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Thread: The Legal Position & Background

  1. #61

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    This is a very generous comment by Keith... he offers his support for those who favour a course of action which he does not favour. How can we fail when this spirit is amongst us.
    Doug Dew
    "The best is yet to come" My Father


  2. #62
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    Default Prosecution

    Can I ask, has any canoeist ever been Sued or taken to court for just paddling down a river? I always thought, or was told at some stage, that trespass was one of those things that was in theory something that you could be done for but in practice it isnt worth a land owner taking you to court unless they can prove damage has been done....which must be incredible difficult to prove because a sensible canoeist wont be causing damage.

    Reading that legal thesis (all of it) it seemed to suggest that there hadnt been any cases really apart from a handful over the last 800 years or so.
    --
    Andy

  3. #63
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    Quote Originally Posted by andylincs View Post
    Can I ask, has any canoeist ever been Sued or taken to court for just paddling down a river?
    it isnt worth a land owner taking you to court unless they can prove damage has been done....which must be incredible difficult to prove because a sensible canoeist wont be causing damage.
    .
    Three that I know of

    Peters - sued by Rawson in 1972 for disturbance to fishing rights, rejected initially but Rawson appealed and won costs and damages of 50p, and permission to apply for injunction banning further paddling by Peters without permission.

    Cairngorm Sailing School 1975, sued by estate owners (Wills trustees) seeking to prevent them using the river (was it the Spey?) running through the estate for canoeing, on appeal the river was found to have a right of Navigation (rafts of logs had been floated in the past down the river).

    Clancy - sued by Tennant in 1988. Clancy onwed property on a lake in Ireland and ran caneoing classes on the lake, sued by Tennant who owned fishing rights. Clancy did not have any rights in the bed of the lake so had no right to distrub the fishing by boating on it without agreement.

    Brevan
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  4. #64
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    Default Legal battle

    I'm not being negative, or putting down any efforts in getting the legal position clarified so please don't take this the wrong way...but...

    I think the fact that there has only been 3 legal cases in the last 40 years (and not a great deal more in the last 500 years) that effect a canoeist from paddling where he/she wants actually puts this into context.

    As a matter of principle I support any legal effort to clarify or assert our rights but from my own point of view and my own experience it isn't actually a big issue. I have been out 40 or 50 times in the last year and have never had an issue / argument with a fisherman or land owner. True I haven't been to many different places and I haven't tried many places which are not on the license but I have "strayed" almost certainly into areas where perhaps I shouldn't. If I can go canoeing 40 plus times with no problem in one year then many others who only go out 3 or 4 times a year would take a minimum of 10 years before they had an issue.

    Obviously there are areas of the country where conflict happens more often but I am also a fisherman (and fish a lot).

    I think the same is true of fisherman, most fisherman will not have had an issue with a canoeist. A huge number of fisherman only fish private lakes and therefore don't see a legal issue over rights. A lot fish rivers or parts of rivers that won't / aren't suitable or attractive to canoeists and therefore will never see an issue.

    Are we actually looking at a legal problem which only effects a very small number of canoeists and also a very few number of fisherman / landowners and that the issue has been blown out of proportion by a few very vocal people on either side who are trying to get the rest of us involved?

    If my experience is repeated among most canoeists then this is the first hurdle to over come surely...getting people to want or believe that this legal issue needs sorting because without this not many people will be writing to their MPs or taking part in a campaign. The same must have been true for ramblers as many /most ramblers wouldn't have come across an issue that stopped them from enjoying a good walk.

    How did the ramblers mobilise enough people to make a difference?

    Or, is it not necessary to mobilise and have a lot of canoeists "on board" for a legal struggle because the principle at stake is enough on its own.

    I just wonder if making a protest paddle is making a problem or highlighting a problem which isnt there in reality and that the only effort needed is purely legal and administrative.

    I think I'm playing devils advocate in order to find out more about the issue because I'm not sure that I have been totally sold the argument for why "legal" access is needed and therefore question whether MPs and others in authority have been sold the argument simply because I havent seen the argument on the ground.

    How many people have had a problem? Are there any figures? Because clearly there are close to zero people who have had a problem in the courts. Or is it the case that there havent been many issues because we lovely canoeists never stray onto rivers that are in dispute? Or are the disputes only in heavily used areas of the country where loads of fishermen go at the same time as loads of canoeists?

    I'm totally in support of clarifying the position legally for the benefit of all as a principle and think that all efforts are to be commended so please don't shoot me down aggressively because I'm not disagreeing with any of you just finding out more.
    --
    Andy

  5. #65

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    Hi Andy

    I think you make some very good comments... it is true that you can paddle on disputed waters,but only if you are happy to risk abuse, threats of physical violence, actual violence, and being sued. It is also true that serious consequences from these risks are very rare.

    It is my belief, not backed up by hard evidence, that most paddlers do not paddle in disputed waters and this is because they do not want to take the risks listed above, particularly with their families...

