegrative shaming theory of Braithwaite (King 2008: 1105; see also, Bargen, Clancy and Chan 2005: 17, 19). This system has since been replaced with a statutory scheme in New South Wales (Young Offenders Act 1997 (NSW), pt 5). Despite these modern origins, it must be remembered that the ‘precedents and roots of restorative justice are much wider and deeper than the initiatives of the 1970s; they reach back into human history’ (Zehr 2015a: 19). In fact, in many ways ‘restorative justice represents a validation of values and practices that were characteristic of many indigenous groups’ (Zehr 2015b: 234). As Braithwaite points out, ‘[r]estorative justice has been the dominant model of criminal justice throughout most of human history for the world’s peoples’ (1999: 2; for a contrary view, see Daly 2002: 61–64). From these ancient and modern beginnings hundreds, if not thousands, of restorative justice programmes have emerged around the world.

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Dissatisfaction with Modern Criminal Justice Systems Restorative justice did not arise in a vacuum. Rather it arose as a reaction to the dissatisfaction with modern criminal justice systems being aired in the 1970s, 1980s, and 1990s. Christie (1977) argues that modern criminal justice systems have stolen conflict away from its rightful owners—victims, offenders, and community. Criminal justice systems through the conversion of conflict between individuals into a crime involving an offender and the state effectively means that the ‘victim has lost the case to the state’ (Christie 1977: 3). Victims have lost the opportunity to participate in the resolution of their own conflict, which may have been one of the most important days in their life, meaning they will have to rely on stereotypes of ‘the criminal’ to make sense of the offending and their victimisation (Christie 1977: 3, 7, 8). Offenders also lose out through having their conflict stolen. The representation by lawyers results in the theft of offenders’ conflict. Doing so means that offenders play a very minor, or indeed no role, in the conflict. Unfortunately, ‘[t]he offender has lost the opportunity to explain himself to a person whose evaluation of him might have mattered [i.e., the victim]’ (Christie 1977: 9). Lack of dialogue between victim and offender means the offender’s misattributions and rationalisations about their offending and victims are not challenged, making it difficult or even impossible to change that pattern of behaviour. Zehr as a primary founder of, and seminal figure in, the restorative justice movement argued in two influential books published in 1990 that restorative justice could be employed to overcome some of the shortcomings of modern western criminal justice systems (Zehr 2015a, b). Utilising a similar argument to Christie, Zehr proffers that modern prosecutions involve abstractions rather than real people which has meant that the event becomes ‘mystified and mythologized until the actual experiences and motivations’ behind the crime are lost (2015b: 24). With sentencing left to judges, and victims as no more than ‘footnotes to the crime…Those who have most directly suffered are not…part of the resolution of the offence’ (Zehr 2015b: 37–38). Likewise, modern criminal prosecutions treat offenders as bystanders with most decisions

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being made for them by others. With minimal involvement of victim and offender it is of no surprise to Zehr that victim and offender needs are neglected (2015b: 39, 67). Zehr sets out four categories of needs important to victims of crime following criminal offending. Important is the need for information, truth-telling, empowerment, and restitution/vindication (2015a: 22–23). The information that a victim of crime needs is usually held by an offender and includes the answer to questions such as: ‘Why me? Was I specifically targeted or was this a random incident or attack? If I was specifically targeted, then why? Will this incident occur again in the future?’ (Hamilton 2015: 175; see also, Zehr 2015b: 32). This information may help with a victim’s sense of safety; assurance that this will not happen again and restore a sense of order and predictability about the world. Answers to such questions may displace the natural tendency for victims of crime to blame themselves for what has happened (Zehr 2015b: 30, 33). One way of disseminating this information would be a direct meeting between offender and victim (Zehr 2015a: 22). Also, important for a victim of crime is the ability to tell their story: what happened and how it has affected them and their loved ones. It is important for victims of crime that the offender hears such stories. Again, a direct meeting between offender and victim may provide the forum through which a victim can disseminate such information to an offender (Zehr 2015a: 22; b: 33). Victims of crime also need empowerment because crime is often associated with a loss of control; loss of ‘control over their properties, their bodies, their emotions, their dreams’ (Zehr 2015a: 23). A sense of empowerment can come from victims of crime being involved in their own court case (Zehr 2015a: 23; b: 33). Equally, victims may feel a sense of disempowerment during a court case where their involvement is superficial, tokenistic, or non-existent. As Aertsen et al. point out, ‘empowerment is experienced through the process of meeting, discussing and actively participating in the resolution of the criminal matter, either choosing among different alternatives or influencing the response to the offence’ (2011: 9). Such empowerment is felt at the individual level but does not ‘influence the social or political context of the problem[, that

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is]…institutional setting[s] or broader social structures in which both the offence and the response are taking place’ (Aertsen et al. 2011: 12). Restitution is important to victims of crime which may include compensation under a statutory scheme (e.g. under the Victims Rights and Support Act 2013 (NSW)) or by the offender. Payments by offenders themselves rather than from taxation money (such as used to fund a statutory scheme) hold greater symbolic significance for a victim. In a similar vein non-monetary restitution is important because of its symbolic function (Hall 2014: 105). The payment by an offender of restitution to a victim may give that victim a sense of vindication; an acknowledgement that they have been wronged. Victims may have other needs following the experience of crime. These may include the need to see an offender punished, including serving some time in prison. Such punishment may, so the rationale goes, deter not only the offender in question from committing further crime but also other individuals who are likely to offend. Such need is encapsulated in the sentencing rationales of retribution and deterrence. Zehr proffers that offenders are not made truly accountable for their offending. Accountability in the traditional criminal justice system is equated with punishment, an offender getting their just desserts, taking their medicine (Zehr 2015b: 46). But this is not what accountability is (Zehr 2015a: 24). According to Zehr, real accountability involves offenders facing up to what they have done, appreciating the harm the offending has caused not only to the victim, but also society, and taking steps to repair that harm, to make things right (2015a: 24; b: 47). In many respects traditional court proceedings are antithetical to making offenders accountable (in Zehr’s sense) for their offending. Firstly, victims have little involvement in the majority of criminal proceedings. Where they are involved it is usually limited to drafting and perhaps reading a Victim Impact Statement (where legislation, practice, and procedure permit such statements). Secondly, the offender takes no real part in criminal proceedings. Their role if any is reduced to instructing their lawyers. Thirdly, as a consequence of the first and second observations, victim and offender have no opportunity to engage in dialogue. Such dialogue is important for meeting victim needs and offender accountability because without it offenders are unable

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to disturb misattributions they have developed towards their offending and victims. The criminal justice process may encourage rationalisations and strengthen stereotypes which the offender then uses to dismiss the relevance of any harm their offending actually does cause (Zehr 2015b: 47). One concern with the criminal justice system and the punishment delivered by that system is its stigmatising effects. Braithwaite (1989) argues that shaming of offenders can be either productive or counterproductive depending on how that shame is administered. Shame is counter-productive when it is stigmatising. Stigmatisation occurs when punishment is delivered in such a way that the offender is treated as a bad person per se, rather than a good person who has done a bad thing. Stigmatising shame pushes offenders towards criminal subcultures which gives then the opportunity to reject the rejecters ‘thereby maintaining a form of self-respect’ (Braithwaite 1989: 14). These criminal subcultures provide criminal role models which help to downplay the crime and intuitively strengthen stereotypes and misattributions about offending and victims, making offending more attractive. Criminal subcultures also cut off offenders from ‘interdependencies (with family, neighbours, church etc.)’ which may have been an insulating factor against future offending (Braithwaite 1989: 102). Reintegrative shaming, being shame expressed towards the offence not the offender, delivered with reintegrative gestures or ceremonies to reintegrate the offender back into society, is argued to be productive (Braithwaite 1989: 102). Many aspects of modern criminal justice systems and punishment are posited to be conducive to stigmatising shame, and therefore, intuitively, and somewhat ironically, reoffending. The dissatisfaction with the criminal justice system raised by Christie, Zehr, and Braithwaite is directed at mainstream offending (assault, robbery, etc.) rather than environmental offending per se. Green criminology as a distinct discipline concerned with the harm emanating from human/environment interaction post-dates the dissatisfaction raised. The application of the concerns raised by Christie, Zehr, and Braithwaite to the prosecution of environmental offending is a gap in the literature which this book goes someway to addressing.

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Intervention Points When restorative justice is used in response to offending there are five intervention points. • Pre-charge. For example, in the form of persuasion and warning letters; • As a diversion from prosecution. That is, conferencing is used instead of traditional prosecution before a court. If the conference is unsuccessful, prosecution may result. This is one approach in New Zealand (Environment Canterbury’s ‘Alternative Environmental Justice’) and Canada (British Columbia’s ‘Community Environmental Justice Forums’) (see Chapter 5); • Post-charge but before trial; • After conviction, but before sentencing the offender; and • After sentencing the offender (e.g. used as an alternative to imprisonment, in prison or upon release from prison) (UNODC 2006: 13–14; see also Preston 2011: 139; UNODC 2020: 41). This book is exploring the application of restorative justice conferencing post-conviction/pre-sentencing which is known as a ‘back-end model’ of conferencing. This model was chosen because it was the model used by the Land and Environment Court of New South Wales (‘NSWLEC’) in the Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’) cases, which draw on the New Zealand experience. Additionally, the back-end model of conferencing will not displace justice as procedure and justice as outcome which is currently being achieved through the prosecution of environmental offending before the NSWLEC. A back-end model of conferencing fits squarely within the notion of restorative justice as process; an encounter conceptualisation aligning with a purist definition of restorative justice. As Al-Alosi and I point out, ‘[t]here is not a universal back-end model of restorative justice process; the process works best when it is tailored for the specific context in which it is used’ (2019:

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1464). Notwithstanding there are some typical features of restorative justice conferencing. That being that they are: • closed to the public; • facilitated by a trained and independent facilitator; • provide opportunity for all participant voices to be heard (Al-Alosi and Hamilton 2019: 1465). A back-end model of conferencing is not a diversion from prosecution, with the court retaining the oversight of the proceedings. This is important in terms of the achievement of justice. Typically: a back-end model involves the prosecution bringing charges before the court, the identification of the utility of holding a restorative justice conference (ideally early in proceedings), adjournment of proceedings to allow the conference to occur, and then returning the matter to court for sentencing. (Al-Alosi and Hamilton 2019: 1465)

Conference Participants The participants to a restorative justice process, adopting the Marshall definition, are those ‘parties with a stake in a particular offence…’ (1996: 37). This includes victims, offenders, and stakeholders. As this book will make plain, victims of environmental offending include humans (presently living and future generations), communities (both Indigenous and non-Indigenous), the environment (and its constituent parts), and commercial operators. Offenders include individuals, corporations, and government entities. Stakeholders are generally those associated with victims and offenders and/or the prosecution of environmental offending. This includes experts retained by the participants, prosecutorial/regulatory authority (although there is debate whether it should attend conferencing), an offender’s legal representative (noting the role is not a typical legal role), and a victim support person. Victims can participate in conferencing either personally or through human guardians. An offender can participate personally or through directors or management.

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If a prosecutorial authority participates in a conference, it will be through its legal and field officers.

Central Tenets of Restorative Justice When it comes to characterising or describing restorative justice, ‘there is not a single definitive list of values; rather, people have articulated those essential aspects of restorative justice in a variety of ways…’ (Pranis 2011: 61). Indeed, vast literature highlights restorative justice principles (Zehr 2015a: 43; Zehr and Mika in Zehr 2015a: 83–88), values (Braithwaite 2000: 185–186; Pranis 2011; Zehr 2015a: 46–47; UNODC 2020: 6), signposts (Zehr 2015a: 51), accounts (Braithwaite 1999), and guiding questions (Zehr 2015a: 49). However, ‘it is difficult to separate clearly values from principles, ideals and beliefs or assumptions’ (Pranis 2011: 60). Therefore, there is some utility in distilling such expressions into three central tenets. As this book is concerned with offending, the terminology of ‘crime’ will be used when exploring the central tenets of restorative justice. However, it is important to note that restorative justice processes can be applied to conflict as well as criminal offending. Firstly, restorative justice views crime as a violation of people and relationships. Secondly, restorative justice proffers that responses to crime should be inclusive. Thirdly, restorative justice emphasises that responses to crime should heal and put things right. Even though different conceptualisations of restorative justice will place different emphasis on different tenets, the three central tenets explored in this section underpin a purist definition of restorative justice (which reflects the process and encounter conceptualisation of restorative justice). The first central tenet of restorative justice is that crime is a violation of people and relationships and builds on one of the underlying beliefs of restorative justice, that is, the assumption ‘that humans are profoundly relational. There is a fundamental human need to be in good relationship with others’ because ‘humans are communal’ (Pranis 2011: 64); ‘we are all interconnected’ (Zehr 2015a: 29). Based on this relational view, people and relationships are violated by crime (Zehr 2015b: 183–184).

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The relationships affected by crime can ‘be extremely close (e.g. between a mother and daughter), somewhat tenuous (e.g. between neighbours) or barely existent (strangers passing on a street)’ (Sawin and Zehr 2011: 46). According to Zehr, crime raptures the relationship between victim and offender (and arguably between the offender and the community), where such a relationship was pre-existing. Where there was no pre-existing relationship, the crime creates an often-hostile relationship between offender and victim (2015b: 184). Hence crime effects ‘more than the single relationship between a person who was harmed and the person who caused the harm – it also includes the larger web of relationships in which they live’ (Pranis 2011: 59). In an environmental offending context, the web of relationships affected include between the offender and humans (both currently living and future generations), various components of the environment, communities (both Indigenous and non-Indigenous), and even commercial operators. Sharpe points out that ‘relationships are bound by reciprocity’, and to restore equilibrium following offending requires actions by either the victim (through vengeance), others (through punishment), or the offender (through repair) (2011: 31). As the third central tenet of restorative justice highlights, it is repair of both the harm caused by crime, and the relationships fractured by crime, that restorative justice facilitates. This is possible because as UNODC acknowledges, at its best a restorative justice process may lead an offender to accept responsibility for the offending, have a ‘cognitive and emotional transformation’, and improve relationships with community and victims (2020: 8). The second central tenet of restorative justice is that responses to crime should be inclusive. It follows that if crime affects a web of relationships then responses to that crime should be inclusive. ‘Interrelationships imply mutual obligations and responsibilities’ (Zehr 2015a: 29). Hence restorative justice seeks to include all those ‘stakeholders’ whose relationship has been affected by the offending, even those relationships which have been created by the offending. In doing so, ‘[r]estorative justice expands the circle of stakeholders – those with a stake or standing in the event or case – beyond just the government and the offending party to include those who have been directly victimized as well as community members’ (Zehr 2015a: 21).

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Inclusion denotes the active involvement of stakeholders rather than some passive process. Underlying inclusion is the assumption made in restorative justice that ‘ordinary people have the capacity to figure out what happened, why it happened and what needs to happen to move towards repair and healing. In a restorative approach professional expertise is at the service of the wisdom of the participants rather than the other way around’ (Pranis 2011: 66). Acknowledging that capacity of ordinary people just referred to, it is apt that restorative justice has been described as involving those in authority doing ‘things with them [people], rather than to them or for them’ (Wachtel 2004: 1; emphasis in original). Doing things with people evidences the fact that restorative justice ‘prefers processes that are collaborative and inclusive and outcomes that are mutually agreed upon rather than imposed’ (Zehr 2015a: 36, emphasis omitted). Collaboration, inclusion, and outcomes that are mutually agreed upon means that restorative justice processes are ‘a form of participatory democracy that moves beyond simple majority rule’ (Zehr 2015a: 7; outlining Pranis’ description of restorative justice circles which are a form of restorative justice process). Empowerment is an underlying rationale behind inclusion. It is empowerment, along with engagement/collaboration which allows meaningful contribution in a restorative justice process (Sawin and Zehr 2011: 46). Empowerment is central to the need for inclusion and is the antithesis of disempowerment. Disempowerment for victims comes from the violation which is crime; for offenders, it may have been a contributor to the crime; and, for society comes from the turning over of problems to experts which means giving up ‘opportunities to learn and grow from these situations. Restorative responses must recognize that the community has a role to play in the search for justice’ (Zeh 2015b: 204–205). The third central tenet of restorative justice is that responses to crime should heal and put things right. Building upon the notion that crime is a violation of people and relationships, responses to crime should heal and put things right. The centrality of healing and putting right (Zehr 2015a: 16; b: 198) flows from the understanding that ‘[i]nterrelationships imply mutual obligations and responsibilities’ (Zehr 2015a: 29); ‘[c]rime

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creates a debt to make right…’ (Zehr 2015b: 200). This means that those who cause harm ‘have a responsibility to repair the harm, making things right as much as possible, both concretely and symbolically’ (Zehr 2015a: 33). Restorative justice provides ‘the opportunity and encouragement for those who have caused harm to do right by those they have harmed’ (Zehr 2015a: 38). One way an offender can promote healing and put things right is through reparation. Sharpe talks about reparation as ‘a kind of recompense, which means to give back or give something of equivalent value. Often the term is used in reference to making amends or paying damages’ (2011: 24). There are three distinct manners in which to redress injustice, such as caused by crime—vengeance, retribution, and repair. ‘Redress is crafted by the victim when it takes the form of vengeance, by a responsible authority when the form is retribution and by the offender in the case of repair’ (Sharpe 2011: 25). Given the centrality of repair or putting things right in restorative justice, there is an active part for an offender to affect such repair and make things right. As Sharpe points out, ‘repair originates in a recognition that one’s own behaviour has been wrong’ which is differentiated from revenge and retribution which ‘both originate in a judgment that someone else’s behaviour has been wrong’; hence repair ‘does something for the victim rather than to the offender’ and in effect is saying—‘I created a situation you should not have to bear, and I regret it. I cannot undo my behaviour, but I want to minimize the damage it caused’ (2011: 26). Sharpe expresses the fact that ‘reparation can be pivotal to recovery because it achieves four things: it can help repair damage, vindicate the innocent, locate responsibility and restore equilibrium’ (2011: 28). The circumstances which characterise restorative justice are the optimal for reparation—all interested stakeholders are involved, victims can ‘articulate the full range of harms they have experienced…’, the offender is assisted by the victim and stakeholders to tailor the reparation, and reparation ‘is offered rather than ordered’ (Sharpe 2011: 29, 32). Restorative justice does not lose sight of the fact that the harm caused by crime extends beyond the immediate victim, to the offender and the community. ‘Injustice [through crime] causes harm – to the person who experiences the injustice, to the community and to the person

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who commits the injustice’ (Pranis 2011: 66). And even though ‘our first concern must be the harm experienced by victims, the focus on harm implies that we also need to be concerned about harms experienced by those who have caused the harm as well as communities’ (Zehr 2015a: 33). Hence restorative justice sees healing in a tripartite way—for victims, offenders, and communities. Offenders need not only to be held accountable for their offending but to heal also; community also need healing because ‘[c]rime undermines a community’s sense of wholeness, and that injury needs to be addressed’ (Zehr 2015b: 190).

Restorative Justice Conferencing as a Resolution Device One way of conceptualising restorative justice conferencing is as a resolution device comprising four elements. A resolution device is simply a tool to deal with the harm occasioned by environmental (or whatever) offending and thereby meet victim and offender needs (whatever those needs may be). The four elements to this conceptualisation are communication, education, resolution, and reintegration. Another way of conceiving those elements is as functions that restorative justice can fulfil (Hamilton 2016, 2019). Communication and education are two elements of restorative justice conferencing. Conferencing is at its simplest a facilitated face-to-face meeting between stakeholders to a crime or conflict, to resolve the resultant harm. Emphasis is placed on each stakeholder talking about the crime/conflict. Human victims may talk about the effect that the crime/conflict has had on them and their loved ones, i.e., ‘how they have been violated and what they feel’ (Hamilton 2008: 271). Such victims will also get the opportunity to ask pertinent questions of the offender (Hamilton 2015). Human representatives of the environment and future generations will get to talk about the impact of the offending on the functioning of the environment and the impact on future generations. Offenders can explain their personal situations, not by way of an excuse for the offending but rather by way of explanation. In the context

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of environmental offending where many crimes are of strict liability the offender may be able to explain that the offending was simply ‘an accident’, with the restorative justice process serving as a vehicle through which commitments to ensure that it won’t happen again can be formulated. The opportunity for stakeholders to exchange dialogue facilitates learning amongst those stakeholders. Hence the communicative element facilitates the educative element. Restorative justice conferencing facilitates resolution which is the third element of the resolution device. Crime and conflict create harm. That harm can be of a physical, material, psychological, or emotional nature. One of the central tenets of restorative justice is that responses to conflict should heal and put things right. Repair of harm can involve each of the physical, material, psychological, or emotional. Where harm is to the environment, both human and non-human victims need to be considered. Reparation can be an effective way of repairing the harm that crime or conflict has caused. Reparation can be either material or symbolic. ‘Material reparation offers something concrete to repair a specific harm or to compensate for the damage or loss associated with that harm’ (Sharpe 2011: 27). Examples include the return of stolen property or the covering of the cost of psychological treatment. Material reparation can also include restitution such as the payment of compensation. Symbolic reparation can include an apology from the offender or involve a physical act such as ‘buying a gift, providing a service for the victim, donating time or money to a charity of the victim’s choice, doing community service or entering treatment in order to address the roots of criminal behaviour’ (Sharpe 2011: 28; citations omitted). The resolution element is only possible where effective communication and understanding has made it possible. Hence, there is an interdependence between the elements of the resolution device. The final element of restorative justice conferencing as a resolution device is reintegration. One of the central tenets of restorative justice is the view that crime is a violation of people and relationships. Crime ruptures the relationship between victim and offender (and arguably between the offender and the community), where such a relationship was pre-existing. Where no pre-existing relationship existed, the crime

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creates an often-hostile relationship between offender and victim (Zehr 2015b: 184). In the words of Llewellyn, restorative justice ‘invites one to see the world relationally’ (2011: 356). Crime creates an obligation to repair the harm it has caused. How that harm is sought to be repaired will determine whether an offender is reintegrated back into society. Naturally, reintegration of an offender is bound up with the offender’s willingness to listen, learn, and repair the harm caused by the offending in any restorative justice conference. As proof of the interconnectedness of the elements of the resolution device employed in restorative justice conferencing, the reintegrative element is very much dependent on the successful employment of the communicative, educative, and resolution elements. Having explored the central features of restorative justice, the next chapter will focus more specifically on the theory and practice of restorative justice in an environmental offending context.

Notes 1. See, for example, the work of John McDonald at ProActive ReSolutions (http://proactive-resolutions.com). 2. See, for example, the work of Maurizio Vespa (http://mauriziovespa.com).

References Aertsen, I., Bolívar, D., De Mesmaecker, V., & Lauwers, N. (2011). Restorative Justice and the Active Victim: Exploring the Concept of Empowerment. Temida, 14 (1), 5–19. Aertsen, I., Parmentier, S., Vanfraechem, I., Walgrave, L., & Zinsstag. E. (2013). An Adventure is Taking Off. Why Restorative Justice: An International Journal ? Restorative Justice: An International Journal , 1(1), 1–14.

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Ahmed, E., & Braithwaite, V. (2012). Learning to Manage Shame in School Bullying: Lessons for Restorative Justice Interventions. Critical Criminology, 20 (1), 79–97. Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Bankhead, T., & Barry, E. (2018). Envisioning Oakland as a Restorative City. Newcastle Law Review, 13, 53–75. Bargen, J., Clancy, G., & Chan, J. (2005). Development of the Young Offenders Act. In J. B. L. Chan (Ed.), Reshaping Juvenile Justice: The NSW Young Offenders Act 1997 (pp. 17–24). Sydney: Institute of Criminology Press. Bazemore, G., & Walgrave, L. (1999). Restorative Juvenile Justice: In Search of Fundamentals and an Outline for Systemic Reform. In G. Bazemore., & L. Walgrave (Eds.), Restorative Juvenile Justice: Repairing the Harm of Youth Crime (pp. 45–74). New York: Criminal Justice Press. Braithwaite, J. (1989). Crime, Shame and Reintegration. New York: Cambridge University Press. Braithwaite, J. (1999). Restorative Justice: Assessing Optimistic and Pessimistic Accounts. Crime and Justice, 25, 1–127. Braithwaite, J. (2000). Restorative Justice and Social Justice. Saskatchewan Law Review, 63(1), 185–194. Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Christie, N. (1977). Conflicts as Property. British Journal of Criminology, 17 (1), 1–15. Daly, K. (2002). Restorative Justice: The Real Story. Punishment & Society, 4 (1), 55–79. Dzik, S. (2017). Academic Integrity Through Restorative Justice (Plagiarism Across Europe and Beyond 2017—Conferencing Proceedings 128). Garrett v Williams (2007) 151 LGERA 92. Hall, M. (2014). Victims of Environmental Crime: Routes for Recognition, Restitution and Redress. In T. Spapens, R. White, & M. Kluin (Eds.), Environmental Crime and Its Victims: Perspectives Within Green Criminology (pp. 103–118). Surrey and Burlington: Ashgate. Hamilton, M. (2008). Restorative Justice Intervention in an Environmental Law Context: Garrett v Williams, Prosecutions under the Resource Management Act 1991 (NZ), and Beyond. Environmental and Planning Law Journal, 25 (4), 263–271.

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Hamilton, M. (2015). Restorative Justice Intervention in a Planning Law Context: Is the “Amber Light” Approach to Merit Determination Restorative? Environmental and Planning Law Journal, 32(2), 164–177. Hamilton, M. (2016). Restorative Justice Intervention in an Environmental and Planning Law Context: Applicability to Civil Enforcement Proceedings. Environmental and Planning Law Journal, 33(5), 487–501. Hamilton, M. (2019). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Environmental and Planning Law Journal, 36 (3), 197–211. Johnstone, G., & Van Ness, D. W. (2011). The Meaning of Restorative Justice. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 5–23). London and New York: Routledge. Kara, F., & MacAlister, D. (2010). Responding to Academic Dishonesty in Universities: A Restorative Justice Approach. Contemporary Justice Review, 13(4), 443–453. Karp, D., & Conrad, S. (2005). Restorative Justice and College Student Misconduct. Public Organization Review: A Global Journal, 5 (4), 315–333. Karp, D. R., & Sacks, C. (2014). Student Conduct, Restorative Justice, and Student Development: Findings from the STARR Project: A Student Accountability and Restorative Research Project. Contemporary Justice Review, 17 (2), 154–172. King, M. S. (2008). Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally Intelligent Justice. Melbourne University Law Review, 32(3), 1096–1126. Llewellyn, J. (2011). Truth Commissions and Restorative Justice. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 351–371). London and New York: Routledge. Marshall, T. F. (1996). The Evolution of Restorative Justice in Britain. European Journal on Criminal Policy and Research, 4 (4), 21–43. Martin, W. (2018, June 13). Restorative Cities—The Role of the Justice System (Sir Ninian Stephen Lecture). Newcastle Law Review, 13, 5–28. Maurizio Vespa (Web Page). http://mauriziovespa.com. Accessed 12 January 2020. McCold, P. (2000). Toward a Holistic Vision of Restorative Juvenile Justice: A Reply to the Maximalist Model. Contemporary Justice Review, 3(4), 357–414. Morrison, B., Blood, P., & Thorsborne, M. (2005). Practicing Restorative Justice in School Communities: The Challenge of Cultural Change. Public Organization Review: A Global Journal, 5 (4), 335–357.

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Pranis, K. (2006). Healing and Accountability in the Criminal Justice System: Applying Restorative Justice Processes in the Workplace. Cardozo Journal of Conflict Resolution, 8(2), 659–676. Pranis, K. (2011). Restorative Values. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 59–74). London and New York: Routledge. Preston, Hon Justice B. J. (2011). The Use of Restorative Justice for Environmental Crime. Criminal Law Journal, 35 (3), 136–153. ProActive ReSolutions (Web Page). http://proactive-resolutions.com. Accessed 12 January 2020. Sawin, J. L., & Zehr, H. (2011). The Ideas of Engagement and Empowerment. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 41–58). London and New York: Routledge. Sharpe, S. (2011). The Idea of Reparation. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 24–40). London and New York: Routledge. Sherman, L. W., & Strang, H. (2012). Restorative Justice as Evidence-Based Sentencing. In J. Petersilia & K. R. Reitz (Eds.), The Oxford Handbook of Sentencing and Corrections (pp. 215–246). New York: Oxford University Press. United Nations Economic and Social Council Resolution 2002/12 of 24 July 2002. United Nations Office on Drugs and Crime (UNODC). (2006). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). United Nations Office on Drugs and Crime (UNODC). (2020). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). Victims Rights and Support Act 2013 (NSW). Wachtel, T. (2004, 5 August). From Restorative Justice to Restorative Practices: Expanding the Paradigm (Conference Paper, International Conference on Conferencing and Circles. Walgrave, L. (1999). Community Service as a Cornerstone of Systemic Restorative Response to Juvenile Justice. In G. Bazemore & L. Walgrave (Eds.), Restorative Juvenile Justice: Repairing the Harm of Youth Crime (pp. 129– 154). New York: Criminal Justice Press. Young Offenders Act 1997 (NSW). Zehr, H. (2015a). The Little Book of Restorative Justice. New York: Good Books.

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Zehr, H. (2015b). Changing Lenses: Restorative Justice for Our Times. Harrisonburg, VA and Kitchener, ON: Herald Press. Zernova, M., & Wright, W. (2011). Alternative Visions of Restorative Justice. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 91–108). London and New York: Routledge.

5 Restorative Justice in an Environmental Offending Context: Theory and Practice

Restorative justice techniques and processes have been used in response to environmental harm both in Australia (Victoria and New South Wales) and internationally (New Zealand, Canada, United States, and UK). The purpose of this chapter is to explore both the theoretical and practical use of restorative justice in an environmental offending context.

Victoria (Australia) There is contemplation of the use of restorative justice by the Victorian Environment Protection Authority (‘EPA’) in its Environmental Citizenship Strategy (‘Strategy’). For example, restorative processes are given as an example of a restorative process ‘to empower stakeholders by involving them in sanctions, enforcement and remedies’ (Victoria EPA 2013: 5). The Strategy describes such conferencing as:

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_5

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a way of intervening into offending behaviour by bringing together involved and affected parties to have a mediated discussion to collectively resolve how they will respond to matters arising from the offence. Victims and/or the community take an active role in the process, raising and sharing their issues, while offenders are encouraged to take responsibility for their actions with the intention this will lead to positive behaviour change. The process may include community projects, a public apology, and helps to build stronger relationships between business and community. (Victoria EPA 2013: 5)

The use of the phrase ‘sanctions, enforcement and remedies’ and ‘offending behaviour’ suggests the Strategy posits the use of restorative justice conferencing during the prosecution of an offender, however at the time of writing there is no real-life example. Contemplation of restorative justice is also found in the Victorian EPA’s ‘Compliance and Enforcement Policy’ where the Victorian EPA may ‘encourage offenders and victims to meet as a part of a restorative justice conference. A conference involves a structured meeting where the consequences and restitution of the offence are discussed’ (Victoria EPA 2017: 27). The Victorian EPA used restorative justice conferencing as the vehicle through which to derive enforceable undertakings in an air pollution matter. An: enforceable undertaking is a constructive alternative to prosecution, … [which] allows an offender to voluntarily enter into a binding agreement to undertake tasks to settle an alleged contravention of the law and remedy the harm caused to the environment and the community. (Victoria Government 2012: 1)

SITA, the owner of the Hallam Road Landfill, met with the EPA and victims (e.g. members of the community and affected residents) to derive the enforceable undertakings. Under the enforceable undertakings, SITA ‘expressed a statement of regret and is required to contribute $100,000 towards a community environment project’ (Victoria EPA 2012). It is noted that the restorative justice conference in the Hallam Road Landfill matter occurred before the release of the Strategy.

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New environmental protection regulation is set to commence operation in Victoria on 1 July 2021 with the commencement of the Environment Protection Amendment Act 2018 (Vic) which will repeal the Environment Protection Act 1970 (Vic) and amend the Environment Protection Act 2017 (Vic) making it the principal environmental legislation in Victoria. Section 336 of this new legislation provides: 336 Adjournment of proceedings for restorative justice process (1) A Court may at any time adjourn civil or criminal proceedings under this Act so that a restorative justice process may be conducted. (2) The Court may adjourn proceedings under subsection (1) of its own motion or on the application of a party to the proceedings. (3) A Court may consider the outcome of a restorative justice process when making any determination for the purposes of the proceedings including, but not limited to— (a) determining a sentence or penalty; or (b) determining whether to make an order under this Act or the conditions to be imposed on such an order. (4) In this section— relevant parties means— (a) the parties to the proceedings; and (b) any person or body that all parties to the proceedings agree may participate in a restorative justice process, including but not limited to the following— (i) any person or body affected by the alleged offence or contravention; (ii) any person or body that the parties agree represents the interests of the environment or any part of the environment. restorative justice process means any process by which the relevant parties seek an agreed resolution of a matter arising from the alleged offence or contravention.

This is the first provision of its kind in Australian environmental protection legislation which gives a court the power to adjourn proceedings (both civil and criminal) to allow a restorative justice process to occur and to consider the outcome of that process in the determination of the proceedings. It is a positive sign for the utilisation of restorative

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justice for environmental harm. Only time will reveal the extent of its success. Currently, the Australian National University and the Victorian Environment Protection Authority are investigating an environmental Restorative Justice Practices Continuum. That research is aided by a $1m / 3-year research grant to: • Co-design, develop, test (through pilots) and evaluate an Environmental Restorative Practices Continuum—to allow consideration of RJ [restorative justice] across the regulatory continuum of approval/permit, complaints, compliance and investigation, and sanctioning and enforcement; • Develop the national and international knowledge base about how RJ [restorative justice] principles and practices can be applied to prevent and address environmental harm—which will be written up for publication progressively throughout the program (REGNET 2018). None of the other Australian environmental regulatory authorities evidence any concrete commitment to the use of restorative justice conferencing for the regulation of environmental offending. That is, legislation that facilitates prosecution of environmental offending, compliance and enforcement guidelines, prosecution guidelines and policies (ACT Government 2016a, b; Australian Government Department of Sustainability, Environment, Water, Population and Communities 2009; NSW EPA 2013a, b, 2017; NT EPA 2013, 2015; QLD Department of Environment and Heritage Protection 2015; SA EPA 2009, 2016; Tasmania EPA, n.d.; WA Department of Environment Regulation 2013, 2015; WA Department of Water and Environmental Regulation 2017) and information on their websites1 does not evidence any commitment to restorative justice conferencing. It should be noted that a 2013 review of the South Australian EPA regulatory practice recommended the authority ‘[p]ursue the implementation or expanded use of identified compliance tools including…restorative justice tools’ (SA EPA 2013: 4). It appears that this recommendation has not been adopted with the 2009 compliance and enforcement guide (SA EPA 2009), being the current guide, not mentioning restorative justice.

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New South Wales (Australia) Recent changes to the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act ’), with the introduction of restorative justice activity orders in New South Wales (Chapter 2), signalled a potential use of restorative justice conferencing following environmental offending. Such was suggested in the Ministerial speeches foreshadowing (NSW Government 2014a) and introducing (NSW Government 2014b, c) those changes which implied the coming together of offender and victim and the use of restorative justice processes in the formulation of restorative justice activity orders (Hamilton 2015b). Despite these changes no restorative justice conferencing has occurred, nor any restorative justice activity orders made, in relation to offences prosecuted under the POEO Act. Interestingly, changes have not been made to the National Parks and Wildlife Act 1974 (NSW), meaning that restorative justice activity orders cannot be made following the prosecution of offending against Aboriginal cultural heritage, such as was the case in Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’). It is too early to assess whether recent changes to the Land and Environment Court of New South Wales (‘NSWLEC’) criminal procedure Practice Note (NSWLEC 2018) will spur an increase in either. Such changes commenced on 3 April 2018 and places the onus on the prosecutor and offender (in cases where the offender has pleaded guilty) to advise the court at the first mention of the matter: of any proposal for, and timing of, any restorative justice process in which the defendant and victims (people and the environment) of the offence committed by the defendant are willing to participate and any proposed order for a restorative justice activity that the defendant has agreed to carry out. (NSWLEC 2018: [26]; for an overview of the amendment, see Hamilton 2018)

Given the paucity of guidance to environmental regulators in Australia pertaining to the use of restorative justice, it would come as no surprise that there have been only two uses of restorative justice conferencing

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in the prosecution of Australian environmental offending, albeit for offending against Aboriginal cultural heritage. Those cases, Williams and Clarence Valley Council , form the basis of two case studies (Chapter 6). Williams spurred several writings analysing the use of such conferencing in that context (Hamilton 2008; McDonald 2008) including the important consideration of who can represent victims of environmental offending (Hamilton 2008; Preston 2011; Pain 2018). Building on the ‘inquiry’ into Williams and restorative justice provided by Hamilton (2008), Bricknell called for an exploration: on how restorative justice is applied in cases of environmental crime elsewhere and its applicability within Australian environmental laws and sentencing practices. Finding from this research could be used to evaluate how and under what circumstances restorative justice might be administered for incidents of environmental wrongdoing and the proposed benefits of doing so. (2010: 116)

This book goes somewhat to answering that call. Subsequent to the Williams decision, the question was raised as to why the use of restorative justice conferencing in Williams was not extended to other seemingly suitable cases (Hamilton 2014). Filling the ‘conspicuous absences’ in restorative justice use in an Aboriginal cultural heritage offending context, such conferencing was used in Clarence Valley Council in late 2018. I canvassed that case in a recent publication and outlined how restorative justice conferencing can repair the harm occasioned by offending through the fulfilment of four functions (Hamilton 2019a; see also Ashton and Etherington 2018; Smith 2019). Those functions—communication, education, resolution, and reintegration—were outlined in Chapter 4 where they are described as elements of a resolution device. There has been some academic literature exploring the use of conferencing in a New South Wales environmental offending context (Preston 2011; Pain et al. 2016; Pain 2018: Al-Alosi and Hamilton 2019; Hamilton and Howard 2020; Al-Alosi and Hamilton 2021: forthcoming ). There has also been some literature exploring the use of restorative justice in other matters before the NSWLEC—compulsory acquisition (Hamilton 2015c); civil enforcement proceedings (Hamilton

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2016); and merit determination (Hamilton 2015a). Wilson believes that restorative justice principles (constructive dialogue, knowledge sharing, allocation of benefits to local or Indigenous communities, and focus on preventing future harm) have applicability ‘throughout the application, assessment, approval and implementation process for major projects in New South Wales, to enhance public participation and improve environmental outcomes’ (2016: 252, 256–258). Such espousing has yet to be translated to actual practice. However, there is some commonality between what Wilson depicts as pro-active restorative justice and what is known as collaborative environmental governance which has been used not in response to crime as such but rather in the management of surface and groundwater (Holley and Sinclair 2013; see also, new environmental governance [Holley 2016]). Examples of collaborative environmental governance include neighbourhood environment improvement plans (Gunningham et al. 2007) and environment improvement plans (Holley and Gunningham 2006). Some foreign jurisdictions, such as New Zealand, Canada, United States, and UK have either used restorative justice conferencing following environmental offending, or have analysis suggesting the utility of that use.

