A Right to Forage?

by Lucy Bradley

Foraging as a subject of discussion and pastime has been growing in recent years and we are now more knowledgeable about the edible goodies that are out there. Celebrity chefs talk about it, restaurant menus proudly display “foraged” and “wild” ingredients, journalists debate the rights and wrongs of ‘free’ food. It marks a revival of interest in traditional practice and know-how that passed through generations in many cultures until relatively recently. You can now book yourself onto foraging courses, or take part in group foraging trips in cities, the suburbs and the countryside. The general picture is that foraging for wild food is easy; anyone can do it and it’s free and enjoyable, an ephemeral flirt with “getting back to nature”.

Given that the right to food is recognised internationally as a fundamental human right – instead of focusing on the psychosocial appeal that recommends foraging – I ask whether the right to forage exists? And how might foraging as a normative or legal right vary from country to country? And what ethical implications does restricting the right to forage have in today’s context of increasing food poverty and food insecurity? Focusing primarily on the right to forage in the UK I use the Nordic countries as the reference point for the comparison.

In contrast to the right to roam, as strengthened by the Countryside and Rights of Way Act 2000, the communal right to forage in England occupies an uncomfortable position in the modern regime of legal rights owing to a ‘raft of modern legislation [that] severely limits our right to forage’ [1]. Born of the embedded understanding that wild foods are ‘inherently public property’, Lee and Garikipati point out that ‘the normative right to forage is deeply ingrained in [England’s] social and legal history’, but has never been formalised in English law. As such, the right to forage for uncultivated plant life, such as fungi, nuts, fruits and berries for personal use, has always been fluid, negotiated via a cocktail of common law, customary rights, license and privilege [2]. However, today’s legal environment drives the common right to forage further into the periphery, not only through the primacy accorded to property rights but also to conservation. Land ownership confers private property rights over ‘wild’ resources, and patchworks of byelaws prohibit foraging on National Trust land, national nature reserves, public parks or sites of special scientific interest [3, 4].

In the UK, forest and woods –prime terrain for foraging – account for 12 percent of the total land area [5], 66 percent of which is privately owned [6]. The majority of the publicly owned remainder was planted in the twentieth century, as consequently foraging opportunities are relatively poor and have a greater environmental impact relative to more mature forest and woodland which are host to greater biodiversity. Therefore, although the right to forage theoretically exists, the legal reality has effectively stripped it in a substantive sense – due to the dwindling space remaining to exercise this right. Contrast this with the Finnish situation as highlighted in a quote from a 2006 publication by the Finnish Ministry of Agriculture and Forestry:

“Forests are an essential element in the national identity of the Finns, as well as a source of inspiration in visual arts, literature and architecture. Thanks to the every man’s right, or the right of public access, everyone has the opportunity to find recreation, observe the nature and benefit from nature’s gifts. Each year the forests yield tens of millions of kilos of wild berries and millions of mushrooms, which may be picked freely, independent of who owns the land” [7].

Of course in England just because the formal right to forage does not exist does not mean people do not forage, including on land where it is not legally permitted. Encouraged by the vociferous enthusiasm of public figures and the media, individuals may not consciously be contravening laws; evidently many are simply unaware as the post ‘Foraging, the law and common sense’ on the National Trust’s Dartmoor Blog points out [8]. While the issue of sustainability has been a contentious and valid point, counterintuitive evidence from studies suggests that in some specific contexts the restriction of foraging is not necessarily the most efficient method of conservation. Communities where it is an established practice often exhibit self-regulating and environmentally sensitive ways of gleaning wild food whilst maintaining the integrity of the environment [9]. Organisations like Wild About Pembrokeshire, pursue a proactive, practical application of this ethos by encouraging people to enjoy gathering wild food and be ethical and conscientious foragers [10]. Such examples nonetheless lie in sharp contrast with the type of unsustainable ‘assault’ rebuked by Schuler in his 2013 article about foragers’ damage to Sydenham Wood, a designated nature reserve in South London [11]. The problems of scarce resources in light of the potential demand, coupled with the contemporary environmental and biodiversity challenges are serious issues which need to – and can – be artfully navigated, but foraging per se should not be prohibited. Pointing to a recent US study “Wild” Food in the City, Lucy Siegle concludes that urban green spaces can also be beneficiaries of foraging; foragers can actually ‘make them greener’ [12]. It seems like one of the ways to do this is to let go of our idée fixe about where foraging sites are – and for those of us in the city, that might actually be closer than we think. The evidence suggests that the nearer we do it to home the better- whether that be the city or the countryside.

