Restorative justice and environmental law: healing nature through dialogue

On 13 March, the NSW Land and Environment Court convicted Forestry Corporation NSW (FCNSW) for the 2020 felling of six giant trees and three hollow bearing trees in a State Forest near Dorrigo.

In what is one of the few instances of restorative justice being employed in environmental law in the state, FCNSW was ordered to pay $450,000 to Yurruungga Aboriginal Corporation following prosecution by the Environment Protection Authority (EPA).

The money will go toward funding actions including a healing ceremony, a biocultural repair plan and implementation, engagement of Gumbaynggir People in future harvesting plans on Gumbaynggir Country, cultural mapping of the Indigenous Protected Area Proposal for the Bellinger Valley and establishing the Gumbaynggir Guardians range program.

As well as the payment to Yurruungga Aboriginal Corporation, FCNSW was ordered to publish a notice of the offences in local and national media outlets, and to undergo an independent audit of their procedures, policies, training, skills and competencies.

Professor of Law and Governance at the Australian National University’s School of Regulation and Global Governance (RegNet), Miranda Forsyth, has been researching restorative justice, regulatory theory, and environmental law for around a decade. Forsyth describes the FCNSW vs EPA 2026 case as an “exciting new development” in the field.

“The EPA and the FCNSW told the Court that they wished to pursue a restorative justice process in the course of pre-trial preparation for the sentencing hearing following pleas of guilty to all offences being entered,” Forsyth says. “I had the privilege of witnessing the restorative justice conference and seeing the real listening and learning that occurred amongst the participants.

“It really showcases the advantages of using restorative justice for environmental matters.”

What is restorative justice?

While restorative justice doesn’t have a universal definition, it can be understood as a process in which stakeholders come together to resolve collectively how to deal with the impacts of an offence. Drawing on a definition outlined by pioneer of modern restorative justice, Howard Zehr, Forsyth describes the legal approach as a “compass, not a map”.

“This definition doesn’t prescribe a single method but orients us towards a set of values: healing, accountability, dialogue, and relationality,” she says. “At its core, restorative justice treats harm as a rupture in relationships – between individuals, communities, and, in the environmental context, between people and the natural world – and asks how that rupture can be repaired.”

It is commonly understood that there are three parties involved in restorative justice processes – the offender, the victim, and the community. Rather than the court issuing a fine to the guilty party, restorative justice is intended to see more tangible actions to address the impacts of an offence. This often involves conferencing which sees offenders hear victim perspectives.

“In environmental law, that translates into something quite specific: rather than responding to pollution, ecological destruction, or regulatory breach primarily through fines and prosecution, a restorative approach asks who has been harmed, what they need to move forward, and how the party responsible can take active accountability for repairing that harm,” Forsyth says.

“As John Braithwaite’s famous maxim puts it, “because crime hurts, justice should heal.” That principle applies just as powerfully to a community living next to a leaking landfill as it does to a victim of homicide.”

The birth of modern restorative justice is understood to have come in Canada 1974 when a judge allowed victim-offender mediation following vandalism on 22 properties in Kitchener, Ontario. This resulted in the offenders offering to pay restitution to the victims.

In Australia, police-mediated conferencing began in Wagga Wagga in 1991 which followed a community initiative model occurring in New Zealand. While it could be said that this model draws strong similarities with criminal justice employed throughout much of human history, restorative justice today is in part a result of dissatisfaction with modern criminal justice systems.

It has been argued by academics that, by making criminal justice cases largely a contest between the offender and the state, victims have lost the ability to participate in a resolution. This is exacerbated by a lack of dialogue between victims and offender due their respective representation by lawyers.

Restorative justice is intended to bring all parties to the table and achieve results which have a direct and tangible outcome for the victim or other impacted parties. In the case of environmental law, this would mean that offenders – particularly larger corporations – could engage meaningfully with victims and contribute directly to addressing the impacts of their crimes. “The benefits are considerable,” says Forsyth.

“Environmental harm is almost always ongoing – communities and industries continue to be neighbours long after a court has handed down a fine – and restorative processes are specifically designed to rebuild the relationships and communication pathways that make coexistence viable over the long term.

“They also unlock forms of accountability that the current system often cannot generate: a corporation whose senior leaders sit in a restorative conference and hear directly from the people affected by its pollution is having an experience of genuine moral reckoning, not the distanced, ritualised process of a courtroom where legal representatives do the talking.

“Interestingly, research has found that restorative agreements are more likely to be followed through than court orders and are often more creative and more tailored to actual community needs.”

Weighing up the future of restorative justice in environmental law

The implementation of restorative justice in an environmental law setting has been “promising but uneven” according to Professor Forsyth. The Protection of the Environment Legislation Amendment Act 2014 enabled courts to require offenders to undertake restorative justice activities in an environmental law setting.

However, prior to FCNSW vs EPA 2026, restorative justice in the NSW Land and Environment Court had been used in cultural heritage rather than purely environmental cases. “There is definitely much scope for expansion, particularly as regulators and courts grapple with the limitations of deterrence-only models, and as communities become more vocal about wanting genuine participation in how harm to their environments is addressed,” Forsyth says.

“What’s needed is not just more use of restorative tools such as conferences, but a more deliberate and theoretically grounded approach to restorative regulation, one that embeds restorative values throughout the regulatory cycle.

“From harm prevention through to repair, rather than treating restorative processes only in relation to sanctioning.”

While there are obvious befits to the use of restorative justice in environmental law, there are significant challenges. Foremost amongst these challenges, according to Forsyth, is the power asymmetry which exists between large corporations and affected communities.

“Restorative processes can inadvertently replicate those power imbalances if they’re not carefully designed, with skilled facilitation, adequate preparation, and genuine attention to who has a voice in the room.

“The challenge is not whether restorative justice can be applied in environmental contexts, but how to do so in ways that genuinely serve harmed communities rather than providing a convenient exit ramp for corporate offenders.

“There are also a range of other important challenges, such as working out how the voice of more-than-human species and future generations can be appropriately represented in restorative processes.”

Despite these challenges, this approach to justice offers a very real and potentially more effective response to environmental offences. This challenges the dominant assumption which sees restorative justice as a softer approach when compared with more traditional fines and prosecution. “The empirical evidence is completely the other way,” says Forsyth.

“Fines are often absorbed as a cost of business, prosecutions are slow and adversarial, and neither does anything meaningful to repair the relationship between a company and the communities it has harmed.

“The community still lives with the pollution, still carries the anger and distrust, still faces the health consequences – and the company has simply moved on. A restorative process, by contrast, requires the company to sit with the human reality of what it has caused, to hear directly from those affected, and to co-create a response that goes beyond a financial transaction.

“That said, restorative justice is not for every case as it is a voluntary process and requires the individual or corporation that has caused harm to acknowledge they have caused the harm.”