New Zealand The most systematic use is in New Zealand. The use of restorative justice conferencing in a New Zealand environmental offending context has occurred under the Resource Management Act 1991 (NZ) (‘RM Act ’), which is similar to the POEO Act in that it prohibits certain activities which are harmful to the environment. McElrea has opined that ‘restorative justice is fundamentally compatible’ with the RM Act (2004: 10) and inferably criminal prosecution and civil enforcement thereunder. To date, there have been at least 49 restorative justice conferences in that context (for an overview see Clapshaw 2009; Sugrue 2015; Fowler 2016). Such conferencing occurs as part of the sentencing process of prosecution. That is, the conference is held and then the matter is returned to court

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for sentencing. The use of restorative justice conferencing in Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’) forms the basis for a comparative analysis in Chapter 6. The practice in New Zealand has led some authors to suggest that restorative justice could be an alternative to environmental prosecution (Fisher and Verry 2005). Indeed, Environment Canterbury (a regional prosecutorial authority in New Zealand) through its ‘Alternative Environmental Justice’ program uses conferencing as an alternative to prosecution (Environment Canterbury 2012). It is implemented as a scheme for diverting environmental offenders away from court proceedings and designed to plug a gap in enforcement options under the RM Act. The scheme works by the prosecution laying charges and filing proceedings with the District Court. If the defendant is willing to undergo a restorative justice conference, then the prosecution will ask the court to adjourn proceedings to allow the conference to take place. If an agreement that is suitable to the parties is reached, the prosecution will seek the leave of the court to withdraw the charges. Some examples of the outcomes agreed at an Alternative Environmental Justice conference are a training programme for those in the road contracting industry run by a contractor who had mishandled contaminated soil; donations made to stream care groups and a wetland planting project; a farmer presenting to Federated Farmers of New Zealand groups pertaining to his offending, remedies and how to avoid such offending; and, newspaper ads following a water theft offence (McLachlan 2014: 22). The scheme is available to first-time offenders who are genuinely remorseful. Similar diversion schemes are administered by West Coast Regional Council (2018: 13–14) and Environment Southland (2017).

Canada The Canadian province of British Columbia has been using restorative justice processes as an alternative to prosecution for various environmental offences. The so-called Community Environmental Justice Forums have been held on 9 occasions between 2010 and 2017. These

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forums are ‘an enforcement tool that applies the principles of restorative justice…’ (British Columbia Ministry of Environment 2012a: 2; see also 2012b) and are an alternative to prosecution much in the same way as Environment Canterbury’s (New Zealand) Alternative Environmental Justice. The Forums are attended by members of the offending company (‘employees directly involved in the incident as well as highlevel managers and executives’) and community participants, who are ‘chosen to represent community interests, and specifically for their ability to speak about the harm caused by the offence’ (British Columbia Ministry of Environment and Climate Change Strategy, n.d.: 3). During the forum: the company is asked to explain how and why the offence occurred; each community representative describes the real or potential impact of the incident on themselves, or on the community as a whole. Collectively the group then agrees on appropriate remedies and restitution which is documented in a formal agreement and signed by all participants at the conclusion of the forum. (British Columbia Ministry of Environment 2012b: 1)

The details of each of those nine applications of Community Environmental Justice Forums are set out elsewhere (Hamilton 2019b: Appendix 2). In summary, the offenders were non-individuals (either corporations or government entities) with offences including pollution (air (Forums 1 and 5) and water (Forums 3 and 8)), killing of wildlife (fish (Forum 2) and grizzly bear (Forums 6 and 9)), disturbance of soils and vegetation (Forum 4), and, cutting and milling of trees (Forum 7). Apart from various financial penalties agreed at the Forums, outcomes achieved included: • payments to fund various activities, such as a bear aware program (Forum 1), air monitoring station (Forum 1), habitat conservation plan (Forum 2), river restoration (Forum 4), equipment and facility upgrades for volunteer fire department (Forum 5), part purchase of fire truck (Forum 5), emergency evacuation preparedness (Forum 5), wetland environmental enhancement projects (Forum 5), helicopter

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monitor of specified grizzly bear population (Forum 6), investigate field research and monitoring of grizzly bears (Forum 6), analysis of grizzly bear hair samples (Forum 6), bark pine cone collection (Forum 6), swift water rescue training (Forum 7), purchase of tents (Forum 7), and reclamation work of creek to improve fish habitat (Forum 8); restoration (instream and riparian improvements; Forum 2); public apology, as published in a local newspaper (Forums 1, 6, 8 and 9), published via a press release (Forum 3), or given in an unspecified manner (Forums 4 and 5); company improvements, in the form of instructional staff meetings (Forum 1), internal process review and plant upgrade (Forum 3), enhancement of alarm systems at sewer locations to prevent similar incidents in the future (Forum 8), annual review with partner agencies regarding procedure for notification of environmental spills (Forum 8), and upgrades to operations (Forum 9); and community/agency engagement, such as partnering with local Fish and Game club on future works (Forum 2), commitment to meet First Nations peoples to develop a protocol of knowledge sharing (Forum 6), relationship building meetings between offender, First Nations peoples and regulator (Forum 7), conversation with First Nations people on bee husbandry and apiaries co-existing with bears (Forum 9), and training of members of British Columbia Beekeepers Association on proper prevention measures (Forum 9) (Hamilton 2019b: Appendix 2).

Such outcomes go to the repairing of the harm occasioned by the offending and to the future prevention of such offending. These outcomes are possible because of the dialogue and interaction between offender, victim and other stakeholders facilitated by conferencing. As an example, Teck Metals Ltd. Trail Operations participated in a community justice forum following a mercury discharge into the Columbia River and a leachate overflow into Stoney Creek (Forum 3). Bringing together ‘representatives of the company, employees, community and environmental groups’ (Market Wire 2011), the forum resulted in the following outcomes:

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• A donation of $325,000 for community environmental initiatives; • Changes to internal practice and procedure relating to environmental controls; and • Changes to employee and contractor procedures (Market Wire 2011). The regulatory authority comments that the forum facilitated its ‘direct input into changes within Teck Metals Ltd. that will reduce the risk of similar spills in the future’ (Environment and Climate Change Canada 2011; see also, Proctor 2016; Pynn 2016).

United States In the US context, Boyd concluded that when considering environmental offending ‘approaching restorative justice as a complement to the criminal justice system rather than a replacement is the best starting point in adding to the arsenal of possible types of environmental crimes sentences’ (2008: 510). Indeed, this book proposes restorative justice conferencing as an add-on to the prosecution of environmental offending. That is, as part of the sentencing process in which the judge when sentencing an offender can consider the fact of the conference and the outcomes reached at the conference, without being bound by those outcomes. Stark acknowledges Boyd’s earlier article as the only previous ‘legal analysis applying restorative justice to environmental crimes in the United States…’ (2016: 445). He provides a positive assessment of the applicability of restorative justice to environmental crime, stating that ‘if the United States adopts environmental restorative justice procedures then victims will be assisted, offenders will be rehabilitated, communities will be restored, environments will be saved, and justice will be served’ (Stark 2016: 435). Rustad et al. (2013) reviewed the US EPA’s coal-fired power plant enforcement between 2000 and 2011. They conclude that: [t]he data reveals that the EPA’s enforcement policy reflects a unique jurisprudence that creatively combines both deterrence-based punishment

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through appropriately levied civil penalties and restorative justice principles in the form of mitigation projects and mandatory injunctions. (Rustad et al. 2013: 428)

The focus of the article is on EPA settlements relating to coal-fired power plant offending as an alternative to civil enforcement proceedings. In total, 22 final settlements between the EPA, Department of Justice, and power plant ‘where a utility failed to obtain a permit before making major modifications’ were analysed (Rustad et al. 2013: 445). The authors suggest that the EPA utilised restorative justice ‘when it approves reparation or supplemental environmental projects that have a close nexus to the individual defendant’s offence’ (Rustad et al. 2013: 468). Implicit in this opinion is the reliance on restorative justice as an outcome in which the principles of reparation and righting wrongs through ‘reparative projects that attempted to rectify environmental harm caused by preventable air pollutants’ (Rustad et al. 2013: 469). There is little mention of victims or community attending the settlement conferences, but the authors do acknowledge the role of victim and community in restorative justice. For instance, as many of the individual victims of the air pollution caused by coal-fired power plant non-compliance cannot be identified, ‘the best restorative justice proxy for specific victims is to draw upon environmental experts and local leaders to represent the interest of the community’ (Rustad et al. 2013: 474–475). Indeed, at ‘the remedies stage, the EPA could encourage public participation in determining which projects would best remediate the defendant’s harm’ (Rustad et al. 2013: 475). Some authors have suggested the use of processes which are restorative in nature but do so without explicitly acknowledging restorative justice. An example is Barnard (1999) who suggests that corporate offending against US federal law, which includes pollution, be subject to corporate icon (applicable to CEOs) and directors’ woodshed (applicable to directors) proceedings. Essentially, these processes require either the CEO or directors of a corporate offender to attend court and receive the corporation’s sentence. The article was written in the context of Braithwaite’s reintegrative shaming theory with such processes being conducive to reintegrative shaming. Barnard suggests the following elements for

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corporate icon proceedings, which can be adjusted to be used in directors’ woodshed proceedings: • ‘an expression by the sentencing judge of the relevant community’s abhorrence at the crime’. Such articulation of condemnation might include reference ‘to letters received from the public and affected special interest groups…’; • ‘an exploration with the CEO of how the crime could have occurred’; • ‘a discussion with the CEO concerning the response of the corporation after learning of the crime’; • ‘an assurance by the CEO that similar crimes will not recur’; • ‘an acceptance by the judge of the CEO’s assurance’, this can include an exploration of the corporations ‘praiseworthy activities…’ and • ‘an admonition by the judge that the company is expected to be a good corporate citizen’ (Barnard 1999: 983–984). There is no mention of attendance at such processes of victims and community but nevertheless what has been described is a restorative process in a maximalist definition sense. Motupalli (2018) explored the utility of restorative justice for achieving intergenerational justice (i.e. resolution of harms affecting future generations) in the face of climate change in the US context. Although the focus is on climate change, the findings can be applied to other environmental harms affecting future generations. He concedes that ‘we are not prepared to address the current climate crisis using existing environmental law’ but proffers that restorative justice better addresses climate change concerns especially intergenerational justice (Motupalli 2018: 336). The author uses five core themes of restorative justice ‘to discuss the unique contributions of restorative justice in addressing the concerns of intergenerational justice’ (Motupalli 2018: 350). It is important to recognise that there is the potential for all environmental harm to impact on future generations not just climate change. Therefore, even though the assessment is very much concerned with environmental harm from climate change it also applies to environmental offending. The first core

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theme canvassed is that restorative justice helps create a renewed understanding of environmental crime. It does so by viewing environmental wrong through a lens which views the world relationally (a central tenet of restorative justice). Environmental wrongs can thus be viewed ‘as harm done to the web of relationships – including the earth at large and vulnerable populations such as future generations’ (Motupalli 2018: 352). The second core theme of restorative justice, the focus on restoration with the victim at the centre, requires a consideration of the diversity of victims of environmental harm (be that harm from environmental offending or the harm consequent on climate change) including the environment and future generations (Motupalli 2018: 352). Another core theme of restorative justice is the fact that it addresses the needs of the wrongdoer. Restorative justice allows exposure of wrongdoers such as the ‘government, government offices, and the heads of those offices’ and the links between the ‘environment, economy, and politics’ (Motupalli 2018: 355–356). The fourth core theme is that restorative justice fosters community involvement. Community involvement can extend to guardians representing future generational victims of environmental offending and climate change. Some may argue that restorative justice is not a: viable option for intergenerational justice, because involving future generations in the decision-making process is not possible. Such arguments can be refuted by the presence of guardians that represent those future generations. (Motupalli 2018: 357)

The fifth and last core theme explored by Motupalli is that restorative justice offers new ways of achieving justice. Indeed, it is ‘a less formal means of achieving justice’ (Motupalli 2018: 357); as either an alternative to prosecution or as an adjunct to it.

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United Kingdom A novel use of restorative justice conferencing occurred in 2011–2012 during a mock trial for the fictitious crime of ‘ecocide’. Ecocide ‘describes an attempt to criminalize human activities that destroy and diminish the well-being and health of ecosystems and species within these, including humans’ (White and Heckenberg 2014: 57). A restorative justice conference was held following conviction in a mock ‘ecocide’ trial held in the Supreme Court of England and Wales (Rivers 2012: 17–18).2 In the process, two actors played fictional CEOs of oil companies charged with the crime of ecocide arising from oil extraction from the tar sands in Canada. The trial was conducted based on evidence of true events and publicly available documents before a real judge. An independent jury convicted the two offenders of ecocide rejecting their defence of ‘maximising profit’ for shareholders (Rivers 2012: 17). A few months after conviction a restorative justice conference was held in which one of the offenders participated, the other offender electing not to participate. Participating in the restorative justice conference was also: • • • • • • •

an oil company chief sustainability officer; pension fund representative (representing shareholders); spokesperson for the birds damaged by the ecocide; spokesperson for future generations; spokesperson for wider humanity; spokesperson for the Earth; and representative of the indigenous people living in the area affected (Rivers 2012: 18).

Innovative solutions were proposed during the restorative justice conference including: • restoring the tar sands area, at the company’s cost; • appointing to the board a non-executive director with responsibility for sustainability, to be selected by sustainability organisation Forum for the Future;

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• funding a university chair to research the law of ecocide; and • setting up a working group to investigate funding alternative energy sources such as solar (Rivers 2012: 18). The innovative solutions were only made possible through the dialogue restorative justice conferencing facilitates. The sentencing judge took the restorative justice conference into account as a mitigating factor and handed down a suspended sentence which would allow the fulfilment of the commitments made during conferencing.

Transnational Crime Bisschop and Vande Walle (2013) use a case study of illegal e-waste (electronic waste) transportation from Europe to Ghana, Africa, for recycling and disposal, as an example of a transnational crime in which restorative justice has potential application. The authors raise some challenges to the use of restorative justice in that context. Namely, accounting for the harm which may manifest immediately but also in the future; determination of the victims, especially when ‘the value for the local economy keeps victims from requesting redress’; locating and naming responsible actors, especially when they ‘cannot easily be singled out and are often nowhere near the affected area’, and make them accept responsibility for their offending; location of an authority supportive of restorative justice, especially given the fact that law enforcement is usually local and fragmented with legal asymmetries and difficulties in gathering evidence meaning prosecution is difficult (Bisschop and Vande Walle 2013: 44–46). Future research is needed to address how to overcome these challenges and present restorative justice as a viable option applicable for transnational crimes such as illegal trade in electronic waste.

Environmental Harm Brisman and South tout restorative justice as having ‘considerable promise as a means to resolve responsibility and compensate for abuse

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of rights and crimes against the environment and the human and nonhuman beings affected’ (2013: 66). Even though the authors did not develop the idea beyond that preliminary observation, they did note that restorative justice is ‘consonant with green ideals’ (Brisman and South 2013: 66). As recently as 2017, Hall argues for wider utilisation of restorative justice and mediation-based approaches as a vehicle for alternate or parallel justice for human and nonhuman victims of environmental harm (2017: 1). He does so by arguing for a cultural victimology perspective: [T]he cultural understanding of victimhood has a more constructivist, dynamic character representing developing traumas and emphasizing the benefit to human victims of being officially acknowledged as such. It also gives such victims the opportunity to present “accounts” of their harms. (Hall 2017: 1)

Cultural victimology recognises harm as a ‘developing trauma’, which ‘often develops over time and in directions sometimes many steps removed from the initial act (criminal or otherwise) that initiated the victimization’ (Hall 2017: 4, 7; see also 2013). Hall proffers the use of restorative justice for environmental harm because: Traditional criminal justice mechanisms…are fundamentally ill-equipped to identify, prosecute and sentence in a manner proportionate to the full range of environmental victimizations emanating from many environmental crimes or other pollution events. (Hall 2017: 1)

The literature pertaining to the promise and practice of restorative justice conferencing reveals its use as an alternative to prosecution (‘Alternative Environmental Justice’, Environment Canterbury, New Zealand; ‘Community Environmental Justice Forums’, British Columbia, Canada); in the formation of enforceable undertakings (Victoria, Australia); as an alternative to civil enforcement proceedings (coal-fired power plant offending, United States); as part of the prosecution of corporate offending against US federal law; as a tool for achieving intergenerational justice in the face of climate change in the US context; in the prosecution of the fictitious crime of ecocide in the UK; and, a

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potentiality in the fight against transnational trade in e-waste flowing from Europe to Africa. The only experiences with restorative justice conferencing as part of the prosecution of actual offending occurred in the New Zealand context (e.g. Interflow) and New South Wales (Williams and Clarence Valley Council ). It is for this reason that New Zealand forms a comparative analysis and Interflow, Williams, and Clarence Valley Council case studies (Chapter 6). It is the unique contributions that restorative justice brings to environmental harm which makes it worthy of further investigation for achieving justice, not just for presently living victims but for future generations impacted by such harm. In its ideal form, restorative justice has the ability to identify a wide gambit of victims and include those victims through human representatives where need be. It explores the reasons behind offending and because of interactive dialogue is able to formulate more creative responses to environmental harm. These observations are grounded in case studies which the next chapter explores.

Notes 1. Australian Capital Territory Environment Protection Authority (Web Page), https://www.accesscanberra.act.gov.au/app/home/environment; Australia Government Department of Agriculture, Water and the Environment (Web Page), https://www.environment.gov.au; New South Wales Environment Protection Authority (Web Page), https://www.epa.nsw.gov.au; Northern Territory Environment Protection Authority (Web Page), https:// ntepa.nt.gov.au; Queensland Department of Environment and Science (Web Page), https://environment.des.qld.gov.au/; South Australia Environment Protection Authority (Web Page), https://www.epa.sa.gov.au; Tasmania Environment Protection Authority (Web Page), https://epa.tas. gov.au/epa; Western Australia Department of Water and Environmental Regulation (Web Page), https://www.der.wa.gov.au. 2. The collaboration involved the Eradicating Ecocide campaign (Web Page), http://eradicatingecocide.com, The Hamilton Group, the Institute for Democracy and Conflict Resolution at Essex University, Mike Mansfield QC (human rights lawyer) and Lawrence Kershen QC (restorative justice expert).

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References Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Al-Alosi., & Hamilton, M. (2021). The Potential of Restorative Justice in Achieving Acceptance of Responsibility in the Context of Environmental Crimes. University of New South Wales Law Journal , 44 (2), forthcoming. Ashton, S., & Etherington, S. (2018). Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Newcastle Law Review, 13, 86–91. Australian Capital Territory Environment Protection Authority (Web Page). https://www.accesscanberra.act.gov.au/app/home/environment. Accessed 15 April 2020. Australian Capital Territory Government. (2016a). Environment Regulation & Protection Compliance & Enforcement Guideline. Australian Capital Territory Government. (2016b). General Environment Protection Policy. Australia Government Department of Agriculture, Water and the Environment (Web Page). https://www.environment.gov.au. Accessed 15 April 2020. Australian Government Department of Sustainability, Environment, Water, Population and Communities. (2009). Compliance & Enforcement Policy. Australian National University, School of Regulation and Global Governance (REGNET) (Web Page). (2018). http://regnet.anu.edu.au. Accessed 15 April 2020. Barnard, J. W. (1999). Reintegrative Shaming in Corporate Sentencing. Southern California Law Review, 72(4), 959–1007. Bisschop, L., & Vande Walle, G. (2013). Environmental Victimisation and Conflict Resolution: A Case Study of e-Waste. In R. Walters, D. Westerhuis, & T. Wyatt (Eds.), Emerging Issues in Green Criminology: Exploring Power, Justice and Harm (pp. 34–54). Hampshire and New York: Palgrave Macmillan. Boyd, C. C. (2008). Expanding the Arsenal for Sentencing Environmental Crimes: Would Therapeutic Jurisprudence and Restorative Justice Work? William & Mary Environmental Law and Policy Review, 32, 483–512. Bricknell, S. (2010). Environmental Crime in Australia (AIC Reports: Research and Public Policy Series, 109).

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Brisman, A., & South, N. (2013). Resource Wealth, Power, Crime, and Conflict. In R. Walters, D. Westerhuis, & T. Wyatt (Eds.), Emerging Issues in Green Criminology (pp. 57–71). Hampshire and New York: Palgrave Macmillan. British Columbia Ministry of Environment. (2012a). Community Environmental Justice Forums Policy. British Columbia Ministry of Environment. (2012b). Community Environmental Justice Forums. British Columbia Ministry of Environment and Climate Change Strategy. (n.d.). Community Environmental Justice Forums: Questions and Answers. Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Clapshaw, D. (2009). Restorative Justice in Resource Management Prosecutions—A Facilitator’s Perspective. Resource Management Bulletin, 8, 53–55. Environment and Climate Change Canada. (2011), Tech Metals Ltd. Agrees to pay $100,000 to Environmental Damages Fund for Recent Chemical Spills (online, 13 May). https://ec.gc.ca/alef-ewe/default.asp?lang=En&n=8F7 11F37-1&news=B50A65F5-9475-479C-8E66-95E130777EA3. Accessed 15 April 2020. Environment Canterbury Regional Council Resource Management Act Monitoring and Compliance Section. (2012). Guidelines for implementing Alternative Environmental Justice. Environment Protection Act 1970 (Vic). Environment Protection Act 2017 (Vic). Environment Protection Amendment Act 2018 (Vic). Environment Southland. (2017). Compliance Policies. Eradicating Ecocide campaign (Web Page). http://eradicatingecocide.com. Accessed 15 April 2020. Fisher, R. M., & Verry, J. F. (2005). Use of Restorative Justice as an Alternative Approach in Prosecution and Diversion Policy for Environmental Offences. Local Government Law Journal, 11(1), 48–59. Fowler, C. (2016). Environmental Prosecution and Restorative Justice (Adderley Head). Garrett v Williams (2007) 151 LGERA 92. Gunningham, N., Holley, C., & Shearing, S. (2007). Neighbourhood Environment Improvement Plans: Community Empowerment, Voluntary Collaboration and Legislative Design. Environmental and Planning Law Journal, 24 (2), 125–151.

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Hall, M. (2013). Victims of Environmental Harm: Rights, Recognition and Redress Under National and International Law. Oxon and New York: Routledge. Hall, M. (2017). Exploring the Cultural Dimensions of Environmental Victimization. Palgrave Communications. https://doi.org/10.1057/palcomms.201 7.79. Hamilton, M. (2008). Restorative Justice Intervention in an Environmental Law Context: Garrett v Williams, Prosecutions under the Resource Management Act 1991 (NZ), and Beyond. Environmental and Planning Law Journal, 25 (4), 263–271. Hamilton, M. (2014). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Conspicuous Absences? Environmental and Planning Law Journal, 31(5), 352–367. Hamilton, M. (2015a). Restorative Justice Intervention in a Planning Law Context: Is the “Amber Light” Approach to Merit Determination Restorative? Environmental and Planning Law Journal, 32(2), 164–177. Hamilton, M. (2015b). “Restorative Justice Activity” Orders: Furthering Restorative Justice Intervention in an Environmental and Planning Law Context? Environmental and Planning Law Journal, 32(6), 548–561. Hamilton, M. (2015c). Restorative Justice Intervention in a Compulsory Acquisition Context: Applicability. Local Government Law Journal, 20 (4), 207–239. Hamilton, M. (2016). Restorative Justice Intervention in an Environmental and Planning Law Context: Applicability to Civil Enforcement Proceedings. Environmental and Planning Law Journal, 33(5), 487–501. Hamilton, M. (2018). Changes to the Land and Environment Court Class 5 Practice Note. Local Government Reporter, 17 (4), 58–59. Hamilton, M. (2019a). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Environmental and Planning Law Journal, 36 (3), 197–211. Hamilton, M. (2019b). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Hamilton, M., & Howard, T. (2020, March 1). Restorative Justice in the Aftermath of Environmental Offending: Theory and Practice, (Conference Paper, National Judicial College of Australia Sentencing Conference). Holley, C. (2016). New Environmental Governance: Environmental Harms, Enforcement and Collaboration. In T. Spapens, R. White., & W. Huisman (Eds.), Environmental Crime in Transnational Context: Global Issues in Green

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Enforcement and Criminology (pp. 157–173). London and New York: Routledge. Holley, C., & Gunningham, N. (2006). Environment Improvement Plans: Facilitative Regulation in Practice. Environment and Planning Law Journal, 23(6), 448–464. Holley, C., & Sinclair, D. (2013). Deliberative Participation, Environmental Law and Collaborative Governance: Insights from Surface and Groundwater Studies. Environmental and Planning Law Journal, 30 (1), 32–55. Land and Environment Court of New South Wales (NSWLEC) (2018a, March 19). Practice Note—Class 5 Proceedings. Market Wire. (2011). Teck Metals Reaches Agreement at Community justice Forum. Yahoo! News (online, 12 May). https://www.yahoo.com/news/TeckMetals-Reaches-Agreement-iw-3396199480.html. Accessed 15 April 2020. McDonald, J. M. (2008). Restorative Justice Process in Case Law. Alternative Law Journal, 33(1), 41–44. McElrea, Judge F. W. M. (2004). The Role of Restorative Justice in RMA Prosecutions. Resource Management Journal, 3(7), 1–15. McLachlan, M. (2014). Environmental Justice in Canterbury. Public Sector, 37 (4), 22–23. Motupalli, C. (2018). Intergenerational Justice, Environmental Law, and Restorative Justice. Washington Journal of Environmental Law & Policy, 8(2), 333–361. National Parks and Wildlife Act 1974 (NSW). New South Wales Environment Protection Authority (Web Page). https://www. epa.nsw.gov.au. Accessed 15 April 2020. New South Wales Government. (2014a, 28 May). Parliamentary Debates, Legislative Assembly, 29310 (Rob Stokes, Minister for the Environment). New South Wales Government. (2014b, 12 August). Second Reading Speech. Legislative Assembly, Protection of the Environment Legislation Amendment Bill 2014 (NSW) (Rob Stokes, Minister for the Environment). New South Wales Government. (2014c, 22 October). Second Reading Speech. Legislative Council, Protection of the Environment Legislation Amendment Bill 2014 (NSW) (Matthew Mason-Cox, Minister for Fair Trading). New South Wales Environment Protection Authority. (2013a). Compliance Policy. New South Wales Environment Protection Authority. (2013b). Prosecution Guidelines. New South Wales Environment Protection Authority. (2017). Compliance Plan 2017–18.

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Northern Territory Environment Protection Authority. (2013). Compliance and Enforcement Policy. Northern Territory Environment Protection Authority. (2015). NT EPA Compliance Activity Plan: January 2015–June 2016 . Northern Territory Environment Protection Authority (Web Page). https:// ntepa.nt.gov.au. Accessed 15 April 2020. Pain, Hon Justice N., Pepper, Hon Justice R., McCreath, M., & Zorzetto, J. (2016). Restorative Justice for Environmental Crime: An Antipodean Experience. Australian Environment Review, 31(8), 286–295. Pain, Hon Justice N. (2018). Encouraging Restorative Justice in Environmental Crime. Newcastle Law Review, 13, 29–52. Preston, Hon Justice B. J. (2011). The Use of Restorative Justice for Environmental Crime. Criminal Law Journal, 35 (3), 136–153. Proctor, J. (2016). Punishing Polluters: Can Restorative Justice Work? CBC News (online, 3 March). https://www.cbc.ca/news/canada/british-columbia/cli mate-talks-pollution-restorative-justice-1.3473076. Accessed 15 April 2020. Protection of the Environment Operations Act 1997 (NSW). Pynn, L. (2016). Restorative Justice can be More Powerful than Criminal Justice System: B.C. Conservation Officer. Vancouver Sun (online, 20 June). https:// vancouversun.com/news/local-news/restorative-justice-can-be-more-pow erful-than-criminal-justice-system-b-c-conservation-officer. Accessed 15 April 2020. Queensland Department of Environment and Heritage Protection. (2015). Guideline, Environmental Protection Act 1994: Environmentally Relevant Activities Compliance and Enforcement. Queensland Department of Environment and Science (Web Page). https://env ironment.des.qld.gov.au/. Accessed 15 April 2020. Resource Management Act 1991 (NZ). Rivers, L. (2012). Shareholder Return—A ‘Nuremberg defence’? Ecocide and Restorative Justice. Environmental Law and Management, 24, 17–19. Rustad, M. L., Koenig, T. H., & Ferreira, E. R. (2013). Restorative Justice to Supplement Deterrence-Based Punishment: An Empirical Study and Theoretical Reconceptualization of the EPA’s Power Plant Enforcement Initiative, 2000–2011. Oklahoma Law Review, 65 (3), 427–489. Smith, D. (2019). Case Note: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Australian Environment Review, 34 (1), 16–18. South Australia Environment Protection Authority. (2009). Compliance and Enforcement Regulatory Options and Tools.

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South Australia Environment Protection Authority. (2013). Review of South Australian Environment Protection Authority Regulatory Practice—Tools and Approaches. South Australia Environment Protection Authority. (2016). Compliance Plan 2016 –2017 . South Australia Environment Protection Authority (Web Page). https://www. epa.sa.gov.au. Accessed 15 April 2020. Stark, A. (2016). Environmental Restorative Justice. Pepperdine Dispute Resolution Law Journal, 16 (3), 435–462. Sugrue, V. (2015). What Happens when Values are put to Work? A Reflection in One Outcome from a Restorative Justice Conference in the Criminal Division of the District Court: Environment Warranted Judge Jurisdiction. Resource Management Journal , 19–22. Tasmania Environment Protection Authority. (n.d.), EPA Division Compliance Policy. Tasmania Environment Protection Authority (Web Page). https://epa.tas.gov. au/epa. Accessed 15 April 2020. Victoria Environment Protection Authority. (2012). Hallam Road Landfill (Publication 1503). Victoria Environment Protection Authority. (2013). EPA Environmental Citizenship Strategy. Victoria Environment Protection Authority. (2017). Compliance and Enforcement Policy. Victoria Government, ‘Enforceable Undertakings Guidelines’. (2012). (Gazette, No S 142, 1 May). West Coast Regional Council. (2018). Compliance and Enforcement Policy. Western Australia Department of Environment Regulation. (2013). Enforcement and Prosecution Policy. Western Australia Department of Environment Regulation. (2015). Regulatory Principles: Environment Protection Act 1986, Part V; Effective and Efficient Regulation. Western Australia Department of Water and Environmental Regulation. (2017). Compliance and Enforcement Policy (Interim). Western Australia Department of Water and Environmental Regulation (Web Page). https://www.der.wa.gov.au. Accessed 15 April 2020. White, R., & Heckenberg, D. (2014). Green Criminology: An Introduction to the Study of Environmental Harm. London and New York: Routledge.

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Wilson, C. (2016). Proactive Restorative Justice: A Set of Principles for Enhancing Public Participation. Environmental and Planning Law Journal, 33(3), 252–263.

6 Restorative Justice Conferencing in an Environmental Offending Context: Case Studies

This chapter explores three case studies of restorative justice conferencing embedded in the prosecution of water pollution offending (New Zealand) and Aboriginal cultural heritage offending (New South Wales, Australia).

New Zealand Environmental Offending Context The Resource Management Act 1991 (NZ) (‘RM Act ’) is the primary piece of legislation in a New Zealand environmental offending context, with its purpose being ‘to promote the sustainable management of natural and physical resources’ (s 5). The RM Act is roughly equivalent to the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act ’). For example, ss 15(1) and 338(1) contain various pollution offences carrying a maximum penalty for individuals of $300,000 or 2-years imprisonment (s 339(1)(a)). The maximum penalty for a corporation is a fine of $600,000 (s 339(1)(b)). A daily penalty of $10,000 also applies in © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_6

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the case of a continuing offence (s 339(1A)). Prosecution under the RM Act is undertaken by a local authority, defined as ‘a regional or territorial authority’ (s 2).1 The use of restorative justice in prosecutions under the RM Act is supported by the Victims’ Rights Act 2002 (NZ) (‘Victims’ Rights Act ’) and the Sentencing Act 2002 (NZ) (‘Sentencing Act ’). The Victims’ Rights Act commenced on 17 December 2002. Section 9 provides that ‘if a victim requests to meet with the offender to resolve issues relating to the offence’ then: A member of court staff, a Police employee, or if appropriate, a probation officer must, if satisfied that the necessary resources are available, refer the request to a suitable person who is available to arrange and facilitate a restorative justice meeting.

The fact that s 9 uses the terminology ‘restorative justice meeting’ rather than the term ‘restorative justice conference’, which is adopted for this book, is of no consequence. This section was not drafted specifically with environmental offending in mind (INT-11, 04 July 2017; P 9, L 323– 325). Firstly, ‘a Police employee’ or ‘probation officer’ would not typically feature in a prosecution of environmental offending. Rather those individuals are more readily associated with person to person offending (e.g. assault) or person to property offending (e.g., robbery). Secondly, ‘victim’ as defined in the Victims’ Rights Act is human-centric (a person; see, s 4), and not directed to non-humans who can be the victims of environmental offending. Human victims that suffer direct physical injury because of an environmental offence would be defined as a victim for the purpose of s 9 of the Victims’ Rights Act by dint of s 4 of that same Act. Examples would include an individual who falls ill when swimming in a watercourse which is polluted, who breathes in polluted air, or who walks on polluted land. Similarly, where an environmental offence causes damage to a person’s property that person can be considered a victim for the purposes of s 9. Obvious examples include pollution of a person’s land or dam. Such victims can ask court staff to refer the matter to a restorative justice conference.

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Section 9 of the Victims’ Rights Act (by dint of the definition of victim in s 4) would have one conclude that the only victims of crime are human. Indeed, this reflects the fact that the Victims’ Right Act was not drafted with environmental offending in mind. In reality, the victims of environmental offending are quite broad and include the environment (INT-11, 04 July 2017; P 3, L 78; INT-14, 07 July 2017; P 2, L 62–63; INT-16, 12 July 2017; P 4, L 126–129) and its components (INT-17, 14 July 2017; P 3, L 94–96)—ecosystems (INT-12, 05 July 2017; P 1, L 4–5), streams (INT-11, 04 July 2017; P 3, L 79), trees (INT-11, 04 July 2017; P 3, L 81; INT-16, 12 July 2017; P 4, L 140–142), plants (INT11, 04 July 2017; P 3, L 81; INT-16, 12 July 2017; P 4, L 140–142), animals (INT-16, 12 July 2017; P 4, L 140–142; INT-17, 14 July 2017; P 3, L 104–106), soil (INT-14, 07 July 2017; P 3, L 85), biodiversity (INT-11, 04 July 2017; P 3, L 81) and water (INT-14, 07 July 2017; P 3, L 85; INT-16, 12 July 2017; P 4, L 146). Water is particularly important to Maori culture as a river is viewed as a ‘living entity [with]…the health of the river [being related] to the health of the community’ (INT15, 11 July 2017; P 3, L 80–83). Future generations of humans are also potential victims of environmental offending (INT-11, 04 July 2017; P 3, L 86–89; INT-13, 05 July 2017; P 2, L 47–52; INT-14, 07 July 2017; P 2, L 51–53; INT-15, 11 July 2017; P 4, L 99–102). These views are not dissimilar to the views of the Australian practitioners interviewed (see Chapter 2). Despite the fact that the victims of environmental offending are wide, such victims, other than currently living human victims, cannot request a restorative justice meeting under s 9 of the Victims’ Rights Act because they do not fit within the definition of victim it adopts. For example, when a river is polluted fish and eels which are harmed or killed are victim. The river itself is a victim. People no longer able to swim or recreationally fish in the river are victim. Local communities for which the river has special or sacred value are victim. If the river is irreversibly harmed, then future generations of humans are victim. These victims do not meet the definition of ‘victim’ in s 4 of the Victims’ Rights Act and therefore cannot make requests, either personally or through human guardians as representatives, to meet the offender under s 9.

