Private Property sign

J.B. MacKinnon makes the case for occupying the wild

We were out for a hike on Bowen Island, which sits at the mouth of Vancouver’s harbour like a cork to bottle in the urban whine, when we came to a no trespassing sign. Beyond was the familiar devastation of development: blasted stone, felled trees, a muddy road. Well. The six of us knew that locals had been walking in the area for decades, and besides, we were a freedom-minded bunch. Onward we went, past the sign, into the forest and down to the soul-refuelling shore.

We were on our return journey when, nearing the new road, we saw a luxury SUV pulling to a stop. A luxury-SUV kind of fellow stepped out, followed by a luxury-SUV variety woman. I knew what would happen next—it’s a legend in my family that, as a boy, I was often rousted from whatever I was up to in the neighbourhood by somebody shouting, “Hey blondie! Get off of my land!” The SUV owner’s tone was the same, though his words had a little more substance. “How would you like it,” he said, “if I took a walk in your backyard?”

Let’s pretend for a moment that he was actually interested in the answer to that question. For starters, I don’t have a backyard, because Canada’s richest real-estate market has rendered me the modern equivalent of a feudal peasant. Secondly, I am—like more than 50 per cent of people on earth—a city dweller, so I’m unlikely ever to own a yard large enough that a stranger could pass through it without being able to see what I do in the bedroom or otherwise seriously infringe on my privacy. So really the question is, How would I like it if I owned that guy’s backyard—which is an undeveloped forest large enough that a visitor could wander through it for half an hour without figuring out where the house is hidden—and then one day I stumbled on some people taking a quiet hike on my private property? And the answer to that question is: I wouldn’t mind it one bit.

I’ve made the SUV driver the bad guy in this story, but I know that many people would see me and my band of trespassers as the snotty-nosed wrongdoers. It all depends on how you feel about private property, and this is my actual point. In Canada, we’ve never had much public debate about our access to an increasingly privatized countryside. Maybe it’s time that we did.

Here’s another story, this time from the opposite coast. My mother lived in Newfoundland for years, and one late spring I paid her a visit. We headed out in search of that most magnificent of Newfie sights, humpback whales breaching and diving among icebergs. Suddenly we crested a hill and there they were, the huge black leviathans flashing their tails against the whites and blues of the bergs, the whole scene playing out in a snug little cove. My mom parked the car as close as she could get to the water, which happened to be in front of an obviously inhabited acreage. Then she wandered into these strangers’ backyard, with me and my lady-friend trailing behind and muttering that this might not be a good idea. Predictably, the man of the house soon appeared on the patio. Then he said, in the whale-oil-beef-hooked accent of rural Newfoundland, “Isn’t dat de most wonderful ting you’ve ever seen?”

This was not, as I thought at the time, a freak encounter with the world’s easiest-going homeowner. Over the next week, my mother led us into numerous trespasses, among them a popular hiking trail that effectively started in a person’s front yard. Newfoundland clearly had a different tradition when it came to the boundaries between private and common land.

But traditions have been known to fade in a single generation, and indeed, the more open attitude of Newfoundlanders has been steadily eroding. Canada’s legal system, meanwhile, is more consistent. Rules differ in the details from place to place across the country, but the basic pattern is the same: If someone owns a piece of dirt, and they give notice that they don’t want you on it (e.g., with a keep out sign, or by yelling, “Hey blondie! Get off of my land!”), then that settles the matter. In Canada, trespassing is against the law.

There is nothing inevitable about the Canadian approach to private property. In Sweden, for example, it is the norm for people to wander almost anywhere they choose. Indeed, Sweden is a case study in what is broadly known as the “right to roam,” though Swedes themselves call it allemansrätt—which, as you might guess, means “everyman’s right.”

For Swedes, access to nature is among a citizen’s constitutionally protected rights and freedoms. Allemansrätt, however, is not a specific law. Instead, it’s the outcome of a complicated mixture of social codes and customs. For example, you can’t cut trees on someone else’s property, but you can gather deadwood. You can’t march through someone’s crops, but you can walk over the stubbled fields after the harvest. You may camp without permission, but not for more than two nights. You can build a campfire, too, but must make sure the heat doesn’t do so much as split the landowner’s rocks (yes, rock splitting is specifically mentioned in allemansrätt pamphlets). You can also pick berries or mushrooms on another person’s real estate, though the amount is limited by local tradition: In some places, you might take enough to fill your hat; in others, only enough to fill a mitten. In fact, one Swede can even assert his allemansrätt by acting as a commercial outfitter on another Swede’s land. In one famous case, a tour operator who was bringing 3,000 clients a year onto someone else’s property was stopped by a court order, not because he was trespassing, but because he had not taken enough care to respect the landowner and avoid damaging the environment.

This raises a point about allemansrätt that needs to be made clear: The right to roam has survived in modern-day Sweden because the Swedish take seriously their responsibility to respect each other and their shared environment. It is because of this that allemansrätt is often proudly cited as a defining aspect of the Swedish identity, and is sometimes fondly called the “Old Habit.” Yes, new activities constantly test the tradition (Is it everyman’s right to build mountain-bike trails on someone else’s land? Or to bring in foreign labourers to pick berries for export?), but the starting point for debate is captured in the Swedish saying, “If it’s not forbidden, it’s allowed.”

