The recent use of a Community Justice Forum in a case involving
Teck Metals Ltd., arising out of a mercury spill, indicates that
restorative justice is now an accepted alternative to enforcement
proceedings under various environmental statutes.
A Community Justice Forum involves a group decision of
stakeholders, regulators and the alleged offender on how to resolve
the matter in issue and how to prevent a further occurrence. A
trained mediator assists the parties achieve resolution.
The process is entirely voluntary, but it is a precondition that
the alleged offender accept responsibility for the event. Both the
investigating agency and the alleged offender must agree to enter
into the Community Justice Forum process. Typically there are
meetings beforehand to agree on such matters as the amount the
alleged offender is to pay and the recipients of those funds. The
amount of the fine an offender would likely be required to pay if
the matter proceeded to enforcement is a guide to setting the
amount, but restitution and rehabilitative costs are also
considered in finalizing the amount.
The pool of stakeholders will include the alleged offender, the
investigating agency(s) and the victim where there is one.
Representatives from local government, homeowner associations,
environmental and conservation groups and other resource users
impacted by the alleged offence may also be invited to participate
in the process.
Typically the Forum takes place over one or two days. The
parties are not represented by legal counsel. The alleged offender
is expected to have present the appropriate corporate
representation, usually high ranking executives and lead
operational personnel, who will fully explain the event, mitigation
efforts and operational changes to prevent a future occurrence. The
Forum may also discuss victim impacts, environmental and human
health impacts, mitigation requirements and environmental
enhancement opportunities. At the conclusion of the Forum a simple
agreement outlining the results is signed and the general public is
informed of the result through a press release.
The Community Justice Forum benefits an alleged offender because
no conviction is registered for breach of an environmental statute.
This is significant because of the escalating fines for subsequent
offences under most environmental statutes. An ancillary benefit is
maintaining and rebuilding a positive relationship with the
regulators and community. In most cases there will be a cost saving
for the alleged offender.
The regulatory agencies benefit from a cost and time saving by
avoiding lengthy litigation over the charges and, at the same time,
obtaining an acceptance of responsibility without the risk of an
acquittal in a trial process. There is also the obvious benefit of
funding for environmental restoration and enhancement projects. In
this instance, Teck agreed to pay a total of $325,000 to such
The Community Justice Forum process has been used by BC Ministry
of Environment in previous cases, but the Teck case was the first
for Environment Canada. The Canadian Environmental Protection Act
and Species at Risk Act have incorporated such alternative measures
into legislation while the Fisheries Act and the Provincial
Environmental Management Act have not. Committing to the Community
Justice Forum under the latter two Acts is purely voluntary and is
premised upon all parties acting in good faith.
To read Environmental Law News - July 2011 in full
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