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Notwithstanding, this does not mean that such victims are precluded from meeting an offender at a restorative justice conference or process. Most of the restorative justice conferences that have occurred in a New Zealand environmental offending context have been initiated by either the offender or prosecution and not the victim. It is unclear why victims do not initiate such conferences. It may have to do with the fact that the victims are invariably non-human whereas the Act requires a human victim to initiate conferencing. It may also have to do with a lack of knowledge of such conferencing or even a perception that the benefits of the conferencing may not outweigh the costs. In such circumstances, the prosecution, who arguably represents the victims of environmental offending at a broad level including the community, will reach out and invite relevant victims. In the New Zealand context, the local Maori community is often present at restorative justice conferences as victims in their own rights but also as representatives of the environment. Additionally, there are two important provisions of the Sentencing Act (canvassed below) which are applicable to restorative justice. Neither of those provisions require the applicable restorative justice process to have been initiated by a victim request under s 9 of the Victims’ Rights Act (INT-11, 04 July 2017; P 10, L 357–362; INT-12, 05 July 2017; P 5, L 146–154; INT-13, 05 July 2017; P 6, L 181–184). The Sentencing Act commenced on 30 June 2002 and formalises the consideration of restorative justice processes at the sentencing stage by dint of s 8(j) which states: In sentencing or otherwise dealing with an offender the court…must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case…

The court will consider the outcomes of any restorative justice processes regardless of whether they were initiated by the offender, prosecutor, or victims (as enlivened by s 9 of the Victims’ Rights Act ).

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Section 24A of the Sentencing Act commenced on 6 December 2014 and requires that the District Court adjourn proceedings in certain circumstances to: (a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and (b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case. The circumstances necessary to require an adjournment is that there is a guilty plea, 1 or more victims, ‘no restorative justice process has previously occurred in relation to the offending’ and ‘the Registrar has informed the court that an appropriate restorative justice process can be accessed’ (Sentencing Act, s 24A(1)). It should be noted that s 24A, like s 8(j) of the Sentencing Act talks about a ‘restorative justice process’ rather than a ‘restorative justice conference’. Processes can involve informal meetings between offender and victim(s) which are broader than a formal facilitated restorative justice conference. It is believed that the use of the broader term ‘process’ was deliberate when the section was drafted to ‘encompass…all sorts of possibilities’ (INT-11, 04 July 2017; P 11, L 387–393). ‘Victim’ is defined for the above provision in the same way as it is defined in the Victims’ Rights Act (Sentencing Act, s 4; Victims’ Rights Act, s 4). This means that s 24A will not be engaged unless there is a human victim who has suffered physical injury or loss of property by dint of the offending. Section 24A of the Sentencing Act, like s 9 of the Victims’ Rights Act, was probably not drafted with environmental offending in mind. Indeed, a major limitation of both the Victims’ Rights Act and the Sentencing Act is the fact that ‘victim’ means a human who has suffered physical injury or damage to, or loss of, property. This is an example of a view of victimhood cast in terms of ‘conventional constructions of crime’ (Skinnider 2011: 2). This legislation which is not fit for purpose of facilitating restorative justice for environmental

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offending may partly account for the slow uptake of restorative justice in the New Zealand context. This is an issue to consider if New South Wales or other jurisdictions seek to implement a legislative framework supportive of conferencing in an environmental offending context. As a consequence, much environmental offending, which results in injury or damage to non-humans or future generations of humans, will not be caught by those provisions which seek to consider the facilitation of restorative justice processes. Notwithstanding, environment warranted judges (both Environment Judges and Alternate Environment Judges)2 when presiding over environmental prosecutions in the District Court have been prepared to adjourn matters (using their inherent discretion) to allow restorative justice conferences to occur. Indeed, Judges have even been prepared to adjourn sentencing to allow outcome agreements from such conferences to be fulfilled. Regardless of whether proceedings are adjourned by dint of s 24A of the Sentencing Act or by dint of a judge’s discretion, any resultant restorative justice process must be considered when sentencing the offender (Sentencing Act, s 8(j)) (INT-11, 04 July 2017; P 10, L 357–362; INT12, 05 July 2017; P 5, L 146–154; INT-13, 05 July 2017; P 6, L 181–184). The phrasing of ‘considered’ means that the restorative justice process outcome is not binding on the court during sentencing. Rather, it is open to the court to determine the relevance of that process in the sentencing of the offender.

The Use of Conferencing in a New Zealand Environmental Offending Context According to the New Zealand Ministry for the Environment (2013) between 30 June 2002 (the date upon which the Sentencing Act commenced) and 30 September 2012, there were a total of 33 restorative justice processes in an environmental offending context. At the same time, there were 815 environmental offending prosecutions. This means that restorative justice processes were used in 4% of environmental offending prosecutions. Table 6.1 reveals that between 2002 and 2005, and between 2005 and 2008 the number of environmental prosecutions

815

51

123 –

8.4

429e

38

–

6.8

260c

–

6.6

3.7

126a

34

16g

33

14f

13d

6b

Total restorative justice conferences

–

4%

3%

5%

5%

% of prosecutions using restorative justice conferencing

Notes a New Zealand Ministry for the Environment (2006: 6), lists the prosecutions undertaken in the period 1 July 2001–30 April 2005 (a 46-month period) at 171. The legislation which empowers the use of restorative justice conferencing in this context did not commence until 30 June 2002. Therefore, the period of concern for this analysis is from 1 July 2002 until 30 April 2005 (a 34-month period). To derive the average number of prosecutions per month for the 1 July 2001–30 April 2005 period, 171 was dived by 46 to get 3.717. That figure was multiplied by 34 to get the indicative total number of prosecutions for the period 1 July 2002–30 April 2005 b New Zealand Ministry for the Environment (2013: 23, [2.9.3]) c New Zealand Ministry for the Environment (2013: 5, Table 1) d New Zealand Ministry for the Environment (2013: 23, [2.9.3]) e New Zealand Ministry for the Environment (2013: 5, Table 1) f New Zealand Ministry for the Environment (2013: 23, [2.9.3]) g Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323, Southland Regional Council v Taha Asia Pacific Limited [2015] NZDC 18010, Auckland City Council v Eric Toa and others [2015] NZDC 20678, Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780, Tasman District Council v Brett Edward Mytton [2017] NZDC 9820, Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800, Southland Regional Council v Allan Baird and others [2018] NZDC 11941, Auckland Council v MJ Green Limited [2018] NZDC 17091, Waikato Regional Council v Taharoa Mining Investments Limited [2018] NZDC 24843, Otago Regional Council v Trustpower Limited [2019] NZDC 1990, Marlborough District Council v Laurie Forestry Services Limited [2019] NZDC 2602, Waikato Regional Council v Hamilton City Council [2019] NZDC 16254, Waikato Regional Council v Open Country Dairy Limited [2019] NZDC 19755, Marlborough District Council v John Wayne Sowman [2019] NZDC 25036, Bay of Plenty Regional Council v DJK Limited and David Justin Kehely [2020] NZDC 7710, Canterbury Regional Council v Fulton Hogan Limited [2020] NZDC 12409

30 June 2002–30 April 2005 1 May 2005 and 30 June 2008 1 July 2008–30 September 2012 30 June 2002–30 September 2012 1 October 2012 – 1 July 2020

Date range

Average prosecution per month

Total prosecutions

Total months

Table 6.1 Data relating to the use of Restorative Justice Processes in a New Zealand Environmental Offending Context

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utilising a restorative justice process was 5%. That figure had fallen to 3% for the period 2008–2012 even though the absolute number of restorative justice processes had increased; it is just that the raw number of prosecutions had also increased by a greater proportion to the use of restorative justice processes. The term ‘restorative justice processes’ is not defined in the Report itself, but it is assumed that to be included in the report the restorative justice process had to engage either s 9 of the Victims’ Rights Act or s 8(j) of the Sentencing Act. At the time of the Report s 24A of the Sentencing Act had not commenced and therefore had no relevance. Establishing the exact number of environmental prosecutions that involved a restorative justice process post-September 2012 (the end period for the Report) is difficult for several reasons. Firstly, Internet searches have not revealed any official statistics on the use of restorative justice processes in an environmental offending context. Secondly, not all environmental prosecution sentencing remarks (i.e. judgments) are published. Thirdly, even those stakeholders interviewed were unable to articulate the exact number of such restorative justice processes they have been involved in and the case name; some could give estimates (e.g. one (INT-13, 05 July 2017; P 13, L 447–450); ‘four or five’ (INT-16, 12 July 2017; P 13, L 483–491); ‘not more than ten’ (INT-9, 04 July 2017; P 5, L 144–145); ‘about a dozen’ (INT-14, 07 July 2017; P 8, L 263–267); see also INT-11, 04 July 2017; P 32, L 1097–1100 who was unable to estimate a number). Given this paucity of information, it is difficult to triangulate the interview data to establish the exact number of restorative justice processes involved. Notwithstanding the above, 16 sentencing remarks containing details of restorative justice processes in an environmental offending context have been located for the period of 1 October 2012 until 1 July 2020.3 It is unknown whether there have been any other conferences beyond those 16 identified for that period, for the reasons just stated. There are several reasons proffered by the New Zealand interviewees as to why restorative justice processes have not been used more in an environmental offending context. Firstly, ‘the adversarial system is so strongly entrenched in New Zealand, that it is part of the makeup and drives the thinking of judges, prosecutors, defence lawyers, and so on, and they

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just don’t even think about it [i.e., restorative justice]’ (INT-14, 07 July 2017; P 26, L 886–888). Secondly, there may not be sufficient awareness about restorative justice by environmental law practitioners—it is ‘not very well understood by RMA practitioners…’ (INT-13, 05 July 2017; P 16, L 543); ‘if the lawyer doesn’t really have the understanding around the benefits of it, then they’re not going to recommend it to you’ (INT11, 04 July 2017; P 35, L 1225–1226). It may be that defence counsel are not putting it forward as an option to their clients (INT-16, 12 July 2017; P 22, L 813–814). Thirdly, restorative justice conferencing can take a long time (INT-11, 04 July 2017; P 35, L 1222). In those situations, lawyers might say to their client—‘Look, make it quick and fast. Get in, get out, pay your fine and move on’ with lawyers thereby being paid quicker (INT-11, 04 July 2017; P 35, L 1213–1214, 1219–1220). The 49 known prosecutions which have used restorative justice conferencing in a New Zealand environmental offending context have occurred across a range of offences, involved a diversity of stakeholders, and led to a wide range of outcomes. Offences involving a restorative justice conference include the discharge of offensive odours (such as from industrial premises (Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003) in Fisher and Verry 2005: Appendix (‘Times Media’)); associated with coffee roasting (Auckland Regional Council v Avalanche Coffee Limited (Auckland District Court, Smith J, 28 April 2010) (‘Avalanche Coffee’); and, from the burning of plastics—Tasman District Council v Brett Edward Mytton [2017] NZDC 9820 (‘Mytton’)), discharge of contaminants onto land (such as copper aluminium chloride (Bay of Plenty Regional Council v John Rhys Thomas (Tauranga District Court, Smith J, 16 March 2010) (‘Thomas’); chemicals (Canterbury Regional Council v Stephen Graham Knight (Christchurch District Court, Jackson J, 18 March 2010); aluminium dross (Southland Regional Council v Taha Asia Pacific Ltd [2015] NZDC 18010 (‘Taha Asia’); dairy effluent (Southland Regional Council v Allan Baird and others [2018] NZDC 11941 (‘Baird ’); Bay of Plenty Regional Council v DJK Limited and David Justin Kehely [2020] NZDC 7710 (‘DJK Limited ’)); and diesel fuel (Waikato Regional Council v Taharoa Mining Investments Limited [2018] NZDC 24843 (‘Taharoa Mining ’)), discharge of untreated pig effluent

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(Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004) in New Zealand Ministry for the Environment 2006: Appendix 5) (‘PIC New Zealand ’)), discharge of human sewage (Waikato Regional Council v Matamato-Piako District Council (Morrinsville District Court, Thompson DCJ, 6 May 2005) in New Zealand Ministry for the Environment 2006: Appendix 5) (‘Council & Council ’)) discharge of chemicals into a stream (Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’)), operation of an unlawful landfill (Northland Regional Council v Fulton Hogan Ltd and others (Whangarei District Court, Newhook DCJ, 6 May 2010) in New Zealand Ministry for the Environment 2013: Appendix 5) (‘Fulton Hogan’)) and, dust nuisance (Manukau City Council v Specialised Container Services (Auckland) Ltd (Auckland District Court, McElrea DCJ, 16 February 2009) in Clapshaw 2009: 55) (‘Specialised Container Services’)). Conferencing has been used in relation to the following planning offences which have the potential to impact on the environment and are therefore considered under the umbrella of environmental offending: breach conditions of development consent (Waikato Regional Council v Hamilton City Council and Perry Environmental Ltd (Hamilton District Court, Whiting DCJ, 1 March 2005) in New Zealand Ministry for the Environment 2006: Appendix 5) (‘Hamilton CC and Perry’ )), destruction, felling and removal of trees without consent (Auckland City Council v L & L’s company (name supressed) (Auckland District Court, McElrea DCJ, 11 April 2005) in New Zealand Ministry for the Environment 2006: Appendix 5 (‘L & L’s company’); Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005) in Fisher and Verry 2005: 58 (‘12 Carlton Gore’); Auckland City Council v Eric Toa and others [2015] NZDC 20678 (‘Toa’); Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780 (‘Housemovers’)), modification of a Pohutukawa tree (Auckland Council v MJ Green Limited [2018] NZDC 17091 (‘MJ Green’), contravention of an abatement order (Waikato Regional Council v Huntly Quarries Ltd and Ian Harold Wedding (Auckland District Court, McElrea DCJ, 28 October 2003) in Fisher and Verry 2005 Appendix (‘Huntly Quarries’); Auckland Regional Council v PVL Proteins

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Ltd [2008] DCR 84 (‘PVL Proteins’)) and, disturbance of a foreshore through unlawful earth works (Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800 (‘Withington’). One of the central tenets of restorative justice is that responses to crime should be inclusive. Indeed, as noted by Zehr, ‘[r]estorative justice expands the circle of stakeholders…beyond just the government and the offending party to involve those who have been victimized as well as community members’ (2015: 21). This notion is reflected in the diversity of stakeholders present at the New Zealand conferences. Participants included community members (such as local residents (Times Media; 12 Carlton Gore; PVL Proteins; Avalanche Coffee) and, the Chairperson of a local community board and walkway trust (Huntly Quarries)), the environment (represented by the council (12 Carlton Gore); the Waikato River represented by the Chairperson of the Waikato River Enhancement ¯ Society (Huntly Quarries); and, the Onuku R¯unanga (the local Maori people) representing a stream (Interflow)), Indigenous (Maori) people of New Zealand (Huntly Quarries), council officers (12 Carlton Gore; Times Media; PIC New Zealand ; Huntly Quarries; PVL Proteins; Withington), councillors (Withington) and, experts (an arborist (12 Carlton Gore) and, air quality and pollution control consultant (Avalanche Coffee)). A limitation of engaging with this material as a doctrinal analysis rather than individual case studies means it is impossible to gauge whether inclusivity was fulfilled in each conference. Notwithstanding, given the breath of participants it is envisaged that notions of inclusivity were considered when conducting such conferencing. There was a diversity of outcomes agreed at restorative justice conferencing. Indeed, one of the benefits of such conferencing is the opportunity to reach outcomes consensually. Outcomes reached included an apology (Times Media, Council & Council , Hamilton CC and Perry, and L & L’s company; 12 Carlton Gore; Auckland City Council v Shaw [2006] DCR 425 (‘Shaw’); Taha Asia; DJK Limited ), publication of a newspaper article educating the community about rural fires and their consequences (Mytton), a payment towards the education of farmers as to their environmental obligations (Baird ), undertaking of volunteer work to restore ecological features of the harmed environment (MJ Green), commitments responding to the offending behaviour (dialogue to put the wrong

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right (PIC New Zealand ); a plan to stop the incident reoccurring in the future (Hamilton CC and Perry); an agreement to work with Council to produce a solution to the problem causing the harm (PVL Proteins); ongoing consultation (Specialised Container Services); greater cooperation with neighbours (Avalanche Coffee)), payment of reparation to neighbours (Thomas) and council (Toa), the payment of various costs by the offender (council costs (Times Media; PIC New Zealand ; 12 Carlton Gore; Shaw; Thomas; Fulton Hogan; Housemovers; MJ Green)); facilitator costs (PIC New Zealand ); clean-up costs (PIC New Zealand ); council costs of testing air quality (Times Media); and, compensation to two local businesses for car-cleaning (Specialised Container Services). Other outcomes relate to the undertaking of work (or the payment for that work) to repair the harm caused by the offending and to stop the harm occurring again in the future. This included remediation of site (Fulton Hogan), the provision of an odour entrapment device and other associated work including the construction of a planted barrier (Times Media) or bund (Taharoa Mining ) around part of the offending site, the installation of a new effluent system (PIC New Zealand ), remediation of septic tanks (Council & Council ), installation of fly screens on neighbouring properties (Hamilton CC and Perry), landscaping work (L & L’s company; 12 Carlton Gore), replacement of removed tree(s) (Toa; Housemovers), planting of a tree to replace a tree that was cut down and the payment of an arborist to maintain the tree for five years (Shaw), establishment of eco-nursery (Fulton Hogan) and, the planting of native trees in conjunction with a planting plan the offender will develop with the council (Withington). A final outcome of restorative justice conferencing was the making of donations. Donations were made by the offender to the local volunteer fire service (Mytton), the local public library (Mytton), a local college for a native tree planting project (Times Media), to the Waikato River Enhancement Society for a walkway project (Huntly Quarries), to a local residents’ association for environmental projects (L & L’s company), to the local community for community projects (12 Carlton Gore), to the community for the purchase of 200 trees for planting in the neighbourhood (Shaw), to Project Crimson (an organisation that is involved with planting Pohutukawa trees) (Housemovers; MJ Green) and to the Banks

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Peninsular Conservation Trust to undertake work to repair/enhance harmed stream/creek (Interflow). The making of the donations is meant to repair the harm occasioned by the offending, being a central tenet of restorative justice.

Interflow: A Case Study Interflow was charged and prosecuted for the discharge of a contaminant into Walnut Stream, Akaroa (Interflow, [2]); an offence under s 15(1)(a) (see also s 338(1)(a)) of the RM Act, carrying a maximum penalty of $600,000). The incident occurred whilst Interflow ‘was contracted by the Christchurch City Council to repair two culverts underneath Rue Noyer, Akaroa’ (Interflow, [4]). New lining was grouted into place within the existing culverts and then painted over with a waterproof coating. Water was allowed to flow over these culverts and ‘discoloured water was observed at locations upstream and downstream of the area of works’ (Interflow, [5], [7]). Numerous dead fish and dying eels were discovered in the vicinity of the culverts. ‘Walnut Stream [the effected stream] flows into Akaroa Harbour. The Harbour is part of the Selwyn-Banks Peninsula Coastal Marine Statutory Acknowledgment and is an area of significant ecological and cultural value’ (Interflow, [9], [16]) (Photos 6.1, 6.2, 6.3, 6.4, 6.5, and 6.6). The offender pleaded guilty to the charges (Interflow, [1]), ‘requested referral to a restorative justice process’ (Sugrue 2015: 20) and attended

Photo 6.1 Rue Noyer, Akaroa, a street under which Walnut Stream runs

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Photo 6.2 Locality of the offending

Photo 6.3 Western side of Rue Noyer

Photo 6.4 Walnut Stream

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Photo 6.5 Culvert on Western side of Rue Noyer

Photo 6.6 Culvert on Eastern side of Rue Noyer. Each of these photos was taken by the author whilst on a holiday in New Zealand on 16 December 2018

that process through its management. As part of a pre-conference meeting, it was assessed that Interflow was suitable for conferencing. That assessment involved the offender ‘taking responsibility’ for its offending (INT-10, 04 July 2017; P 5, L 167). The facilitator would also have a pre-conference meeting with any lawyers that are going to be present at the conference to ‘be very clear of the proper roles, and it’s not to be the spokesperson’ (INT-9, 04 July 2017; P 11, L 359–360). Also present at the conference was Environment Canterbury as representative of the ‘generic community’ (INT-11, 04 July 2017; P 16, L 578) and environment, and Interflow’s legal representative (INT-13, 05 ¯ July 2017; P 9, L 324–325). The Onuku R¯unanga (the local Maori people) represented Walnut Stream (and its inhabitants), describing ‘how the wellbeing of the stream directly impacted on the mauri [life force or essence] and people of the land’. They ‘expressed their sadness at the harm done’ (Interflow, [18]). The local Maori people play a significant

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role in restorative justice conferencing in a New Zealand environmental offending context. They bring a ‘[s]piritual side of it…[with] the link between the land and the people and the Maori culture…’ (INT-10, 04 July 2017; P 7, L 222–223). Interflow agreed at the restorative justice conference to donate $80,000 to the Banks Peninsular Conservation Trust to undertake work on the effected Walnut Stream to repair/enhance that stream (Interflow, [43]). The $80,000 donation: was informed by a range of factors. The primary one was the actual likely cost of doing the works. That’s where the numbers come from in terms of the assessment by the ecologist who had to then do some work to get a cost from a contractor who would actually be doing the work. (INT-13, 05 July 2017; P 12, L 402–405)

Interflow knew before the restorative justice conference the penalty the prosecution would submit was the indicative penalty. Written submissions on sentence and penalty were given to the offender by the prosecution so the defence knew the penalty that would be sought and therefore the expectations regarding possible value of projects which could be made at conferencing (INT-11, 04 July 2017; P 19, L 659). That amount was $39,375, assuming no conferencing (i.e. a traditional prosecution) (Interflow, [27]). As the offender donated the $80,000, no fine was sought by the prosecution. The offender would have also known what its own legal representatives thought the likely fine to be (INT-13, 05 July 2017; P 12, L 398–400). The judge opined that the fine should be $33,750, assuming no restorative justice conference and donation (Interflow, [42]). Given the donation agreed at the conference no penalty was imposed by the court. Courts under the RM Act do not have the plethora of reparative orders that are available to the NSWLEC under the POEO Act. Therefore, the court would be keen to ensure that the donation money was actually paid before the proceedings were finalised. This is especially so given that the court was not going to impose a fine on Interflow in the light of the offer to donate $80,000. To give the court such assurance, Interflow paid the $80,000 into its solicitor’s trust account and provided the prosecution with ‘a printout of the deposit in the trust

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account’ (INT-11, 04 July 2017; P 11, L 397–398). Notwithstanding, there is the power for the court to make an enforcement order under the RM Act (s 314). Under that section the court could ‘require a person to remedy or mitigate any adverse effect on the environment caused by or on behalf of that person’. Hence if Interflow itself was to undertake the work on the stream, it could have been made into an enforcement order (INT-11; 04 July 2017; P 6, L 185–186). Why an offender would agree to a $80,000 donation in the face of a potential fine of less than half of that goes to the perceived benefit to the offender derived from conferencing. Those benefits will be explored in Chapter 7.

New South Wales Aboriginal Cultural Heritage Protection Context One of the objects of the National Parks and Wildlife Act 1974 (NSW) (‘NP&W Act ’) is ‘the conservation of objects, places or features (including biological diversity) of cultural value within the landscape…’ (s 2A(1)(b)). That conservation is regulated through a permit system. The current section 90 of the NP&W Act provides that the Chief Executive of the Office of Environment and Heritage may issue an ‘Aboriginal heritage impact permit’ which permits interference with an Aboriginal place or Aboriginal objects. Interfering with an Aboriginal place or Aboriginal objects outside the confines of an Aboriginal heritage impact permit or without a permit is an offence.

Williams: A Case Study Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) involved the prosecution of Craig Williams, an Australian sole director and secretary of company Pinnacle Mines, by the New South Wales Department of Environment and Conservation for offences against Aboriginal cultural heritage. During mining operations, a private rail siding to transport ore was constructed. During construction, several Aboriginal artefacts were

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destroyed constituting offences against s 90(1) of the NP&W Act, as it then was (Williams, [9]–[22]). Pits, or costeans, were dug to explore for ore. One of these costeans was dug across the boundary of a declared Aboriginal Place. This also constituted an offence against s 90(1) of the NP&W Act, as it then was (Williams, [23]–[34]). The maximum penalty for each offence was a $5,500 fine and/or imprisonment for six months. Mr Williams pleaded guilty to the offending and a sentencing hearing was held before the NSWLEC. During the sentencing hearing, Preston CJ (presiding officer) enquired of the parties their views as to the appropriateness of a restorative justice conference. Subsequently, the sentencing hearing was adjourned, and the conference was held. The fact of the conference, and the agreements made at that conference, were considered during sentencing (Williams, [7], [40], [55], [64]). This case, as Interflow, provides rich learning for the practical implementation of restorative justice conferencing in a New South Wales (Australia) environmental offending context (and beyond). The two primary reasons Preston CJ asked the parties to consider the use of restorative justice conferencing was the low maximum penalty for the offence and the fact that victim voices were not going to be effectively heard as part of the prosecution. The maximum penalty for each of the offences was $5,500 and/or imprisonment for six months (Williams, [65]; NP&W Act, s 90 (as at the time of the commission of the offence)). The harming or desecrating of Aboriginal objects and places are now found in s 86 of that Act with penalties ranging from $55,000 to $1,100,000 with a range of additional orders available under s 205. There were no additional sentencing options available at the time. The maximum penalty was viewed as ‘ridiculously low’ (INT-3, 20 March 2017; P 1; L 25–26) and could not be imposed in the circumstances as the case was not in the worst category of cases for this offence (INT3, 20 March 2017; P 1, L 28). Imprisonment was not a real option (INT-3, 20 March 2017; P 1, L 32). Indeed, ‘[t]he prosecutor did not submit that the circumstances of these offences and of this offender make imprisonment a proper sentencing option’ (Williams, [66]). This meant ‘that whatever sentence the court imposed was not going to be a meaningful sentence that…dealt with the particular crime, and the particular consequences of the crime’ (INT-3, 20 March 2017; P 1, L 33–35).

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The reference to ‘meaningful sentence’ is inferred to mean that the ‘ridiculously low’ maximum penalty would not enable the imposition of a sentence which would achieve the statutory purposes of sentencing, which is a component of justice as outcome. In other words, the ‘ridiculously low’ maximum penalty meant that justice was not going to be achieved if reliance was purely on traditional sentencing. Hence His Honour considered another option—restorative justice. One of the limitations of the prosecution of Williams before the NSWLEC was that ‘some of the Aboriginal people whose lands had been adversely affected…weren’t coming to give evidence’ (INT-3, 20 March 2017; P 1, L 36–38). Perhaps this is a function of the prosecution not identifying the victims for the proceedings (identification issue and inclusion issue), or simply that their evidence was unnecessary as affidavit evidence was provided by other Aboriginal victims. Often this affidavit evidence is ‘a sanitised version’ of the evidence (INT-3, 20 March 2017; P 1, L 39), which is sanitised for an evidentiary purpose (i.e. to establish the elements of the offence and the degree of harm) and not necessarily as an avenue for a victim to tell their story (sanitisation issue). Of particular concern was ‘that one of the key victims to the crime were (sic) not really having their voice heard about it’ (INT-3, 20 March 2017; P 1, L 40– 41). That person is Maureen O’Donnell, Chairperson of the Broken Hill Local Aboriginal Land Council, Indigenous elder and long-term resident of Broken Hill. At the time of Williams, Preston CJ knew of the work of John McDonald relating to the use of restorative justice conferencing for young people and the work of Judge McElrea relating to restorative justice conferencing in an environmental offending context in New Zealand (INT-3, 20 March 2017; P 1, L 16–22, P 2, 42–51). His Honour had been doing some ‘research on sentencing for environmental crime and trying to come up with appropriate ways to make the sentences fit the crimes’ (INT-3, 20 March 2017; P 1, L 19–20). This aspect is particularly interesting because in his role as the Chief Judge, Preston CJ publishes a lot of material on various aspects of environmental law. To date, there are 87 papers written by His Honour on the NSWLEC website which is more than any other single judge and approaching the total number of papers on that website written by all

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other NSWLEC judges, both past and present, combined. This seems to indicate that Preston CJ has a curious mind and is open to new possibilities of practice rather than accepting the status quo. In many respects, Preston CJ’s suggestion to the parties in Williams to consider restorative justice conferencing reflects actions of ‘policy entrepreneurs’ in the public policy sphere. Kingdom describes policy entrepreneurs as advocates laying: in wait in and around government with their solutions at hand, waiting for problems to float by to which they can attach their solutions, waiting for developments in the political stream they can use to their advantage. (Cairney 2012: 237)

The problem which Preston CJ encountered was the fact that justice was not going to be achieved in Williams relying on traditional prosecution. The solution championed was restorative justice conferencing. The analogy ends there as arguably Preston CJ was not trying to influence government or public policy but rather was experimenting with a tool that could be added to the criminal procedure tool kit. As Cairney points out, Kingdon portrays the policy entrepreneur as a ‘surefooted calculating individual’ (2012: 271). John on the other hand portrays the policy entrepreneur as an individual ‘that follows a trial and error strategy…’ (Cairney 2012: 271). This later characterisation more readily fits Preston CJ’s actions, as although restorative justice conferencing had been used in a New Zealand environmental offending context its application to a New South Wales Aboriginal Cultural Heritage offending context was novel. Hence, there was no guarantee that application would have utility. John McDonald, an external restorative justice conference facilitator, was engaged to undertake the conference. Before the conference was held various preparation was undertaken. The persuading of Ms O’Donnell to attend the conference in Williams is illuminative. An interviewee explains that ‘[t]here would’ve been, without exaggeration, half a dozen phone calls to try to get to…[Ms O’Donnell]’ (INT-5, 28 March 2017; P 2, L 50–51). Then ‘there were probably another three or four where she was abrupt and unwilling to participate, and had to be convinced that

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it was worthwhile even talking to [the facilitator]…’ (INT-5, 28 March 2017; P 2, L 52–54). Ms O’Donnell was ‘quite adamant’ that she would not meet with John McDonald and it was only because John persisted that a meeting to discuss the process and benefits of a restorative justice conference occurred (INT-5, 28 March 2017; P 2, L 55–60). This initial difficulty was probably confounded by the fact that John McDonald did not know Ms O’Donnell or her family personally (INT5, 28 March 2017; P 1, L 33–P 2, L 40). Naturally, there would be a whole host of reasons for Ms O’Donnell’s hesitation. As an Indigenous Elder, she may have seen a range of ‘white’ solutions to Indigenous problems. Despite the (apparent?) best intentions, many initiatives have failed to improve the lives of Indigenous people. White law has disenfranchised Indigenous people and provided the framework for the Stolen Generation, extreme over-incarceration, and deaths in custody. This historical context should not be lost when considering Indigenous offenders and crime, and ‘white’ responses to Indigenous issues. Cunneen emphasises this point well: I am sympathetic to the aspirations of restorative justice. However I am not sympathetic to a political naiveté on the part of some proponents of restorative justice when it comes to considering the impact of these programmes on indigenous peoples, nor am I sympathetic to the trivialization of Indigenous culture and law in the name of universalizing claims about restorative justice. (2002: 32–33; see also 1997; Blagg 1997; Braithwaite 1997)

Unfortunately, because Ms O’Donnell was not interviewed, a window into understanding her hesitation was never opened. Best practice would dictate that facilitators establish such trust, rapport, and relationships as necessary to ensure the participant feels comfortable participating in the conference. Repeated phone calls from Sydney are not an example of best practice, albeit it may be the most practical and cost-effective. Another option would have been to make some enquiries as to the suitability of any Indigenous mediation services in Broken Hill facilitating the conference. Notwithstanding, face-to-face interviews were undertaken with potential participants in advance of the conference.

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The conference took place in Broken Hill and consisted of the one encounter which lasted for six hours (Williams, [55]). At times during the conference, the conversation and interaction between the offender and victims were difficult (McDonald 2008: 43). At the beginning of the conference, much conversation revolved around: who knew who in the two family groups, and it turned out that there were a lot of relationships … where people knew each other and had known each other over quite some years, in one way or another. There was quite a lot of conversation around that, and that ended up being helpful. (INT-5, 28 March 2017; P 3, L 92–96)

This conversation around family broke the ice (INT-5, 28 March 2017; P 3, L 97–99). Feelings of being let down by the prosecutor seemed to unite the offender and victims—they ‘sort of came united by their sort of common attitude towards [the] National Parks [and Wildlife Service]’ (INT-3, 20 March 2017; P 6, L 242–243). Over the course of the conference, the relationship between Mr Williams and Ms O’Donnell warmed to a point where by the end of the day ‘[t]he two of them were like peas in a pod…, they’d go out together and have a smoke and stuff like this’ (INT-5, 28 March 2017; P 6, L 211–212). The conference enabled: a constructive dialogue to be established… Representatives of the Broken Hill [Local] Aboriginal Land Council were able to share information about the Aboriginal objects and the Aboriginal place and their significance to the Aboriginal people of the area. The defendant was able to share information about Pinnacle Mines’ operations and the business issues confronting the defendant. (Williams, [61])

The conference provided the opportunity for Ms O’Donnell to express her distress caused by the offending. For example, the emotional distress knowing that Aboriginal artefacts have been moved from their original location—‘I believe that moving Aboriginal artefacts destroys them by taking them away from their resting place’ (Williams, [73]). Secondly, there is the ‘emotional distress at seeing what [Ms O’Donnell]… described as ‘drains’ dug in a sacred place’:

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I was very upset with what I saw because the drains had been dug at a sacred place. I believe that the drains had damaged the Pinnacles sacred area because they would have disturbed the Aboriginal spirits and the story line of our teaching. I believe that the Aboriginal spirits would be very unhappy… Feels like they put a big hole in my body. (Williams, [76])

The conference also provided the opportunity for Mr Williams (on his own behalf and Pinnacle Mines) to apologise to Ms O’Donnell (on behalf of the Broken Hill Local Aboriginal Land Council) for the offending (Williams, [59], [102]; McDonald 2008: 43). The heads of agreement reached at the conference included: • The Land Council working with the offender ‘to seek solutions to prevent offences such as the ones before the Court, from happening again in the Pinnacle Mines area’; • The offender paying for the ‘travel, accommodation and living expenses for Maureen O’Donnell and one other to fly to Sydney and be present in the Land and Environment Court…for sentencing’ of the offending; • ‘A visit to and tour of the Mine site by the Land Council prior to the sentencing hearing will be arranged by both parties’; • ‘[O]ngoing interaction between the Land Council and Pinnacle Mines…’; • ‘Maureen O’Donnell…may arrange for two people to look at the area proposed for further development within the existing mine lease’; • Upon agreement ‘to work together and form a Voluntary Conservation Agreement…[the offender will] provide the Land Council with a second-hand four wheel drive vehicle so that they can access the Pinnacle Mines area’; and • Upon expansion of the mine, the teaching of ‘Aboriginal people the skills necessary to work at Pinnacle Mines’ (Williams, [62]). Following the restorative justice conference, the offender and victims sat down to dinner at a Chinese Restaurant in Broken Hill to go over

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the conference outcome plan (INT-3, 20 March 2017; P 6, L 209– 217; INT-5, 28 March 2017; P 6, L 207–221). This outcome plan, if completed, would go some way to repairing the harm occasioned by the offending, as the conference itself had, but it is simply unknown if the conference ‘reintegrated’ Williams back into the community. Reintegration being an element of restorative justice as a resolution device. Whether Williams himself or the local community viewed the conferencing as reintegrating cannot be established without interviews with these key participants. Likewise, it is unknown whether the outcomes from the conference were implemented and whether a relationship between Mr Williams, Pinnacle Mines, Ms O’Donnell and the Wilyakali people exist to this day. A difficulty in the Williams case was that there was a lack of reparative orders available to the court under the NP&W Act in sentencing Mr Williams. This meant there was no enforcement mechanism if the agreements made at conferencing were not fulfilled.

Clarence Valley Council: A Case Study The Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’) restorative justice conference is only the second use of restorative justice conferencing by the NSWLEC (for an overview see Ashton and Etherington 2018; Hamilton 2019a; Smith 2019). The case involved the prosecution of the Council for offences against Aboriginal cultural heritage arising from the Council’s lopping and removal of an Aboriginal object (a scar tree) (Clarence Valley Council , [5]). This constituted an offence against s 86(1) of the NP&W Act which provides that ‘[a] person must not harm or desecrate an object that the person knows is an Aboriginal object’. The maximum penalty for a corporation is $1.1m, representing a massive increase from the $5,500 maximum penalty available at the time of sentencing in Williams (for an overview of the changing legislative landscape between Williams and Clarence Valley Council , see Hamilton 2019a). ‘At the end of the first day of the sentencing hearing…the Council agreed to participate in a restorative justice conference with representatives of the Aboriginal communities whose cultural heritage

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had been harmed by the removal of the scar tree’ (Clarence Valley Council , [10]). The matter was presided over by Preston CJ (as was the case in Williams) but the judgement does not make it apparent who initiated the discussion of the use of restorative justice conferencing. If it was Preston CJ that suggested the use of conferencing it signifies that His Honour is on the lookout for cases in which he thinks conferencing would have some utility. If it was the parties that suggested the use of conferencing it signifies that the knowledge of conferencing is permeating the NSWLEC practitioners. Either way, it is a positive sign for the use of restorative justice conferencing for NSWLEC matters. John McDonald facilitated the conference (as was the case in Williams) which was attended by members of the Council (Mayor, Deputy Mayor, General Manager and employees who removed the scar tree (Clarence Valley Council , [20])) and members of the local community. The restorative justice conference provided the forum in which victims could discuss the significance of the scar tree and the effects of it being removed. The significance of the scar tree was contained in affidavit evidence as outlined in the judgment (Clarence Valley Council , [43]–[47]). Namely: The lopping and removal of the scar tree caused emotion[al] harm to local Aboriginal people including sadness (It broke my heart), shock (I got the shock of my life), a sense of loss (The scarred tree is gone forever now and this saddens me. I cannot share the story about the tree with my grandchildren now, or others in the community; I feel empty inside now that the scarred tree has gone), and a feeling of being disrespected (I felt like the Clarence Valley Council had disrespected me and the local Aboriginal community by removing the tree as it was culturally significant to us). (Hamilton 2019a: 199 (citations omitted); see also, Clarence Valley Council , [50]–[53]).

