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The freedom to roam, or everyman's right is the general public's right to access certain public or privately owned land for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the right to roam.

Contents

The 'freedom to roam' in different countries

In England and Wales public access rights apply to certain categories of mainly uncultivated land—specifically "mountain, moor, heath, down and registered common land." Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above. Most publicly owned forests have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. People exercising the right of access have certain duties to respect other people's rights to manage the land, and to protect nature.

In Scotland and the Nordic countries of Finland, Iceland, Norway and Sweden as well as the Baltic countries of Estonia, Latvia and Lithuania the freedom to roam may take the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times.

Many tropical countries such as Madagascar have historic policies of open access to forest or wilderness areas. This practice in the rainforests of eastern Madagascar and in the Madagascar dry deciduous forests has led to considerable destruction of habitat, much of which is effectively irreversible.

In the United States hiking access to true wilderness areas is encouraged, but the property owner controls access to private lands, with exceptions for beach access and other easement rights that can be negotiated between government entities and owners to allow access to lands of unusual merit.

In the Nordic countries

Ancient traces provide evidence of the freedom to roam in many European countries, suggesting such a freedom was once a common norm. Today, the right to roam has survived in perhaps its purest form in Finland, Iceland, Norway and Sweden. Here the right has been won through practice over hundreds of years[1] and it is not known when it changed from mere 'common practice' to become a commonly recognised right. A possible explanation as to why the right has survived mainly in these four countries is that feudalism and serfdom were not established there. Another factor is the survival of large areas of unenclosed forest. Elsewhere in Europe land was gradually enclosed for private use and enjoyment, with commoners' rights (for instance, rights to gather fuel or graze animals) largely eliminated.

Today these rights underpin opportunities for outdoor recreation in several of the Nordic countries, providing the opportunity to hike across or camp on another's land (e.g. in Sweden for one or two nights, or "temporarily"), boating on someone else's waters, and picking wildflowers, mushrooms and berries. However — with the rights come responsibilities; that is, an obligation neither to harm, disturb, litter, nor to damage wildlife or crops.

Access rights are most often for travel on foot. Rights to fish, hunt or take any other product are usually constrained by other customs or laws. Building a fire is often prohibited (though in Sweden fires are allowed with proper safety precautions). Making noise is discouraged. In some countries, putting up a tent in the forest for one night is allowed, but not the use of a caravan. Access does not extend to built up or developed land (such as houses, gardens) and does not include commercial exploitation of the land. For example, workers picking berries may be legal only with the landowner's permit.

There are some significant differences in the rules of different countries.

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Finland

In Finland the freedom to roam and related rights are called "jokamiehenoikeus" in Finnish, "allemansrätten" in Swedish, literally translated "every man's rights", similar to other Nordic countries.

Everyone may walk, ski or cycle freely in the countryside where this does not harm the natural environment or the landowner, except in gardens or in the immediate vicinity of people’s homes (yards). Fields and plantations, which may easily be harmed, may usually not be crossed except in the winter.

One may stay or set up camp temporarily in the countryside, a reasonable distance from homes, pick mineral samples, wild berries, mushrooms and flowers (as long as they are not protected species). One may fish with a rod and line, row, sail or use a motorboat on waterways (with certain restrictions), and swim or bathe in both inland waters and the sea. One can walk, ski and ice fish on frozen lakes, rivers and the sea. Income from selling picked berries or mushrooms is tax-free. Picking cloudberry may be temporarily restricted in parts of Lapland.

One may not disturb others or damage property, disturb breeding birds (or their nests or young), or disturb reindeer or game animals. One may not cut down or damage living trees, or collect wood, moss or lichen on other people's property, nor may one light open fires without the land owner's permission (except in an emergency). One may not disturb the privacy of people's homes by camping too near to them or making too much noise, nor litter, drive motor vehicles off road without land owner permission, or fish or hunt without the relevant permits.[2] In the province of Åland the right to camp is not recognized.[3]

The right is a positive right in the respect that only the government is allowed to restrict it as in the case of strict nature reserves. However, the exact definition remains uncodified and based on the principle of nulla poena sine lege (what is not illegal cannot be punished).

