Environmental Restorative Justice — A Literature Review

Introduction and scope

Environmental restorative justice (ERJ) has grown in about two decades from a handful of judicial experiments into a recognised field, with its own handbook, practice guide and research agenda. This review traces that growth and maps the main debates. It closes by identifying gaps that practitioners and researchers could usefully address.

The literature draws on three older traditions. The first is restorative justice theory, which reframes crime as harm to relationships. The second is green criminology, which widens the lens from legally defined “crime” to environmental “harm”. The third is environmental and regulatory law, especially the work of specialist environment courts. ERJ sits where these three meet. Much of its tension comes from the different assumptions each brings.

Scope and method. This is a narrative review, not a systematic one. It prioritises:

• peer-reviewed scholarship and edited collections in English from 2007 onward
• the reported case law of New Zealand and New South Wales, where most documented practice sits
• practice guidance from the European Forum for Restorative Justice (EFRJ)
• recent developments, including the 2026 Wild Cattle Creek decision and discussion at a 2026 Mint House/EFRJ webinar

Work in languages other than English, and grey literature from the Global South, are under-represented. That is itself a finding (see Gaps).

Key milestones

The field has moved in three broad waves: judicial experiment (2000s), conceptual consolidation (2011–2022) and practice guidance with renewed case law (2025 onward).

Foundations

Restorative justice theory. Zehr’s Changing Lenses (1990) reframed crime as a violation of people and relationships. It shifted the central question from which law was broken, and what punishment follows, to who was harmed, what they need, and whose obligation it is to meet those needs. ERJ inherits this relational framing. It then stretches the idea of “people and relationships” to include places, species and ecosystems. Most early restorative literature assumed an individual offender and an identifiable human victim. The ERJ literature is largely an effort to adapt that model to harms that are collective, spread over time and partly non-human.

Responsive regulation. Ayres and Braithwaite’s Responsive Regulation (1992) and Braithwaite’s Restorative Justice and Responsive Regulation (2002) gave ERJ its main institutional logic. Regulators should start with dialogue and persuasion, and move up an enforcement pyramid only when cooperation fails. Seen this way, restorative conferences are not a soft alternative to enforcement. They are its most effective base layer, backed by credible sanctions. This framework explains why much ERJ scholarship looks at regulators such as environmental protection agencies, not only at courts, and why Braithwaite wrote the preface to the EFRJ guide.

Green criminology. Green criminology, led by scholars such as Rob White, argues that the most serious environmental harms are often legal. It also argues that criminal justice tends to protect the interests of the powerful. White’s work on reparative justice (2017) and on ecocentrism (2018) supports ERJ’s aim of repair, but warns that restorative processes can be absorbed by corporate power. His ecocentric position, that ecosystems have value in their own right, supplies the moral basis for treating the environment as a victim.

Theories of environmental harm. Two ideas from outside law recur throughout the literature. The first is Nixon’s “slow violence” (2011): harm that builds up gradually and out of sight, and so escapes justice systems that respond to single events. The second is Ghosh’s (2016) account of the “uncanny” nature of climate harm, done by people who believe they are acting normally. Together they explain why ERJ practitioners stress investigating patterns of harm, not just single incidents, and why institutional thoughtlessness, more than malice, is the typical harm they deal with.

Judicial origins: New Zealand and New South Wales

The earliest and richest body of ERJ practice came from judges, not from legislation designed for the purpose.

New Zealand. New Zealand’s Sentencing Act 2002 and Victims’ Rights Act 2002 require courts to take restorative justice processes into account. Judge Fred McElrea of the Environment Court argued in a series of papers that these provisions extended to prosecutions under the Resource Management Act 1991. A stream of cases followed: pollution of waterways, unlawful earthworks, harm to sites of significance to Māori. Hamilton’s research has documented about 67 environmental conferences in New Zealand. The Palgrave Handbook describes two distinct conferencing models used there. The New Zealand literature is valuable because it is empirical. It records who attended, what was agreed and how sentencing responded. It also records a recent decline in activity, which commentators link to changes in political and institutional support.