    One source of my belief is that virtually all blogs shown on this site take place on non-disputed waters. I don't belief that this is simply because people are paddling on disputed waters but don't blog these trips. I believe that trips on disputed waters are comparatively rare.

    i also believe that, in practice, males with confidence in their ability to physically defend themselves form the majority of those who make trips on disputed waters.

    I find the current situation as described above as completely unacceptable. I am completely mystified as to why canoeists are so passive about it. It is a constant affront to each and everyone of us. England and Wales are the only countries still ruled by these feudal laws (if they exist).

    I want change for me, for our families, for our children and for future generations.
    Doug Dew
    "The best is yet to come" My Father


  6. #66
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    Thought-provoking stuff everyone. Thanks

    Just a thought about ramblers: I think most people see themselves as potential beneficiaries - an inheritors - of access to ancient rights of way. Even if most people never set foot more than 100 yards from tarmac, they can imagine that they might and feel they should be allowed to. That led to an "instinctive" identification with the ramblers' cause

    I'm not sure we paddlers would get the same response. Most of my acquaintances think I'm slightly peculiar and in some way "brave" (!!) to be paddling down the Oxford canal. It's not something they can imagine themselves doing and they find themselves just slightly uneasy about the prospect

    If we mount attention-grabbing protests, I think it needs great care to be perceived as arguing for the rights of everyone, rather than special pleading for privileges for the few

    But Scottish paddlers did it. How did that happen and what can we learn?

    David

  7. #67

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    You are right, David. Our cause might have less wide spread identification from members of the general public for the reasons you suggest. But, I honestly think that this is not a problem. My experience is different to yours. I have only ever received positive responses from friends when I tell them about my canoeing adventures, often accompanied by a wistful comment that it is something they would like to do too. They are usually surprised when I tell them about the access issue and overwhelmingly think it is unfair. Can you imagine members of the public, with no special interest, advocating that rivers should be available to anglers but not canoeists, walkers, and swimmers? I can't.

    When you canoe down a canal, the passers by on the tow path smile and engage you in conversation. Waterways have that effect on people. We are campaigning for access for all, not just canoeists... this is what the Scottish access code provides...


    Quote Originally Posted by David Jones View Post
    Thought-provoking stuff everyone. Thanks

    Just a thought about ramblers: I think most people see themselves as potential beneficiaries - an inheritors - of access to ancient rights of way. Even if most people never set foot more than 100 yards from tarmac, they can imagine that they might and feel they should be allowed to. That led to an "instinctive" identification with the ramblers' cause

    I'm not sure we paddlers would get the same response. Most of my acquaintances think I'm slightly peculiar and in some way "brave" (!!) to be paddling down the Oxford canal. It's not something they can imagine themselves doing and they find themselves just slightly uneasy about the prospect

    If we mount attention-grabbing protests, I think it needs great care to be perceived as arguing for the rights of everyone, rather than special pleading for privileges for the few

    But Scottish paddlers did it. How did that happen and what can we learn?

    David
    Doug Dew
    "The best is yet to come" My Father


  8. #68
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    Quote Originally Posted by andylincs View Post
    I'm not being negative, or putting down any efforts in getting the legal position clarified so please don't take this the wrong way...but...

    I think the fact that there has only been 3 legal cases in the last 40 years (and not a great deal more in the last 500 years) that effect a canoeist from paddling where he/she wants actually puts this into context.

    As a matter of principle I support any legal effort to clarify or assert our rights but from my own point of view and my own experience it isn't actually a big issue. I have been out 40 or 50 times in the last year and have never had an issue / argument with a fisherman or land owner. True I haven't been to many different places and I haven't tried many places which are not on the license but I have "strayed" almost certainly into areas where perhaps I shouldn't. If I can go canoeing 40 plus times with no problem in one year then many others who only go out 3 or 4 times a year would take a minimum of 10 years before they had an issue.

    Obviously there are areas of the country where conflict happens more often but I am also a fisherman (and fish a lot).

    I think the same is true of fisherman, most fisherman will not have had an issue with a canoeist. A huge number of fisherman only fish private lakes and therefore don't see a legal issue over rights. A lot fish rivers or parts of rivers that won't / aren't suitable or attractive to canoeists and therefore will never see an issue.

    Are we actually looking at a legal problem which only effects a very small number of canoeists and also a very few number of fisherman / landowners and that the issue has been blown out of proportion by a few very vocal people on either side who are trying to get the rest of us involved?

    If my experience is repeated among most canoeists then this is the first hurdle to over come surely...getting people to want or believe that this legal issue needs sorting because without this not many people will be writing to their MPs or taking part in a campaign. The same must have been true for ramblers as many /most ramblers wouldn't have come across an issue that stopped them from enjoying a good walk.

    How did the ramblers mobilise enough people to make a difference?

    Or, is it not necessary to mobilise and have a lot of canoeists "on board" for a legal struggle because the principle at stake is enough on its own.

    I just wonder if making a protest paddle is making a problem or highlighting a problem which isnt there in reality and that the only effort needed is purely legal and administrative.