Similar laws or customs are followed throughout Scandinavia (in Finland they call the right to roam jokamiehenoikeus), while other European countries, such as Switzerland, Scotland, Austria and Slovakia, hew to similar if less ardent versions. Arguments about private property are ancient in England, where the 19th-century political philosopher John Stuart Mill—a fierce defender of individual rights—once wrote that, “When land is not intended to be cultivated, no good reason can in general be given for its being private property at all.” More than 150 years after Mill penned those words, England’s Countryside and Rights of Way Act finally gave the public access to certain undeveloped private lands. It’s a breakthrough in the country that handed down its restrictive property laws—designed to keep the commoners out of the fields and forests of the nobility—to Canada and the U.S., but still opens access to less than 10 per cent of the English landscape.

I’ve had the good fortune to travel in some of the countries that offer the right to roam, and once I’ve gotten used to the fact that no one will be chasing me off their land with a shotgun, it feels as natural as can be. I like the way it reminds us that the land itself has a timeless autonomy, that we are never more than fleeting “owners” of the earth. I admire the way an Icelander, say, or an Asturian in the mountains of Spain, actually embodies the idea that, as the old song goes, “this land is my land, this land is your land.” Most of all, though, I notice one thing: That a Canadian in a foreign country can actually be more free than he or she is back home.

We have our excuses. Some will say, as one person did during one of the very few Internet discussions on the right to roam, “I worked all my life for my house and backyard, and yes, it’s mine.” Of course, a Swede could say the same thing. In Sweden, your home and immediate surroundings are known as your tomt, and considered sacrosanct. The size of the tomt is undefined, but the rule of thumb is to stay at least 20 metres from a house or building. Most Swedes simply try to stay out of eyesight or earshot of homeowners.

Liability is a legitimate concern, but easily dealt with. England’s new open-access legislation specifically protects homeowners from being sued by uninvited visitors who come to harm. In Canada, the argument most quickly deployed against a right to roam is that we don’t need one. People point out that Sweden could fit into one of Canada’s back pockets, to be found only months later when we are looking for our keys. In many parts of our country, there is no one around to care whether you’re trespassing or not; spread the population of Nunavut evenly, for example, and each man, woman and child would be lost in a personal wilderness of 60 square kilometres.

Canada, though, is larger in theory than in practice. Look at a population density map and the country resembles the long, narrow nation of Chile. The vast majority of us live in a 200-kilometre-wide belt along the border with the United States. Eighty per cent of us are in cities, and even many rural residents are effectively surrounded by private land they are forbidden from entering. Worse, the private owners of hinterland properties are often absentee landlords. In some counties in Nova Scotia, as much as a third of the waterfront is owned by non-residents, many of whom visit only rarely; in the East Kootenays of B.C., on the west side of the Rocky Mountains, one-quarter of properties are owned by non-residents, mainly Albertans. In such places, genuine locals have indeed developed a traditional approach that gives them access to the land. That tradition is called “trespassing.”

I grew up under that particular social code. When I was a child, my family home was perched at what was then the edge of a mid-size city surrounded by ranchland. I could step out my back door and—never once setting foot on asphalt—walk as far as I could possibly want. Along the way, I would climb many fences, ignore many no trespassing signs and carefully steer clear of country houses guarded by untethered dogs. The ranchers, though, didn’t seem to care that I was out there. I don’t have a single memory of being yelled at on the open range.

When I visit my old hometown today, things are different. The grasslands nearest to my former home have been bulldozed to make way for houses painted in the colour palette of the landscape they’ve replaced. On one walk through the relict patch of prairie that remains, I crested a blind hill on a favourite trail only to discover that it is now cut short by new residents’ backyards. As I stood there, a bit stunned, a woman emerged from a door with a golden retriever on a leash. Then she bent down and, for my benefit, loudly informed the dog that I was a trespasser. It seemed to me that the dog didn’t care.

With every passing year, some place that I used to explore is officially closed to the public, so that now hikers, bikers, climbers or skiers enter only with the watchful eyes of poachers, if at all. Cities keep getting bigger, yes, but not as much as the countryside keeps getting smaller.

There’s no mystery to where this trend ends. Last year, I spent four months holed up in a cabin in New York’s cottage country. To the west, oak forests sprawled about five kilometres to the low Shawangunk Mountains. I could have walked to the craggy ridge in an hour—that is, I could have walked there if the whole scene had been transplanted to Sweden or Finland. In the United States, such a journey would be unimaginable and possibly fatal. Everywhere I walked, no trespassing signs loomed, or less subtle variations such as trespassers will be shot, survivors will be shot again.

America: land of the free. In the United States, private farms cover 40 per cent of the country, and private landowners—not even including industrial corporations—control nearly 50 per cent of the forests, or a further 15 per cent of the total land area. All in, that’s 55 per cent of the land in the hands of about five per cent of the people. The top 10 individual landowners alone control an area approaching the size of Nova Scotia.

The right to roam represents something essential: a reminder that freedom is, at its root, an actual condition of being. It is the ideal of a single person standing on an unclaimed, unaltered landscape, his or her actions limited only by the powers of imagination and the laws of physics. It was surely this that the American environmental philosopher Aldo Leopold was referring to when he wrote his most enigmatic line: “Of what avail are 40 freedoms without a blank spot on the map?”

Private property has nothing much in common with freedom; it is more properly thought of as the right to exclude other people—a valuable right, but one that, as other people in other places have shown, is open to interpretation. Canada is large, and history here tends to move slowly. But Canadians will, at some point, have to start making real decisions about whether or not we want the right to roam, the freedom of the hills, and if so, exactly what that might look like. Better to start the conversation sooner than later, I say. It takes time to build a new tradition of respect and responsibility; it can take hardly any time at all to forget what it means to be free.