Abstract
Wessels and Wijdekop examine the common ground between restorative justice and Earth jurisprudence and explore the potential of restorative justice to not only restore the waning relationship between the human species and the environment, but to also facilitate the reintegration of humans as a species into the Earth Community. The chapter starts by introducing the concept of rights of Nature and its underlying philosophy of Earth jurisprudence; providing an overview of rights of Nature legislation and policy around the world; exploring the ways in which Nature has been represented in restorative justice processes and; analysing whether legislation has formally recognised or endorsed the use of restorative processes in disputes that concern the rights of Nature. Following this review, the authors explore the similarities between the underlying principles and philosophies of Earth jurisprudence and restorative justice, which results in a practical proposal for the use of restorative processes to inform remedies in cases of environmental harm or infringements to the rights of Nature. The chapter concludes by raising a question: could restorative justice function as a dispute resolution mechanism to resolve conflicts between the rights and interests of humans and Nature, notwithstanding the fact that this mechanism would be anthropocentrically driven and would require humans to compromise their own interests and rights, in favour of what is the best for the entire Earth Community?
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Notes
- 1.
During this chapter ‘Earth’, ‘Earth Community’, ‘Mother Earth’ and ‘Nature’ are used as proper nouns to signify that the use of the terms refers to specific subject and also to a legal subject. The terms are also used synonymously.
- 2.
‘Earth Community’ denotes that the whole of Earth is based on a multiplicity of relationships between sentient and non-sentient beings on Earth and emphasises the interconnectedness of all beings on Earth. Individual humans and the human species as a whole are but one of countless other individuals, species, rivers, forests, ecosystems which form part of the Earth community.
- 3.
Ecocide is defined as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts (see Stop Ecocide Foundation, 2021).
- 4.
The Great Jurisprudence applies to life on Earth as well, but it is not to be understood in terms of confining its application only to Earth. This is because the fundamental laws and principles which govern the universe, by their very nature, stretch far beyond the confines of Earth. Whereas Earth jurisprudence, which is a human interpretation of the Great Jurisprudence, is refined and attentive to the complexities of life on Earth and the Earth Community’s web of relationships, which might not have the same application or relevance to life existing beyond Earth.
- 5.
‘The rights of Nature’ as a legal tool to give effect to Earth jurisprudence should not be confused with the legal movement or organisations who are advocating for the recognition of the Rights of Nature globally, as the two concepts can be conflated when read together, and commonly are. An example of an organisation that is advocating for the transformation of legal systems into systems which are based on the philosophy of Earth jurisprudence is the Global Alliance for the Rights of Nature (‘GARN’). GARN is part of the ‘Rights of Nature movement’ and should not be conflated with the legal tool which is the ‘rights of Nature’. The rights of Nature is therefore both a mechanism and a movement through which Earth jurisprudence is realised. See GARN website: https://www.therightsofnature.org/get-to-know-us/.
- 6.
- 7.
See https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html (last accessed 25 January 2022).
- 8.
See the United Nations’ Harmony with Nature Programme for a comprehensive database of countries which have either recognised the rights of Nature through legislative measures or have announced measures through which the country purports to recognise the rights of Nature, http://www.harmonywithnatureun.org/rightsOfNature/ (last accessed 25 January 2022).
- 9.
Judgment T-622/16 (The Atrato River Case), Constitutional Court of Colombia (2016), translated by Dignity Rights Project. Retrieved from: http://files.harmonywithnatureun.org/uploads/upload838.pdf (last accessed 25 January 2022).
- 10.
See the Global Alliance for the Rights of Nature at https://www.therightsofnature.org/ (last accessed 25 January 2022).
- 11.
Auckland District Court (McElrea DCJ), 11 April 2005 (see Hamilton, 2015, p. 552).
- 12.
Auckland District Court (Judge JP Doogue), 28 February 2005 (see Fisher & Verry, 2005, p. 59).
- 13.
Waikato Regional Council v Huntly Quarries Ltd and Ian Harrold Wedding, Auckland District Court (McElrea DCJ), 30 July 2003 and 28 October 2003 (see McElrea, 2004, pp. 13–14).
- 14.
DC Auckland, CRN 20050040131612, 2 March 2006, Judge McElrea (see Porfido, 2021, pp. 116–118).
- 15.
British Columbia, Natural Resource Compliance and Enforcement Database, https://bit.ly/3tFUfgj (last accessed 25 January 2022).
- 16.
The authors confined their research to the database of the United Nations’ Harmony with Nature Program. Available at http://www.harmonywithnatureun.org/rightsOfNature/ (last accessed 25 January 2022).
- 17.
Uganda recognises Rights of Nature, Customary Laws, Sacred Natural Sites, https://www.gaiafoundation.org/uganda-recognises-rights-of-nature-customary-laws-sacred-natural-sites/ (last accessed 25 January 2022).
- 18.
See Independent Expert Panel for the Legal Definition of Ecocide, https://ecocidelaw.com/independent-expert-drafting-panel/ (Stop Ecocide Foundation, 2021)
- 19.
Legal Definition of Ecocide Completed, https://www.stopecocide.earth/expert-drafting-panel (last accessed 25 January 2022).
- 20.
Stop Ecocide International, https://www.stopecocide.earth (last accessed 25 January 2022).
- 21.
Email conversation with Lawrence Kershen, 23 April 2019.
- 22.
The signals emanating from the natural world that denote things such as the impacts of climate change—oceans warming, unusual periods of drought and insect eggs hatching earlier.
- 23.
The Work that Reconnects is a methodology developed by environmental activist and author Joanna Macey, which offers exercises to guide a process of reconnection with the land, with non-human beings and with future generations, https://workthatreconnects.org/ (last accessed 26 January 2022).
- 24.
Sanna Barrineau, A Council of All beings—communal rituals as transformative practice, https://www.slu.se/en/subweb/mistra-ec/news/blog-posts/a-council-of-all-beings%2D%2Dcommunal-rituals-as-transformative-practice/ (last accessed 25 January 2022).
- 25.
Zoom conversation with Pella Thiel on 30 April 2021.
- 26.
Work that Reconnects Network, Council of All Beings, https://workthatreconnects.org/resource/council-of-all-beings/ (last accessed 25 January 2022).
- 27.
Zoom conversation with Michelle Maloney on 19 April 2021.
- 28.
Zoom conversation with Michelle Maloney on 19 April 2021.
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Wessels, H., Wijdekop, F. (2022). Restorative Justice and Earth Jurisprudence. In: Pali, B., Forsyth, M., Tepper, F. (eds) The Palgrave Handbook of Environmental Restorative Justice. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-04223-2_4
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