Mr McDonald describes the conversation during the conference as: respectful, at times emotional, deeply personal, and was undertaken such that all participants had time to talk through their understanding of

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what happened, the impact it had on all present as Aboriginal and nonAboriginal people, and the impact it has had on Aboriginal communities more broadly. (Clarence Valley Council , [17])

The conference allowed the Council representatives to apologise to victims of its offending. It is reported that the apologies offered ‘were all accepted without reservation’ (Clarence Valley Council , [20]; for an overview of corporate apology, see Hamilton 2017). The outcome agreement reached at the conference included: – cultural awareness and skills developed for CVC [Clarence Valley Council] staff, – supporting CVC Senior Managers and Planners to engage more effectively with Aboriginal people, – positive recognition of Aboriginal people to the wider CVC community, – improve[d] consultation via the Clarence Valley Aboriginal Advisory Committee, – employment and youth initiatives in the CVC area, – a Tree Restoration and Interpretation Project directly related to the Scar Tree (Clarence Valley Council , [19]; the details of the actions to flow from the conference are outlined at [21]). Post Williams amendments to the NP&W Act implemented a range of reparative orders that could be made as part of the sentencing outcome. Those orders are similar to those available under the POEO Act with the exception that restorative justice activity orders are not available for the sentencing of Aboriginal cultural heritage offending. Taking advantage of the availability of those reparative orders, Preston CJ ordered the Council (at the suggestion of the parties) to donate $300,000 to Grafton Ngerrie Local Aboriginal Land Council for various activities to raise awareness of Aboriginal cultural heritage. The parties suggested that the donation be ordered in lieu of a fine and Preston CJ set the quantum (Clarence Valley Council , [120], [130]; the order was made under the NP&W Act, s 205(1)(d)). Also made was a publication order (NP&W Act, s 205(1)(a)–(b)), future references order (NP&W Act,

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s 205(1)(a)), and training establishment order for a cultural skills development workshop for Council staff (NP&W Act, s 205(1)(f )). One of the limitations of the conference in Williams was the inability of the NSWLEC to make the outcomes agreed subject to court orders. This was because there was no power to make such orders. That situation was remedied somewhat by changes to the legislation. The fact that Preston CJ not only considered the fact of, and outcomes from, the Clarence Valley Council conference but also made some of those outcomes into court orders (with the option of contempt proceedings if they are not complied with) shows improvement in practice, and learning, between the Williams and Clarence Valley Council conferences. This is important because agreements between the parties made at conferencing are not binding (i.e. enforceable) unless they are made into court orders. Despite the rich learning that Williams and Clarence Valley Council provided, it is important to acknowledge that Aboriginal cultural heritage offending is qualitatively different than environmental offending (even though it is often grouped under the environmental offending umbrella). This is especially apparent when it comes to victimhood. The victims of Aboriginal cultural heritage offending are the Aboriginal peoples whose heritage had been damaged or destroyed. This can be compared with the diversity of victims of environmental offending (humans, environment, communities, and commercial operators). This has implications for the identification of victims, the representation of those victims and the nature of victim voices. Indigenous peoples are the obvious victims in Aboriginal cultural heritage offending. That obviousness is, well, not so obvious with environmental offending. That is not to say Indigenous people cannot be victims of environmental offending or cannot represent victims of environmental offending; Interflow demonstrates they can. Rather, victimhood extends beyond Indigenous people and reliance on an Indigenous voice to the exclusion of other voices, through for example convenience representatives, will not repair the harm occasioned by the offending. Despite the qualitative differences between Aboriginal cultural heritage offending and environmental offending, especially in terms of victimhood, they do share one important commonality. That being that they are both considered ‘complex’ cases (Bolitho 2018: 159). There are

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a couple of reasons for this characterisation. Firstly, ‘there is little practice in that area, and/or less documented about what works’ (Bolitho 2018: 159). The limited use of restorative justice, by the NSWLEC in responding to Aboriginal cultural heritage offending (Williams and Clarence Valley Council) and in New Zealand responding to environmental offending (49 conferences over an 18-year period), is testament to this observation. Secondly, ‘the differentials in power (inherent in some crimes, and in some cases) make the potential for further harm more likely’ (Bolitho 2018: 159). There are power differentials between the offenders and victims. The offenders in the Aboriginal cultural heritage offending were a mine (Williams) and local government agency (Clarence Valley Council ). The offenders in environmental offending were predominately organisational offenders (corporations and government entities) (92%; Hamilton 2019b: Fig. 5). These offenders can be contrasted with the victims—Indigenous individuals and communities in the case of Aboriginal cultural heritage offending; individuals (Indigenous and nonIndigenous), communities (Indigenous and non-Indigenous), non-living humans and non-humans in the case of environmental offending. The inherent characteristics of these offenders and those identified victims highlight a power differential which can manifest in terms of resources, influence, and representation; usually (but not invariably) well-resourced corporate and government agencies vis-à-vis individuals, communities, community groups, Indigenous groups, and non-government organisations. Having explored the theory and practice of restorative justice in an environmental offending context (Chapter 5), including through case studies (this chapter), the next chapter will consider the benefits and limitations of restorative justice conferencing.

Notes 1. There are 11 regional councils in New Zealand (Local Government Act 2002 (NZ) sch 2 pt 1) and 67 territorial authorities (comprising city councils, district councils and the Chattam Islands Council). Regional councils are delineated by geographical locations, which may encompass

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the geographic locations of several territorial authorities and have specific responsibilities under the RM Act. City councils administer larger urban areas whereas district councils serve a combination of rural and urban communities; specific functions include assessment or resource consent applications. When a territorial authority also performs the functions of a regional council, they are called a unitary authority. Currently, there are five unitary authorities in New Zealand (Auckland, Nelson, Gisborne, Tasman and Marlborough). Chattam Islands Council is similar to a unitary authority as it is considered a sui generis (unique) territorial authority. Regional councils are considered the first tier of local government in New Zealand whereas territorial authorities sit below regional councils as the second tier of local government. The system of local government in New Zealand is dictated by the fact that it is a unitary state where power is held by the New Zealand central government and delegated to local authorities. This contrasts with Australia as a federation where power is shared between the federal government and the states. States can then delegate power to local government. 2. Prosecutions under the Resource Management Act 1991 (NZ) are heard in the District Court by a judge who is also an Environment Judge. There are two different types of environment judges. The first are simply referred to as an ‘Environment Judge’. They are judges of the New Zealand Environment Court and deal with matters within the jurisdiction of the Environment Court as well as prosecution of environmental offending within the District Court. The second are referred to as an ‘Alternate Environment Judge’. They are based in the District Court hearing the various matters that progress through a District Court as well as environmental prosecutions which are also heard in the District Court. 3. Searches were made using New Zealand Legal Information Institute (Web Page), http://www.nzlii.org and the District Court website which published decisions of interest to the public (http://www.districtcourts.govt.nz/). The Ministry of Justice New Zealand website (https://www.justice.govt.nz) only publish Supreme Court, Court of Appeal and High Court judgments. Searches were also made using the New Zealand Ministry for the Environment (Web Page), https://www.mfe.govt.nz/ and New Zealand Ministry of Justice (Web Page), https://www.justice.govt.nz.

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References Ashton, S., & Etherington, S. (2018). Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Newcastle Law Review, 13, 86–91. Auckland City Council v Eric Toa and others [2015] NZDC 20678. Auckland City Council v L & L’s company (name supressed) (Auckland District Court, McElrea DCJ, 11 April 2005). Auckland City Council v Shaw [2006] DCR 425. Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005). Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780. Auckland Council v MJ Green Limited [2018] NZDC 17091. Auckland Regional Council v Avalanche Coffee Limited (Auckland District Court, Smith J, 28 April 2010). Auckland Regional Council v PVL Proteins Ltd [2008] DCR 84. Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003). Bay of Plenty Regional Council v DJK Limited and David Justin Kehely [2020] NZDC 7710. Bay of Plenty Regional Council v John Rhys Thomas (Tauranga District Court, Smith J, 16 March 2010). Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800. Blagg, H. (1997). A Just Measure of Shame? Aboriginal Youth and Conferencing in Australia. British Journal of Criminology, 37 (4), 481–501. Bolitho, J. (2018). Complex Cases of Restorative Justice After Serious Crime: Creating and Enabling Spaces for those with Disability. In T. Gavrielides (Ed.), Routledge International Handbook of Restorative Justice (pp. 159–176). Oxon and New York: Routledge. Braithwaite, J. (1997). Conferencing and Plurality: Reply to Blagg. British Journal of Criminology, 37 (4), 502–506. Cairney, P. (2012). Understanding Public Policy: Theories and Issues. Hampshire and New York: Palgrave Macmillan. Canterbury Regional Council v Fulton Hogan Limited [2020] NZDC 12409. Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Canterbury Regional Council v Stephen Graham Knight (Christchurch District Court, Jackson J, 18 March 2010). Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291.

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Clapshaw, D. (2009). Restorative Justice in Resource Management Prosecutions—A Facilitator’s Perspective. Resource Management Bulletin, 8, 53–55. Cunneen, C. (1997). Community Conferencing and the Fiction of Indigenous Control. Australian and New Zealand Journal of Criminology, 30 (3), 292– 311. Cunneen, C. (2002). Restorative Justice and the Politics of Decolonization. In E. G. M. Weitekamp & H. Kerner (Eds.), Restorative Justice: Theoretical Foundations (pp. 32–49). Devon: Willan Publishing. Fisher, R. M., & Verry, J. F. (2005). Use of Restorative Justice as an Alternative Approach in Prosecution and Diversion Policy for Environmental Offences. Local Government Law Journal, 11(1), 48–59. Garrett v Williams (2007) 151 LGERA 92. Hamilton, M. (2017). Restorative Justice Conferencing in an Environmental Protection Law Context: Apology and Corporate Offending. Internet Journal of Restorative Justice, 5 Year Celebration Special Issue, ISSN (online), 2056– 2985. Hamilton, M. (2019a). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Environmental and Planning Law Journal, 36 (3), 197–211. Hamilton, M. (2019b). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Local Government Act 2002 (NZ). Manukau City Council v Specialised Container Services (Auckland) Ltd (Auckland District Court, McElrea DCJ, 16 February 2009). Marlborough District Council v John Wayne Sowman [2019] NZDC 25036. Marlborough District Council v Laurie Forestry Services Limited [2019] NZDC 2602. McDonald, J. M. (2008). Restorative Justice Process in Case Law. Alternative Law Journal, 33(1), 41–44. National Parks and Wildlife Act 1974 (NSW). New Zealand District Court (Web Page). http://www.districtcourts.govt.nz/. Accessed 06 May 2020. New Zealand Legal Information Institute (Web Page). http://www.nzlii.org. Accessed 06 May 2020. New Zealand Ministry for the Environment. (2006). A Study into the Use of Prosecutions under the Resource Management Act 1991; 1 July 2001–30 April 2005.

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New Zealand Ministry for the Environment. (2013). A Study into the Use of Prosecutions under the Resource Management Act 1991; 1 July 2008–30 September 2012. New Zealand Ministry for the Environment (Web Page). https://www.mfe.gov t.nz/. Accessed 06 May 2020. New Zealand Ministry of Justice (Web Page). https://www.justice.govt.nz. Accessed 6 May 2020. Northland Regional Council v Fulton Hogan Ltd and others (Whangarei District Court, Newhook DCJ, 6 May 2010). Otago Regional Council v Trustpower Limited [2019] NZDC 1990. Protection of the Environment Operations Act 1997 (NSW). Resource Management Act 1991 (NZ). Sentencing Act 2002 (NZ). Skinnider, E. (2011). Victims of Environmental Crime—Mapping the Issues. Vancouver: International Centre for Criminal Law Reform and Justice Policy. Smith, D. (2019). Case Note: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Australian Environment Review, 34 (1), 16–18. Southland Regional Council v Allan Baird [2018] NZDC 11941. Southland Regional Council v Taha Asia Pacific Ltd [2015] NZDC 18010. Sugrue, V. (2015). What Happens when Values are put to Work? A Reflection in One Outcome from a Restorative Justice Conference in the Criminal Division of the District Court: Environment Warranted Judge Jurisdiction. Resource Management Journal , 19–22. Tasman District Council v Brett Edward Mytton [2017] NZDC 9820. Victims’ Rights Act 2002 (NZ). Waikato Regional Council v Hamilton City Council [2019] NZDC 16254. Waikato Regional Council v Hamilton City Council and Perry Environmental Ltd (Hamilton District Court, Whiting DCJ, 1 March 2005). Waikato Regional Council v Huntly Quarries Ltd and Ian Harold Wedding (Auckland District Court, McElrea DCJ, 28 October 2003). Waikato Regional Council v Matamato-Piako District Council (Morrinsville District Court, Thompson DCJ, 6 May 2005). Waikato Regional Council v Open Country Dairy Limited [2019] NZDC 19755. Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004). Waikato Regional Council v Taharoa Mining Investments Limited [2018] NZDC 24843. Zehr, H. (2015). The Little Book of Restorative Justice. New York: Good Books.

7 The Benefits and Limitations of Restorative Justice Conferencing

Drawing upon the New Zealand practice of restorative justice conferencing in an environmental offending context (including Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’)) and the Land and Environment Court of New South Wales (‘NSWLEC’) use of conferencing in Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’) the benefits and limitations of conferencing can be explored.

Benefits of Restorative Justice Conferencing Benefits to arise from the use of restorative justice conferencing include affording voice, interaction, and input to offenders and victims, affording the opportunity for apology and forgiveness, better outcomes, education, better practice and procedure, the opportunity to make amends, repair reputation and relationships. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_7

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It was highlighted in Chapter 2 the fact that during the prosecution of environmental offending before the NSWLEC offenders and victims have limited voice (the ability to express personally or through a representative the effect or cause of the offending), interaction (the ability to engage in face-to-face dialogue about the offending), and input (the ability to provide input into the sentencing process). There are a number of reasons for this including the role of offenders and victims in prosecution and the focus on the actual or likely harm to the environment. The role of victims as prosecution witnesses subjects them to identification, inclusion, and sanitisation issues which results in their limited voice, interaction, and input. Restorative justice conferencing affords offender and victim voice, interaction, and input because it is at its simplest a facilitated face-to-face dialogue between stakeholders to an offence. However, it is predicated on offenders and victims getting to conferencing, being given the opportunity to speak, that is, power imbalances or domination not silencing their voices and judges considering conferencing outcome agreements when sentencing an offender. Giving victims a voice (allowing them to have their say) (INT-26,19 October 2017; P 12, L 378–381) means they become visible (P 2, 05 July 2017; P 7, L 222–223), allows their stories to be heard (INT17, 14 July 2017; P 10, L 349–350), and provides them input into order formulation (INT-3, 20 March 2017; P 19, L 764–771). Giving a victim a voice can be vindicating—‘vindication that the effect of crime on them has been understood and appreciated by the offender’ (INT-1, 13 March 2017; P 14, L 460–461). This can lead to higher victim satisfaction with restorative justice conferencing than with traditional court processes (INT-14, 07 July 2017; P 16, L 528–535). Naturally, satisfaction is a subjective state which is applicable to human victims and human representatives of victims. The NSWLEC judgements state that the conference in Williams ‘enabled a constructive dialogue to be established’ (Williams, [61]) with the communication in the Clarence Valley Council conference being: respectful, at times emotional, deeply personal, and was undertaken such that all participants had time to talk through their understanding of

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what happened, the impact it had on all present as Aboriginal and nonAboriginal people, and the impact it has had on Aboriginal communities more broadly. ([17])

It is the communication which conferencing affords which provides offender and victim input into the outcomes reached at conferencing. The coming together of offender and victim to come up with solutions to the offending is empowering (INT-3, 20 March 2017; P 19, L 732–737). The opportunity for an offender to apologise to victims and stakeholders in a face-to-face encounter is a benefit of restorative justice conferencing. Apology may vindicate a victim, being recognition of the fact that they have done nothing wrong. Apology may also foster forgiveness and help achieve a sense of closure for victim and offender alike. The genuineness of an apology is more readily assessed when it is given in a face-to-face encounter ‘because tone and body language are interpretative tools’ (Hamilton 2017: 7). Yet, an apology is not always easy. According to an interviewee, it is: [not] easy for people to apologise. I think it’s really quite traumatic. I’ve seen grown men shake with the fear of not knowing whether they’re going to be received. You have people in that conference who are so angry and so hurt, when they see that, it’s not lost on them. (INT-11, 04 July 2017; P 37, L 1279–1282)

For this reason and others, an apology is not always oral and involve the speaking of the words ‘I am sorry… [You may] see it through how they behave…someone shaking, getting really quite upset. That’s an apology’ (INT-11, 04 July 2017; P 37, L 1297, 1300, P 39, L 1304). Despite the potential for closure through an apology and forgiveness, they should be treated with caution: [A]n apology may be a double-edged sword. A genuine apology may, but not necessarily so, foster forgiveness. But a non-genuine apology, for instance given out of a sense of obligation or because of the belief that it is part of the process, may lead to re-victimisation and breakdown in

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the whole restorative justice process. Hence, a restorative justice conference should focus on fostering a constructive dialogue between offender and victim rather than on some preconceived notion that apology and/or forgiveness is necessary to its success. (Hamilton 2014: 361)

Therefore, even though a genuine apology may heal wounds it should not be expected at conferencing. Likewise, forgiveness should not be expected. ‘Forgiveness is a personal thing’ (Hamilton 2017: 14) and therefore ‘it is wrong to ask victims to forgive and very wrong to expect it of them. Forgiveness is a gift victims can give. We destroy its power as a gift by making it a duty’ (Braithwaite 2002: 15: see also Zehr 2015: 13–14). I have outlined elsewhere my view that ‘[i]t is a fiction to suggest that a corporation can feel sorrow, acknowledge regret and express remorse in the sense that a human does’ (Hamilton 2017: 20); corporations do not have feelings. This suggests that when an organisation does apologise it is fulfilling a different function than when an individual apologises (Hamilton 2017: 20). When an apology is made on behalf of an organisation, for example through its CEO, a member of upper management or a director, it is an acknowledgement of organisational wrongdoing and an expression of ‘the sorrow and regret of the directing mind and will of the corporation’ (Hamilton 2017: 20). Such apology is capable of acceptance and forgiveness, even though it is not directed at the organisation per se. Rather, it is directed ‘at the collective of individuals forming the corporation represented by the person of sufficient influence which offered the apology on behalf of the corporation’ (Hamilton 2017: 21). Apology was a common feature of New Zealand conferencing (Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003) in Fisher and Verry 2005: Appendix (‘Times Media’)); Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004) in New Zealand Ministry for the Environment 2006: Appendix 5; Auckland Regional Council v PVL Proteins Ltd [2008] DCR 84; Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005) in Fisher and Verry 2005: 58; Bay of Plenty Regional Prosecutor v Roger

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Murray Withington [2018] NZDC 1800). Although the judgment in Interflow does not explicitly state that Interflow apologised to the victims, commentary on the case indicates that Interflow did apologise at the conference (Sugrue 2015: 21). The judgments in Williams and Clarence Valley Council are explicit about the offenders’ apologies to the victims. In Williams, it is noted that at the conference, Mr Williams ‘on his own behalf and that of Pinnacle Mines, apologised to Maureen O’Donnell on behalf of the Broken Hill Local Aboriginal Land Council for the offences committed…Ms O’Donnell accepted this apology’ ([59]). In Clarence Valley Council , it is: recorded that as part of the conversation in the conference, the Mayor, the Deputy Mayor and the General Manager of the Council each personally apologised for what had happened. Their apologies were made at the conclusion of the conference, with a full appreciation of the gravity of the offence and the harm caused. In addition, the Council field officers who removed the scar tree as part of their work also offered a personal apology to those present. These apologies were all accepted without reservation. ([20])

The offender and victim voice, interaction and input provided by restorative justice conferencing along with stakeholder involvement can lead to more innovative and targeted solutions to repair the harm occasioned by the offending. That is, ‘better environmental outcomes’ than traditional prosecution (INT-34, 20 June 2018; P 17, L 523–524). Conferencing facilitates ‘potential for creativity in outcome and actually doing something that really does address the harm to the environment…’ (INT-17, 14 July 2017; P 10, L 342–343). Hence, conferencing can lead to the ‘[p]rotection of our increasingly scarce resources…’ (INT-15, 11 July 2017; P 13, L 424). The expertise present during conferencing, be it lay or professional, means a fulsome discussion can be had to devise the best ways to address the harm occasioned. A targeted environmental outcome of conferencing may manifest in an environmental service order (‘ESO’). Just how targeted an ESO is can be assessed via the nexus between the harm occasioned by offending

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and the project forming the ESO. In the prosecution of water pollution offending between 1 May 2006 (the date on which the ESO order commenced) and 31 August 2017, 52% of the ESOs made had a weak nexus to the harm occasioned (Hamilton 2019b: Fig. 12). In that same period, the comparable figure for breach of environment protection licence offending was 76% (Hamilton 2019b: Fig. 13). A weak nexus may denote repair/enhancement of dissimilar harm either within, or outside, the suburb of the offending. The reasons for a weak nexus are varied. It may be that the offending did not result in any actual harm to the environment, or the offender remediated the harm before the prosecution was brought. In those situations, an ESO which repairs or enhances dissimilar harm is a positive environmental outcome. However, a weak ESO/harm occasioned nexus may be a result of poor project selection or understanding of the harm and how to repair it. It is this aspect a conference can enhance. There will be occasioned where the damage is that severe that it cannot be repaired. For example, where the offending has tipped an element of the environment into a new system state, like cumulative impacts of pollution on a river or the atmosphere. However, where the environment can be repaired, the expertise within a conference and the opportunity to engage in dialogue about the harm and a suitable environmental project to repair the harm can result in a direct ESO/harm occasioned nexus. This then will result in better environmental outcomes than if no conference was held. In other words, outcomes are more tailored at repairing the environment that was actually damaged (INT-11, 04 July 2017; P 29, L 1000). In the Interflow conference, the offender ‘after listening and hearing the voices of those attending [the conference], offered the sum of $80,000 towards the betterment of not only Walnut stream but the true right and left bank of nearby Grehan stream’ (Sugrue 2015: 21). The donation went to undertake work beyond remediation of the harm occasioned—‘the restoration of the stream is not the remediation of the harm done, rather it is for the betterment and improvement of the instream habitat which has become degraded following European settlement at Akaroa [the locality effected]’ (Interflow, [43]).

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What made the $80,000 donation ‘extraordinary’ (Sugrue 2015: 21) was the fact that the offender knew that the most likely outcome imposed by the court would be a fine less than half of that quantum (INT-11, 04 July 2017; P 19, L 655–662; INT-13, 05 July 2017; P 12, L 398–400). Notwithstanding Interflow’s motives behind the $80,000 donation to the Banks Peninsula Conservation Trust, that donation would lead to better environmental outcomes than a fine of less than $40,000 which was the likely result of a traditional prosecution. The outcomes derived from the conferencing in Williams and Clarence Valley Council ‘were aimed at physically repairing the harm caused to the environment as far as possible, preventing the offending reoccurring and, amending the relationships between the offender and victim(s)’ (AlAlosi and Hamilton 2019: 1482). These outcomes were made possible by the voice, interaction and dialogue conferencing facilitated between the offenders and the Aboriginal community victim of the offending. In Williams, one of the conference outcome agreement items was the seeking of solutions to prevent similar offending occurring in the future ([62]). This implies consultation between the offender and the Local Aboriginal community who have the requisite knowledge about the Aboriginal objects and places which form their cultural heritage. Indeed, in a post-conference discussion between Mr Williams and Ms O’Donnell it was agreed that the local Aboriginal people, the ‘Wilykali (sic) people[,] will be involved in any salvage operations associated with further s 90 consent applications…’ (Williams, [63]). Mr Williams reiterated to the court that he: will get proper archaeological advice prior to undertaking any work where there is a risk of disturbance to or destruction of Aboriginal objects. If it is necessary, I will apply for a consent under s 90 of the National Parks and Wildlife Act before undertaking any work which is likely to result in the disturbance or destruction of Aboriginal objects. Also, if there is to be any additional work which is approaching the boundary of the Aboriginal place, I will ensure that that area is surveyed so as to ensure that the work does not take place within the Aboriginal place. By taking those steps, I believe that I can confidently say that a situation such as the present will not arise again. (Williams, [111])

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A Section 90 consent allows for the destruction or damage to Aboriginal objects or places with the requisite consent. As Chapter 1 outlined, environmental laws do not provide a total prohibition on harm to the environment. Pollution, clearing of native vegetation and, damage and destruction of Aboriginal objects and places, is permissible with consent. It is implicit in Ms O’Donnell’s evidence that Aboriginal objects will not be retained for perpetuity—‘[w]e are taught not to take artefacts away from their original place. If artefacts have to be moved, it should be done in consultation with Aboriginal people and where possible by Aboriginal people’ (Williams, [73]). Consultation between the offender and the local Aboriginal community can assist the mine operating without impacting on Aboriginal cultural heritage and where such impact cannot be avoided, requisite consent can be obtained, and the artefacts removed in a respectful fashion by Aboriginal people. Such consultation has its genesis in the dialogue made possible by the restorative justice conference. Another positive outcome of the Williams conference was the contemplation of working together towards the formation of a voluntary conservation agreement and the teaching of skills to eligible Aboriginal people to enable them to work at the offender’s mine ([62]). Not only did this have the potential for environmental benefits, through the conservation agreement, but relational benefits through Aboriginal people working at the mines. These positive promises to flow from the conference in Williams would not have been possible in traditional court proceedings where offender and victim are afforded minimal to no voice, interaction, and input, and may have been more beneficial than imposing even the maximum penalty at the time of $5,500 and/or 6 months imprisonment per offence. Positive outcomes were facilitated in the Clarence Valley Council conference. A suite of outcomes related to increasing recognition of Aboriginal people both within Council and the community, and more positive interaction between the Council and local Aboriginal people. Some of the outcomes are aspirational and will require hard work and dedication by the Council to operationalise (particularly given the budgetary constraints local councils face in Australia), such as:

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• supporting council senior managers and planners to engage more effectively with Aboriginal people; • positive recognition of Aboriginal people to the wider Clarence Valley Council community; • improved consultation with Aboriginal people through the Clarence Valley Aboriginal Advisory Committee; and • Clarence Valley Council area employment and youth initiatives (Clarence Valley Council , [19]). The contrition and remorse demonstrated by the council is a good indicator that it will operationalise the above aspirations through practical endeavours. Another positive outcome to flow from the conference in Clarence Valley Council was the requirement that the Council establish and conduct a ‘cultural skills development workshop’ for various Council staff and management. This was made into a court order under s 205(1)(f ) of the National Parks and Wildlife Act 1974 (NSW) (‘NP&W Act ’) (Clarence Valley Council , [130]). The purpose of the workshop is to avoid offending in the future by assisting ‘the Council’s field operations staff to identify Aboriginal cultural heritage objects and sites in the field’ and to provide an overview for senior management and planning staff ‘of local Aboriginal communities and tools for positive and meaningful engagement and to provide information on the process of due diligence and compliance responsibilities under relevant legislation concerning Aboriginal cultural heritage’ (Clarence Valley Council , [128]). A further positive outcome to flow from the Clarence Valley Council conference was a donation to the Grafton Ngerrie Local Aboriginal Land Council. The purpose of the donation was agreed at conferencing with the quantum of $300,000 being determined by Preston CJ as the presiding officer. The donation was made subject to an ESO under s 205(1)(d) of the NP&W Act and is to be applied towards: (a) funding a feasibility study to establish a ‘Keeping Place’ in the Grafton area for Aboriginal cultural heritage items, including the long-term storage and/or display of the scar tree, and other items that

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have been repatriated that require restoration, storage and display for community members to visit for educational purposes; (b) funding research into local Aboriginal cultural heritage, including scar trees, to inform the development of educational resources for the benefit of indigenous and non-indigenous people in the Grafton area to be toured in schools in 2019 and/or to establish a permanent exhibition in Grafton; and (c) funding a series of one-day ‘Clarence Valley Healing Festivals’ to be held in the various local Aboriginal communities in the Clarence Valley throughout 2019 and 2020 to celebrate Aboriginal culture and promote reconciliation through dance, arts and crafts, food, medicine, language and Elder talks on cultural heritage, including scar trees, and a display of artefacts, including the scar tree if the carving is portable (Clarence Valley Council , [130(2)]). The intent of the ESO is education—the display of Aboriginal cultural heritage items ‘for community members to visit for educational purposes’; funding research of educational resources; and funding of healing festivals (Clarence Valley Council , [130(2)]). This is a positive outcome for the community. Even though the court has the power to make ESOs and training establishment orders, a power not available in Williams, it was the communication between the offender and Aboriginal community which informed the content of those orders (for an overview of the post Williams changes to legislation, see Hamilton 2019a). That communication led to conference outcomes which were proffered to the court through the legal representatives to be made into orders as part of their submissions on sentencing. The final outcome of the Clarence Valley Council conference was concerned with addressing the site destruction and the remnants of the scar tree. The Council agreed to undertake a tree restoration and interpretation project, under which the Council agrees: (a) [to] engage woodworker “Mick” at Ulmarra Woodworks to conduct an immediate insect treatment of the timber; investigate options to

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creatively reuse the remaining pieces; investigate options to reconstruct the scar sections of the tree; and provide advice on potentially sculpturing the timber through development of a community project; (b) through research, develop an interpretive display defining the story of scar trees/cultural history in Grafton; (c) [to] identify areas to house the scar tree/interpretive display such as the library, or plan its inclusion into the proposed extensions of Grafton Art Gallery; and (d) [to] examine how best to mark and commemorate the site, including what costs would be involved in achieving this (Clarence Valley Council , [21(7)]). This restoration and interpretation project ‘means that the scar tree will live on, albeit as remnants and perhaps in sculpture form, its history preserved, and the site commemorated’ (Hamilton 2019a: 208). This is a positive community outcome which flowed directly from the offender and victim engagement facilitated in conferencing. A benefit of conferencing is that it may be educational for offenders, victims, and other stakeholders. For an offender, conferencing may be educational in at least two ways. Firstly, an offender listening to victims may teach them ‘something about the harm that they caused…’ (INT17, 14 July 2017; P 10, L 344–348). For example, one offender’s ‘damage to the environment is not just about that one event but it has a ripple effect in terms of wider communities and society in general’ (INT-15, 11 July 2017; P 13, L 425–429). Hence, conferencing can educate an offender as to the extent and impact their offending has caused. In other words, conferencing can give offenders ‘insight into their crime and its consequences’ (INT-3, 20 March 2017; P 19, L 746–747) and provides the opportunity for the offender to stand in the victim’s shoes (INT-12, 05 July 2017; P 7, L 222–223), thereby providing insight into the harm occasioned. The educative process operating through conferencing is evident in Williams when the offender states that:

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During the course of these proceedings I have learnt a significant amount about Aboriginal archaeology and the importance of the Aboriginal place. I have also realised how both Aboriginal objects and the Aboriginal place are more important to Aboriginal people than I had previously appreciated. ([110])

In Clarence Valley Council , the facilitator has stated that the conference facilitated ‘a respectful and genuine dialogue that allowed a deeper understanding of the significance of what had happened…’ ([17]). I have outlined elsewhere the significance of the scar tree to Aboriginal people and the harm the destruction of it had to those people, as outlined in the judgment in that matter: The lopping and removal of the scar tree caused emotion[al] harm to local Aboriginal people including sadness (It broke my heart), shock (I got the shock of my life), a sense of loss (The scarred tree is gone forever now and this saddens me. I cannot share the story about the tree with my grandchildren now, or others in the community; I feel empty inside now that the scarred tree has gone), and a feeling of being disrespected (I felt like the Clarence Valley Council had disrespected me and the local Aboriginal community by removing the tree as it was culturally significant to us). (Hamilton 2019a: 199 (citations omitted); see also, Clarence Valley Council , [50]–[53])

¯ In Interflow, the presence of the local Maori people (Onuku R¯unanga) at the conference would have likely reinforced the extent of harm suffered by them because of the offending and thereby educating the offender. Traditional prosecution could lead to the offender appreciating the harm its offending has caused through evidence provided by witnesses. However, there are barriers facing such evidence, which I have labelled as the identification, inclusion, sanitisation, and cross-examination issues (Chapter 2). Further, restorative justice conferencing has the advantage over traditional prosecution in that the extent of harm and its impact is given in an interactive forum where emotion can be expressed, received, and appreciated. In other words, when offending causes harm to victims there is a human side to that victimhood that may not be revealed in the evidence supporting a prosecution. Conferencing allows ‘an opportunity

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to go a little bit deeper…rather than just the, yes, the land was cleared. The fire happened, etc., etc ’ (INT-10, 04 July 2017; P 13, L 444–446). The second way a restorative justice conference can be educative for an offender is through it serving as a vehicle through which an offender can understand the deficiencies in their or its environmental controls which led to the offending. That is, the exploration of ‘why’ offending occurred (INT-12, 05 July 2017; P 7, L 222–223). This is pertinent in a strict liability environment offending context where the majority of offending is accidental (for example, 59.18% of breach of environment protection license offending was accidental between 2000 and 31 August 2017; see Hamilton 2019b: Fig. 3). In Clarence Valley Council , the offending was caused by a deficiency in staff training and procedure. In Interflow, the offending was caused by established procedures not being followed. The identification of the reasons behind offending, which can be unpacked at conferencing, may lead to the establishment of better practice and procedure. Building on this point is the notion that conferencing can be educational for victims. They may learn about the deficiencies in employee training and procedures, or the failure to follow established procedures which lead to the offending (as in Clarence Valley Council and Interflow), or ‘the business issues confronting the defendant’ providing a financial motive for the offending (as in Williams, [61]). Although confronting, a victim knowing why an offence was committed may be needed for a victim to move forward. Knowing that an offence was the result of deficiencies in procedure, a failure to follow procedure or for some financial reason, may be of some comfort compared to the thought that the offence was committed maliciously with the intention to harm. A restorative justice conference may be educative for stakeholders. For example, the Environment Protection Authority (‘EPA’) may learn through conferencing the situation surrounding the offending including the motivation behind the offending. Learning that an offender is a ‘virtuous actor’ (Braithwaite 2002: 32, Fig. 2.2) who committed an offence accidentally may mean that persuasion may have been a more beneficial way of dealing with the offender rather than prosecution. This may impact on the EPA’s policy and procedures around the bringing of

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a prosecution. It is the dialogue at conferencing that can facilitate such education. Utilising the education garnished through conferencing, an offender can undertake improvements to its practice and procedure to ensure that the offending will not happen again in the future. Hence, better practice and procedure is a benefit of conferencing. In Clarence Valley Council , having identified deficiencies in staff training and awareness pertaining to Aboriginal cultural heritage, an outcome of the conference was cultural awareness and plans for enhancing skills development for Council staff (Clarence Valley Council , [19]). This outcome was made into an order by Preston CJ, pursuant to s 205(1)(f ) of the NP&W Act (Clarence Valley Council , [130(7)]). Various outcomes from conferencing in a New Zealand environmental offending context seek to address the deficiencies in practice and procedure which led to the offending. In a prosecution for the discharge of offensive odours from industrial premises, an outcome of conferencing was the installation of an odour entrapment device to prevent the discharge of such odours in the future (Times Media). At a conference following the prosecution for the discharge of diesel fuel onto land, it was agreed that the offender would build a bund (physical barrier) around the diesel source to prevent a discharge onto land should a spill occur (Waikato Regional Council v Taharoa Mining Investments Limited [2018] NZDC 24843; a bund would have been a part of best practice and a proactive step in ensuring that pollution does not happen to the surrounding environment by dint of such spills. The requirement for a bund of this type could be specified as a condition of an environment protection licence). Following the discharge of human sewage, a result of conferencing was the decision to remediate the effluent system designed to prevent such discharges (Waikato Regional Council v Matamato-Piako District Council [Morrinsville District Court, Thompson DCJ, 6 May 2005] in New Zealand Ministry for the Environment 2006: Appendix 5). The dialogue at conferencing facilitates the agreement on these practical improvements to practice and procedure to prevent the reoccurrence of offending. Another benefit of restorative justice conferencing is the opportunity for an offender to make amends for its or their offending. Making amends is consistent with one of the core tenets of restorative justice. That being that responses to conflict should heal and put things right.