New South Wales. McElrea’s writing influenced Chief Judge Brian Preston of the NSW Land and Environment Court. In Garrett v Williams (2007), and in a second case on Aboriginal cultural heritage, Plath v Rawson (2009), Preston invited the parties to hold a restorative conference before sentencing. He relied on the court’s inherent power to manage its proceedings, not on specific legislation. His 2011 article in the Criminal Law Journal set out the judicial rationale. Environmental crime harms identifiable victims, including communities, Aboriginal custodians and the environment itself. Conferencing lets offenders understand and repair that harm in ways that fines don’t. The outcome can be taken into account at sentencing.

Hamilton’s early analysis (2008) and his later monograph (2021) developed the idea of “justice as meaningful involvement”. On this view, the value of ERJ lies in giving those affected a real voice in the response to harm. Al-Alosi and Hamilton (2021) add empirical support: restorative conferencing encouraged environmental offenders to accept responsibility more fully than conventional prosecution did.

Victoria and the limits of legislation. Victoria passed enabling provisions in 2016, but they have reportedly never been used. The contrast with New South Wales, where there was no statute but there was a willing judge, is a recurring point in the literature. Legislation is neither necessary nor sufficient. Judicial and regulatory leadership is decisive.

Renewed case law. The 2026 Wild Cattle Creek decision (EPA v Forestry Corporation of NSW) marks a new phase. It is a prosecution of one public body by another. The restorative conference exposed a pattern of repeat offending, and the court redirected a $450,000 penalty to Gumbaynggirr Traditional Owners to fund a healing ceremony and a lasting role in forest decision-making. The case has already drawn commentary in the Journal of Environmental Law, including on the court’s use of amici curiae (independent advisers to the court).

The ecocentric turn: other-than-human harm and representation

The most distinctive conceptual work in the field asks whether, and how, nature itself can be a party in restorative justice.

From anthropocentric to ecocentric. Early judicial practice framed environmental harm mainly as harm to people: residents, Aboriginal custodians, the community’s interest in a clean environment. From about 2020 the literature shifted. The EFRJ Thematic Brief (2020), the work of Pali and colleagues, and the Palgrave Handbook (2022) argue for an ecocentric ERJ that recognises ecosystems, species and “other-than-human beings” as harmed in their own right. The 2025 EFRJ practice guide makes this operational. It asks facilitators to “identify and articulate other-than-human interests” as a formal step in preparation.

Who speaks for the forest? The unresolved practical question is representation. Stone’s classic article “Should Trees Have Standing?” (1972) proposed legal guardians for natural objects. That idea is now realised in rights-of-nature laws such as New Zealand’s Te Awa Tupua Act (2017), which recognises the Whanganui River as a legal person with human guardians. ERJ scholarship considers several possible proxies:

• Indigenous custodians, who speak from relationships with Country
• ecologists and scientists, who speak from expertise
• environmental NGOs, who speak from advocacy
• regulators, who speak from a public mandate
• symbolic or ritual means: an empty chair, a stone, a visit to the site

Each carries risks: capture by a single interest, a tendency to speak for humans instead of for the land, or tokenism. The literature has not settled which forms of representation are legitimate, or when.

Mass and historical harm. Varona (2020) extends the frame backwards in time. She explores “restorative pathways” after mass environmental victimisation, including walking through landscapes of past ecocides. Her work links ERJ to transitional justice and collective memory. It suggests that restorative processes may serve acknowledgment and meaning where direct repair is impossible.

Regulatory and practice spaces

A second strand of recent work moves ERJ beyond the courtroom and asks where restorative approaches can fit into the whole regulatory cycle.

“Spaces” in regulation. Research by Forsyth and colleagues with Victoria’s Environment Protection Authority (EPA) mapped openings for restorative approaches at each stage of a regulator’s work:

• investigations that involve affected communities and Traditional Owners from the start
• enforceable undertakings shaped through dialogue. In a 2012 Victorian case, a conference with residents near a foul-smelling waste facility added an independent health investigation that the EPA and the company had not planned.
• sentencing and remediation orders

This work applies Braithwaite’s responsive regulation to environmental enforcement. It forms part of the ANU research program “Preventing and addressing environmental harm through restorative justice”.

