Rights of access to the outdoors are a big deal. To deny access to the outdoors could exclude sections of society from natural heritage and open air recreation, together with all the (difficult to measure) benefits that flow from that. To allow unfettered access can lead to conflicts between an access taker and landowners, land managers or other access takers. Different legal systems approach this balancing act in different ways. This has been analysed, from a North American perspective, in a recent New York Times piece by Ken Ilgunas.
This Opinion – and a related book – is based on the author’s trek along the route of a proposed pipeline. That allowed Ilgunas to compare the various approaches in Canada and the USA, but Ken did not stop there. He sought guidance from other access regimes, particularly from Scandinavian and UK jurisdictions, to counterbalance the rules he encountered that might be characterised as unfriendly towards access takers.
As readers of this blog will know (see my posts on disputes between access takers, camping, charging for access to a park , a road closure by police after a fitba match, the implications access (and other) laws might have for the reintroduction of wolves, and an older post about a Scottish Government consultation to tweak the law) Scotland has a statutory framework for such access rights. Those rights to cross and to be on land for certain activities overlay long established public rights of way and loose traditions of customary access. I had a very interesting Skype conversation with Ken in the lead-up to his article to try my best to explain this and it is great to see Scotland being held out as something of an exemplar here. (This follows on from the work of Professor John Lovett of Loyola University, New Orleans, who was kind enough to direct Ken in my direction.) Naturally, Ken’s analysis is tailored for an American audience, but it is worth reading by those in the old country and beyond. Without further ado, I will curtail my own blog post and encourage you to read the article.