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The desire to make amends for offending may provide an incentive for offenders to agree to outcomes at conferencing which are more expensive than the fine likely to be imposed by the court. This may explain the $80,000 donation by Interflow in the face of a likely fine of half of that amount. According to an interviewee, Interflow ‘genuinely wanted to restore that environment… they were just those sort of people. Quite rare’ (INT-11, 04 July 2017; P 19, L 662–663, 671–672, 676–677). According to another interviewee, Interflow: simply…wanted to put it right. They are a contracting company with a good reputation throughout New Zealand and into Australia. They pride themselves on doing a good job, every job. In this one, something went wrong, and it went badly wrong. [The company’s]…natural reaction was that it just has to put it right…[F]rom a firm perspective, fixing it was consistent with the values of the organisation, that’s the way they do business. If they make a mistake, they fix it. That then flows to the perceived reputation of the business…There’s enormous disappointment that something had gone wrong at a business level, what happened on this site was completely inconsistent with the values of the organisation, so they just set about trying to fix it. That led them on a journey and conversation and a myriad of things they did to ensure that it was put right. (INT-13, 05 July 2017; P 12, L 418–428; P 13, L 442–446)

The opportunity to repair any reputational damage occasioned by offending is considered a benefit of restorative justice conferencing for an offender. That is, the ability for an offender to ‘have some mana restored…’ (INT-17, 14 July 2017; P 10, L 352; see also, Clapshaw 2009: 54). Mana being a New Zealand term which encompasses reputation (INT-17, 14 July 2017; P 3, L 89–90). The importance of reputation is implicit in the Interflow response to its offending as reflected in the quote above. Reputation is important, especially to corporations, because it can affect the overall financial viability of a corporation. A tarnished reputation can lead to consumers switching to other competitors. For Interflow, a damaged reputation may lead to difficulties securing contracts for works in the future. Linked to an offender’s reputation is the notion of a social licence to operate. A social license to operate ‘is a term that describes how much community support a project, company or industry has in a region’

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(Luke 2018). The literature on social license to operate in the context of natural resource management and extraction industries such as mining reveal five positive influences on, and determinates of, a social license to operate. They are transparency, engagement/constructive relationships, procedural fairness, trust and understanding. Underpinning each of these influences/determinates is dialogue. Transparency is important for a social licence to operate. That is, ‘not only being seen to be doing the right thing…[but] actually doing the right thing’ (Luke 2018; emphasis original). In terms of mining operations such as that undertaken by Pinnacle Mines (the mine at the centre of the Williams prosecution), it is about complying with the requirements of the law but also engaging with members of the local community at the conception, implementation and operations stages. ‘This means working in partnership with communities and actively engaging them in the process from the very start’ (Luke 2018). Arguably, transparency and engagement should extend to instances when things go wrong; restorative justice conferencing is the vehicle for transparency and engagement following environmental offending. Constructive relationships are built on engagement and are underpinned by dialogue. Relationships built through dialogue are perceived as ‘of higher quality than those relationships built through other forms of engagement’ (Mercer-Mapstone et al. 2017: 350). Trust is an important influence/determinant of social licence to operate. ‘[B]uilding trust with local communities was crucial for mining companies to obtain and maintain a social licence to operate’ (Moffat and Zhang 2014: 61). Trust is built ‘most successfully…through informal dialogue processes such as at the face-to-face, community, and site-specific level…’ (MercerMapstone et al. 2017: 350). Informal dialogue can include talk which happens ‘over a beer or a cup of tea’ (Mercer-Mapstone et al. 2017: 350). Informal dialogue can be used to describe the dialogue at a restorative justice conference compared to the formal dialogue which occurs within a court process. Even though conferencing is bounded by practice and procedures does not derogate from the informal dialogue it facilitates. Two factors can affect trust. Firstly, ‘mining operation’s negative impacts on social infrastructure’, including impacts on local hospitals, childcare facilities and housing availability (Moffat and Zhang 2014:

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61, 63). The lower these impacts the higher the trust of the company. Secondly, ‘community members’ perceived contact quality and procedural fairness in dealing with company personnel…’ (Moffat and Zhang 2014: 61). Contact quality includes how pleasant and how positive the contact between members of the community and representatives of the mining company (Moffat and Zhang 2014: 65). Procedural fairness includes the extent to which people in the community have opportunities to participate in the decisions of the company, the extent to which the company listens to and respects community members opinions, and whether the company is prepared to change its practices in response to community sentiment. The higher the perceived procedural fairness the higher the trust. Procedural fairness is an outcome of dialogue, ‘but also as a process that drove other outcomes of dialogue’ (Mercer-Mapstone et al. 2017: 351). Those outcomes include constructive relationships, trust, understanding, shared decision-making, collaboration, common ground, information sharing or knowledge building, acceptance or approval, procedural fairness, problem-solving, learning or change ideas, agreement or consensus, improved project outcomes and reputational legitimacy, diverse perspectives included, resilience, and, reduced or resolved conflict (Mercer-Mapstone et al. 2017: 349, Table 1). Also important in a social licence to operate context is understanding. Dialogue is important to understanding as dialogue is a ‘mutual process of reaching a shared understanding…[and] was seen to be important in problem solving, preventing conflict, and working towards solutions that were meaningful and mutually beneficial’ (Mercer-Mapstone et al. 2017: 351). There is a close association between social licence to operate and restorative justice, inclusive of conferencing, which has been unexplored in the literature. Dialogue underpins the establishment and maintenance of a social licence to operate and is central to a purist or process orientated definition of restorative justice. Conferencing used in the prosecution of environmental offending is really a continuation of engagement which is so important to a social licence to operate. Conferencing enhances corporate or government entity transparency in that victims and community can ask questions of the offender regarding the causes

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and resolution of the offending. Such transparency aids understanding which is central to social licence to operate. Procedural fairness, also important to social licence to operate, can be ensured through effective facilitation of conferencing, ensuring all participants are heard and contribute to outcomes which often include changes to practice and procedures to ensure such offending does not occur again in the future. Restorative justice can be the vehicle through which constructive relationships between offender and participants can be repaired. Indeed, one of the central tenets of restorative justice is that offending is relational with responses thereto being inclusive. Restorative justice can be used in the establishment of a social licence. Indeed, Wilson’s conception of proactive restorative justice can be used to establish a social licence to operate (2016: 261). Wilson’s guiding principles of constructive dialogue, knowledge sharing, allocation of benefits to local or Indigenous communities, and focus on preventing future harm, map onto the influences underpinning social licence to operate. The links between restorative justice and social licence to operate relating to a project’s conception, implementation, operation, and prosecution for offending is worthy of further exploration. One of the central tenets of restorative justice is the notion that conflict is a violation of people and relationships. Restorative justice conferencing provides the opportunity to repair that fractured relationship (INT-16, 12 July 2017; P 14, L 527–530) and possibly outline planned interaction in the future. Hence, relational repair is one of the benefits of conferencing. The conference outcome agreement in both Williams and Clarence Valley Council contemplate an ongoing relationship between the offender and the local Aboriginal people. In Williams this involved ongoing interaction between the Land Council and the mine, working towards a voluntary conservation agreement and the offender teaching Aboriginal people the skills necessary to work at the mine ([62]). In Clarence Valley Council , outcomes of the conference included intentions to support Council staff to engage more effectively with Aboriginal people and improved consultation therewith through the Clarence Valley Aboriginal Advisory Committee ([19]). In acknowledgement of the power of conferencing to repair and facilitate future relationships, in Clarence Valley Council it was stated:

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that the restorative justice conference was acknowledged by those people present as setting the stage for a new era in relationships and cooperation between the Aboriginal nations and communities in the Clarence Valley area and the Council itself. ([22])

Limitations of Restorative Justice Conferencing Restorative justice conferencing is not without limitations. Some would argue that it is not adversarial, is soft on offenders, can lead to inconsistency in sentencing and non-proportionate punishment, and is more expensive, takes longer and requires more energy when compared to traditional prosecution. One interviewee opined that people who believe in the adversarial system may see a disadvantage of restorative justice being that it does not have the key characteristics which underpin the adversarial system— impersonal, between the state and offender and is about revenge or inflicting pain (INT-14, 07 July 2017; P 16, L 542–544). These ‘key characteristics’ align very much with the characteristics of justice as a binary concept; ‘impersonal, between the state and offender’, aligns with justice as procedure with ‘revenge or inflicting pain’ aligning with the retributive statutory purposes of sentencing, one of the measures of justice as outcome. However, these concerns are misplaced when it comes to a back-end model of conferencing (which is the model of exploration in this book) because the key characteristics of adversarialism are not displaced, and justice as procedure is maintained. That is because the court’s role in the proceedings is not displaced; it is the final arbitrator and that which sentences in the matter. For some advocates of the traditional model of prosecution, be them judges, lawyers or members of the public, restorative justice is a ‘soft’ option for offenders. According to the critique, offenders meet and have a chit chat with victims, say sorry and offer some money via way of donation to repair/enhance the environment, repair their reputation (‘mana’ in the New Zealand context (INT-17, 14 July 2017; P 10, L 352)), affirm their social licence to operate within the community, and all is forgotten.

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An interesting area for further research is the relationship between punitive attitudes held by members of society and any correlation with opinion that restorative justice is a soft option for offenders. Adriaenssen and Aertsen overviewed ‘over one hundred useful sources’ on punitive attitudes (2015: 94). The authors emphasise Gelb’s conclusion: ‘that, in general, the public considers sentences to be too lenient. People desire harsher responses to crime. This finding has been consistent over time and across different countries’ (in Adriaenssen and Aertsen 2015: 97). In terms of the goals of sentencing, the public views proportionality, just deserts (retribution), crime prevention and rehabilitation as important goals leading the authors to ‘conclude that the public favours a mixed model in terms of sentencing purposes’ (Adriaenssen and Aertsen 2015: 98). As will be demonstrated in Chapter 10, restorative justice conferencing when embedded as part of the prosecution of environmental offending can achieve the statutory purposes of sentencing. Given that these are purposes which the public believes offenders should be sentenced, may lead the public to conclude that conferencing is not a soft option for offenders after all. The notion of conferencing being a soft option for offenders ignores the expenditure of energy, time and emotion required by an offender at a restorative justice conference which is evident in the following interviewee responses to the allegation that conferencing is a soft option for offenders: Traditional sentencing you can stay at a complete distance and not have to say a word if you like. I think a good RJ [Conference] can actually be, for want of a better word, harder, more challenging, because you have to stand up and really have to face the music. (INT-16, 12 July 2017; P 16, L 612–616) [I]t’s much, much harder to confront a real victim face-to-face and accept that you have done something than to have a lawyer enter a plea for you and…[i]f you have to say anything at all, all you say is, guilty. (INT-14, 07 July 2017; P 17, L 561–564)

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In some ways…[a restorative justice conference is] harder to do…than actually go into a courtroom because it’s so much more personal. (INT13, 05 July 2017; P 15, L 531–532) It’s often quite a lot harder to go to restorative justice than to not go. (INT-13, 05 July 2017; P 17, L 595–596) [W]hen you have to sit down and face a victim, that’s a totally different ball game [then going to court]…It’s incredibly hard for an offender. It takes a lot of courage to come to a meeting, and sometimes that’s a hard thing for them to do. (INT-10, 04 July 2017; P 16, L 536–539)

There is a potential for restorative justice conferencing to lead to inconsistency in sentencing and non-proportionate punishment. On its face, the outcomes agreed at the Williams and Interflow conferences are out of line with the penalties the court would have imposed had the matters been dealt with in the traditional way. In Williams, the maximum penalty the court could have imposed per each of the three offences was $5,500 and/or 6 months imprisonment (although it is conceded that a term of imprisonment was highly unlikely). Williams paid the facilitator’s costs of $11,000, agreed to donations totalling $32,200 (comprising the donation of a vehicle, trailer, quad bike and fuel card to the Wilyakali Pinnacles Heritage Trust), agreed to other activities which would cost money but which were not quantified such as flying Ms O’Donnell from Broken Hill to Sydney for his sentencing, and was fined $1,400 by the court. In Interflow, the offender agreed to a donation of $80,000 in the face of a likely penalty of half that amount. It could be argued that the commitments agreed to at conferencing should equal the penalty that would have been imposed had no conference been held. To do otherwise would lead to inconsistency in sentence and non-proportionate punishment. A counter-argument is based on the voluntary nature of conferencing, the added benefits conferencing can bring and the fact that conferencing is an addition to traditional prosecution, meaning that notions of consistency and proportionality do not have the same relevance they do in traditional prosecution.

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Having noted the potential for conferencing to prima facie result in outcomes which are not consistent with those derived by the court and which therefore may be non-proportionate to the offence committed, it is my intention to revisit this issue in the next chapter when examining the role of judicial oversight of conferencing. Namely, is the role of judicial oversight to ensure consistency and proportionality and what standards should be maintained in sentencing. Another limitation of restorative justice conferencing is that it takes longer (INT-19, 21 August 2017; P 11, L 388–391; INT-34, 20 June 2018; P 15, L 474), is more expensive (INT-26, 19 October 2017; P 12, L 391; INT-34, 20 June 2018; P 15, L 474) and ‘takes a lot more work by the parties and by the court’ (INT-34, 20 June 2018; P 15, L 474–475) than traditional prosecution. This may be seen by some as a limitation of conferencing. For one interviewee, these factors are determinative meaning that conferencing ‘won’t be happening…in most cases…’ (INT26, 19 October 2017; P 12, L 386–387). ‘There’s got to be a practical reality to everything as well. That’s just the way the world works’ (INT26, 19 October 2017; P 13, L 402–403). The New Zealand experience with conferencing in an environmental sphere (49 conferences between 2002 and 2020) seems to indicate that restorative justice conferencing sits at the margins. This is despite having a legislative basis. The reason for this marginalisation may be the investment of money, time, and energy which is required. The expenditure of money, time, and energy extends to the identification and representation of victims which is especially pertinent in relation to environmental offending where victims can be diverse and not always readily identifiable. This has implications for getting victims to conferencing. There may also be a disparity in terms of the ability to afford the expenditure in money, time, and effort required by conferencing between a corporation (which is often, but not invariably, well-resourced) and victims, particularly victim representatives which may be, but not invariably, non-government, community, non-profit organisations. Despite the expenditure of time, energy and money at conferencing, conferencing will be justified (in certain circumstances) because of the benefits conferencing brings; Williams, Clarence Valley Council and Interflow are testament to some of the benefits which flow from conferencing.

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For the benefits of restorative justice conferencing in an environmental offending context to be realised, and for the limitations to be surmounted, matters must make their way to conferencing. As the next chapters attests, there are barriers to conferencing that must be overcome.

References Adriaenssen, An, & Aertsen, I. (2015). Punitive Attitudes: Towards an Operationalization to Measure Individual Punitivity in a Multidimensional Way. European Journal of Criminology, 12(1), 92–112. Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005). Auckland Regional Council v PVL Proteins Ltd [2008] DCR 84. Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003). Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800. Braithwaite, J. (2002). Restorative Justice and Responsive Regulation. Oxford and New York: Oxford University Press. Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Clapshaw, D. (2009). Restorative Justice in Resource Management Prosecutions—A Facilitator’s Perspective. Resource Management Bulletin, 8, 53–55. Fisher, R. M., & Verry, J. F. (2005). Use of Restorative Justice as an Alternative Approach in Prosecution and Diversion Policy for Environmental Offences. Local Government Law Journal, 11(1), 48–59. Garrett v Williams (2007) 151 LGERA 92. Hamilton, M. (2014). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Conspicuous Absences? Environmental and Planning Law Journal, 31(5), 352–367.

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Hamilton, M. (2017). Restorative Justice Conferencing in an Environmental Protection Law Context: Apology and Corporate Offending. Internet Journal of Restorative Justice, 5 Year Celebration Special Issue, ISSN (online): 2056– 2985. Hamilton, M. (2019a). Restorative Justice Intervention in an Aboriginal Cultural Heritage Protection Context: Chief Executive, Office of Environment and Heritage v Clarence Valley Council. Environmental and Planning Law Journal, 36 (3), 197–211. Hamilton, M. (2019b). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Luke, H. (2018). Not Getting a Social Licence to Operate can be a Costly Mistake, as Coal Seam Gas Firms Have Found. The Conversation. Mercer-Mapstone, L., Rifkin, W., Louis, W., & Moffat, K. (2017). Meaningful Dialogue Outcomes Contribute to Laying a Foundation for Social Licence to Operate. Resources Policy, 53, 347–355. Moffat, K., & Zhang, A. (2014). The Paths to Social Licence to Operate: An Integrative Model Explaining Community Acceptance of Mining. Resources Policy, 39, 61–70. National Parks and Wildlife Act 1974 (NSW). New Zealand Ministry for the Environment. (2006). A Study into the Use of Prosecutions under the Resource Management Act 1991; 1 July 2001–30 April 2005. Sugrue, V. (2015). What Happens when Values are put to Work? A Reflection in One Outcome from a Restorative Justice Conference in the Criminal Division of the District Court: Environment Warranted Judge Jurisdiction. Resource Management Journal , 19–22. Waikato Regional Council v Matamato-Piako District Council (Morrinsville District Court, Thompson DCJ, 6 May 2005). Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004). Waikato Regional Council v Taharoa Mining Investments Limited [2018] NZDC 24843. Wilson, C. (2016). Proactive Restorative Justice: A Set of Principles for Enhancing Public Participation. Environmental and Planning Law Journal, 33(3), 252–263. Zehr, H. (2015). The Little Book of Restorative Justice. New York: Good Books.

8 Overcoming the Barriers to Restorative Justice Conferencing

Deriving the benefits of restorative justice conferencing (Chapter 7) and using it to achieve justice as meaningful involvement (Chapter 10) is premised on matters actually getting to conferencing. That is the focus of this chapter. The New Zealand and New South Wales (Australia) environmental offending context has seen the slow uptake of conferencing. The challenges, and practical solutions to address those challenges, as pertaining to the uptake of conferencing will be canvassed thereby informing the use of conferencing in a New South Wales environmental offending context and beyond.

A Legislative Framework Part of the architecture which is necessary to facilitate the use of conferencing is a legislative framework. There are four approaches to facilitating a back-end model of restorative justice conferencing in an environmental offending context. These framework approaches are depicted in Fig. 8.1 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_8

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Fig. 8.1 Framework approach continuum

below as the optional (the current approach of the Land and Environment Court of New South Wales (‘NSWLEC’)), middle range (as reflected in soon to be commenced Victorian legislation; Environment Protection Act 2017 (Vic), s 336), mandatory consideration (the current approach in New Zealand) and mandatory approaches. The ‘optional’ approach is that of the NSWLEC at present. That is, no express legislative basis for restorative justice conferencing but a Practice Note supportive of conferencing. The recent NSWLEC Class 5 Practice Note places an onus on the prosecutor and defendant (in cases where the defendant has pleaded guilty) to advise the court at the first mention of the matter: of any proposal for, and timing of, any restorative justice process in which the defendant and victims (people and the environment) of the offence committed by the defendant are willing to participate and any proposed order for a restorative justice activity that the defendant has agreed to carry out. (NSWLEC 2018: [26])

There are two limitations of this new optional approach in New South Wales. The first limitation pertains to the lack of express legislative basis for conferencing. In Garrett v Williams (2007) 151 LGERA 92 (‘Williams’), the prosecution expressed ‘careful not trenchant reservation’ at the suggestion of conferencing because there was no legislative basis for such conferencing (INT-27, 09 November 2017; P 3, L 78–79). The prosecution welcomed the idea of such conferencing, with reservation based not on merit but concerns over an absence of a legislative basis for conferencing (INT-27, 09 November 2017; P 3, L 78–82). The fact that there is no legislative basis for conferencing was of the utmost importance for one interviewee who predicted that restorative justice ‘will not

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play a role until there is a legislative basis…’ (INT-27, 09 November 2017; P 3, L 98–103). The second limitation of the optional approach is that it does not actually require the judiciary and parties to the proceedings to actively consider the utility of conferencing (i.e. a restorative justice process). As drafted the requirement is simply to advise the court of any decision to hold a restorative justice conference. In an ideal world, the prosecution and defence would have had fulsome discussion regarding the utility in holding a conference and be able to inform the court when one is proposed. However, because the provision only requires notification to the court of the proposal to hold a conference, silence will signify to the court that no conference is proposed, and no further enquiry is required. The provision infers that there has been consultation about the potential of a conference. Obviously, for the parties to inform the court of a potential conference they would have to think about it and discuss it. If parties are not familiar with conferencing, they are not likely to think about and discuss it. When before the court, if the parties are silent on conferencing, then there is no way for the court to know whether they actually discussed it or not. With the commencement of the changes to the Practice Note pertaining to restorative justice being quite recent (3 April 2018), it is not clear whether they will result in an increased uptake of conferencing. Indeed, it is not known whether those changes prompted the use of conferencing in Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’). The ‘middle range’ approach, as its name suggests, is an approach falling somewhere between the optional and mandatory approaches. This approach is reflected in s 336 of the Environment Protection Act 2017 (Vic) which is to commence on 1 July 2021. That provision will allow a court to adjourn both civil and criminal matters, either on its own motion or the application of a party to proceedings, for a restorative justice process to occur. Even though this approach gives legitimacy to restorative justice conferencing by giving it a legislative basis, it might not be sufficient to see the use of conferencing beyond a small minority of cases. This is because this approach is reactive in that restorative justice conferencing is

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thought about, and facilitated when considered suitable, once a judicial member or party raises its possible use. The provision does not require the active assessment of the suitability of conferencing as part of the case management and prosecution of all environmental offending. In circumstances where the adversarial approach is entrenched in prosecution with little reason to think about other approaches (INT-14, 07 July 2017; P 26, L 886–888), combined with the limited understanding of conferencing and its benefits (INT-13, 05 July 2017; P 16, L 543–546) and the desire to avoid the extra time conferencing involves (INT-11, 04 July 2017; P 35, L 1222, 1225–1226), means such a provision is unlikely to result in a significant uptake of conferencing. A ‘mandatory consideration’ approach could embed the requirement for the judiciary and parties to proceedings to consider and discuss the utility of restorative justice conferencing and where suitable (provided resources are available and the parties agree), divert that matter to conferencing before returning it to court for sentencing. Mandatory consideration if reflected in legislation and the NSWLEC’s Practice Note will embed the active consideration of conferencing as part of the normal prosecution of offending rather than in a reactive fashion as under the middle range approach. For example, legislation and the Practice Note could make it a requirement for the parties to address the judge at the first mention of the matter as to the suitability of conferencing. Section 24A of the Sentencing Act 2002 (NZ) (‘Sentencing Act’) is an example of mandatory consideration legislation where consideration is mandatory provided some trigger criteria are met. Under that section, where proceedings involve a guilty plea, there is at least one human victim, ‘no restorative justice process has previously occurred in relation to the offending’ and ‘the Registrar has informed the court that an appropriate restorative justice process can be accessed’, the court is required to adjourn the proceedings. The purpose of the adjournment is to enable inquiries as to the suitability of conferencing and the holding of that conference if it is deemed suitable. This however does not mean that conferencing itself is mandatory, rather only the consideration of its appropriateness. The ‘mandatory’ approach mandates the holding of restorative justice conferencing provided certain, predetermined selection criteria are met.

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Legislation can dictate the selection criteria. Whatever criteria are adopted to guide mandatory conferencing should be based on research and best practice to maximise the potential for success whilst minimising the potential for failure and re-victimisation. The mandatory approach differs from the mandatory consideration approach in that conferencing itself is mandatory rather than just the consideration of it.

Judicial Oversight of Conferencing Outcomes There are four approaches to the role of judicial oversight of conferencing outcomes. Figure 8.2 depicts those approaches along a continuum ranging from absolute supremacy given to outcome agreements through to outcome agreements being considered an irrelevant consideration. The first approach is rubber stamp (no upper and lower limits). Under this approach, when a matter is returned to the court for sentencing, after the holding of a restorative justice conference, the court’s role is to take note of the outcomes reached at conferencing and where possible make them into court orders. The making of outcome agreements into court orders will give some certainty that those orders will actually be fulfilled. This is because it is contempt of court not to comply with court orders. As an example, outcome agreements could be made into an order under one of the plethora of orders available under the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act ’). As the outcomes have been agreed between the participants at conferencing with stakeholder participation and facilitator oversight, it is not the role of the court to add to, subtract from or otherwise amend the outcomes.

Fig. 8.2 Judicial treatment of restorative justice conference outcome continuum

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Further, under this approach the court does not have the power to impose an order in addition to the outcomes reached at conferencing. This approach to judicial oversight of conferencing outcomes gives absolute supremacy to the restorative justice outcome and to what Braithwaite terms ‘contextual justice’: it is the collective wisdom of the stakeholders in the circle that decides what is the agreement that is just in all circumstances, not perhaps the ideal agreement in the view of any one person in the circle, but one that all in the circle can sign off on as contextually just. That agreement that seems contextually just to all of them may or may not include punishment, compensation, apology, community work, rehabilitation or other measures to prevent recurrence. (Braithwaite 2002b: 158)

Contextual justice can lead to varying outcomes depending ‘on how punitive or forgiving victims and others in the [restorative justice] circle are’ (Braithwaite 2002b: 159). This can be a function of who/what the victim is and their needs. Given the diversity of the victims of environmental offending, just what is needed to achieve contextual justice can be diverse. Human victims may need an opportunity to tell the offender about the impact the offending has had on them and an apology. A river may (via its guardian) request its banks stabilised and be restocked with fishlings. An Indigenous community may need ongoing consultation to preserve the sacredness of the river. Future generations may need the river to be protected from future pollution incidents, whilst commercial operators may need financial compensation for loss of income. Contextual justice for an offender will depend on the value it places on making amends, reputational and relational repair. Contextual justice will see a diversity of outcomes because each offending incident is unique. Naturally, one must acknowledge the fact that environmental issues following environmental offending may manifest at multiple levels and across various temporal scales. For example, a breach of environment protection licence through the emissions of carbon in excess of that licence may not immediately result in environmental harm. Such harm may manifest cumulatively and across locations far from the pollution source (i.e. it may impact on the entire world).

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The second approach to the judicial treatment of restorative justice conference outcomes is rubber stamp (upper and lower limits). This approach is similar to the previous approach in that when a matter is returned to court for sentencing following conferencing the role of the court is to endorse the outcome reached and where possible make specific outcomes into court orders. The difference between this and the first approach is that the outcomes reached at conferencing must respect the notions of upper and lower limits. Braithwaite favours ‘a commitment to limits and to honouring rights’ (2002b: 155) rather than notions of proportionality which inform justice as outcome. When Braithwaite is talking about limits, he is talking about the ‘absolute consensus’ within the social movement for restorative justice that ‘restorative justice processes should never exceed the upper limits on punishment enforced by the court for the criminal offence under consideration’ (2002b: 150). When Braithwaite is talking about honouring rights, he is talking about the notion ‘that fundamental human rights ought to be respected in restorative justice processes’ (2002b: 151). Braithwaite’s commitment to ‘[h]onouring legally specific upper limits on sanctions’ and ‘[r]espect for the fundamental human rights specified in [various United Nations declarations and International Covenants]’ are what he terms ‘constraining standards’ of restorative justice; constraining standards ‘specify precise rights and limits’ to be observed during restorative justice processes (Braithwaite 2002a: 569). Adhering to upper limits means that the burdens placed on an offender as part of the restorative justice conference as reflected in the conferencing outcome agreement should not be more burdensome than the maximum sanction that could be imposed by the court for that offending. Conceptually, there is some difficulty in adhering to an upper limits delineation where the legislation enables a court to imprison an offender. Tier 1 environmental offending under the POEO Act, pt 5.2, carries a maximum term of imprisonment of 7 years. Imprisonment, as with fines, is meant as punishment. That is, it is an expression of retribution which serves as deterrence. Reparative orders seek to repair the harm occasioned by offending. Such orders are consistent with one of the central tenets of restorative justice, that being that responses to crime should heal and put things right. Therefore, participants deriving

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outcomes in conferencing that can be made into reparative orders by the court is entirely consistent with restorative justice and this should be facilitated. Alternatively, participants to a conference should not be allowed to agree on a term of imprisonment to be served by an offender or suggest the quantum of a fine an offender is to pay. That is because it is not the role of conference participants to dispense punishment; that is a court’s role. Having said that, the statutory maximum fine that a court could impose can operate as a proxy for the maximum value of any burden placed on an offender through conferencing. Williams, Clarence Valley Council and Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’) are testament to the fact that conferencing can result in a range of innovative outcomes to address the harm occasioned by the offending. Whilst most of these outcomes can be made subject to a reparative order, for example in a New South Wales environmental offending context under the POEO Act, some cannot. Further, some outcomes might not be readily quantifiable in terms of monetary value. Therefore, assessing the constraining standard of Braithwaite’s upper limit requires a comparison of the burden imposed on an offender as part of the restorative justice conference as reflected in the outcome agreement in terms of an investment of money, time and energy versus the maximum penalty a court could impose under the law. Although precise mathematical comparison is not possible, crude approximation is. Braithwaite’s constraining standard relating to the respect of human rights means, to adapt one of his examples, a conference outcome requiring new corporate uniforms engrossed with “we are environmental offenders” would be inappropriate (2002a: 565). As Roche points out, ‘[f ]or all its promise of promoting healing and harmony, restorative justice can deliver justice as cruel and vengeful as any’ (2003: 1). The restorative justice conference facilitator should steer the participants away from cruel and vengeful punishment, as it does not heal and put things right. In this judicial treatment of conferencing outcomes, rubber stamp (upper and lower limits), the judge will moderate cruel and vengeful punishment because it violates Braithwaite’s constraining standard relating to the respect of human rights. In line with Braithwaite’s notions of upper limits, there should be a lower limit in regard to the burden placed on an offender through, and

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as a result of, a restorative justice conference. However, what should be the benchmark for that lower limit? One option is the likely penalty to be imposed on the offender. As the Interflow example demonstrates, an offender and prosecuting authority will know in ballpark terms the likely penalty in a given matter. Therefore, a constraining standard could be a commitment to that lower limit. That is, the burden imposed on an offender as part of the restorative justice conference as reflected in the outcome agreement in terms of an investment of money, time and energy should be at least as burdensome as the likely burden imposed on an offender by the court. The commitment to a lower limit will go some way to displacing the perception that conferencing is a soft option for offenders. In sum, the rubber stamp (upper and lower limits) approach sees supremacy afforded to a restorative justice conference and contextual justice, but within certain confines. The third approach to the judicial treatment of restorative justice conference outcomes is take into consideration. The role of the court in this approach is to consider the fact of the restorative justice conference and the outcome agreement reached as part of its sentencing function. Hence the court can endorse the outcomes agreed and make suitable outcomes into court orders. Additionally, the court can impose penalties on an offender in addition to any outcome agreement made at conferencing. The take into consideration approach is used in New Zealand (see, for example, Interflow) and New South Wales (see Williams and Clarence Valley Council ) and is encapsulated in the following statement by Preston CJ: The fact of and the results of the restorative justice intervention can be taken into account in this sentencing process, but the restorative justice intervention is not itself a substitute for the court determining the appropriate sentence for the offences committed by the defendant. (Williams, [64]; see also, Clarence Valley Council , [23])

This approach to judicial oversight gives absolute supremacy to justice as outcome. That is, the achievement of the statutory purposes of sentencing through a sentence which is consistent with sentencing for like offending and is representative of proportionate punishment. Under

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this approach, the court can adjust an outcome agreement and impose an additional penalty on an offender if it is necessary to achieve justice as outcome. Take, for example, a water pollution incident. The outcome of the conference was a $10,000 donation to a local community group for activities relating to water quality of the river and an apology. The judge when assessing comparable cases determines that the appropriate fine to achieve justice as outcome is $50,000. The judge can increase the $10,000 donation to $50,000 and make that donation subject to an environmental service order (‘ESO’). This is because justice as outcome overrides the necessity to respect an agreement reached between the participants to a conference when it is insufficient to achieve justice as outcome. In a situation where the donation agreed at a conference was $100,000 when the amount to achieve justice as outcome was $50,000, the court may be minded reducing the quantum of the ESO to $50,000. Yet, the New Zealand experience in Interflow suggests that the court is not likely to displace an agreed outcome reached at conferencing where the outcome is in excessive of that the court would have been minded imposing. Whilst acknowledging the fact that a judge is not bound by the conference outcome agreement, a New Zealand interviewee is of the opinion that a judge would not reduce a donation in circumstances such as Interflow because ‘it’s been agreed’ between the parties (INT-11, 04 July 207; P 18, L 639–644). This suggests that consistency in sentencing and proportionate punishment should take a back seat to agreed outcomes which have been made in a facilitated conference. This is so when the outcome reached was in excess of that which the court would have been minded making but which would still achieve the statutory purposes of sentencing notwithstanding the consistency and proportionality issue. Arguably however, a court would be more likely to reduce an obligation in an outcome agreement where that obligation is in excess of the maximum penalty that could be imposed by the court in that instance. That is, where the obligation violates Braithwaite’s upper limits notion discussed previously. The fourth and final approach to the judicial treatment of restorative justice conference outcomes is irrelevant consideration. Under this

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approach, the restorative justice conference outcome agreement would be considered as irrelevant to the sentencing process. Hence, the court would sentence an offender in its usual fashion. This approach treats conferencing as an irrelevant inter-party occurrence. This approach may only see altruistic offenders attend conferencing; offenders who see the benefits in conferencing notwithstanding that the investment in time, energy and money needed for conferencing would not feed favourably into the sentencing process. Under this approach, it would be up to the parties to voluntarily implement the outcome agreement.

Stakeholder, Practitioner, and Judicial Knowledge The New Zealand experience shows that a legislative framework is insufficient on its own to promote the widespread use of conferencing. One of the reasons proffered by New Zealand interviewees for the slow uptake of conferencing is a poor understanding thereof. This lack of understanding is a challenge for the use of conferencing by the NSWLEC, regardless of whether conferencing was supported by a legislative framework. Education is the key to increasing an understanding of conferencing which could result in increased use. There is a need to educate the judiciary, prosecuting authorities, practitioners, offenders, and victims about restorative justice. The adversarial mindset which is entrenched in both Australia and New Zealand needs to be tempered, at least when it comes to the use of conferencing, as it is a challenge to the use of conferencing. One interviewee pointed out that that mindset permeates the thinking of judges, prosecutors, and defence lawyers (INT-14, 07 July 2017; P 26, L 886– 888). The adversarial, win-lose, combative mindset closes off alternate ways of achieving justice. However, it must be remembered that Alternative Dispute Resolution (‘ADR’) is embedded in the NSWLEC through its functioning as a ‘multi-door courthouse’, that is, ‘a dispute resolution centre offering intake services together with an array of dispute resolution processes under one roof ’ (Preston 2008a: 78; see also 2008b).1 The NSWLEC offers a range of ADR processes within its civil jurisdiction

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including conciliation, mediation, neutral evaluation and reference to an external referee. Despite this use of ADR, such processes are not offered within the criminal jurisdiction of the NSWLEC and for good reason: a prosecution is not a negotiation. In that circumstance, it is not surprising or unreasonable to see the adversarial mindset dominate. A tempering of that adversarial mindset is required not in the criminal proceedings per se, but in conferencing when that is embedded in the sentencing of environmental offending. There is a role of university law schools and judicial training in facilitating the spread of knowledge about restorative justice (INT-14, 07 July 2017; P 29, L 1018–1019; p 30, L 1030–1031), and hence alternatives to the adversarial mindset. There is also the need for prosecuting authorities to consider and promote restorative justice where appropriate. Where a successful restorative justice conference has been used, knowledge of its success should be publicised. Such publication could, for example, be through an article (Sugrue 2015) or website. Environment Canterbury does a media release following the use of conferencing (INT-11, 04 July 2017; P 13, L 444–450). The collaborative research between the Australian National University and the Environment Protection Authority (‘EPA’) Victoria investigating an environmental Restorative Justice Practices Continuum will go some way to spreading knowledge of restorative justice (the details of which were outlined in Chapter 5). Lawyers who have been involved in conferencing also have a role to play in the spreading of its knowledge, as Fowler (2016) has done in the New Zealand context. Perhaps there is a role for offenders who have gone through a restorative justice process in the spreading of knowledge regarding its use. Restorative justice activity orders are very facilitative and can be made relating to any activity an offender has agreed to undertake. An offender could be encouraged, for example, to talk at a farm show, mining conference, or corporate dinner about their experience with conferencing. There is also a role for environmental bodies to spread the knowledge of alternate ways of achieving justice, such as restorative justice. The Environment & Planning Law Association of New South Wales (‘EPLA’) and the National Environmental Law Association (‘NELA’) (Australia) spring to mind. The objective of EPLA is ‘to advance the knowledge of planning and environmental laws among the professions

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and the community generally’.2 It advances such knowledge through the regular seminars and conferences it hosts. NELA ‘brings together professionals in environment and resources law and related disciplines’.3 NELA also hosts seminars and conferences. Preston CJ helped spread awareness of conferencing through a paper he delivered to the Victorian EPA seminar on ‘Restorative Environmental Justice’ (2011a) which was later published as a journal article (2011b). Likewise, Justices Pain and Pepper (with Millicent McCreath and John Zorzetto) presented a paper to the ‘International Union for Conservation of Nature Academy of Environmental Law Colloquium 2016’ (2016a) which was later published as an article (2016b). Preston CJ has also contributed to the knowledge of conferencing in a New South Wales environmental offending context through His Honour’s treatment of conferencing in the Williams and Clarence Valley Council judgments. Those judgments explained in detail what restorative justice is, the use it had in those cases and how the fact of, and the outcomes from, the conferencing factored in sentencing. Preston CJ should be credited with enhancing the understanding of conferencing in an environmental offending context, particularly in the context of offending against Aboriginal cultural heritage. The Australian interviewees as a collective had a general understanding of conferencing (INT-4, 23 March 2017; P 8, L 259–274; INT-6, 29 March 2017; P 1, L 15–27; INT-19, 21 August 2017; P 8, L 292–307; INT-22, 12 September 2017; P 5, L 172–178; INT-23, 19 September 2017; P 12, L 378–389; and, INT-25, 18 October 2017; P 16, L 506–514). The depth of treatment of restorative justice in the Williams and Clarence Valley Council judgments can be contrasted with the passing, and only, reference to restorative justice in a recent New Zealand environmental offending judgment: ‘[a] restorative justice process has been undertaken’ (Marlborough District Council v Laurie Forestry Services Ltd [2019] NZDC 2602, [2]). This is not atypical of the New Zealand actuality: • The defendant ‘has taken part in restorative justice…’ (Canterbury Regional Council v Stephen Graham Knight (Christchurch District Court, Jackson J, 18 March 2010), [40]);

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• ‘[A] restorative conference was held…[and] it was a very helpful conference’ (Auckland City Council v Eric Toa and others [2015] NZDC 20678, [2]); and • ‘[T]he matter was referred for restorative justice, and a report has been provided to the Court. The outcome of the report is supported both by the defendant and by the Council’, and the Court which endorses the outcomes agreed (Auckland Council v MJ Green Limited [2018] NZDC 17091, [2]–[3]). Such superficiality does not inform the reader as to whether the conference was successful or unsuccessful, who attended, what was discussed, the outcomes and what regard the court had to the restorative justice process as required under s 8(j) of the New Zealand Sentencing Act. Such superficiality actually mystifies conferencing as some private event that is not discussed. It creates suspicion and is arguably a reason for the poor knowledge of the process, and therefore use, in a New Zealand environmental offending context. Notwithstanding, there are judgments in which the fact of, and results from, the restorative justice process are fleshed out more substantially (Interflow; Southland Regional Council v Taha Asia Pacific Ltd [2015] NZDC 18010; Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780; Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800). Another way the judiciary can further the knowledge of restorative justice conferencing is through the use of publication orders and future references orders which specifically highlight the fact that conferencing has been used (for examples, see Hamilton 2019: Appendices 17 and 18). These publication and future references orders will still have a deterrent effect on offending whilst at the same time acknowledging an offender’s participation at conferencing and spreading awareness of conferencing. Finally, facilitators have a role to play in spreading an understanding of restorative justice conferencing as McDonald (2008) has done in a New South Wales context and Clapshaw (2009) has done in a New Zealand context. The proliferation of knowledge about the process of, and benefits that can flow from, restorative justice conferencing, coupled with a supportive legislative framework, will hopefully lead to a situation where restorative

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justice conferencing is given serious consideration as an option during the prosecution of environmental offending. However, if New Zealand is any indicator a great challenge to the uptake of conferencing is the adversarial mindset embedded within the prosecutorial process. It appears that Clapshaw’s comments from 2009 are just as apt today. Getting participants to conferencing is also a great challenge for its use: I have been puzzled for some time about the reasons for the slow uptake in the use of restorative justice in resource management prosecutions. The judiciary advocates its use. Judge McElrea in particular publishes regularly on its value. There is a statutory obligation under the Victims’ Rights Act 2002 for defence counsel and prosecutors to consider its use, and conference participants enthuse about it. (Clapshaw 2009: 53)

Suitability Criteria for Conferencing Assuming participants and the judiciary understand the use of restorative justice conferencing, the adversarial mindset having given way to a desire to embed an alternate way of achieving justice in the prosecution of environmental offending, and there is a legislative framework supportive of such conferencing, the next challenge is assessing the suitability of conferencing in an individual matter. The United Nations Office on Drugs and Crime (‘UNODC’) (2006, 2020) through its Handbook on Restorative Justice Programmes has developed criteria to assess suitability of conferencing. UNODC (2006: 8) outline four ‘critical ingredients’ for a restorative justice process to meet its objectives. They are ‘an identifiable victim’; ‘voluntary participation by the victim’; ‘an offender who accepts responsibility for his/her [or its] criminal behaviour’; and ‘non-coerced participation of the offender’. The victims of environmental offending are diverse and include humans (currently living and future generations), communities (both Indigenous and non-Indigenous), the environment (inclusive of its constituent parts) and commercial operators (Chapter 2). Just how victims will be represented at conferencing will be explored in Chapter 9. The purpose of victim participation at conferencing is primarily twofold.