Redirected penalties. Several jurisdictions already send penalty money to repair instead of to general revenue. Canada’s Environmental Damages Fund channels court-ordered penalties into conservation and restoration projects. United States practice uses Supplemental Environmental Projects in settlements. The literature treats these as partly restorative: they redirect resources to repair but usually lack dialogue. Wild Cattle Creek shows how the two can be combined, with the conference deciding where the redirected money goes.

Practice guidance. The 2025 EFRJ practice guide, written by about 30 practitioners, scholars, regulators and community members, is the field’s first comprehensive operational text. It sets out four phases (preparation, dialogue, agreement, implementation and follow-up). It adds guidance on:

• choosing facilitators
• mapping stakeholders
• representing other-than-human interests
• preventive uses, such as collaborative decision-making before harm occurs

It includes eight international case studies and an outreach annex for engaging education, business, law, government and potential partners.

ERJ as alternative dispute resolution? Environmental law scholar Liz Fisher has argued that ERJ is best understood as part of the wider tradition of alternative dispute resolution (ADR) in environmental law, not as something new. About two-thirds of the NSW Land and Environment Court’s caseload is already resolved through ADR. On this reading, ERJ’s contribution is to give ADR a moral centre (harm, accountability and repair) and to build that into the professional skills of lawyers and regulators.

Indigenous perspectives and relational justice

Indigenous peoples appear throughout the ERJ literature, but mostly as participants in other people’s processes, not as authors of the framework. That imbalance is starting to be named.

Where ERJ grew. Many of the landmark cases involve harm to Indigenous cultural heritage or Country: Garrett v Williams, Plath v Rawson, the New Zealand cases involving sites of significance to Māori, and Wild Cattle Creek. European contributors to the EFRJ guide observe that ERJ has developed fastest in settler states where Indigenous rights and justice traditions are part of the legal landscape. They suggest this is one reason there is almost no documented European practice.

Relational ontologies. Indigenous legal traditions often understand people, land, water and kin as bound together by mutual obligation. On this view, environmental harm is a breach of relationship, not damage to property. Several authors note that this is closer to ERJ’s ecocentric aims than Western restorative theory, which grew up around harm between people. The Te Awa Tupua settlement, grounded in the Māori principle “Ko au te awa, ko te awa ko au” (“I am the river, and the river is me”), is widely cited as an example of this relational view taken into law.

Cautions in the literature. Writers raise three recurring concerns:

• Appropriation. Indigenous practices such as circles and ceremony can be borrowed without Indigenous authority or benefit.
• Tokenism. Traditional Owners are invited to speak without any power over outcomes.
• Extractive use of knowledge. Cultural and ecological knowledge is treated as data for others’ remediation plans.

The UN Declaration on the Rights of Indigenous Peoples (2007), particularly its provisions on free, prior and informed consent and on redress (Articles 10, 19, 28 and 32), is increasingly used as a standard against which ERJ outcomes can be judged.

What Wild Cattle Creek adds. The case is significant because its outcome shifts power, not just resources. The Gumbaynggirr people receive control of the redirected funds and a lasting place in forest governance. Whether this becomes a model or remains an exception is one of the most important open questions in the field.

Critiques and debates

The literature is broadly supportive of ERJ but not uncritical. Six debates recur.

Two positions frame these debates.

The reformist position, associated with judicial practitioners such as Preston and McElrea, sees ERJ as working within criminal and regulatory law to improve outcomes for victims, offenders and the environment. On this view, credible enforcement is what brings powerful parties to the table.

The transformative position, stronger in green criminology and parts of the European literature, sees ERJ as a way to challenge the anthropocentric and adversarial logic of law itself. It is sceptical that restorative processes can hold on to that aim once they are absorbed into sentencing.

Most recent work, including the EFRJ guide, tries to hold both positions together: work within existing “spaces” now, while pushing the system toward a more relational way of thinking.

Gaps and a research agenda

The field has a strong conceptual base and a small but growing set of cases. Its evidence base is thin. The following gaps stand out.