Norway

Everyone in Norway enjoys the right of access to, and passage through, uncultivated land in the countryside. The right is an old consuetudinary law called the allemannsrett (lit. all men's right), that was codified in 1957 with the implementation of the Outdoor Recreation Act.[4] It is based on respect for the countryside, and all visitors are expected to show consideration for farmers and landowners, other users and the environment. In Norway the terms utmark and innmark divide areas where the right is valid and where it is not. The law specifies innmark thoroughly[5], and all areas not covered by this definition are defined as utmark, generally speaking uninhabited and uncultivated areas. Cultivated land may only be walked on when it is frozen and covered in snow.

In later years the right has come under pressure particularly around the Oslo Fjord and in popular areas of Southern Norway. These areas are popular sites for holiday homes and many owners of coastal land want to restrict public access to their property. As a general rule, building and partitioning of property is prohibited in the 100m zone closest to the sea, but local authorities in many areas have made liberal use of their ability to grant exemptions from this rule. Even though a land owner has been permitted to build closer to the shore he can not restrict people from walking along the shore. Fences and other barriers to prevent public access are not permitted (but yet sometimes erected, resulting in heavy fines).

Canoeing, kayaking, rowing and sailing in rivers, lakes, and ocean are allowed. Motorised boats are only permitted in salt water. All waters are open for swimming - with the exception for lakes that are drinking water supplies (see for instance Maridalsvannet).

Hunting rights belong to the landowner, and thus hunting is not included in the right of free access. In freshwater areas such as rivers and lakes, the fishing rights belong to the landowner. Regardless of who owns the land, fresh water fishing activities may only be conducted with the permission of the landowner or by those in possession of a fishing licence. In salt water areas there is free access to sports fishing using boats or from the shoreline. All fishing is subject to legislation to among other things protect biological diversity, and this legislation stipulates rules regarding the use of gear, seasons, bag or size limits and more.

Sweden

In Sweden, the Allemansrätten (lit. everybody's right) has according to "modern myths" existed for many centuries. However, the concept was in reality introduced in the 1940s as a customary law. With the increased living standard i Sweden during the early 20th century - and with mandatory holidays introduced - the government wanted to encourage outdoor access and a healthy lifestyle for the citizens. [6] Although the "Allemansrätten" still has to be truly defined it is since 1994 a part of the Swedish constitution.[7] As in other Nordic countries, the Swedish right to roam comes with an equal emphasis being placed upon the responsibility to look after the countryside; the maxim is "Do not disturb, do not destroy".

The Allemansrätten gives a person the right to access, walk, cycle, ride, ski, and camp on any land - with the exception of private gardens, the immediate vicinity of a dwelling house and land under cultivation. Also restrictions apply for nature reserves and other protected areas. It also gives the right to pick wildflowers, mushrooms and berries provided one knows they are not legally protected. However you are not entitled to hunt in any way. You can swim in any lake and put an unpowered boat on any water unless explicitly stated you can not. You have the right to visit beaches and walk by a shoreline providing it is not a part of a garden or within the immediate vicinity of a house (legally defined as the "Hemfridszon"). According to legal practice in Sweden that is between 100 to 300 meters from a dwelling house. [8]

Fishing remains essentially private – apart from on the biggest five lakes and the coast of the Baltic Sea, the Sound, Kattegat and Skagerrak Access to land by means of motor vehicles is banned. At certain times of the year, and with certain restrictions, both fires and dogs are permitted.

It is not free to drive a car on a private road, or to camp in a caravan on such roads, or on private parking places. This means in reality that caravan camping is best done on camping places (or rest areas along roads, even though it is not recommended).

It is allowed to put up a tent on any land that is not a private garden for one night, without permission.

Exercising of the rights is overseen by the Swedish National Environmental Protection Agency – which can, for example, force the removal of a fence if it obstructs people's right to enter the property under the "Everybodys's Right" (see Swedish environmental law - 'Miljöbalken 26 kap. 11 §').

