The Forest of Birse Commonty
A Common Property Resource Case Study
Robin Callander, June 1999
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| The Caledonia Centre for Social Development as part of its popular
education programme on land issues wishes to make this article available to a wider
audience and has edited the piece. The article first appeared in the June 1999 Issue
of the local Birse Community Trust newsletter. Robin is the part time
manager of the Trust. |
 |
Contents
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Robin Callander and a number of his neighbours have been influential in ensuring that
the ancient common property rights in the parish of Birse in which they live are sustained
for current and future generations. For over 25 years Robin has researched these ancient
rights, challenged those who knowingly or otherwise have sought to appropriate them for
private gain and alerted his neighbours and the wider community to the potential loss of
these rights. The successful resolution that resulted in the historic Birse Commonty
Settlement and the subsequent transfer of these common property rights to a specially
created community trust is an innovative solution to a complex set of resource rights
issues.
It took over 3-years of negotiation and mediation to put this historic settlement into
place, thus drawing to a conclusion some 3 centuries of documented dispute over these
ancient shared rights to the Commonty. These rights are complex and go back to laws passed
in 1695 which are still valid today. The key challenge faced by those holding commonty
rights was how to apply them in the modern day. An innovative solution was found in which
all those who held these rights agreed to transfer them in perpetuity to a specially
created community controlled legal entity. Having successfully transferred the rights to
this collective body the community is now seeking to steward them in such a way that
community benefit is derived in a sustainable manner.
Numerous communities in other parts of the world face similar common property struggles
with regard to issues of ownership, the extinguishing of rights and the erosion of access
to common resources. The Birse case demonstrates that organised and sustained collective
action over a long period of time can lead to adaptation, innovation, and renewal of
community institutions for common resource management. Such an approach borrows and adapts
from new models of ownership, management and asset-based democracy recently devised by the
co-operative and social economy movement.
During the last 25 years this movement has devised a broad range of innovative
organisational structures for ensuring that decision-making, assets and other resources
remain in local hands using approaches such as community enterprises; community
co-operatives, local development associations; social firms; community land trusts, etc.
All these structures have four defining features that distinguish them from the private
sector:
 | They are owned and controlled by the local community; |
| They aim to serve the interests of that community rather than generate private gain;
|
| Any financial surplus they produce is re-invested locally for community benefit purposes
and is not distributed as private profit; and |
| Residual assets cannot be divided between individuals but can only be transferred to a
similar type of non-profit distributing organisation. |
Birse Parish
Birse covers over 125sq. km (12,500 hectares or 31,500 acres) in the north-east of
Scotland. The parish (district) has four main parts: the three scattered rural communities
of Finzean, Ballogie and Birse and the largely uninhabited Forest of Birse, which covers
over a quarter of the parish’s total area. The parish has c.260 households and a
total population of c.700, with half the households and population in Finzean and half in
Ballogie and Birse.
The Birse Community Trust (BCT) was established in early 1999 and is a local
development association or community enterprise. Its function is "to promote the
common good of the inhabitants of the parish of Birse and deliver wider public
benefits". The Trust involves the three communities encompassed within the Birse
parish – Finzean, Ballogie and Birse. Everyone listed on the Electoral Register for
these areas is automatically a member of Trust and, as the voting membership, elects the
Trust’s Board of five Trustees. BCT is legally constituted, as a company with
charitable status, and the Trustees are responsible for running the organisation on behalf
of the community. Any surpluses or profits generated by the Trust must be applied to
projects that benefit the community and wider public. The Trust employs a part time
manager and this post has been crucial in enabling the organisation to make good progress
with its projects.
BCT’s task as a community enterprise is to develop and implement projects that
meet local needs and aspirations. That role is distinct from, but complimentary to, the
role of the two local Community Associations (Finzean, Ballogie) and the Community Council
(village level). Those organisations are responsible for representing the democratic views
of inhabitants on local matters to the Local Authority, Central Government Departments and
other State Agencies. The Trust will always be guided by the concerns and priorities
identified by these representative bodies and will work in full partnership with them over
all its projects.
The impetus to establish BCT came from the need to safeguard the future of ancient
shared rights over the extensive area known as the Forest of Birse Commonty and to secure
the sustainable management of the native pinewood there.
The area known as the Forest of Birse Commonty covers nearly all of the Forest Birse
and extends to over 3,500 hectares (9,000 acres). The Commonty has a unique pattern of
legal rights and a long history of disputes. These have included physical conflict in the
17th century, Scotland’s highest Court (Court of Session) in the 18th
century and Britain’s highest Court (House of Lords) in the 19th century.
While the Commonty has not been in the courts in the 20th century, uncertainty
still continued about who had what rights over the area.
| It has long been clear that one party owns the land of the Commonty (the
Honourable Charles Pearson of Birse Forest Estate); and that two parties own the sporting
rights over the Commonty (the Honourable Charles Pearson and the Nicol brothers of
Ballogie Estate). The issue has been, however, that an indeterminate number of other
parties in the parish still shared other extensive ancient land use rights over the whole
Commonty. |
 |
One important consequence of this situation was that there was no agreement over who
could manage the native pinewoods spread across over 500 hectares (1,250 acres) of the
North Hill of the Commonty. The Finlets Pinewood on the Commonty and the contiguous Glen
Ferrick Pinewood in Finzean form the most easterly and eleventh largest surviving relic
Caledonian Pinewood in Scotland –a natural heritage treasure of national importance.
Birse Community Trust (BCT), as it’s first main project, initiated a three-stage
process to try and resolve this situation.
Firstly, the ancient Commonty rights would be vested in the BCT to benefit the
local community.
Secondly, on the basis of these rights, BCT would reach an agreement with the
owners of the solum and the sporting rights over the management of the pinewoods.
Thirdly, through this agreement, BCT would manage the pinewoods with funding
from the Government’s Forestry Commission Woodland Grant Scheme and from the
Millennium Commission through the Millennium Forest for Scotland Initiative.
These proposals arose in the first instance from the willingness of the Farquharsons of
Finzean and Cochrans of Balfour in particular, to convey their acknowledged rights to BCT
as a gift to the community to mark the Millennium. The proposals would also not have been
possible without the willingness of the honourable Charles Pearson and the Nicol brothers
to try and achieve a satisfactory agreement.
Delivering the three-stage process was much more difficult than anyone imagined and
therefore took much longer than expected – over three years. However, in the end and
still in a spirit of local co-operation, the BCT, the Honourable Charles Pearson and the
Nicol brothers reached an historic settlement over the Commonty. As a result, BCT with its
Commonty rights and the Forestry Commission and Millennium Forest funding, has now started
to manage the Commonty pinewoods through the North Hill Agreement that BCT signed on the
19th January 1999 with the Honourable Charles Pearson and the Nicol brothers as
owners of the solum and sporting rights.
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