1. Long-term outcomes. Almost no studies follow agreements over time. Do remediation works get finished? Are commitments to change practice kept? Do relationships between harmers and communities improve? Wild Cattle Creek offers an early chance for a longitudinal study.
2. Comparative evaluation. There is little rigorous comparison between restorative and conventional responses to similar environmental offences, whether on repeat offending, ecological outcomes or participants’ satisfaction.
3. Representing nature in practice. The literature debates who should speak for other-than-human parties. There are almost no empirical studies of how that representation actually works in conferences, or how other participants receive it.
4. Global South and non-English scholarship. Documented practice is concentrated in Aotearoa New Zealand and Australia, with scattered European and North American work. Resource-extraction conflicts in Africa, Asia, Latin America and the Pacific, where many of the most severe environmental harms occur, are almost absent. So are the justice traditions of those regions.
5. Indigenous-led frameworks. Much ERJ writing is about Indigenous participation, not by Indigenous scholars and practitioners. Frameworks led by Indigenous people are a priority.
6. Institutional harmers. The typical respondent is a corporation or public agency, yet facilitation theory still largely assumes an individual offender. How do you build real accountability in an organisation where the people responsible change, and what counts as a sincere institutional apology?
7. Prevention. The EFRJ guide’s chapter on preventive, collaborative decision-making is promising but untested. Research could look at restorative approaches in planning, licensing and climate adaptation, before harm occurs.
8. Climate harm. How ERJ relates to climate litigation, “loss and damage” and the 2025 International Court of Justice advisory opinion is largely unexplored.

For practitioners, the literature’s clearest message is practical. ERJ grows where a judge or regulator is willing to try it, where skilled facilitators are available, and where real cases are documented and shared.

References

• Al-Alosi, H. and Hamilton, M. (2021). The potential of restorative justice in promoting environmental offenders’ acceptance of responsibility. UNSW Law Journal, 44(2), 487.
• Ayres, I. and Braithwaite, J. (1992). Responsive Regulation: Transcending the Deregulation Debate. Oxford University Press.
• Braithwaite, J. (2002). Restorative Justice and Responsive Regulation. Oxford University Press.
• Canada, Environment and Climate Change Canada. Environmental Damages Fund.
• European Forum for Restorative Justice (2020). Restorative Environmental Justice (Thematic Brief). Leuven: EFRJ.
• European Forum for Restorative Justice (2025). Restorative Justice Approaches for Environmental Harm: Practice Guide. Leuven: EFRJ.
• “Environment Protection Authority v Forestry Corporation of NSW: amici curiae and restorative environmental justice” (2026). Journal of Environmental Law, advance article.
• Forsyth, M., Cleland, D., Tepper, F. et al. (2021). A future agenda for environmental restorative justice? International Journal of Restorative Justice, 4(1).
• Forsyth, M., Pali, B. and Tepper, F. (eds) (2022). The Palgrave Handbook of Environmental Restorative Justice. Cham: Palgrave Macmillan. See also the chapter Restorative Justice Conferencing in a New Zealand Environmental Offending Context: Two Models.
• Ghosh, A. (2016). The Great Derangement: Climate Change and the Unthinkable. University of Chicago Press.
• 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.
• Hamilton, M. (2021). Environmental Crime and Restorative Justice: Justice as Meaningful Involvement. Palgrave Macmillan.
• Kershen, L. Can Environmental Mediation Save the Planet? Doughty Street Chambers Insights.
• Nixon, R. (2011). Slow Violence and the Environmentalism of the Poor. Harvard University Press.
• Preston, B. J. (2011). The use of restorative justice for environmental crime. Criminal Law Journal, 35, 136. Also at SSRN.
• Stone, C. D. (1972). Should trees have standing? Toward legal rights for natural objects. Southern California Law Review, 45, 450.
• Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ).
• United Nations (2007). Declaration on the Rights of Indigenous Peoples.
• Varona, G. (2020). Restorative pathways after mass environmental victimization: walking in the landscapes of past ecocides. Oñati Socio-Legal Series.
• White, R. (2017). Reparative justice, environmental crime and penalties for the powerful. Crime, Law and Social Change, 67, 117–132.
• White, R. (2018). Ecocentrism and criminal justice. Theoretical Criminology, 22(3).
• Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Herald Press.

Cases: Garrett v Williams [2007] NSWLEC 56; Plath v Rawson [2009] NSWLEC 178; Environment Protection Authority v Forestry Corporation of NSW (NSW Land and Environment Court, March 2026) — see ABC News coverage.

Research program: ANU School of Regulation and Global Governance, Preventing and addressing environmental harm through restorative justice.