The Nordic countries, where vast areas of unenclosed forest still exist, provide an interesting point of comparison. Although exemptions apply (for example to agricultural land, nature reserves and private gardens), freedom to roam and foraging rights for personal use are more aligned and much stronger, and apply to both public and private land – providing that no harm is caused to the property or environment. (As in the UK, commercial foraging is only permitted with a licence). With the exception of rare species, commoners’ right to forage includes the gathering of wild plants, mushrooms, flowers and berries in Finland, Sweden, Norway and Iceland [13]. Looking in more detail at Finland, where forests cover around 75% of the total land area, it is interesting to consider that although 52% of forested land is privately owned, the concentration of land ownership is much lower than in the UK: 20% of Finns are forest owners compared with the 0.6% of the UK population owning around 66% of the total land [14,15]. In addition to these divergent land ownership patterns, there are corresponding differences in the ways ownership is conceptualized and translated into rights. As a recent academic paper from the US emphasises, equal rights of access to these public goods – which are seen as innately public property – are embedded in both Finland’s cultural heritage and under the law:

‘…unique laws protect Everyman’s Rights to access all of Finland’s forest as a cultural, recreational and productive resource. Not only is public recreational access permitted regardless of land ownership, but rights are preserved to harvest wild edible berries, mushrooms and herbs wherever found. These laws blur the boundaries between public and private land use, and ensure that the natural edible resources of the country’s forest remain free to the public despite ownership patterns” [16]

I would like to end by considering an ethical perspective related to the human implications of a weak right to forage. The specific right to forage as a source of food does not emanate from the general right to food, even under severely adverse conditions. The recent US legal case of the self proclaimed Living Man, Ernie Tertelgte, arrested for fishing without a licence, goes someway towards highlighting this point. Regardless of whether one believes he could not afford to buy food, the case reveals a stark ethical quandary between natural justice and man-made law- hunger and poverty were not considered a legitimate defence. Unlike hunter-gatherer societies, which sustain(ed) themselves by foraging, hunting and fishing, where the exchange and relationship was fundamentally regulated by natural laws, in systems where legal bases govern civilisations there are always conditions to the right to forage. It suggests that those who are suffering economic hardship and would benefit from “free” wild food do not have the right to access it.

Given that we know that food poverty is growing, is this such an abstract dilemma? Where the (positive) right to forage is weak and property rights are codified and strong, humans are constrained from resorting to the direct source of nutrition that natural supply systems generate. Under such conditions, the right to food effectively translates into a duty of provision, delegated implicitly to external bodies which – in terms of agency – renders the individual dependent and reliant on charity. Food banks are a good example. You cannot find alternatives means to sustain yourself- that is by going out into the wild and gathering it. However, as discussed, the legal landscape that determines the right to feed oneself on wild food is more constrained or fraught in some countries than in others. Whether or not you can afford to feed yourself, foraging in the ‘wild’ connects us to a civillisation and history that is long gone. As modern urbane creatures, grazing the supermarket pastures, we hunt and gather with trolleys and baskets. Outside in the relative wilderness in the UK the seemingly innocuous act of picking a berry or a wild garlic leaf on land that is not your own could theoretically be breaking the law. Whether you think that’s right or wrong, you decide.

References

[1, 2, 3] Lee, J. and Garikipati, S. (2011). Negotiating the Non-negotiable: British Foraging Law in Theory and Practice. Journal of environmental law, 23(3), pp.415-439.

[4] Schuler, C. (2014). Where foraging’s concerned, there’s no such thing as a free lunch | C J Schuler | Independent Battle of Ideas Blogs. [online] Blogs.independent.co.uk. Available at: http://blogs.independent.co.uk/2013/06/21/where-foraging’s-concerned-there’s-no-such-thing-as-a-free-lunch/ [Accessed 30 Apr. 2014].

[5] UK Forestry Commission (n.d). The Resource – Trees, Woods and Forests (England). [online] Available at: http://www.forestry.gov.uk/forestry/INFD-7WMGLZ [Accessed 3 May. 2014].

[6] PEFC (n.d). Who Owns the Forest? [online] Available at: http://www.pefc.co.uk/forest-issues/who-owns-the-forest [Accessed 3 May. 2014].

[7] Ministry of Agriculture and Forestry (2006). Forests and forestry in Finland. Available at: http://www.mmm.fi/attachments/mmm/julkaisut/esitteet/5h07ADdbb/MMM_metsa_eng.pdf

[8] The National Trust (2010). The National Trust on Dartmoor: Foraging, the law, and common sense. [online] Available at: http://dartmoor-nationaltrust.blogspot.co.uk/2010/10/foraging-law-and-common-sense.html [Accessed 25 May. 2014].

[9] Lee, J. and Garikipati, S. (2011). Negotiating the Non-negotiable.

[10] http://www.wildaboutpembrokeshire.co.uk

[11] Schuler, C. (2014). Where foraging’s concerned, there’s no such thing as a free lunch

[12] Siegle, L. (2014). Is it still ok to forage for food?. [online] the Guardian. Available at: http://www.theguardian.com/environment/2014/feb/23/is-it-ok-to-forage-for-food [Accessed 30 Apr. 2014].

[13] Lin, J. (2011). Sweden’s Every Man’s Right Is a Forager’s Dream | SAVEUR. [online] SAVEUR.com. Available at: http://www.saveur.com/article/Travels/Swedens-Every-Mans-Right-is-a-Foragers-Dream [Accessed 22 May. 2014].

[14] Nordic Forestry (2014). Nordic Family Forestry – startpage. [online] Available at: http://www.nordicforestry.org/facts/finland.asp [Accessed 25 May. 2014].

[15] UK figures are based on those frequently cited from Kevin Carhill’s 2002 book, Who Owns Britain: the hidden facts behind landownership in the UK and Ireland. Canongate, Edinburgh.

[16] Gordon, E. (2011). Everyman’s Rights: Foraging in Finland. Available at: http://isites.harvard.edu/fs/docs/icb.topic1248020.files//Gordon_pdf_web.pdf

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