Right to roam in the United Kingdom

Many land owners in the United Kingdom have a very strong position regarding their property rights. (cf. Inclosure Acts) Even uncultivated land has been heavily protected mostly to preserve the land owner's hunting or fishing rights. This in turn left the general public with little access to natural areas. Even such popular sites as Chrome Hill and Parkhouse Hill in the Peak District – although of very little economic interest to the owner – have been out of access to the public.

The Ramblers' Association works to increase the rights of walkers in the United Kingdom and has been a driving force behind the recent legislation increasing the public's access to the wilderness.

Scotland

In Scotland the Land Reform (Scotland) Act 2003 comprehensively codified into Scots law the ancient tradition of the right to universal access to the land in Scotland. The act specifically establishes a right to be on land for recreational, educational and certain other purposes and a right to cross land. The rights exist only if they are exercised responsibly.

The rights confirmed in the Scottish legislation are greater than the limited rights of access, which were not present in English law previously, granted in England and Wales with the passing of the Countryside and Rights of Way Act 2000 (CRoW). [9]

England and Wales

In England, after a polarised debate about the merits, rights and benefits of private landowners and public recreation, in 2000 the Government legislated to introduce a limited right to roam, without compensation for landowners. The Countryside and Rights of Way Act 2000 was gradually implemented from 2000 onwards in order to give the general public the conditional right to walk in certain areas of the English and Welsh countryside: principally downland, moorland, heathland and coastal land.

Traditionally the public could walk on established public footpaths and bridleways, on common land and on the foreshore, and land owners could prevent access to other areas (or charge a fee for access).

Angling interests successfully lobbied for the exclusion of rivers in England and Wales from CROW, leaving other river users such as swimmers and canoeists with restricted access to less than 2% of navigable water. The British Canoe Union is running the Rivers Access Campaign, to highlight the level of restrictions the public face in gaining access to inland waterways in England and Wales.

The new rights were introduced region by region through England and Wales, with completion in 2005. Maps showing accessible areas have been produced.

Right to roam in the rest of Europe

Austria

The right to roam in Austria, particularly in forests and mountainous areas, is called Wegefreiheit. Since 1975 the right to roam in forests is guaranteed by Federal law. In particular, walking, running, hiking, and resting are automatically allowed to the public in most forest areas. However, horse riding, bike riding, and camping are not, and may only be practised with the land owner's permission. A large proportion of the forest area in Austria is owned by government bodies such as the Österreichische Bundesforste, but the same restrictions still apply. In some circumstances forests may be closed to the public for environmental reasons. The situation in mountainous areas is less clear, and differs from state to state. Some states, such as Carinthia, Styria, and Salzburg guarantee a right to roam in mountainous areas (usually defined as above the tree line), for all recreational activities. In other states, such as Tyrol, Lower Austria, and Burgenland, no explicit right to roam exists and land owners reserve the right to deny access. In practice, however, such restrictions are rarely enforced, since mountain tourism is an important industry in Austria. [10]

Belarus

Article 13 of the Constitution of Belarus guarantees that all forest and farm land is publicly owned.[11][12] Forty percent of the country's territory is covered by forest,[13] approximately the same amount devoted to agriculture.[14]

According to the Forest Code (Article 42) "citizens have the right to freely stay in the forest and collect wild fruits, berries, nuts, mushrooms, other food, forest resources and medicinal plants to meet their own needs."[15]

Czech Republic

Since country rights have its origin in Austria–Hungary law, Czech republic have similar freedom to roam as Austria. In the Czech Republic is legal to roam through country and forests including private ones. Biking, sledge riding, skiing, horseback riding and motor vehicle riding is however allowed only on roads.[16]

Switzerland

The freedom to roam is guaranteed in Switzerland by the Swiss civil code. Some cantons however have more detailed regulations concerning the rights of access of otherwise not authorised people.

The Swiss civil code states, that forest and pasture are accessible freely for everyone, as long as there is no excessive usage. Except in special cases like the protection of young forest or biotopes it is not allowed to fence in forest areas. This also applies to private property. However, it is possible to make activities with excessive usage and possible potential to cause damage (e.g. events in the woods, access with cars) dependent on special authorisation. Similar regulations are in place for land which is not usable (e.g. stretches of water, rock, snow and ice), regardless of the land being unowned (i.e. being under the control of the canton and not able to be claimed as private property) or being in private hand.