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Firstly, as a vehicle through which to have needs met, and secondly, to make offenders accountable for their offending by facing the victims and appreciating the harm the offending has caused. Additionally, victim participation in restorative justice processes is voluntary. This is important because a ‘victim who is forced to attend conferencing may not be ready to talk about the effect the offending has had on them or to confront the offender. Forcing a victim to participate may be re-victimising for that victim and therefore cause further harm’ (Al-Alosi and Hamilton 2021: forthcoming ). An offender’s acceptance of responsibility for offending is another UNODC critical ingredient for restorative justice processes. The rationale behind this requirement is that a process involving an offender who accepts responsibility for their offending is more likely to have utility and be less likely to re-victimise any victims present. An offender’s acceptance of responsibility for offending can be demonstrated through contrition and remorse (Al-Alosi and Hamilton 2019). Contrition and remorse is evidenced by action to rectify harm, voluntary reporting of the offence, action to redress cause of the offending and genuine regret and future plans to avoid repetition of such offences (Preston 2007: 153–154). Williams demonstrated contrition and remorse through assisting the regulatory authority by engaging in ‘a videoed walk through interview on site explaining the activities that constituted the offences’ (Williams, [114]). He also filed affidavit evidence outlining his sorrow and regret over the offending and plans to ensure such offending will not happen again in the future (Williams, [110]–[111]). Clarence Valley Council’s contrition and remorse was evident through its apologies, the swift reporting of the incident to the regulatory authority and taking of action to ensure the incident will not occur again (Clarence Valley Council , [80], [83]). Interflow’s acceptance of responsibility for its offending is evidenced through its remorse and action to rectify the harm caused (Interflow, [42], [45]). Interflow requested referral to a restorative justice process (Sugrue 2015: 20) having conveyed the fact that they had made a mistake and needed to put it right (INT-13, 05 July 2017; P 9, L 316–317). The offender in Interflow ([1]), Williams ([36]–[38], [105]–[109]),4 and Clarence Valley Council ([7]) all pled guilty to it/their offending. It

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is tempting to equate a guilty plea with acceptance of responsibility for offending and thereby treat a guilty plea as an indicator of an offender’s suitability for conferencing: One factor suggests that environmental crime is well-suited to restorative justice. At least in NSW, where environmental crime largely comprises strict liability offences, a high number of guilty pleas are achieved. Because accepting culpability is an important factor for the legitimacy of any restorative outcome, this suggests that such offenders will be predisposed to such an outcome. (Pain et al. 2016b: 287)

However, there are a plethora of reasons why an offender may plead guilty to an offence, which may have nothing to do with contrition and remorse. These include: • Inevitability of conviction, especially in a strict liability context where the actus reus is sufficient to make out the offence; • To avail a discount on penalty from 10–25% (R v Thomson; R v Houlton (2000) 49 NSWLR 383, [160]); • The strength of the prosecution case; • To avoid the cost of defending the charge(s); • The desire to get the matter finalised quickly (Al-Alosi and Hamilton 2019: 1484–1485); and • Acknowledgment of guilt. Therefore, ‘a guilty plea is not of itself a reliable indicator that the offender has taken responsibility for breaching the law’ (Al-Alosi and Hamilton 2019: 1484). Notwithstanding the acceptance of responsibility for offending exhibited in Williams, Clarence Valley Council and Interflow, the requirement that an offender accept responsibility for offending before restorative justice processes are held is unduly restrictive. This is because there may be a host of reasons why an offender may not readily accept responsibility for offending. Therefore, a less restrictive position is advocated. That is, restorative justice conferencing should be considered for offenders who

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have not explicitly accepted responsibility for offending but who, importantly, have not denied responsibility for that offending (Al-Alosi and Hamilton 2021: forthcoming ). Conferencing involving such offenders may provide for offenders attaining insight into the offending, including its gravity and impact on victims, and thereby leading an offender to accept responsibility for the offending (Al-Alosi and Hamilton 2021: forthcoming ). That is, an offender may experience a ‘light-bulb moment’ during the conference; the colloquial ‘I get it now’ moment (Al-Alosi and Hamilton 2021: forthcoming ). As an interviewee explains when referring to the use of conferencing by Environment Canterbury, there have been conferences held where the offender at the outset has not ‘actually been very sorry’ for the offending. Notwithstanding, the conference proceeded because there was otherwise ‘something to work with’. That is: [the regulatory authority] got the sense that when they’re in front of their community, they will suddenly get it. The lightbulb moment will happen. I’ve seen it so many times. It’s just that moment when they go, Oh, my God. This wasn’t just me doing something for myself, all that sediment in the water has actually affected the biodiversity. I get it. (INT-11, 04 July 2017; P 16, L 569–573)

Hence, when Environment Canterbury assesses an offender’s suitability for conferencing it will look at whether the offender has expressed ‘genuine remorse or there is something to work with’ (INT-11, 04 July 2017; P 16, L 567–568). Relying on an offender’s acceptance of responsibility for offending as a requirement for participation in conferencing may increase the likelihood of success at the restorative justice conferencing because of the participation of ideal offenders for conferencing. However, at the same time it is excluding those offenders who could benefit the most from the transformative power of conferencing. That is, those who do not (immediately) appreciate the ramifications of their offending. Therefore, when assessing an offender’s contrition and remorse as the indicia of responsibility for offending and hence offender suitability for conferencing, one should not do so in a rigid, tick-abox fashion. An offender who does not meet all of Preston CJ’s indicia of contrition and remorse should not be automatically excluded from

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participating in conferencing especially when there is otherwise ‘something to work with’. Just what that something to work with is case specific and therefore proscriptive indicia are not proposed. However, any assessment of an offender’s suitability for participation in conferencing should consider the potential for victim re-victimisation. Where the potential for re-victimisation is real, such as where an offender is openly hostile, conferencing should not proceed. Assessing an offender’s suitability for conferencing can also draw from the experience residing within existing restorative justice programs in New South Wales. For example, the New South Wales Restorative Justice Unit has been in operation for over 20 years and runs VictimOffender Mediation for offenders post-sentence for the Corrective Services Department in New South Wales and for inter-Departmental conflict between staff (for an overview see Milner 2012). That experience has helped develop extensive procedural documentation including Suitability Assessments. Hence, assessing an offender’s suitability for conferencing embedded as part of the prosecution of environmental offending before the NSWLEC does not require a reinvention of the wheel, so to speak. Indeed, ‘a wide range of expert bodies of knowledge should be drawn upon to help understand and frame best practice’ (Bolitho 2015: 276). One further UNODC critical ingredient is non-coerced offender participation, which: is a safeguard that can help prevent causing further harm to victims in a conference. It is a safeguard because an offender who is forced into participating is likely to be hostile towards the victim, try to diminish the impact of the crime, not be forthcoming about the reasons for their offending, and/or be unwilling to work towards resolution of the harm occasioned. (Al-Alosi and Hamilton 2021: forthcoming )

An offender may feel coerced to attend conferencing if that conferencing is mandatory. Making conferencing mandatory in the prosecution of environmental offending is an option the New South Wales parliament can legislate and have operationalised by the NSWLEC. The appeal of this option is the opportunity for lightbulb moments; that moment when

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they suddenly realise the effect that their offending has had (INT-11, 04 July 2017; P 16, L 570–573). Such lightbulb moments cannot occur if an offender elects not to attend conferencing. However, there are downsides to this model in that the conference can breakdown because the offender may simply not be suitable for conferencing—they may show no understanding of the gravity of their offending, may be professing their innocence, show no contrition and remorse—and thereby may cause further harm to the victim. Implicit coercion may be present in a voluntary conferencing model such as that used in Interflow, Williams, and Clarence Valley Council if an offender believes they will be treated more severely by the court in sentencing if they do not attend conferencing. A good restorative justice program should make it plain to an offender that attendance is voluntary and there will be no negative consequences if they do not attend. The main offenders of environmental offending during the analysis period were organisational offenders (comprising corporations and government entities) (Chapter 2). Although low in comparison with organisational offenders, there was a minority of individual offenders. Individual offenders can represent themselves at conferencing and their businesses in the case of offending by sole traders or family businesses. Williams is an example of an individual offender representing themselves at conferencing and also representing their business (Pinnacle Mines in the case of Williams). A director or manager can represent a corporate offender. Interflow was represented by a member of its management. In terms of a government entity, upper management or elected officials can represent that entity. An example is the Mayor and Deputy Mayor representing the offending council in Clarence Valley Council . An offender’s legal representative should not be permitted to represent an offender as their/its mouthpiece or spokesperson for the reasons that will be discussed shortly. It is important that whoever represents an offender has the power to bind the offender to the outcomes agreed at conferencing; ‘somebody who has the power to make decisions on the spot’ (INT-11, 04 July 2017; P 9, L 306). Hence, sending the mail clerk to represent a corporation at conferencing would be inappropriate because the mail clerk, with no disrespect to mail clerks, would not have sufficient knowledge of the corporation’s practice and procedure which

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may have led to, or could have prevented, the offending and would not have the authority to bind the corporation to the outcomes of the conference. Additional requirements underpinning a conference are outlined by UNODC (2020: 25). Those being participant understanding of the basic facts of the case as the basis of participation, participant understanding of the process and willingness to participate, and participants considering it safe to be involved in the process. A requirement that must be satisfied before conferencing can be used is that the ‘victim and the offender agree on the basic facts of the case as a basis for their participation’ (UNODC 2020: 25). A conference is not the forum for debate or contestation over the facts surrounding offending. Rather, that is the role of advocacy before a court. The purpose of the conferencing is to discuss the harm occasioned and ways of repairing that harm. Argument over the facts of offending within a conference itself has the potential for re-victimisation because a victim may feel that an offender is trying to diminish or dismiss the harm that has been caused. Another requirement is that ‘the victim and the offender must understand the process and be willing to participate’ (UNODC 2020: 25). It is the role of the facilitator in a pre-conference meeting to explain to the offender and victim the process of conferencing. The facilitator should provide the victim with information on what can be realistically achieved in conferencing to ensure the victim is not disillusioned about what can be achieved and is not disappointed if unrealistic expectations are not met. A final basic requirement that must be satisfied before conferencing can be used is that ‘the victim and the offender must consider it safe to be involved in the process’ (UNODC 2020: 25). Although this decision can be assisted by professionals including the conferencing facilitator, it is a decision for the victims and the offender to make. However, it is the prerogative of the facilitator to refuse to facilitate, or continue to facilitate, a conference in which the facilitator feels that the victim or offender is not safe. The pre-conference meeting should involve a risk assessment to gauge the potential harm to the victim and offender. Where there is

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a real risk of further harm to the victim, or harm to the offender, the conference should not be held. As part of the pre-conference assessment, both victims and offender should be informed of the risks and benefits of participating in the conference. As a procedural safeguard, victims and offenders should be able to withdraw their consent to participate in the conference at any time, including during the conference (UNODC 2020: 50). This will help in allowing victims to remove themselves from the process if continuation in that process would cause detriment. The facilitator should also have the ability to end the restorative justice conference if it is not meeting its objectives. Post-conference follow-up with victims should be held to ensure they have not been harmed by the process and referred to any other support needed.

Conference Facilitation and Follow Up There are at least four possible facilitators of restorative justice conferences—a judge, an independent facilitator, a restorative justice trained NSWLEC commissioner, and facilitators operating within existing government schemes. The potentiality of a judge facilitating a conference is easy to dismiss. As a New Zealand interviewee points out, judges do not attend restorative justice conferences as either a participant or facilitator because ‘as soon as the judge gets involved, people will defer to his or her rank…[and] they’ll start influencing what happens by their own personal views, rather than waiting to see what comes out of the process…’ (INT-14, 07 July 207; P 9, L 289–292). Another option is to use independent facilitators as is the case in New Zealand (including Interflow) and New South Wales (Williams and Clarence Valley Council ). In New Zealand, all restorative justice facilitation is done through private organisations however they must have accreditation through a Government accreditation system. This option has worked well in the examples explored in this book, but one could question whether the facilitator’s costs being borne by the offender is a disincentive to an offender’s participation. Those costs were $11,000 in Williams ([53]) and $13,000 in Clarence Valley Council ([85]). Further,

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using independent facilitators means that their combined knowledge resides outside of the NSWLEC rather than within it. The residing of conferencing knowledge within the NSWLEC itself may further promote its use. A further option is to train commissioners of the NSWLEC in restorative justice techniques and have them facilitate conferencing. Commissioners are generally accredited in some form of ADR and regularly undertake ADR as part of their role (for an overview, see Preston 2008c: 391–393). This option could internalise the cost of conferencing within the NSWLEC and thereby removing it as a disincentive to participation. It could also facilitate a repository of conferencing knowledge within the NSWLEC, especially if undertaken as part of the establishment of a restorative justice unit within the NSWLEC. This will enhance the NSWLEC’s status as a ‘Multi-Door Courthouse’ (Preston 2008c: 391–393). Yet another option is to use restorative justice conference facilitators operating within existing government schemes. One example is the Restorative Justice Unit team operating within Victims Support Services in New South Wales. Utilising those facilitators would draw on 20 years of practice, be cost-effective and neutral. Such facilitators would need to be uptrained to get a general understanding of environmental offending and harm emanating from such offending, but that is not an insurmountable challenge. Putting aside the use of such facilitators, existing restorative justice teams would be an invaluable learning source for a restorative justice unit if established within the NSWLEC. The role of a restorative justice facilitator is essentially threefold— preparation, facilitation, and follow-up. McDonald outlines the preparation for the conferencing in Williams and Clarence Valley Council . In Williams, that preparation took three days and involved interviews with potential participants ([56]–[57]). The interviews were undertaken: – to establish contact and give each person an opportunity to talk openly and confidentially about the situation with a neutral third party; – to establish each person’s perspective on the events; – to determine who should be involved in the Conference; – to clarify for each participant the Conference process;

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– to confirm that each participant was willing to attend; [and] – to answer any questions people might have about the Conference (Williams, [57]). Interviews in preparation for the conferencing in Clarence Valley Council were undertaken ‘with over 20 people from the Aboriginal communities and Clarence Valley Council…’ ([14]). If a restorative justice unit was established within the NSWLEC, support staff within that unit could undertake the above interviews. Preparation for conferencing also entails the facilitator reading various court documents such as ‘agreed statement of facts, the affidavits read by the parties and the supporting material tendered by the parties at the sentencing hearing…’ (Clarence Valley Council , [14]). Preparation is important for restorative justice success, as is the skill of the facilitator. As Bolitho and Bruce attest: While good facilitation is in part the result of knowledge, training and experience, the art of great facilitation relates to the interplay of the facilitator’s inherent characteristics, capacities and world-views alongside this knowledge, skill and experience. (2017: 336, emphasis original)

A main feature of the facilitation of the restorative justice conference itself is ensuring that all voices are heard, and no person or voice dominates another. Braithwaite views non-domination as a ‘fundamental standard’, with a program not being restorative ‘if it fails to be active in preventing domination’ (2002a: 565). As Braithwaite points out, countering domination is a role for all participants at a conference: Any attempt by a participant at a conference to silence or dominate another participant must be countered. This does not mean the conference convener [facilitator] has to intervene. On the contrary, it is better if other stakeholders [participants] are given the space to speak up against dominating speech. But if domination persists and the stakeholders are afraid to confront it, then the convener must confront it by specifically asking to hear more from the voice that is being subordinated. (2002a: 565–566)

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During the conference, the participants can formulate an outcome agreement to resolve the harm occasioned by the offending. The facilitator, with the input of the participants, should ensure the outcomes are agreed, achievable, just, and legal. Ensuring just outcomes also means that power imbalances do not result in unjust outcomes affecting victims. It is important for a facilitator to be aware of power imbalances especially in an environmental offending context when the offenders can be large corporations and the victims local residents and representatives of the environment. The final role of the facilitator is to follow up with the participants post-conferencing. In Clarence Valley Council , ‘Mr McDonald agreed to stay in weekly contact with people responsible for implementing the [conference outcome] agreement and to provide support for its full implementation’ ([22]).

A Restorative Justice Unit Within the NSWLEC To mainstream the NSWLEC use of restorative conferencing in the prosecution of environmental offending, consideration could be given to the establishment of a specialised unit with the NSWLEC to deal with conferencing. The unit could consist of specially trained liaison staff who can liaise with the relevant stakeholders, offenders, and victims, with a view to assessing the suitability of a matter for conferencing. The restorative justice unit could also liaise with external researchers who could observe conferencing practice, when appropriate, to build an understanding of what works in conferencing and victim needs. The restorative justice unit could liaise with both external and internal facilitators. Setting up a restorative justice unit within the NSWLEC, along with implementing legislation supportive of conferencing, is likely to be a considerable, but not insurmountable, challenge in itself. Bargen, Clancy and Chan canvass the development of the Young Offenders Act 1997 (NSW), which is the basis of juvenile justice in New South Wales, consisting of police warnings and cautions, and youth justice conferences (2005: 17). Drawing on the New Zealand experience of family group conferences, a police-led conferencing scheme was trialled in Wagga

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Wagga in 1991. Following that trial a pilot scheme of Community Youth Conferences began in February 1995. This later model departed from the Wagga Wagga model because it did not use police to facilitate the conferencing. Following that trial, a government working party was established in 1996. Active community consultation ensued, leading to a discussion paper which led to a Bill which later became the Young Offenders Act (Bargen et al. 2005: 18–20). As can be expected with any paradigm change, the path of the Young Offenders Act’s ‘development was not a smooth one’ (Bargen et al. 2005: 20). Criticism was levelled by some police and some victim groups at the decision to replace police facilitators with independent facilitators (an overview of the pros and cons of police acting as restorative justice facilitators is provided by Hoyle 2011). Further, at least initially, there was ‘not a lot of enthusiasm for conferencing from the magistrates’ (Bargen et al. 2005: 20). Despite these limitations, three ‘critical success factors’ aided in the development and implementation of the Young Offenders Act. Firstly, ‘there was a strong commitment among senior members of key government agencies to reform the juvenile justice system. Secondly, the development process involved major criminal justice agencies working together in a constructive way’ (Bargen et al. 2005: 21). Thirdly, the development was aided by an extensive consultation process, ‘involving participants from the youth sector and other community groups’ (Bargen et al. 2005: 21). These critical success factors are not features of the potential implementation of a NSWLEC restorative justice unit and supporting legislation. Indeed, there is not a plethora of experience with restorative justice conferencing for environmental offending in New South Wales and beyond. Additionally, stakeholder, practitioner, and judicial knowledge of such conferencing are not extensive. Hence, there will be considerable challenges in establishing a restorative justice unit within the NSWLEC. However, as with all challenges, they are not insurmountable.

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Stakeholder Participation Stakeholders are the third group of participants at conferencing; the others being victims and offenders. In an environmental offending context, the EPA as the prosecutorial/regulatory authority could be a relevant stakeholder to an offence, with a role to play in conferencing. Likewise, as offender’s legal representative can also be classified as a stakeholder to an offence, even though the stake in the offence is only because their client has a stake in the offence. However, prosecutorial/regulatory authority and an offender’s legal representatives’ participation at conferencing is not without debate. It is usual for Environment Canterbury, as prosecutor and regulator, to attend conferencing in a New Zealand environmental offending context, as was the case in Interflow. This is because it represents the ‘generic community’ and it can take experts to comment on the offending (INT11, 04 July 2017; P 16, L 578). The role of the prosecutor/regulatory authority, and indeed an offender’s legal representative, is not that of a negotiator nor lawyer but rather for ‘technical advice and just keeping people on track’ (INT-11, 04 July 2017; P 17, L 599), as well as ‘playing an information sharing role’ (INT-15, 11 July 2017; P 9, L 284). The legal representatives of the prosecutor and defence can help draft outcome plans, checking to see they are legal and achievable (INT11, 04 July 2017; P 17, L 598–606; INT-16, 12 July 2017; P 14, L 509–517), ‘appropriate or not’ (INT-15, 11 July 2017; P 9, L 286), and provide advice and assistance along the way (INT-17, 14 July 2017; P 7, L 241–251). Further, the prosecution can advise on what the usual fine would be for the offending at hand (INT-14, 07 July 2017; P 10, L 328–330). Reinforcing the above roles, the offender’s solicitor in Interflow attended the conference to ensure the approach to remediate the harm occasioned by the offending was ‘communicated accurately’ (INT13, 05 July 2017; P 10, L 332). Braithwaite views an offender’s right to have legal representative present at conferencing as an appropriate standard for conferencing provided that representative is not a mouthpiece for the offender:

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In no nation does it seem appropriate for defendants to have a right for their lawyers to represent them during a restorative justice process. Part of the point of restorative justice is to transcend adversarial legalism, to empower stakeholders [(participants)] to speak in their own voice rather than through legal mouthpieces who might have an interest in polarizing a conflict. (2002a: 566)

Notwithstanding the above benefits of prosecutor and offender legal representatives’ participation in conferencing, Preston CJ prohibited their attendance in Williams. The conference was to include the offender and victims, and as the prosecutor was not a victim it ‘would not be participating…’ (INT-3, 20 March 2017; P 3, L 88). The judgment in Clarence Valley Council does not specify whether or not the prosecutor and offender’s legal representative attended the conference. Given Preston CJ’s stance in Williams, it is assumed they did not. Considering the successful role they have had in the New Zealand context, it appears they have something to contribute to conferencing. As long as their role is clearly delineated and they do not adopt a spokesperson/mouthpiece role, they can have a valuable role to play. In Williams, the facilitator interviewed a range of people in preparation for the restorative justice conference. This included ‘representatives of the New South Wales Attorney-General’s Department (including persons concerned with crime prevention, Aboriginal community justice and Aboriginal programs)’ (Williams, [56]). Such representatives could be considered stakeholders to an offence and could play an educative role at conferencing. Restorative justice conferencing is an inclusive process and as such relevant stakeholders should be included in conferencing, provided that inclusion is manageable and does not distract from the important victim and offender dialogue necessary for resolution of the harm caused by the offending. Having explored some of the barriers to restorative justice conferencing, it is important to not lose sight of the importance of conferencing to victims of environmental offending and some of the barriers they face when considering conferencing. Indeed, the importance of restorative justice to environmental victims is deserving of its own chapter. The

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next chapter is devoted to environmental victims of restorative justice conferencing.

Notes 1. Conceptually, Alternative Dispute Resolution (‘ADR’) and Restorative Justice are quite different. ADR has a focus on achieving an outcome, be that consensual or imposed. Restorative justice on the other hand, especially when adopting an encounter conceptualisation, is focussed on the process/encounter. It is the encounter which can repair the harm occasioned by offending. Further, restorative justice can include support persons whereas ADR is usually restricted to the parties to a dispute. 2. The Environmental & Planning Law Association New South Wales Web Page is www.epla.org.au. 3. The National Environmental Law Association Web Page is www.nela.org.au. 4. Williams originally entered guilty pleas to all offences but later withdrew those pleas of guilty and entered pleas of not guilty. Subsequently, the offender entered a plea a guilty for the offending against the Aboriginal place but maintained a plea of not guilty for the offences against the Aboriginal objects. He later changed his plea on the Aboriginal object charge to guilty. For this reason, the offender received a discount on sentence of 25% for the offending against the Aboriginal place but a 15% discount on sentence for the offending against the Aboriginal objects.

References Al-Alosi, H., & Hamilton, M. (2019). The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context. University of New South Wales Law Journal, 42(4), 1460–1488. Al-Alosi., & Hamilton, M. (2021). The Potential of Restorative Justice in Achieving Acceptance of Responsibility in the Context of Environmental Crimes. University of New South Wales Law Journal , 44 (2), forthcoming. Auckland City Council v Eric Toa and others [2015] NZDC 20678.

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Auckland Council v Andrews Housemovers Ltd [2016] NZDC 780. Auckland Council v MJ Green Limited [2018] NZDC 17091. Bargen, J., Clancy, G., & Chan, J. (2005). Development of the Young Offenders Act. In J. B. L. Chan (Ed.), Reshaping Juvenile Justice: The NSW Young Offenders Act 1997 (pp. 17–24). Sydney: Institute of Criminology Press. Bay of Plenty Regional Prosecutor v Roger Murray Withington [2018] NZDC 1800. Bolitho, J. (2015). Putting Justice Needs First: A Case Study of Best Practice in Restorative Justice. Restorative Justice: an International Journal, 3(2), 256– 281. Bolitho, J., & Bruce, J. (2017). Science, Art and Alchemy: Best Practice in Facilitating Restorative Justice. Contemporary Justice Review, 20 (3), 336–362. Braithwaite, J. (2002a). Setting Standards for Restorative Justice. British Journal of Criminology, 42(3), 563–577. Braithwaite, J. (2002b). In Search of Restorative Jurisprudence. In L. Walgrave (Ed.), Restorative Justice and the Law (pp. 150–167). Cullompton: Willan Publishing. Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Canterbury Regional Council v Stephen Graham Knight (Christchurch District Court, Jackson J, 18 March 2010). Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Clapshaw, D. (2009). Restorative Justice in Resource Management Prosecutions—A Facilitator’s Perspective. Resource Management Bulletin, 8, 53–55. Environment Protection Act 2017 (Vic). Environmental & Planning Law Association New South Wales (Web Page). www.epla.org.au. Accessed 23 July 2020). Fowler, C. (2016). Environmental Prosecution and Restorative Justice (Adderley Head). Garrett v Williams (2007) 151 LGERA 92. Hamilton, M. (2019). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Hoyle, C. (2011). Policing and Restorative Justice. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of Restorative Justice (pp. 292–311). London and New York: Routledge.

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Land and Environment Court of New South Wales (NSWLEC). (2018). Practice Note—Class 5 Proceedings (29 March 2018). Marlborough District Council v Laurie Forestry Services Ltd [2019] NZDC 2602. McDonald, J. M. (2008). Restorative Justice Process in Case Law. Alternative Law Journal, 33(1), 41–44. Milner, K. (2012). Restorative Justice and Adult Offending: Twelve Years of Post-Sentence Practice. In J. Bolitho, J. Bruce, & G. Mason (Eds.), Restorative Justice: Adults and Emerging Practice (pp. 80–99). Sydney: Institute of Criminology Press. National Environmental Law Association (Web Page). www.nela.org.au. Accessed 23 July 2020). Pain, Hon Justice N., Pepper, Hon Justice R., McCreath, M., & Zorzetto, J. (2016a, June 22). Restorative Justice for Environmental Crime: An Antipodean Experience (Conference Paper, IUCNAEL Colloquium). Pain, Hon Justice N., Pepper, Hon Justice R., McCreath, M., & Zorzetto, J. (2016b). Restorative Justice for Environmental Crime: An Antipodean Experience. Australian Environment Review, 31(8), 286–295. Preston, Hon Justice B. J. (2007). Principled Sentencing for Environmental Offences—Part 2: Sentencing Considerations and Options. Criminal Law Journal, 31(3), 142–164. Preston, Hon Justice B. J. (2008a). The Land and Environment Court of New South Wales: Moving towards a Multi-door Courthouse—Part I. Australian Dispute Resolution Journal, 19 (2), 72–82. Preston, Hon Justice B. J. (2008b). The Land and Environment Court of New South Wales: Moving towards a Multi-door Courthouse—Part II. Australian Dispute Resolution Journal, 19 (3), 144–155. Preston, Hon Justice B. J. (2008c). Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales. Environmental and Planning Law Journal, 25 (6), 385–409. Preston, Hon Justice B. J. (2011a, March 22). The Use of Restorative Justice for Environmental Crime (Conference Paper, EPA Victoria Seminar on Restorative Environmental Justice). Preston, Hon Justice B. J. (2011b). The Use of Restorative Justice for Environmental Crime. Criminal Law Journal, 35 (3), 136–153. Protection of the Environment Operations Act 1997 (NSW). Roche, D. (2003). Accountability in Restorative Justice. Oxford: Oxford University Press. R v Thomson; R v Houlton (2000) 49 NSWLR 383.

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Sentencing Act 2002 (NZ). Southland Regional Council v Taha Asia Pacific Ltd [2015] NZDC 18010. Sugrue, V. (2015). What Happens when Values Are Put to Work? A Reflection in One Outcome from a Restorative Justice Conference in the Criminal Division of the District Court: Environment Warranted Judge Jurisdiction. Resource Management Journal , 19–22. United Nations Office on Drugs and Crime (UNODC). (2006). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). United Nations Office on Drugs and Crime (UNODC). (2020). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). Young Offenders Act 1997 (NSW).

9 Environmental Victims and Restorative Justice Conferencing

The importance of restorative justice to environmental victims is deserving of its own chapter. Two pertinent problems addressed in this chapter are the problem of victimisation (i.e. ‘court recognition of nonhuman interests (e.g., intrinsic rights, values and status of the nonhuman in court proceedings) and non-human agency (e.g., active role of the nonhuman victim in legal processes)’) and the problem of expertise (i.e. ‘issues of evidence and expertise from the point of view of identifying who speaks for and on behalf of whom’) (White 2016: 143, 146; emphasis original). Dealing with the problem of victimisation and the problem of expertise requires exploration of victim participation at conferencing including the identification of victims, how those victims are given a voice at conferencing, how representatives who give a voice to victims are selected and the nature of victim voices.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_9

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Victim Identification The victims of environmental offending can be characterised into four subsets: humans (both currently living and future generations), the environment (including its constituent parts), communities (both Indigenous and non-Indigenous) and commercial operators. Although there is no such thing as a typical environmental incident, the following list depicts the possible victims of a water pollution incident: • The body of water (e.g. river) which has been degraded by the pollutants; • The fish harmed and killed that lived in the river; • The river gulls (birds) harmed and killed that lived on the river; • Future generations of humans if the river does not recover and is passed onto the next generation in a worse state then the current generation inherited it; • People who are physically sick because of the pollution in the river. For example, somebody swimming in the river at the time of the pollution incident; • People who have their recreational pursuits on the river interrupted by the pollution. For example, swimmers no longer able to swim in the river, and people no longer able to fish in the river. Such interruption may be for a fixed or indeterminant period of time, depending on the incident. • The community in general because a community asset, the river, has been degraded; • The Local Aboriginal community to whom the river is sacred; and • Commercial businesses impacted by the pollution. For example, a farm located downstream of the pollution point that can no longer draw water from the river to irrigate its crops. Another example is a kayaking business that is no longer able to take people on guided tours of the river. This catalogue of victims is the result of the way a river may be defined by different people. As White points out:

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a ‘river’ may be defined in spiritual and cultural terms by an Indigenous community, be viewed primarily in terms of water flow according to the more narrow Eurocentric conceptions common in Australian courts, be seen as constituted by its channel banks and channel bed according to the science of geomorphology, and be conceptualised as inclusive of riparian zones which relate to the observed influence of the river on the biota within and adjacent to the river from an ecological perspective. Thus, there are quite different associations with and interpretations of what ‘a river’ actually means. (2014/2015: 45; citations omitted)

Indeed, ‘a river’ may be defined in anthropocentric terms, that is in terms of the use humans put the river, be that recreational or commercial. In Chapter 2, the identification issue was highlighted as a barrier to victim voice, interaction, and input into the prosecution of environmental offending. It was concluded that obvious harm (dead fish and river gulls) is easier to identify than more remote or less obvious harm such as long-term environmental impacts, cultural connection, lost recreational opportunities, and commercial losses. The identification of victims should be a joint effort involving the prosecutor, facilitator, and specialist restorative justice unit within the Land and Environment Court of New South Wales (‘NSWLEC’) (if adopted). Strategies and techniques for identifying victims would need to be developed and refined to ensure that all victims are identified. One of the central tenets of restorative justice is that responses to crime should be inclusive, that is, inclusive of offender, victims, and stakeholders. Inclusiveness pertaining to victims means that all victims are given the opportunity to participate at conferencing, providing it is manageable. There is potential for conflict when it comes to victim identification and representation at conferencing. This conflict is twofold. Firstly, the need to balance inclusivity versus manageability. Inclusivity is easy to understand. It is including all the relevant stakeholders to an offence within a restorative justice conference. Manageability is taking into consideration the practicalities of logistics, time, and money to ensure the smooth facilitation of a conference. Secondly, who will represent victims at conferencing where a multitude of potential representatives exist.

