What is environmental Restorative Justice?
This is a guest blog written by Prof. (Dr.) Sairam Bhat and Vikas Gahlot. Dr. Sairam Bhat is Professor of Law at the National Law School of India University, Bengaluru. Mr. Vikas Gahlot is Senior Research Associate at the National Law School of India University, Bengaluru. This blog explores how Restorative Justice can be used to address environmental harms and injustices, and how this differs from other types of harm.
Against the backdrop of global environmental crisis, the United Nations General Assembly has declared the years 2021-2030 as the “Decade on Ecosystem Restoration” – a global clarion call that aims to “prevent, halt and reverse” the degradation of ecosystems worldwide. One of the significant developments in this regard was the adoption of the Kunming-Montreal Global Biodiversity Framework in 2022, which prescribed the 30×30 target – ensuring at least 30% of degraded ecosystems are under effective restoration by 2030. International conferences and institutions like the European Parliament have similarly adopted targets and frameworks to protect biodiversity and restore ecosystems. In response, countries all around the world have begun to take steps to meet these targets, funding innovative projects and rewriting environmental laws.
These global developments have sparked conversations about the concept of Restorative Justice and how it might apply to the environment. Overall, the focus of environmental law has started to shift from a punitive approach to a “restorative environmental justice approach.” But what exactly does this mean and how can Restorative Justice be applied in the environmental sector? This blog explores what environmental Restorative Justice is and explains some of its practical challenges.
First of all, it is important to recognise that there are significant differences between the application of Restorative Justice in an environmental context and its application in other areas such as criminal justice, where the focus is generally placed on reducing reoffending, helping victims to recover and repairing the harm caused by crime. However, in an environmental context, this “pure” form of Restorative Justice may not always be possible. Environmental harm is the result of a complex range of social, economic and political factors, rather than a direct consequence of violation of environmental law. For example, environmental degradation may result from harmful development policies, and may not be a violation of any environmental norm. As a result, advocates for environmental Restorative Justice emphasise the need to develop a more effective environmental law framework centered around “ecological restoration.”
The first critical step in this direction would be the allocation of land for ecological restoration. Although all kinds of degraded land can be restored due to nature’s inherent healing attributes, effective ecological restoration requires fertile and quality land that can support restoration activities. Such land is limited in quantity and is already being utilised by other sectors such as agriculture, making it difficult to allocate for ecological restoration. For instance, in India, there is a provision for “compensatory afforestation,” meaning if forest land must be diverted for non-forest purposes (such as mining or other industry), the person or company behind the project has to transfer the equivalent area of non-forest land along with appropriate funds in order to compensate for diverted forest land. However, the implementation of this provision has faced significant struggles. Official statistics show that, out of the total land that should have been received under this provision, only 27% has actually been received by the Forest Department, simply because it is difficult to find land that can be transferred.
Secondly, large-scale ecological restoration requires considerable financial resources. Nature restoration funds collected by the government or spent by the government require compliance with rigorous standards of transparency and accountability. Making sure that these funds are utilised effectively is also important. In India, for example, between 2019/20 and 2021/22 only 27% of funds collected through the Compensatory Afforestation Fund have been used for their intended purpose.
Thirdly, providing precise definitions to key terms is one of the biggest hurdles to environmental Restorative Justice. In the context of environmental restoration, the definition of terms such as “restoration,” “degradation” and “degraded land” will play a pivotal role. These terms have a wide range of interpretations. For example, should the word “restoration” mean restoration of nature to pre-industrialised standards, or to the highest condition possible, or just to a baseline level? Should “restoration” include the recovery of lost biodiversity, including extinct species and restoration of soil health – a process that could take decades or even centuries? Also, if the responsibility for restoration is placed on private entities instead of the government, should “restoration” also include long-term maintenance after events like forest fires or cyclones? These are the questions that environmental Restorative Justice needs to address.
Lastly, environmental Restorative Justice needs to be inclusive of indigenous communities who are at the frontline of environmental defense and are disproportionately impacted by environmental harm. Environmental Restorative Justice must include measures to safeguard indigenous livelihoods (through policies such as Joint Forest Management), empower local communities and recognise the value of their traditional knowledge.
To conclude, the recent adoption of a Restorative Justice approach to environmental protection marks a new era for the environmentalist movement. We predict that future environmental legislation will increasingly focus on ecological restoration rather than punitive action. However, the content and scope of restoration may vary from country to country with diverse interpretations being adopted. Thus, moving forward it is necessary to engage in continuous research and dialogue to ensure that nature restoration policies and legal frameworks are coherent, effective and equitable.
A longer version of this blog was also published on the Centre for Environmental Law Education, Research and Advocacy (CEERA) website.