It is further possible for the canton to restrict the freedom to roam to protect nature (e.g. to gather mushrooms, berries, wood, etc. in forests).

Criticism

In recent years population growth has increased pressure on some areas popular for hiking and increased mobility and affluence has made previously remote areas more accessible. There is some concern that some recreational users have limited understanding of the economic and natural systems they are exploring, though significant harm or damage is unusual, the main concerns being disturbance of sensitive species of wildlife (particularly by dogs), and litter.

The 1992 Rio Convention on Biodiversity (subscribed to by 189 countries) expressed some caution about the potential effect of unlimited access, especially in tropical forests, where slash and burn practices undermine biodiversity. For this reason, broad public access rights are challenged in some countries' resulting Biodiversity Action Plans.

Critics of a general right of public access sometimes assert that it threatens the management practices of property owners who have created and preserve many environmentally important qualities. It has also been argued that newly created access rights should lead to some form of financial compensation for private landowners.

See also

External links

Notes

  1. ^ Caplex article (Norwegian)
  2. ^ www.ymparisto.fi - Everyman's right
  3. ^ Everybody's rights at Landskapsregeringen (swedish)
  4. ^ http://www.regjeringen.no/en/doc/Laws/Acts/Outdoor-Recreation-Act.html?id=172932
  5. ^ ”gårdsplass, hustomt, dyrket mark, engslått, kulturbeite og skogplantefelt og liknende områder hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier eller bruker. Udyrkede, mindre grunnstykker som ligger i dyrket mark eller engslått eller er gjerdet inn sammen med slikt område, regnes også som innmark. Det samme gjelder områder for industrielt eller annen særlig øyemed hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier, bruker eller andre.”
  6. ^ Gunnar Wiktorsson: Den grundlagsskyddade myten. A comprehensive essay and study re the launch of the "Allemansrätten" in Sweden. City University Press, 1996, ISBN 91-7562-084-7.
  7. ^ Regeringsformen. 2 kap, Grundläggande fri- och rättigheter, Regeringen (Swedish)
  8. ^ Olovlig väg. Swedish law: Brottsbalken Chapter 4, 6§
  9. ^ "Countryside and Rights of Way Act 2000: Fact Sheets". Department for Environment, Food and Rural Affairs. 2000-03-07. http://www.defra.gov.uk/wildlife-countryside/cl/bill/factsheet/index.htm#1. Retrieved 2006-12-09. 
  10. ^ "Wegefreiheit im Wald und im Berggebiet" (in German). AV-Rechts-Infotext 2004. Austrian Alpine Club. http://www.rockprojects.com/download/OEAV_Rechts_Infotext_2004.pdf. 
  11. ^ "Constitution of Belarus" (in Russian). Government of Belarus. http://ncpi.gov.by/constsud/rus/constitution.html. 
  12. ^ "Constitution of Belarus, English Translation" (in English). Government of Belarus, National Legal Internet Portal of the Republic of Belarus. http://www.law.by/work/EnglPortal.nsf/6e1a652fbefce34ac2256d910056d559/d93bc51590cf7f49c2256dc0004601db?OpenDocument. 
  13. ^ "Belarus: Window of Opportunity (see Table 15, page 66)" (in English). United Nations. http://hdr.undp.org/en/reports/nationalreports/europethecis/belarus/belarus_2005_en.pdf. 
  14. ^ "Belarus Tourist Information" (in Russian). Belarus Portal tut.by. http://tourism.tut.by/cgi-bin/countries.cgi?id=83. 
  15. ^ "Forest Code of Belarus" (in Russian). Government of Belarus. http://www.pravo.by/webnpa/text.asp?RN=HK0000420. 
  16. ^ "Veřejná přístupnost krajiny". http://cs.wikipedia.org/wiki/Veřejná_přístupnost_krajiny. 

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