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The notion that responses to crime should be inclusive denotes that each and every victim be afforded the opportunity to participate in conferencing, be that in person or through a human guardian. However, it is not hard to imagine the difficulties that arise when an environmental offence has impacted a whole number of diverse victims. In such cases should all individual victims be permitted to personally attend and participate; is 5, 10, 50 or 100 victims participating manageable or should like victims be grouped together collectively with common representation? So, in practice one representative could represent nonIndigenous victims, another Indigenous victims, another flora, another fauna, and so forth. Another example may be where there are multiple human representatives capable of representing victims of offending. If all such representatives want to participate, should they be permitted to? The key consideration is manageability and balancing of that against the desire for inclusivity. This then begs the question of who should represent the victims and how are conflicts over representation managed? The most pragmatic response to this issue and the questions it raises is that only real-life engagement in conferencing will reveal the correct resolution. Although some guidance could be sought from existing restorative justice practices, environmental offending presents unique challenges because of the potential for a large number of victims. Another consideration arises when not all victims participate in conferencing. This may be because they cannot be identified and found, or simply because they do not want to participate. Conferencing could still have some utility where ‘surrogate’ victims are utilised. These surrogates could be victim of other environmental offending and/or may have an active interest/voice in environmental matters. In New Zealand, when restorative justice conferencing is proposed following environmental offending, Environment Canterbury ‘would immediately think of our Runanga or Iwi [collective of local Maori (Indigenous) people] that’s come from that area…[They would be] our first point of call to involve’ as victim/victim representative (INT-11, 04 July 2017; P 3, L 84–85). This is not surprising given the impact of environmental offending on Indigenous peoples. However, a concern is that such victim/representatives become ‘convenience representatives’ meaning that they are approached as the only participants partly because

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of convenience and partly because of the view that they represent all victims. This may truncate the search for other victims meaning that the restorative justice conference is not truly inclusive. A facilitator should be cognisant of convenience representatives and ensure all victim voices are heard to ensure that inclusivity is not undermined. Conferencing should not give preference to one victim over another victim. However, the preferencing of the human over the environment, being two potential victims of environmental offending, is embedded within an anthropocentric perspective. That perspective ‘emphasises the biological, mental and moral superiority of humans over other living and non-living entities’ (White 2014: 12). This has meant the existence of a hierarchy of victims where ‘[a]nimals are differentially exploited and harmed, or protected and cherished, and this occurs under the veneers of legitimacy and legality’ (White 2018: 247; for an example of a victim hierarchy relating to wildlife trafficking, see Wyatt 2013: 74). One approach to justice which does not preference one victim over another victim is the tripartite conceptualisation of victims embedded in an eco-justice perspective. That conceptualisation sees victims as humans (environmental justice), specific environments (ecological justice) and animals and plants (species justice) (White 2018: 241). Despite notions of equal victimhood which is implied when one victim is not given preference over another, ‘context (both social and ecological) is vital to understanding and responding to specific instances of environmental victimisation’ (White 2018: 239). Social and ecological context may bring victims and representatives into conflict. This is something for a restorative justice facilitator to be conscious of. For example, when considering the catalogue of victims outlined earlier, one subset of victims were the fish harmed and killed that lived in the river. That being a result of the pollution of the river. As the next section highlights, they will need to be represented at conferencing by a human guardian. People who fish in that river and who no longer are able to, may be considered victim because they have lost access to a recreational pursuit. Human guardians of the fish may take exception to the idea that people fishing a river can be a victim when they no longer can fish that river, because of the pain and suffering fishing brings to fish. That is, the use of a metal hook piercing the mouth of a fish to

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retrieve it from the river, for it to be killed and eaten or released back into the river if it was under the legal-size limit or in the case of sport fishing. Likewise, human guardian representative of the river and future generations may come in conflict with commercial operators who use the river (such as drawing water from the river for farming or the conducting of kayak tours on the river) as they may see those operators detracting from the natural beauty of the river and degrading that river. Similarly, Indigenous communities may come into conflict with commercial operators who they may see as disrespecting the cultural significance of the river. Human guardians representing birds who live on the river may come into conflict with Indigenous voices because they may take exception to hunting practices involved with the killing of birds for food. Hence the social and ecological context with which the harm occurs and the use to which the harmed object (e.g. river) is put will mean the potential for conflict, or at least a clash of ideas, when conferencing is used following that harm. That conflict is not necessarily a bad thing or is not insurmountable. What it does is dispel any romanticism of conferencing as an opportunity for victims to get together with an offender whilst holding hands and singing Kumbaya, My Lord . The ripples permeating conferencing are more nuanced than that. The identification of victims in Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’) was assisted by the nature of the offending being against Aboriginal cultural heritage. Hence, victims would come from the local Aboriginal community. This does not mean that the representatives selected to represent the victims is not always without contest. In Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323 (‘Interflow’), the obvious dead fish and eels were easy to identify as victims. The significance of water to Maori heritage made local Maori people obvious victims. But beyond the obvious it may be difficult to identify victims and that will be a challenge for the use of conferencing. The way that various environmental offences are defined means that in some instances there will be no victims beyond the community being a victim in a general sense because a law has been broken. For

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example, water pollution means ‘placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed…’ (Protection of the Environment Operations Act 1997 (NSW), dictionary). Therefore, spitting or urinating in a river is an example of water pollution because it changes the biological condition of the river. The biological state may quickly revert and there is no appreciable harm, but that does not detract from those actions constituting water pollution. Another example of water pollution is the dropping of a ‘teaspoon of sediment into a pond’ even though there is no ‘damage to a fish or a plant’ (INT-2, 16 March 2017; P 5, L 156–158). A breach of environment protection licence simply means that a condition of that licence has been contravened. There is no requirement that breach actually cause any harm to the environment. For example, an environment protection licence may state that a mining operator may hold 10 megalitres of mine tailings within its onsite dam. Holding of 11 megalitres of such tailings is in breach of a condition of that licence and is therefore an offence even if that breach did not have any effect on the environment. In situations such as this, where there are no direct victims, would a restorative justice conference have some utility? The purpose of a victim’s participation at conferencing has two dimensions. Firstly, for the victim themselves. That is, to ensure capability through functioning, a component of justice as meaningful involvement (Chapter 10). Secondly, and importantly, victim participation provides an offender insight into the offending that would not be possible without victim presence. That insight feeds into Zehr’s conception of accountability through giving an offender an appreciation of the harm the offending has caused not only to the victim, but also society, a component of justice as outcome. In situations where environmental offending has not resulted in harm to the environment, and hence there are no ‘victims’ as such, surrogate victims may be used. That is, ‘offenders meet with victims of similar but unrelated crimes to gain a greater insight into the kind of harm they have caused their victims…’ (United Nations Office on Drugs and Crime (‘UNODC’) 2020: 38; for an example of the use of surrogate victims

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in the case of drink-driving offending, see Sherman and Strang 2007: 74). Voluntary victim participation is necessary for restorative justice success. There is potential for a victim to be re-victimised if they are coerced or forced into conferencing. They may not be ready to face an offender, hear about the circumstances surrounding the offence and the offender’s views thereof. Voluntary participation is a concept that would not be readily understood by non-humans and future generations of humans, but voluntariness is to be applied to the human representatives of such victims. Therefore, currently living humans and representatives of future generations of humans and non-humans should voluntarily participate in conferencing. The vigour and extent of insistence or persuasion to convince a human victim to attend conferencing should be considered because insistence and persuasion may be needed to convince a victim of the benefits of conferencing (see, for example, the exchange between Mr McDonald (facilitator) and Ms O’Donnell (victim/victim representative) in Williams) but that should not be to the extent where voluntary participation is displaced. Having said that, the need for insistence and persuasion will be lessened where best practice is followed, especially with Indigenous people.

Victim Voice Individuals could represent themselves at conferencing. The list of potential victims of water pollution above point to three human victims: the swimmer who happened to be swimming at the time of the pollution incident and subsequently became sick; a swimmer no longer able to swim in the polluted river; and the fisherman no longer able to fish in the polluted river. Naturally, such victims may not be comfortable representing themselves at conferencing. Therefore, a human guardian should be permitted to represent them. If for example, there are multiple swimmers or fisherman impacted by the offending there is no need for each individual victim to participate in conferencing. Some victims will want to participate and that should be facilitated, but in other instances such

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swimmers or fisherman would be content to let other another swimmer or fisherman victim represent their views at conferencing. ‘[G]overnmental or non-governmental organisation[s] responsible for or engaged in protection’ of an area that has been polluted can provide human guardians to represent victims (Preston 2011: 144). These could include the regulator or prosecutor who represent the generic community and victims anyway. This could be the EPA, Council (Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005 in Fisher and Verry 2005: 58)) and Council officers (Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003) in Fisher and Verry 2005: Appendix); Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004) in New Zealand Ministry for the Environment 2006: Appendix 5; Waikato Regional Council v Huntly Quarries Ltd and Ian Harold Wedding (Auckland District Court, McElrea DCJ, 28 October 2003) in Fisher and Verry 2005: Appendix (‘Huntly Quarries’); and, Auckland Regional Council v PVL Proteins Ltd [2008] DCR 84), or the National Parks and Wildlife Service. Incidentally, as I have outlined elsewhere, National Parks and Wildlife rangers might view themselves as victims as ‘they have had their good work in protecting the environment undermined by the commission of the offence’ (Hamilton 2008: 270) Non-government organisations could include a river enhancement trust, such as the Waikato River Enhancement Society (Huntly Quarries; White 2013: 276–277), or a community trust, such as a local community board and walkway trust (Huntly Quarries), as was the case in a New Zealand context. Other non-government organisations such as the Environmental Defenders Office (‘EDO’) (NSW) and Environmental Justice Australia (formerly Environmental Defenders Office (Vic)), although not representing victims at conferencing per se, could prove to be an important source of contact for various community organisations which could represent victims at conferencing (INT-33, 13 February 2018; P 5, L 164–173). The EDO and like organisations are ‘at the interface between the [legal] system itself, the environment, the expertise and the

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community’ (INT-6, 29 March 2017; P 8, L 273–275) and hence are an excellent conduit for information and contact. In terms of victims listed above relating to water pollution, a nongovernmental community group could be the human guardian to represent the environmental victims (fish, gulls, river, ecosystem, environment generally), community and future generations of human victims of the offending. This does not imply that the one group necessarily represent all victims. Where there are diverse voices or there is fragmentation in environmental groups, different groups could represent different victims provided it is manageable. They could be aided by the prosecutor who would have engaged various experts to assess the harm resulting from the incident. Where the victim of environmental offending is a corporation or business, it is those who are the directing mind of that entity who could represent that entity at a restorative justice conference. Such representation is not dissimilar to the representation of corporate offenders at conferencing. In terms of commercial operators impacted by environmental offending, they could be represented by a member of management or a director (corporation) or owner (small business). Indigenous people may play a role as human guardians to represent victims (including their own victimhood) at conferencing, as was the case in Interflow and Williams. An Indigenous voice is important given the close connection between many Indigenous people and the environment, a legacy of 40,000 plus years of connection in an Australian context. It is simplistic to assume that all Indigenous views and therefore voices are the same; ‘Indigenous people do not ‘think the same way’ just because they are Indigenous and/or just because they have a connection to ‘country” (White 2017: 15). Appropriate selection of Indigenous people with connection to the environment affected is important. A New Zealand interviewee highlighted such importance: It’s really important in any of these processes that you identify the right people to be there. So, if you identified somebody from a different R¯unanga (Maori group), and they wanted to go, but it wasn’t their tribal land, …that’s highly offensive. And it’s a problem, because it might start

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a war. So, it’s very important to find the right people. (INT-11, 04 July 2017; P 23, L 809–813)

Often there may not be a clear demarcation between victim and human guardian. For example, Maureen O’Donnell was a victim in Williams but also represented other Aboriginal victims. A non-government community environmental group may be victim because its work in environmental enhancement may be undermined by the offending, yet it may also represent individual victims. A cross over between victimhood and representation should not be seen as problematic.

Selection of Victim Representatives (Human Guardians) As I have stated elsewhere, ‘the identification of victims and those best placed to represent them in any forum, including a restorative justice conference, will depend on the facts of any given case’ (Hamilton 2016: 498). With restorative justice being an inclusive process, it is beneficial to ensure that all relevant voices are heard, thereby adhering to inclusivity as discussed above. However, inclusivity needs to be balanced with manageability because considerations of logistics, time, and money will dictate the limits of inclusivity. It seems inevitable that in some situations there will be a contest between human guardians as to the most appropriate representative in that case. This is because it would not be manageable or otherwise appropriate to allow multiple representatives to participate in the conference. In other words, where there are two or more active environmental conservation groups or other community groups in an area, all capable of functioning as human guardians, how is the choice made as to which group is to play the role as human guardian in situations when it would not be manageable to include all such human guardians? In Williams, Clarence Valley Council and Interflow members of local Indigenous communities represented victims of the offending. In terms of Aboriginal cultural heritage offending it is cultural heritage which is harmed rather than the environment per se. Therefore, victims of that

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offending are individual Aboriginal people, future generations of Aboriginal people and Aboriginal communities. Aboriginal human guardians represent other individuals, future generations, and their communities. In Interflow, the local Maori community represented both Maori cultural heritage and the environment. That is because of the Maori connection to water and the significance it has for them. It would appear that Maori people are common human guardians at conferencing in a New Zealand environmental offending context. As one New Zealand interviewee points out, ‘[i]n New Zealand we would immediately think of our R¯unanga or iwi [Maori tribe] that has come from that area [who] would be our first point of call to involve [in a conference]’ (INT-11, 04 July 2017; P 3, L 84–85). Another interviewee points out, they are ‘an easy first point’ (INT-16, 12 July 2017; P 4, L 125–126). Of course, a Maori voice is only one voice and there have been various other victim representatives in the New Zealand context. When considering the use of restorative justice conferencing for environmental offending and extrapolating experience from Williams and Clarence Valley Council , it is important to realise that environmental offending, and Aboriginal cultural heritage offending are different. As White points out, when reflecting on Williams, ‘[t]he harm was to the ‘place’ [Aboriginal place, and also objects] as well as to those who identify with the ‘place’ [that is, the local Aboriginal community]’ (White 2014/2015: 46). This meant that there was ‘a unity of ‘victim’ and ‘expert’ in regards to that specific community /natural object’ (White 2014/2015: 52). In this situation, it makes sense to privilege the Indigenous voice because only Indigenous people can speak of their connection to land. In terms of environmental offending, there is greater scope for a diversity of voices at conferencing. That is because harm from environmental offending can be conceptualised in different ways, as the river pollution example above illustrates. Thinking about restorative justice conferencing in a New South Wales environmental offending context it is important to consider whose role it is to determine just which victim representatives are to be involved in a given conference. This is especially pertinent where there is some argument about the suitability of a human guardian. Given the central

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tenet of restorative justice being that responses to crime should be inclusive, a starting point should be that all victims and human guardians should be permitted at conferencing unless that is not manageable or there is some conflict between representatives which may disrupt the conferencing process. A suitable way to adjudicate any contestation relating to the selection of human guardians is to adopt a process similar to that used by the NSWLEC in its civil jurisdiction. That is, the parties can elect to engage an expert known as a ‘parties’ single expert’. That expert is engaged (and remunerated) by both parties to provide evidence relating to an area in dispute (NSWLEC 2018: [64]). The process is viewed as a way of getting independent evidence. Even though expert witnesses retained by a party to a dispute are independent (see, for example, Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), sch 7, [2]) there may be a tendency to present a view favourable to the party that has engaged (and is paying) them. Where the parties cannot agree on a parties’ single expert they are required ‘to file and serve the names, CVs and fee estimates of three appropriately qualified experts…’ and the NSWLEC will select the parties’ single expert the parties are to engage and the remuneration payable to that expert (NSWLEC 2018: Schedule F, [1A(b)], [2]; UCPR, r 31.37, 31.45). It has been suggested that any contestation over the appointment of human guardians should be resolved by the NSWLEC itself in a similar way to the contestation of a parties single expert is resolved (INT-3, 20 March 2017; P 25, L 996–1000). A couple of qualifications should be put on this process to reflect the fact that it is being used to select human guardians for participation in conferencing rather than experts for court proceedings. The first qualification would be rather than submitting a CV, the potential human guardian submits a short statement outlining why they are suitable to be a human guardian. This is because conferencing should be inclusive of all voices, not just expert voices. Arguments over the quantification of the harm are for the hearing in the matter and not conferencing, although there is a role for scientific fact at conferencing. A diversity of voices at conferencing will ensure victim voices are heard. The second qualification is that the selection of human guardians be made by the facilitator, and not the judge, because facilitators are independent of the

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proceedings and better understand the role of victim voices than a judge would. Indeed, in Williams one of the directions made by the court in preparation for conferencing was that the prosecution and defence was to provide the facilitator ‘any written nominations or submissions with respect to the identity of persons who the parties consider to be appropriate representatives to take part in the restorative justice conference’ ([54]). Caution must be taken when using this approach to ensure that ‘convenience representatives’ are not being utilised at the expense of the full range of victims in a given offence.

Nature of Victim Voices Explicit in the central tenet that responses to crime should be inclusive is the desire to include a diversity of voices at conferencing. With that diversity will come diversity in the nature of victim voices spoken by the victim themselves or human guardians as representatives of victims. Whilst not attempting to provide an exhaustive list of the nature of victim voices, I can identify several types of voices. A ‘facts and figures’ voice is concerned with quantifying the harm occasioned and responses to repair that harm. There are two subsets of facts and figures voice—the scientific and the economic. Presented by an expert, such as an ecologist, the scientific facts and figures voice will express the number of dead fish and eels following a water pollution incident such as Interflow, what the harm to the river means in scientific terms and what is needed to repair the river. Some of this evidence may have been provided at the hearing by experts retained by the prosecution and the defence. Notwithstanding, this voice can assist with understanding the science of the harm and the formulation of projects to repair the river. Such projects can be subject to an environmental service order. An economic facts and figure voice will relay the quantum of financial damages suffered by victims and the compensation needed to account for those damages. An example is the financial losses to a farm that could not draw water from a polluted river to irrigate its crops, and the quantum of money required to truck in water for crop irrigation.

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Another example is the quantification of losses suffered by a commercial operator reliant on the river for its income, such as the kayak tours business mentioned above. Accountants, directors, managers, and small business owners may adopt an economic facts and figures voice. Such evidence is routinely presented to the NSWLEC in valuation cases, but presentation in a prosecution will be novel. A limitation of the scientific voice is that it sometimes does not present the bigger picture, as an Australian interviewee points out—‘“Oh, 60 trees were cut down.” Well what does that 60 trees represent in a broader context. Now? In ten years? 20 years? 50 years? Is it going to have an impact on climate change? Will it affect the fish stocks, for example’ (INT-34, 20 June 2018; P 20, L 615–618). Another voice that could permeate a restorative justice conference is a ‘storytelling’ voice. This voice portrays the stories of harm and loss, be that of an individual, community or even future generation. It may use facts and figures but would be a lot more personal and emotional than a facts and figures voice. The stories of the significance of Aboriginal cultural heritage and the pain felt following the offending against that heritage, as expressed in the judgments in Williams and Clarence Valley Council are examples of storytelling which can be facilitated at conferencing. Ms O’Donnell’s telling of the ‘Marnbi Bronze Winged Pigeon story’ and the significance of it to the Pinnacles, Ms O’Donnell’s belief that the ‘Aboriginal spirits would be very unhappy’ by the damage to the Pinnacles (Williams, [75]–[76]), the local Aboriginal peoples sadness, shock, sense of loss, emptiness, and feeling of being disrespected by the lopping and removal of the scar tree (Clarence Valley Council , [50]– [53]), are examples of storytelling that could be told at conferencing. These examples were from an Aboriginal cultural heritage offending context, notwithstanding, both Aboriginal and non-Aboriginal people have connections to the environment which can be harmed by environmental offending and which are amendable to storytelling. A person not able to swim or fish in a polluted river could tell of the significance of those recreational activities to them and how the environmental offending has impacted their lives. One interviewee had presided over a planning dispute before a civil administrative tribunal. An objector, whose objection was related to the

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impact the proposal would have on a population of green tree frogs, was permitted to present her objection to the tribunal. The objector ‘in a very high-pitched voice started to croak for some period of time’ (INT-19, 21 August 2017; P 12, L 434–435). Taken aback, the tribunal member reminded the objector that she had been asked to present her submission to the tribunal. The objector replied, ‘I am, but I’m speaking for the green tree frog, southern green tree frog…I’m croaking as the green tree frog would ’ (INT-19, 21 August 2017; P 12, L 439–441). In the interviewee’s view, the objector ‘undermined her case…’ and it had the effect of giving that aspect of the hearing ‘all the appearances of a farce…’ (INT-19, 21 August 2017; P 12, L 453–454). Obviously, croaking like a frog was ‘of no assistance’ to the considerations at hand (INT-19, 21 August 2017; P 12, L 448). This is despite the interviewee’s observations that the objector ‘seriously thought she was representing the green tree frog [in some helpful way]’ (INT-19, 21 August 2017; P 12, L 442–443). Whilst it is easy to dismiss this evidence as given by someone with questionable sanity and of it having no value, some victims may present their hurt as a performance or theatrical drama. Many different cultures, for example the Indigenous peoples of Australia, New Zealand, the United States, and Canada, use song and dance to tell stories. Perhaps the frog lady’s ‘performance’ voice is her way of telling the story of her loss. This example is a salient reminder that restorative justice conferencing should be a forum for a myriad of voices, and these voices may have different natures. This is to be embraced because everyone expresses hurt and loss in different ways. This frog croaking example highlights not only that people express themselves in different ways but also that different cultures may be conducive of different practices. As Braithwaite points out: Even “speaking in turn” may be too Eurocentric to be a minimal requirement as in some cultures it shows polite engagement to finish another person’s sentence or to speak at the same time. Perhaps the ideal is undominated speech. The ideal is certainly not to be culturally prescriptive: to allow participants to begin and end a conference with a prayer if that is their wish, to include noisy babies if they wish or exclude them if they wish, to allow Samoan offenders to kneel at the feet of victims and

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First Nations Canadians to wash the feet of victims…, to communicate by a storytelling that may appeal to less formally educated members of a community…more than a deductive reasoning that appeals to certain dominant men, or to lawyers. (Braithwaite 1999: 85–86)

Indeed, this is a salient reminder that not only should restorative justice responses to crime be inclusive, they should be culturally inclusive. Cultural inclusivity should be a ground up process rather than dictated from above. In a New Zealand context, Maxwell and Morris opine that sometimes Maori processes are used with young Maori who say they do not believe in ‘too much shit about the Maori way’ (in Braithwaite 1999: 86). In the Australian context a criticism of ‘Indigenous’ restorative justice processes is that they are ‘orientalist’. Blagg (1997) views the adoption of the Wagga model of police led youth justice conference based on the Maori (New Zealand) family group conferences as ‘orientalist’. That is, ‘[o]rientalist discourses are, primarily, powerful acts of representation that permit Western/European cultures to contain, homogenize and consume ‘other’ cultures’ (Blagg 1997: 483). Such knowledge of that culture ‘becomes a kind of cultural capital, the accumulation of which serves to reinforce nascent cultural superiority’ and in the process ‘essentialize’ that culture and denude it of its indigenous history (Blagg 1997: 483; see also, Cain 2000). This ‘orientalist appropriation’ of Indigenous justice processes is ‘largely in the service of strengthening advocates’ positions’ (Daly 2002: 63). In a similar vein, Cunneen explains the ‘failure to negotiate and consult with Aboriginal communities and organisations’ in the context of the adoption of New Zealand models of restorative justice for Aboriginal youth (1997: 295). ‘[W]here consultation has occurred there has been insufficient regard paid to Indigenous views’ (Cunneen 1997: 295). Therefore, any restorative justice conference which involves Indigenous people as offender or victim must understand the cultural differences of such people which manifest in the way they express themselves at conferencing. Given that environmental offending does not involve the ‘unity of ‘victim’ and ‘expert” which is present in Aboriginal cultural heritage offending (White 2014/2015: 52), such offending may see the predominance of facts and figures (science and economic) voice over storytelling.

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Conferencing following environmental offending may see ‘external expertise and different voices contesting the nature of the victimisation and harm’ (White 2014/2015: 52). The accommodation of such expertise and diversity of voices is a challenge facing the use of restorative justice conferencing following environmental offending. This chapter and the one preceding it culminates in some practical guidance for the use of restorative justice conferencing, not only in an environmental offending context but beyond. That practical guidance can be reduced to a few do’s and don’ts of conferencing, as depicted in Box 9.1. Box 9.1: The do and don’ts of restorative justice conferencing Do • Include as many victims and victim representatives as feasibly possible in the conference. • Ensure that the conference process is explained to participants and that their expectations are managed. • Ensure that conference participants are assessed as suitable for participation. This means that selection criteria are established and utilised. • If the prosecutor and offender’s legal representatives attend conferencing, ensure that their roles are clearly delineated. If such roles are not respected, the conference facilitator is to exclude their participation. • Ensure that conferencing provides the opportunity for victim and offender voice, interaction, and input. Don’t • Allow a participant in conferencing to dominate another. Be aware of power differentials and ensure non-domination. • Allow the conference to become a contest over the facts of the case. • Allow a conference to proceed or continue if there is a real risk of a victim being re-victimised, or an offender harmed.

This practical guidance will ensure that restorative justice conferencing is a vehicle through which to operationalise justice as meaningful involvement, as the next chapter explores.

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The next chapter concludes this book by exploring how restorative justice conferencing employed in the prosecution of environmental offending can operationalise justice as meaningful involvement. Justice as meaningful involvement is the third component of a tripartite conceptualisation of justice, comprising justice as procedure and justice as outcome (Chapter 3). The limitation of justice as procedure and justice as outcome is the fact that it can be achieved with minimal to no offender and victim voice, interaction, and input (Chapter 2).

References Auckland City Council v 12 Carlton Gore Road Ltd and Mary-Anne Katherine Lowe (Auckland District Court, McElrea DCJ, 11 April 2005). Auckland Regional Council v PVL Proteins Ltd [2008] DCR 84. Auckland Regional Council v Times Media Group Ltd and Anthony David Cook (Auckland District Court, McElrea DCJ, 16 June 2003). Blagg, H. (1997). A Just Measure of Shame? Aboriginal Youth and Conferencing in Australia. British Journal of Criminology, 37 (4), 481–501. Braithwaite, J. (1999). Restorative Justice: Assessing Optimistic and Pessimistic Accounts. Crime and Justice, 25, 1–127. Cain, M. (2000). Orientalism, Occidentalism and the Sociology of Crime. British Journal of Criminology, 40 (2), 230–260. Canterbury Regional Council v Interflow (NZ) Limited [2015] NZDC 3323. Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291. Cunneen, C. (1997). Community Conferencing and the Fiction of Indigenous Control. Australian and New Zealand Journal of Criminology, 30 (3), 292– 311. Daly, K. (2002). Restorative Justice: The Real Story. Punishment & Society, 4 (1), 55–79. Fisher, R. M., & Verry, J. F. (2005). Use of Restorative Justice as an Alternative Approach in Prosecution and Diversion Policy for Environmental Offences. Local Government Law Journal, 11(1), 48–59. Garrett v Williams (2007) 151 LGERA 92.

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Hamilton, M. (2008). Restorative Justice Intervention in an Environmental Law Context: Garrett v Williams, Prosecutions under the Resource Management Act 1991 (NZ), and Beyond. Environmental and Planning Law Journal, 25 (4), 263–271. Hamilton, M. (2016). Restorative Justice Intervention in an Environmental and Planning Law Context: Applicability to Civil Enforcement Proceedings. Environmental and Planning Law Journal, 33(5), 487–501. Land and Environment Court of New South Wales (NSWLEC) (2018, March 29). Practice Note—Class 1 Residential Development Appeals. New Zealand Ministry for the Environment (2006), A Study into the Use of Prosecutions under the Resource Management Act 1991; 1 July 2001–30 April 2005. Preston, Hon Justice B. J. (2011). The Use of Restorative Justice for Environmental Crime. Criminal Law Journal, 35 (3), 136–153. Protection of the Environment Operations Act 1997 (NSW). Sherman, L. W., & Strang, H. (2007). Restorative Justice: The Evidence (Report). Uniform Civil Procedure Rules 2005 (NSW). United Nations Office on Drugs and Crime (UNODC). (2020). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). Waikato Regional Council v Huntly Quarries Ltd and Ian Harold Wedding (Auckland District Court, McElrea DCJ, 28 October 2003). Waikato Regional Council v PIC New Zealand Ltd (Auckland District Court, McElrea DCJ, 29 November 2004). White, R. (2013). Environmental Crime and Problem-solving Courts. Crime, Law and Social Change, 59, 267–278. White, R. (2014). Environmental Harm: An Eco-Justice Perspective. Bristol: Policy Press. White, R. (2014/2015). Indigenous Communities, Environmental Protection and Restorative Justice. Australian Indigenous Law Review, 18(2), 43–54. White, R. (2016). Four Problems for Specialist Courts in Dealing with Nonhuman Environmental Victims. In T. Spapens, R. White, & W. Huisman (Eds.), Environmental Crime in Transnational Context: Global Issues in Green Enforcement and Criminology (pp. 139–153). London and New York: Routledge. White, R. (2017). The Four Ways of Eco-global Criminology. International Journal for Crime, Justice and Social Democracy, 6 (1), 8–22.

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White, R. (2018). Green Victimology and Non-human Victims. International Review of Victimology, 24 (2), 239–255. Wyatt, T. (2013). Wildlife Trafficking: A Deconstruction of the Crime, the Victims, and the Offenders. Basingstoke: Palgrave Macmillan.

10 Justice as Meaningful Involvement and Its Operationalisation Through Restorative Justice Conferencing

The prosecution of environmental offending before the Land and Environment Court of New South Wales (‘NSWLEC’) (Chapter 2) achieves a binary conceptualisation of justice, comprising justice as procedure and justice as outcome (Chapter 3). The limitation of this binary conceptualisation of justice is that it is achieved with minimal to no offender and victim voice, interaction, and input. Indeed, it is this limited to no offender and victim voice, interaction, and input, inherent in modern prosecution, which led (in part) to the rise of restorative justice (Chapter 4). This factor, along with the fact that green criminology has been slow to engage with environmental victims (Chapter 1), leads to the exploration of a wider conceptualisation of justice which incorporates the missing offender and victim voice, interaction, and input. That conceptualisation, justice as meaningful involvement, which compliments justice as procedure and justice as outcome, is explored in this chapter, along with its operationalisation through restorative justice conferencing.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6_10

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Under the green criminology umbrella are many approaches to conceptualising the harm resulting from human/environment interaction. Even though these approaches overlap to varying degrees and even though the focus of each differs, it is environmental harm (and its effects on humans and the environment alike) which glues these approaches together. Table 10.1 outlines each approach and its focus. Three interrelated concepts are of concern to each of these approaches. These concepts are recognition, participation, and capability.

Recognition Schlosberg explores the notions of recognition, participation, and capabilities using the example of reclaimed wastewater to make snow at a ski resort on a mountain sacred to local Indigenous tribes (2007: 172). It is assumed that this example involves approved activity which is sanctioned (i.e. licensed) by the Environment Protection Authority or some other consent authority. Recognition concerns, in an environmental justice approach, the lack of acknowledgement of minority interests, such as local Indigenous cultures. For instance, there is lack of acknowledgement at the licence or permit issuing stage that this mountain is sacred to local Indigenous tribes and the use of reclaimed wastewater to make snow on the mountain is degrading to Indigenous culture. The way to operationalise recognition in this environmental justice frame is to acknowledge the fact that there are many diverse interests in the environment and such recognition should be taken into consideration in decision-making processes. Recognition, using the above fact scenario but in an ecological justice framework, means to acknowledge the fact that the environment operates through a series of natural processes and that human intervention (such as making snow from reclaimed wastewater) can disrupt or displace such processes to the detriment of the environment. To operationalise recognition, it must be taken into consideration in decision-making processes. Recognition in a climate justice frame relates to the acknowledgement that climate change impacts on a diverse range of people, communities, and countries and such recognition needs to be acknowledged

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Approaches to Harm under Green Criminology and the Focus of

Approach to harm

Focus

Environmental justice

Effects on humans (usually within minority, lower socio/economic communities) of decision-making made at various levels of government, corporations, entities, and individuals to undertake some operation (or cease operations) within a locality and the approval process to undertake such operations (for an overview, see Schlosberg 2007; White 2013, 2014a: 43–74) Effects on ecosystems of decision-making made at various levels of government, corporations, entities, and individuals to undertake some operation (or cease operations) within a locality and the approval process to undertake such operations (for an overview, see White 2008, 2014a, b, 2015) The effect that climate change will have on humans (usually within minority, lower socio/economic communities, and developing countries) (for an overview, see Gardiner 2011) The effects of environmental harm on animals (for an overview, see Sollund 2011, 2013a, b; Nurse 2013; White 2014a) The notion of the inherent worth of living beings regardless of the instrumental utility to human needs and the interconnectedness of human and environmental communities (for an overview, see Burdon 2011; Williams 2013)

Ecological justice

Climate justice

Species justice

Earth jurisprudence/deep ecology

in decision-making processes which exacerbate or mitigate the effects of climate change. Extending Schlosberg’s example, this might require consideration of climate change impacts arising from the energy used to process the wastewater and distribute the snow.

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In a species justice frame, recognition relates to the intrinsic rights of animals not to suffer abuse, whether through one-on-one cruelty, institutional harm (such as inhumane farming practices), and damage to habitat such as through land clearing or the effects of climate change (White 2014b: 89, Fig. 5.1). Recognition is operationalised in this frame when such recognition permeates decision-making which may have an effect on the intrinsic rights of animals not to suffer abuse. In terms of the above example, this would require decision-makers to consider the impacts on species and habitat from the new snow. In an earth jurisprudence/deep ecology frame, recognition relates to the acknowledgement of the inherent worth of living beings regardless of their instrumental utility to human needs and the interconnectedness of human and environmental communities. Recognition in this frame is operationalised through a radical restructuring of human societies in accordance with such recognition. Returning to the wastewater example, recognition would require decision-making which respects the intrinsic worth of the mountain and its inhabitants and considers that alongside the benefit the artificial snow will have to humans. From these different approaches under the umbrella of green criminology a definition of recognition can be formulated. Recognition is the acknowledgment that human/environment interaction can have harmful effects on both humans and the environment alike. Recognition is important because it will, hopefully, ‘generate a comprehensive victimology literature…’ (Johnson 2017: 89) pertaining to environmental crime which is undeveloped at the moment. Recognition is operationalised by acknowledging the potentiality of such harm in decision-making either within existing human societies or restructured human societies. Recognition is premised on such knowledge being known to relevant decision-makers and leads to participation.

Participation The essence of participation is the inclusion of a wide range of people, operators, communities, the environment (and its constituent parts) and even countries in decisions involving human/environment interaction that may

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impact on them. For example, using the above example of reclaimed wastewater to make snow, participation includes the involvement of local Indigenous peoples (environmental justice) and the environment (or environmental non-government groups who may be able to speak for the environment) (ecological justice) in the decision-making process involving the assessment of the grant of a licence or permit to regulate that activity. Participation in a climate justice frame involves the participation of those affected by climate change in decision-making that affects the impacts of climate change on them. The breadth of such participation is conceivably very wide because many decisions made by corporations and governments affect climate change. For example, the decision to continue to invest in fossil fuels in the face of renewable energy alternatives. Participation in the context of species justice involves finding voice for species in decision-making which affects those species. All of the abovementioned approaches are premised on giving those harmed or potentially harmed a voice (i.e. participation) in decision-making processes within existing governance models. The vehicles that can accommodate such participation might simply be a seat at the decision-making table in relation to things such as strategic planning, government policy, corporate policy, development approval applications, and licence approval applications. Earth jurisprudence/deep ecology propose participation for the environment within the existing governance framework through so-called wild laws, which are essentially laws which are consistent with earth jurisprudence (Cullinan 2002). Earth jurisprudence/deep ecology also proposes participation for those harmed by human/environment interaction through new governance systems, such as ecological democracy (Dryzek 2013: 233–239) and a green state (Eckersley 2004).

Capability Capability can be defined as the ability of those harmed by human/environment interaction to retain (or have restored) that which is essential to their/its functioning. Schlosberg’s development of capability as

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a measure of justice is an application of Nussbaum and Sen’s capability approach and an extension of that approach to the natural world. As Schlosberg explains, the ‘capabilities approach is important for ecological justice because flourishing is not an element that relates only to humanity…Capabilities include what is necessary for functioning and flourishing of human and nonhuman alike; it is an integral aspect of the living process’ (Schlosberg 2007: 143). Nussbaum and Sen focus on ‘how individuals translate the goods they have into functioning lives [and thereby]…moves beyond a sole focus on utilitarian or goods focus…’ including how goods are distributed in society (Schlosberg 2007: 142). For Nussbaum and Sen, as Schlosberg surmises, ‘justice is not just how much we have, but whether we have what is necessary to enable a more fully functioning life, as we choose to live it’ (2007: 30; for an overview of capability theory, see Nussbaum 2000, 2004, 2006; Sen 1985, 1999a, b, 2005; Nussbaum and Sen 1993). Using the fact scenario above capabilities would involve the elimination of the negative impacts that snow making activity is having on the Indigenous tribes’ capacity to retain cultural meanings and teaching (environmental justice) and the capacity of local animals and plants to flourish (ecological and species justice). Capabilities in a climate justice frame are about mitigating the effects of climate change on communities and countries (usually disadvantaged communities and developing countries) so that those communities and countries continue to exist and flourish. Earth jurisprudence/deep ecology views capabilities as humans and the environment co-existing in harmony to ensure the continued existence and flourishing of both. Applying capability to a river may incorporate the following conception of rights proffered by Cullinan: A fundamental river right (that is, the riverine equivalent of a human right) would be the right to flow. If a waterbody couldn’t flow it wouldn’t be a river and so the capacity to flow (given sufficient water) is essential to the existence of a river. Therefore, from the perspective of the river, building so many dams across it and extracting so much water from it that it ceased to flow into the sea, would be an abuse of its Earth rights. (2002: 118)

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Capability in an environmental offending context would entail the repair of the harm occasioned by the offending. Such capability is premised on the recognition that environmental offending has detrimental effects on humans, communities, the environment, and commercial enterprises. Capability is also premised on the participation of those detrimentally affected in the prosecution of such offending. This can be challenging in the context of cumulative pollution where the offending has resulted in the pollution of an already polluted environment. Knowing just what additional effect that offending has had on an already polluted environment may be difficult. An example here would be carbon emissions in breach of an environment protection licence adding to the already existing carbon in the atmosphere resulting from both legal and illegal activity. Capability would require restoration of the environment beyond the harm caused by the offending being addressed. This has implications for the concept of proportionate punishment; requiring an offender to restore the environment beyond the scope of the harm caused may not represent proportionate punishment, even if such restoration is required to ensure the functioning of the environment, those dependent on the environment, and future generations. A challenge for capability is those occasions (hopefully rare) where the harm from the offending in question is that catastrophic that it cannot be remedied. An example would be where a water pollution incident tips a river into an entirely new ecosystem state. This means that the function of the affected environment cannot be ensured. Hence capability is not retained in that element of the environment.

(Ir)Relevance of Distribution It is worth acknowledging, for completeness sake, that many of the approaches to harm embedded under the umbrella of green criminology are concerned with distributional aspects of harm. Essentially that entails a consideration of how environmental goods (benefits) and bads (burdens) are distributed in society and indeed the world. For example, in an environmental justice frame distribution concerns the fact that disproportionately the environmental bads, in terms of pollution and

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environmental degradation, falls on poorer communities, minority and Indigenous communities, and developing countries. The environmental goods, the profit from environmental use (exploitation) and the healthy environment, are reserved for the white, middle, and upper-class citizens of developed countries. In a climate justice frame it is the poorer countries and poorer communities who will suffer the most from climate change (in terms of flood, drought, crop failure, sea level rise, coastal inundation, and forced migration) and who, because they are economically and technologically poor, will have the least opportunity to mitigate and adapt. Conversely, developed nations, and the middle and upper classes within those countries, will have the financial and technological resources to mitigate and adapt to those climate changes most effectively. To add to this injustice is the acknowledgement that the greatest contributors to climate change are those countries and citizens which have the greatest capacity to mitigate and adapt to the problems climate change will cause. Distribution is not relevant to the exploration of the use of restorative justice conferencing for environmental offending. Notions of distribution do not generally play a role in environmental prosecution. For example, 95.5% of the completed water pollution prosecutions (110) heard by the NSWLEC between 2000 and 31 August 2017 (‘analysis period’) involved pollution emanating from premises that were licensed or subject to an approval (Hamilton 2019b: Appendix 8). Naturally, all the 65 breach of environment protection licence cases prosecuted before the NSWLEC in the analysis period involved licensed activity (Hamilton 2019b: Appendix 9). Hence the location of the pollution incidents was not a result of a choice of the offender to pollute in a set location. Rather it was a function of the locality of the licensed premises. Even the 4.5% of water pollution prosecutions not emanating from licensed or approved locations did not involve deliberate attempts to pollute in minority, Indigenous or communities of low socio/economic status or sensitive sites of flora and fauna. Hence distributional aspects are not a concern in prosecution. To the extent that the pollution from these licensed and approved operations may disproportionately affect Indigenous peoples, minorities, people of low socio-economic status, or sensitive flora and fauna, is a function of the approval and licensing process, which in turn

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is a function of planning and wider economic systems, rather than a concern of prosecution per se.

Meaningful Involvement Drawing on the various approaches within the green criminology umbrella which conceptualise the harm resulting from human/environment interaction, the following definition of meaningful involvement is proffered: The recognition that human/environment interaction can have harmful effects on both humans and the environment alike, with such recognition culminating in the participation of a wide range of people, operators, communities, the environment (and its constituent parts) and even countries in decisions involving human/environment interaction that may impact on them. The purpose of participation is to ensure the ability of those harmed by human/environment interaction to retain (or have restored) that which is essential to their/its functioning.

Meaningful involvement in the context of environmental offending entails: • Recognition—the acknowledgement that environmental offending can have harmful effects on humans (both currently living and future generations), the environment (and its constituent parts), communities (both Indigenous and non-Indigenous), and commercial operators. • Participation—the involvement of relevant participants (offender, victims, community, and stakeholders) in the process used to deal with environmental offending. • Capability—the ability of those harmed by environmental offending to retain (or have restored) that which is essential to their/its functioning.

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Operationalisation of Justice as Meaningful Involvement Restorative justice conferencing is a forum through which to achieve a tripartite conceptualisation of justice. It does so by achieving justice as meaningful involvement (consisting of recognition, participation, and capability) which is facilitated by the voice, interaction and input conferencing allows. Conferencing achieves justice as meaningful involvement without displacing justice as procedure (a fair trial for an offender) and justice as outcome (achievement of the statutory purposes of sentencing through sentencing which is consistent and representative of proportionate punishment) which prosecution before the NSWLEC achieves (Chapter 3). The fact that restorative justice conferencing can achieve justice as meaningful involvement without displacing justice as procedure and justice as outcome is vital to its acceptance, especially amongst the government, judiciary, and legal practice. Achievement of a tripartite conceptualisation of justice is premised on getting a matter to conferencing. Although there are some barriers to getting a matter to conferencing, those barriers are not insurmountable (Chapters 8 and 9). Participation is premised on recognition and therefore these two contingent components can be explored together. Premised on the belief that conflict is a violation of people and relationships (Central Tenet 1), restorative justice dictates that responses to conflict should be inclusive (Central Tenet 2). Recognising the fact that environmental offending can result in diverse victims, many of which are non-human, means that the first central tenet of restorative justice can be expanded to recognise that environmental offending is a violation of the relationship between offender and humans (both living and future generations), offender and the environment, offender and communities, and even, offender and commercial operators. Environmental offending fractures these relationships or causes disharmony within those relationships. Recognising the fracture and disharmony in those relationships, restorative justice conferencing brings into conversation and interaction those participants to repair them and resolve the harm resulting from the offending. Repair and resolution ensure the capability of victims. That is, the retaining (or restoring) of that which is essential to their/its functioning. Victim and

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offender voice, interaction, and input facilitated through conferencing is essential to participation as a component of meaningful involvement. However, meaningful involvement is broader than voice, interaction, and input. Recognition permeates the identification of victims for conferencing whilst capability is implicated in conferencing and conferencing follow-up. Capability, as that which is necessary for functioning, differs depending on the harm occasioned by the offending. Restorative justice conferencing can ensure the capability of victims of environmental offending. Although there is probably an overlap between victim capability and victim needs, this book has not explored the latter. That is because to understand the myriad of victim needs would require empirical data derived from interviews with victims. That data has not been compiled. Future empirical research could seek to uncover victim needs and indeed, observations made in conferencing may uncover such needs. Zehr proffers four victim needs as information, truth-telling, empowerment, and restitution/vindication (2015a: 22–23). Qualitative assessment is needed to assess how pertinent these needs are to victims of environmental offending. In an Aboriginal cultural heritage offending context, such as Garrett v Williams (2007) 151 LGERA 92 (‘Williams’) and Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 (‘Clarence Valley Council ’), capability is achieved through seeking to ensure such offending does not occur again in the future. In Williams, the offender agreed to following the necessary statutory steps, in consultation with the local Aboriginal community, before undertaking future work which could impact on Aboriginal cultural heritage. In Clarence Valley Council , steps to improve staff training and consultation with the local Aboriginal community were designed to try and prevent future offending. The environmental service order through preserving and commemorating the remaining remnants of the scar tree will also ensure the capability of the local Aboriginal people because that component of cultural heritage is important to their functioning. In terms of water pollution, capability builds upon the recognition that pollution offending can have harmful effects on a diversity of victims. In Canterbury Regional Council v Interflow (NZ) Limited [2015]

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NZDC 3323 (‘Interflow’), the harmed creek/stream has special significance to local Maori people. Such significance is reflected in a Maori proverb, ‘The great river flows from the mountains to the sea, I am the river, the river is me’. Although this proverb is relating to the Wanganui River, it can be generalised to all watercourses. Capability is ensured for the local Maori people through the recognition of the sacredness of the water and the restoration of that watercourse. The donation in Interflow, through repair/enhancement of that harmed will ensure such capability. The effects of water pollution permeate beyond local Indigenous communities to which the affected watercourse may have spiritual significance. The functioning of the watercourse itself may be compromised by pollution and thereby jeopardising the ability of future generations to use that watercourse to ensure their functioning. In this instance, restoration of the watercourse will ensure the continued functioning, and hence capability, of the watercourse and its inhabitants (fish, eels, birds, etc.) and the future functioning of humans that will rely on that water for their survival. Recreational users of watercourse, such as swimmers or those that fish in that watercourse, need their capability ensured following its pollution. For example, what is essential to their functioning may be a dialogue with the offender to find out about the circumstances surrounding the offending and the opportunity to express what that watercourse means to them and their hurt felt because of the offending. In this respect, the dialogue is fulfilling a psychological need. Perhaps not a matter of life or death, the psychological distress if left unresolved could have a lasting impact on an individual’s functioning. In cases of commercial operators, such as a farm drawing water from a river to irrigate crops, pollution of that river may affect the very functioning of that farm. Capability then would involve restoration of the river to ensure water can be drawn to irrigate crops. Also needed is compensation for any crop losses and alternatives, such as the trucking in of tank water, until it is safe to draw water from the river. The agreement to such compensation and alternatives at conferencing could be proffered to the court to be made into court orders where possible. This may see an expansion in the role of prosecution because compensation is generally the domain of private law such as tort and the formulation of such

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alternatives as a domain of private negotiation. Naturally, an offender can agree to compensate a victim or make whatever arrangements with a victim it chooses to. However, in the context of conferencing as part of the sentencing of an offender that compensation or alternatives will be made into court orders where possible and considered as part of the courts sentencing functioning. Given that one of the central tenets of restorative justice is responses to crime should heal and put things right, it is desirable that such outcomes should be accommodated. The bona fides of all compensation/alternate arrangement agreements should be verified.

Achievement of a Tripartite Conceptualisation of Justice The achievement of the binary conceptualisation of justice in the prosecution of environmental offending before the NSWLEC (Chapter 3) will not be displaced by the embedding of restorative justice conferencing as part of the prosecution process. Justice as procedure is conceptualised as consisting of the rule of law (i.e. everyone being subject to the law including individuals, corporations and government entities), independent, impartial, and accountable decision-making, adversarialism (a contest between parties based on evidence), proceedings being held in open court leading to an enforceable outcome. It was concluded that justice as procedure is being achieved through the prosecution of environmental offending before the NSWLEC. Restorative justice conferencing when embedded as part of the prosecution of offending (e.g. through a back-end model of conferencing), as explored through the Interflow, Williams, and Clarence Valley Council case studies, will not displace justice as procedure. This is because the conferencing does not displace the traditional role of the court in determining the facts of the case and the sentencing of the offender. However, this will depend on the model of judicial oversight of conferencing outcomes adopted, as explored in Chapter 8. Justice as outcome is conceptualised as comprising proportionate punishment, consistent sentences, and achievement of the statutory

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purposes of sentencing. The NSWLEC achieves justice as outcome through the prosecution of environmental offending. Restorative justice conferencing not only provides a model through which justice as outcome can be achieved, but also strengthened. Restorative justice conferencing has the potential to deliver outcomes which are different to those delivered in cases where conferencing is not used. This is because such outcomes are derived through dialogue between the offender, victims, and stakeholders to an offence. What effect those outcomes have on the achievement of justice as outcome will depend on what model of judicial oversight of conferencing outcomes the court adopts (see Chapter 8, Fig. 8.2). The model adopted in New Zealand (including Interflow), Williams and Clarence Valley Council , which I have labelled a ‘take into consideration’ approach, sees the court considering the fact of attending, and the results of, the conference. The court is able to amend any outcomes reached and impose any additional penalties on the offender to ensure justice as outcome is being achieved. Whilst not attempting to foreshadow the approach (if any) the NSWLEC will take to the judicial oversight of conferencing outcomes, given its experience in Williams and Clarence Valley Council , and guidance from the practice in New Zealand, it is most likely to be the ‘take into consideration’ approach. The discussion of justice as outcome will proceed on that basis. In terms of consistent sentencing and proportionate punishment, the court can ensure the achievement of both by ensuring that the burden on an offender in attending conferencing, and in meeting the conferencing outcome agreement, in terms of the expenditure of money, energy and time are equivalent to any penalty the court would have been minded to impose in that matter. The statutory purposes of sentencing, all of which are relevant to environmental offending, are retribution, deterrence, community protection, rehabilitation, accountability, denunciation, and recognition of harm (Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A). Restorative justice conferencing through the tailoring of outcomes to repair the harm occasion by offending is likely to see increased reliance on reparative orders and less reliance on fines as a sentencing outcome. Indeed, this is starting to occur in the traditional sentencing of environmental offending by the NSWLEC (Hamilton 2019b: Figs. 8 and 9). Even

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though reparative orders involve the expenditure of money, as fines do, some may be concerned that the retributive symbolism that fines have are lost when imposing reparative orders rather than fines, or indeed imprisonment. However, it must be remembered that retribution is not the only purpose of sentencing and it can be speculated that the NSWLEC is open to impose a fine, or even imprisonment, in addition to, or in lieu of, agreed conferencing outcomes if the symbolism of a fine is required in a given case. Indeed, the NSWLEC could still impose a term of imprisonment if community protection were necessary. Denunciation is reflected in conferencing outcome agreements and in the orders which can be made by the NSWLEC following conferencing. Arguably, the more creative orders made following conferencing, which have drawn on offender and victim voice, interaction and input, such as environmental service orders and restorative justice activity orders have greater denunciation effect than say a fine because such orders are more reflective of the scope of the harm occasioned to the victims of the offending. Hence, such orders derived at conferencing recognise the harm done to the victim of the crime and the community. As an example, in Clarence Valley Council the harm related not only to the physical damage to the scar tree but also the spiritual and cultural significance of that scar tree to the Indigenous community. The outcomes from the conference ‘means that the scar tree will live on, albeit as remnants and perhaps in sculpture form, its history preserved, and the site commemorated’ (Hamilton 2019a: 208). The donation to the Grafton Ngerrie Local Aboriginal Land Council, which was made the subject of an environmental service order, has a direct ESO/harm occasioned nexus in that the project will preserve and display the remnants of the scar tree. Likewise, the donation in the Interflow matter represents a direct ESO/harm occasioned nexus because the repair/enhancement is of the actual environment harmed. A direct nexus is not only a benefit of conferencing but is recognition of the harm done to the victim/community and is a result of the victim and offender voice, interaction and input provided through conferencing with the assistance of a key stakeholder, the regulatory/prosecutorial authority. A conference outcome agreement may specify the way in which an offender is to improve its environmental operations and controls. This

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outcome, in a sense, is a form of offender rehabilitation and is consistent with that statutory purpose of sentencing. The outcomes of restorative justice conferencing, including where those outcomes are made into court orders, will have a deterrent effect because they involve the offender’s investment in time, money, and energy. For example, a restorative justice activity order may involve more investment in time, money, and energy than a fine would. Additionally, the NSWLEC has the ability to impose a publication order and a future references order which have deterrent effect. One of the statutory purposes of sentencing is offender accountability, which is crystallised by the imposition of punishment, but it is a process which begins with the laying of the charges and prosecution of those charges. Restorative justice conferencing will make offenders accountable in accordance with this conceptualisation because conferencing does not displace the prosecution process leading to the imposition of punishment. Zehr proffers a wider formulation of offender accountability than the laying of charges, prosecution, and punishment conceptualisation. For Zehr, real accountability involves offenders facing up to what they have done, appreciating the harm that the offending has caused not only to the victim, but also society, and taking steps to repair that harm, to make things right (Zehr 2015a: 24; b: 47). One of the benefits of restorative justice conferencing is the fact that it can achieve offender accountability in the Zehr sense. To demonstrate this, it is advantageous to deconstruct Zehr accountability and deal with each of its components. • Offenders facing up to what they have done; • Appreciating the harm that the offending has caused not only to the victim, but also society; and, • Taking steps to repair that harm, to make things right. Offenders facing up to what they have done involves offenders meeting and conversing with the victims and stakeholders and explaining their actions. This can be facilitated through conferencing. It does not involve offenders hiding behind legal representatives in court which is typical

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of traditional prosecution. Whilst in some models of conferencing an offender’s legal representative may attend conferencing, their role is a technical and advisory one and not as a spokesperson for their client. The reason why offenders need to face up to what they have done is because ‘conflict is a violation of people and relationships’, a central tenet of restorative justice. The second component of accountability according to Zehr requires an offender appreciating the harm that the offending has caused not only to the victim, but also society. One of the main deficiencies of modern prosecution of environmental offending is the fact that offenders never get a full appreciation of the harm their offending has caused. This is because victim and offender dialogue and interaction are absent. Truly listening to a victim can assist an offender in appreciating the harm caused. Restorative justice conferencing can facilitate dialogue and interaction. Appreciating the harm caused by offending is facilitated when one of the central tenets of restorative justice is operationalised; that being that responses to conflict should be inclusive. Thirdly, offender accountability requires an offender taking steps to repair that harm, to make things right. Restorative justice conferencing, through the facilitation of dialogue and interaction between stakeholders to an offence, provides the opportunity to formulate outcomes to repair the harm occasioned by offending. The innovative outcomes derived at the conferencing in Clarence Valley Council are a prime example. Repairing of harm does not always involve some activity which can be made subject to an outcome or order. Indeed, often it is the restorative justice process itself which repairs harm. That is, the voice, interaction and input facilitated in that process where an offender can explain the offending and apologise. The environment is not concerned with explanations and apology but rather the physical repair of the harm occasioned by offending, which will ensure its capability. Outcomes which physically repair the environment can be formulated through the collective participation of those at conferencing. Human victims and stakeholders can ask any pertinent questions they may have. It is this dialogue and interaction which is not facilitated in traditional prosecution. The taking of steps to repair the harm occasioned by offending is consistent with a

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central tenet of restorative justice. That is, responses to conflict should heal and put things right.

Concluding Remarks and Future Directions Restorative justice conferencing is a forum through which to achieve a tripartite conceptualisation of justice. It does so by achieving justice as meaningful involvement (consisting of recognition, participation, and capability) which is facilitated by the voice, interaction and input conferencing allows. Conferencing achieves justice as meaningful involvement without displacing justice as procedure (a fair trial for an offender) and justice as outcome (achievement of the statutory purposes of sentencing through sentencing which is consistent and representative of proportionate punishment) which prosecution before the NSWLEC achieves. Achievement of a tripartite conceptualisation of justice is premised on getting a matter to conferencing. Getting a matter to conferencing is not without challenge. Once such challenge relates to establishing the necessary architecture for conferencing. A legislative framework, part of that architecture, is seen as providing legitimacy for restorative justice. Another challenge is the judicial treatment of restorative justice outcomes (as agreed at conferencing) once a matter returns to the court for sentencing. The slow uptake of conferencing in a New Zealand environmental offending context suggests that a legislative framework supportive of conferencing is insufficient on its own to promote the widespread use of conferencing. What is needed then is greater stakeholder, practitioner, and judicial knowledge of conferencing. Also needed is an investment in resources necessary to utilise restorative justice conferencing. For example, an investment in a Restorative Justice Unit within the NSWLEC may lead to the promotion of conferencing. Even when a legislative framework supportive of conferencing has been established, including protocols surrounding the conference facilitation and follow-up and the establishment of a restorative justice unit within the NSWLEC, and there has been a permeation of the knowledge and understanding of conferencing, there may still be some challenges in getting participants to conferencing. Those challenges were

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explored through the lens of the United Nations Office on Drugs and Crime (‘UNODC’) critical ingredients for restorative justice success and other UNODC suitability criteria (2006, 2020). Challenges pertaining to victim participation at conferencing include the identification of victims, consideration of how those victims will be given a voice at conferencing, selection of victim representatives (human guardians) and accommodation of the different natures of victim voices. A challenge pertaining to an offender’s participation at conferencing is establishing the suitability of an offender to attend conferencing. UNODC suggests looking for an offender’s acceptance of responsibility for the offending as the suitability criteria for offender participation. Contrition and remorse can underpin such acceptance and indicia of contrition and remorse were explored. It was suggested that some flexibility be exercised when assessing contrition and remorse because the transformative potential of restorative justice conferencing may have the greatest benefit for those offenders who don’t fully appreciate the gravity or effect of their/its offending and who may not have readily accepted responsibility for the offending. However, such consideration must be balanced against the potential for victim re-victimisation. Another challenge to the use of conferencing is consideration of the relevant participants to attend conferencing. The prosecution generally attends conferencing in New Zealand, but it was precluded from attending the conference in Williams and inferably in Clarence Valley Council . There are some benefits in allowing the prosecution, and its experts, to attend conferencing so long as its role is clearly delineated. Although these challenges to getting a matter to conferencing exist, they are not insurmountable as Chapters 8 and 9 attests. Once the challenges to conferencing are overcome and a matter makes its way to conferencing, there are some substantial benefits. Firstly, conferencing provides the opportunity for offender and victim voice, interaction, and input; the very thing missing from traditional prosecution of environmental offending. A second benefit of conferencing is that it gives an offender the opportunity to apologise for its offending and the opportunity for the victim to forgive such offending. Better outcomes than traditional prosecution are the third benefit of conferencing. This is because dialogue between offender, victims (including community), and

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stakeholders at conferencing can lead to more innovative and targeted solutions to repair/enhance the environment. In addition, innovative solutions such as donations can overcome the limitations of fines which are forwarded to the prosecutorial authority (as in New Zealand) or the state government (as in New South Wales), and which could be simply absorbed in administrative costs rather than used to repair/enhance the environment. The fourth benefit of conferencing is that it is educational for both offender and victim. An offender may learn of their or its deficiencies and of the harm caused to the victims. Victims may learn things about the offender and the offending not revealed during traditional prosecution. Education facilitates an understanding of the deficiencies in their or its environmental controls which led to the offending. This in turn can lead to internal changes to policies and procedures which can lead to better environmental outcomes (the fifth benefit of conferencing). Conferencing can provide the forum through which an offender can make amends for its or their offending. Amends can be made through offenders listening to victims and community, exploring their offending, and proffering solutions to the harm caused. This is the sixth benefit of conferencing. The seventh benefit of conferencing is that it may be the vehicle through which offenders can repair their or its reputation. Finally, conferencing provides the opportunity to repair relationships ruptured by the offending and possibly outline planned interaction in the future. Completed conferences and interviews reveal four limitations of restorative justice conferencing. Firstly, the perception that conferencing is not adversarial. Adversarialism is a key feature of traditional prosecution, part of justice as procedure. That is, prosecution is a ‘contest’ between the parties, based on evidence, and adjudicated by an independent, impartial, and accountable decision-maker leading to an enforceable outcome. Advocates of the adversarial system may take exception to conferencing because it is not adversarial. Rather, it is a consensual, interactive dialogue. What these advocates fail to see is that conferencing is not meant to be adversarial. Being adversarial would undermine what the conference is trying to achieve—voice, interaction, and input. Further, conferencing when used as a back-end model before sentencing does not displace the adversarial nature of the proceedings itself.

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A second limitation is the perception that restorative justice conferencing is soft on offenders; a soft option for offenders. Despite this perception, overwhelmingly the interviewees opined that conferencing was not a soft option. Conferencing involves an expenditure of energy and emotion, not to mention time and money, which sees an offender come face-to-face with often angry and hurt victims and community members. This according to the New Zealand interviewees is not an easy thing for offenders to face. Notwithstanding the interviewees’ views, there probably remains the public perception that conferencing is a soft option for offenders. This is a perception issue which only time and exposure to conferencing will reverse. Further research could collect empirical data from members of the public regarding their views on the use of conferencing and punitive attitudes to see whether there is any correlation between the two. The court making outcome agreements into court orders will mitigate any perception that conferencing is a soft option for offenders, manifesting from a failure to complete outcome agreements, because any failure to comply with those court orders could lead to contempt proceedings. The making of some of the outcome agreements in Clarence Valley Council into court orders was an improvement in NSWLEC practice from the earlier Williams case. Conferencing can lead to inconsistency in sentencing and nonproportionate punishment and this is the third limitation of conferencing. However, effective judicial oversight of conferencing outcomes can mediate the potential for inconsistent and non-proportionate sentences. A fourth limitation of conferencing is that it is more expensive, takes longer and requires more energy than traditional prosecution. Indeed, this additional investment in money, time, and energy may well be worth the investment for offenders, victims, and stakeholders given the benefits which are possible. However, the New Zealand marginal use of restorative justice conferencing (less than 5% of prosecutions; Chapter 6, Table 6.1) suggests that considerations other than the benefits of conferencing are at play. This book highlights the need for future research. Empirical data is needed regarding the participants’ experience of the restorative justice conferencing in the Clarence Valley Council matter, as well as the victim and offender experience in the Williams conference. Future research

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is needed pertaining to both victims and offenders of environmental offending (and environmental harm more generally). For victims there is the need to heed the call from Hall (2012, 2014) and undertake empirical research on the needs and expectations of victims in this specific context. This book has not directly undertaken that research. Rather, it has concerned itself with the notion of justice as meaningful involvement. There may well be an overlap between victim needs and capability (one of the elements of meaningful involvement). Additionally, restorative justice conferencing may provide the forum through which to explore victim needs. Taking a localised focus on environmental offending has meant that this book has not considered the application of restorative justice conferencing for transnational environmental crime. That is, environmental offending which has impacts beyond the boundary of any one country. Further research will establish which international actors could participate in conferencing in the aftermath of that crime and if such conferencing achieves meaningful involvement for those countries affected by transnational environmental crime. This further research will also reveal what contextual justice means, and the role restorative justice can play, in that context. Future research will reveal whether proportionate punishment and consistency in sentencing is better achieved when the full financial costs of any court orders (including restorative justice outcome agreements which are made into orders) are known at the time of sentencing (Cain and Donnelly 2017; Burke 2018). Given the potential benefits of restorative justice conferencing in an environmental offending context, it is hoped that this research agenda is pursued vigorously and that such research feeds into practice. The intertwining of research and practice will bring many benefits for years to come.

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Hamilton, M. (2019b). Restorative Justice Conferencing in Response to Pollution Offending: A Vehicle for the Achievement of Justice as Meaningful Involvement (PhD Dissertation). UNSW. Nurse, A. (2013). Animal Harm: Perspectives on Why People Harm and Kill Animals. London and New York: Routledge. Nussbaum, M. C. (2000). Women and Human Development: The Capabilities Approach. New York: Cambridge University Press. Nussbaum, M. C. (2004). Beyond “Compassion and Humanity”: Justice for Nonhuman Animals. In C. R. Sunstein., & M. C. Nussbaum (Eds.), Animal Rights: Current Debates and New Directions (pp. 299–320). Oxford and New York: Oxford University Press. Nussbaum, M. C. (2006). Frontiers of Justice: Disability, Nationality, Species Membership. Massachusetts: Harvard University Press. Nussbaum, M. C., & Sen, A. (Eds.). (1993). The Quality of Life. New York: Oxford University Press. Schlosberg, D. (2007). Defining Environmental Justice: Theories, Movements, and Nature. Oxford: Oxford University Press. Sen, A. (1985). Well-Being, Agency and Freedom: The Dewey Lectures 1984. Journal of Philosophy, 82(4), 169–221. Sen, A. (1999a). Commodities and Capabilities. Oxford: Oxford University Press. Sen, A. (1999b). Development as Freedom. Oxford: Oxford University Press. Sen, A. (2005). Human Rights and Capabilities. Journal of Human Development, 6 (2), 151–166. Sollund, R. (2011). Expressions of Speciesism: The Effects of Keeping Companion Animals on Animal Abuse, Animal Trafficking and Species Decline. Crime, Law and Social Change, 55 (5), 437–451. Sollund, R. (2013a). Animal Trafficking and Trade: Abuse and Species Injustice. In R. Walters., D. Westerhuis., & T. Wyatt (Eds.), Emerging Issues in Green Criminology: Exploring Power, Justice and Harm (pp. 72–92). Hampshire and New York: Palgrave Macmillan. Sollund, R. (2013b). Causes for Speciesism: Difference, Distance and Denial in R. White (Ed.), Transnational Environmental Crime (pp. 75–96). London and New York: Routledge. United Nations Office on Drugs and Crime (UNODC). (2006). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations).

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United Nations Office on Drugs and Crime (UNODC). (2020). Handbook on Restorative Justice Programmes (Criminal Justice Handbook Series; Vienna: United Nations). White, R. (2008). Crimes Against Nature: Environmental Criminology and Ecological Justice. London: Willan Publishing. White, R. (2013). Resource Extraction Leaves Something Behind: Environmental Justice and Mining. International Journal for Crime and Justice, 2(1), 50–64. White, R. (2014a). Environmental Harm: An Eco-Justice Perspective. Bristol: Policy Press. White, R. (2014b). Eco-justice and Problem-solving Approaches to Environmental Crime and Victimisation. In T. Spapens, R. White, & M. Kluin (Eds.), Environmental Crime and its Victims: Perspectives within Green Criminology (pp. 87–101). Surrey and Burlington: Ashgate. White, R. (2015). Environmental Victimology and Ecological Justice. In D. Wilson., & S. Ross (Eds.), Crime, Victims and Policy: International Contexts, Local Experiences (pp. 33–52). Hampshire and New York: Palgrave Macmillan. Williams, C. (2013). Wild Law in Australia: Practice and Possibilities. Environmental and Planning Law Journal, 30 (3), 259–284. Zehr, H. (2015a). The Little Book of Restorative Justice. New York: Good Books. Zehr, H. (2015b). Changing Lenses: Restorative Justice for our Times. Harrisonburg, VA and Kitchener, ON: Herald Press.

Index

A

Actual or likely harm to the environment 26, 31, 33, 34, 158 Adaptive theory 8 Adversarialism 10, 59, 60, 175, 247, 254 Alternative Dispute Resolution (ADR) 191, 192, 203, 209 Alternative Environmental Justice 11, 86, 106, 107, 115 Anthropocene 6 Apology 12, 31, 93, 100, 108, 135, 150, 157, 159–161, 186, 190, 251

B

Banks Peninsular Conservation Trust 137, 140

Breach environment protection licence 47, 48, 51 Broken Hill Local Aboriginal Land Council 143, 147, 161

C

Canterbury Regional Council v Interflow (NZ) Ltd [2015] NZDC 3323 11, 106, 131, 134, 157, 188, 218, 246 Capability 14, 219, 236, 239–241, 243–246, 251, 252, 256 Chief Executive, Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291 12, 86, 103, 148, 157, 183, 218, 245 Community Environmental Justice Forums 86, 106, 107, 115

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Hamilton, Environmental Crime and Restorative Justice, Palgrave Studies in Green Criminology, https://doi.org/10.1007/978-3-030-69052-6

261

262

Index

Conflicts as property 10–11, 82 Consistent sentencing 70, 248 Constitution Act 1902 (NSW) 60 Contrition and remorse 24, 31, 165, 196–198, 200, 253 Corporate icon proceedings 111 Crimes (Sentencing Procedure) Act 1999 (NSW) 33, 57, 248 Criminal Appeal Act 1912 (NSW) 60 Cross-examination issue 34, 35 Cultural victimology 115

D

Directors’ woodshed proceedings 111 Distribution 3, 241, 242

E

Earth jurisprudence/deep ecology 13, 237–240 Ecocide 11, 113–116 Ecological-economic trade-off 2 Enforceable undertaking 9–11, 100, 115 Environmental harm 1, 2, 4–7, 11, 32, 35, 49, 70, 99, 102, 110–112, 114–116, 186, 236, 237, 256 Environmental offending destruction of Aboriginal Cultural Heritage 11, 21 harming 21 pollution 21, 22, 27, 28, 32, 38, 49, 51, 125, 186, 219, 224 Environmental service order (ESO) 12, 22, 36, 39, 42, 43,

45–51, 64, 65, 67, 161, 162, 165, 166, 190, 226, 245, 249 Environmental service order/harm occasioned nexus 45–47, 162, 249 Environment Canterbury 86, 106, 107, 115, 139, 192, 198, 207, 216 Environment Protection Act 1970 (Vic) 101 Environment Protection Act 2017 (Vic) 101, 182, 183 Environment Protection Amendment Act 2018 (Vic) 101 Environment Protection Authority (EPA) 9, 10, 26, 31, 43, 59, 99, 100, 102, 109, 110, 169, 192, 207, 221, 236 Evidence Act 1995 (NSW) 60 E-waste 114, 116

F

Fines 22, 37–39, 63–66, 70, 72, 125, 140–142, 150, 163, 171, 177, 187, 188, 190, 207, 248–250, 254 Forgiveness 12, 157, 159, 160 Future references orders 22, 42, 51, 52, 67, 150

G

Garrett v Williams (2007) 151 LGERA 92 12, 86, 103, 141, 157, 182, 218, 245

Index

175, 187, 189, 190, 219, 231, 235, 244, 247, 248, 252 as procedure 10, 12, 14, 22, 57–61, 72, 86, 175, 231, 235, 244, 247, 252, 254 species 13, 217, 237–240

Grafton Ngerrie Local Aboriginal Land Council 150, 165, 249 Green criminology ix, 1–3, 7, 13, 77, 85, 235–238, 241, 243 theoretical engagement 3 Guilty plea 9, 22–24, 129, 184, 197, 209 H

Hallam Road Landfill 100 I

Identification issue 32, 35, 143, 215 Inclusion issue 32, 143 Independent, impartial, and accountable decision-making 10, 59, 60, 247, 254 Intergenerational inequality 6 Intergenerational justice 111, 112, 115 J

Justice climate 13, 111, 236, 237, 239, 240, 242 contextual 186, 189, 256 ecological 13, 217, 236, 237, 239, 240 environmental 2, 7, 13, 217, 236, 237, 239–241 as meaningful involvement 12–14, 22, 181, 219, 230, 231, 235, 244, 252, 256 operationalisation 235, 244 as outcome 10, 13, 14, 22, 57, 58, 61, 62, 69–72, 86, 143,

263

L

Land and Environment Court Act 1979 (NSW) 60 Land and Environment Court of New South Wales (NSWLEC) ix, 4, 8–10, 12, 13, 21–23, 26, 30, 31, 33–35, 37–39, 42, 45, 49–53, 57, 59–61, 63–73, 86, 103, 104, 140, 142, 143, 148, 149, 151, 152, 157, 158, 182, 191, 192, 199, 202–206, 215, 225, 227, 235, 242, 244, 247–250, 252, 255 Land and Environment Court Rules 2007 (NSW) 61 Local Government Act 2002 (NZ) 152

M

Meaningful involvement 14, 37, 243, 245, 252, 256 Motive behind offending accidental 22 intentional 22 negligent 23, 24 reckless 23 Multi-door courthouse 191, 203

264

Index

N

National Parks and Wildlife Act 1974 (NSW) 103, 141, 165

O

Offender examples 188, 194, 202 representation at restorative justice conferencing 12, 14, 24, 25, 92, 94, 100, 103, 109, 136, 157–159, 161, 170, 171, 176, 197, 198, 244, 248, 250, 251, 253, 255 reputation 12, 171, 254 Offender and victim input 36, 159 Offender and victim interaction 35, 36 Offender and victim voice 10, 12–14, 35, 36, 72, 158, 161, 231, 235, 249, 253 Open court 10, 59, 61, 247

P

Participation 13, 14, 24, 80, 105, 110, 185, 194–196, 198, 199, 201–203, 207, 208, 213, 219, 220, 225, 230, 236, 238, 239, 241, 243–245, 251–253 Pinnacles 141, 146–148, 161, 172, 177, 200, 227 Policy entrepreneurs 144 Proportionate punishment 59, 69–71, 189, 190, 241, 244, 247, 248, 252, 256

Protection of the Environment Operations Act 1997 (NSW) 2, 23, 40, 52, 66, 103, 125, 185, 219 Publication orders 22, 36, 39, 42, 50, 51, 66–68, 71, 72, 150, 194, 250 Purposes of sentencing community protection 61, 248 denunciation 61 deterrence 61, 248 offender accountability 61, 68, 250 recognition of harm 69 rehabilitation 61, 176, 250 retribution 61, 176, 248

R

Recognition 1, 13, 14, 47, 48, 50, 61, 68, 69, 91, 150, 159, 164, 165, 213, 236, 238, 241, 243–246, 248, 249, 252 Reintegrative shaming 81, 85, 110 Reoffending 9, 11, 22, 25, 26, 85 Reparative orders 22, 37–40, 52, 53, 63, 64, 69, 71, 140, 148, 150, 187, 188, 248, 249 Resource Management Act 1991 (NZ) 105, 125, 153 Restorative justice benefits 12, 145, 152, 157, 159, 170, 171, 179, 181 birthplace 80 central tenets 11, 77, 88–90, 93, 112, 135, 137, 174, 187, 247, 251, 252 definitions 11, 78, 79, 173

Index

facilitation 13, 130, 202–204 follow up 13 intervention points 86 judicial consideration 13, 187 judicial oversight 13, 178, 185, 186 knowledge thereof 102, 105, 192, 194 legislative framework 130, 181, 194, 195 light-bulb moment 198 limitations 12, 152, 157, 175, 178 origins 11, 80 participants 80, 87, 188, 195 preparation 203, 204, 208 resolution device 11, 77, 92–94, 148 stakeholder participation 185, 207 suitability criteria 195 unit 13, 199, 203–206 Restorative justice activity orders 39, 52, 103, 150, 192, 249 Restorative justice practices continuum 102, 192 Rule of law 10, 58, 59, 247 Rules of evidence 60

S

Sanitisation issues 33, 34, 143, 158 Sentencing Act 2002 (NZ) 126, 184 Sentencing of environmental offending 21, 22, 36, 37, 45, 58, 61, 192, 248 Social licence to operate 171–175 Statement of agree facts 34 Stigmatising shame 85

265

Strict liability v mens rea offending 9 Supreme Court Act 1970 (NSW) 61 U

Uniform Civil Procedure Rules 2005 (NSW) 225 V

Victim impact statement 33, 84 Victimology environmental 5, 7 green 7 Victims environmental ix, 5–7, 13, 35, 208, 209, 213, 222, 235 definition 6 examples 35, 47 ideal 5 identification for restorative justice 87 nature of victim voices 29, 151, 213, 226 representation at restorative justice conferencing 8, 29, 157, 208, 255 selection of victim representatives 223, 253 Victims’ Rights Act 2002 (NZ) 126 Victims Rights and Support Act 2013 (NSW) 84 W

Water pollution 2, 8, 11, 21–25, 27, 28, 32, 38, 39, 45, 47–49, 51, 52, 59, 63, 125, 162, 190, 214, 219, 220, 222, 226, 241, 242, 245, 246

266

Index

Y

Z

Young Offenders Act 1997 (NSW) 81, 205

Zehr accountability 250 Zehr victim needs 83, 245