    I think I'm playing devils advocate in order to find out more about the issue because I'm not sure that I have been totally sold the argument for why "legal" access is needed and therefore question whether MPs and others in authority have been sold the argument simply because I havent seen the argument on the ground.

    How many people have had a problem? Are there any figures? Because clearly there are close to zero people who have had a problem in the courts. Or is it the case that there havent been many issues because we lovely canoeists never stray onto rivers that are in dispute? Or are the disputes only in heavily used areas of the country where loads of fishermen go at the same time as loads of canoeists?

    I'm totally in support of clarifying the position legally for the benefit of all as a principle and think that all efforts are to be commended so please don't shoot me down aggressively because I'm not disagreeing with any of you just finding out more.

    You are right that most experienced people will have no problem most of the time. However, the perceived lack of clarity in the law means that there are some hotspots where there is real conflict resulting in people not paddling. In Wales, examples include:


    • the Dee which should be a touring destination river of international repute and should be generating far more money for the local economy.
    • the Tawe which is more remote where there have been recent threats and damage to cars. There are many seasoned paddlers who give it a wide berth because it isn't worth the hassle.
    • Beginners are put off generally once they start looking into the access situation.

    A second consequence is that legitimate businesses are driven off the river. Local coaches trying to use the Wye in the summer above Glasbury in the summer are actively hounded off the river. There could be a much larger economy around paddling (maybe double in some places?) if the public had a decent level of access to their own local resource.

    Thirdly, the lack of clarity on the law means that government agencies have to be ultra cautious and won't fund paddling initiatives predicated on universal access. Any encouragement of paddling is immediately challenged by landowner and fishing lobbies. I did some research a couple of years on the internet presence of fishing vs paddling on the WAG Visit Wales websites. Angling had a content rich dedicated website with the ability to sign up receive alerts etc. Paddling had one paragraph of text. The EA also shows huge bias in its recreation strategy. The Beacons National Park cannot promote anything other than paddling on canals and limited reservoirs during the summer which it finds very frustrating.

  9. #69
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    Default maybe better news???

    I've been trawling through t the DEFRA website, looking for interesting snippets to include in my next MPs letter, when I found this:
    Supporting the environment – 12 months on:
    Speaking 12 months in to what she describes as a ‘challenging but crucial’ role, Environment Secretary Caroline Spelman has been reflecting on some of the green successes since taking office.
    And we’re investing £110m to clean up England’s rivers, tackling problems that have been sitting in the too-hard basket for too long. We’ll be working with local groups to turn our waterways into healthy wildlife habitats, sort out problems regarding ownership, access, and upkeep, and address sources of pollution.
    The government can be most effective when it sets the right regulatory framework and policy direction. Our Natural Environment White Paper will show how we will improve our environment for future generations, changing how we value our green spaces and getting more people involved so that we can all enjoy the benefits nature brings.
    “The idea of being the greenest government ever isn’t a sound-bite or a quick fix solution. It’s about embedding the value of our environment and its resources in the economy and our national consciousness. Forever.” (http://www.defra.gov.uk/news/2011/05...t-one-year-on/ )

    Perhaps our concerns are beginning to get through. We must not let her forget this statement!
    Sam

  10. #70

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    Sam
    Thanks for this... I wonder what 'local groups' she is talking about and how to become a member? Anyone know? I bet the anglers are well represented... we need to get to involved in these groups...
    Doug Dew
    "The best is yet to come" My Father


  11. #71
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    Quote Originally Posted by samB View Post
    We’ll be working with local groups to turn our waterways into healthy wildlife habitats, [/COLOR]sort out problems regarding ownership, access, and upkeep, and address sources of pollution. [/I][/SIZE][/FONT]
    Quote Originally Posted by samB View Post
    Perhaps our concerns are beginning to get through. We must not let her forget this statement!
    As with many politicians her words could mean many different things. "Working with local groups" could just mean encouraging Voluntary Access Agreements. But it could mean that our arguments are STARTING to get through. This is not a time to slacken off our efforts. Quite the reverse!!

    Now is the time to give your active support to the campaign for access however you feel able. Write to your MP, let DEFRA have your opinion but don't slacken now!.
    Keith

  12. #72
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    I agree with Keith, this is the time to start to press home the crazy situation we find ourselve in. Write to your MP, Defra, Sport MIonister and PM!

  13. #73
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    Quote Originally Posted by theshanclan View Post
    You are right that most experienced people will have no problem most of the time. However, the perceived lack of clarity in the law means that there are some hotspots where there is real conflict resulting in people not paddling. In Wales, examples include:


    • the Dee which should be a touring destination river of international repute and should be generating far more money for the local economy.
    • the Tawe which is more remote where there have been recent threats and damage to cars. There are many seasoned paddlers who give it a wide berth because it isn't worth the hassle.
    • Beginners are put off generally once they start looking into the access situation.

    A second consequence is that legitimate businesses are driven off the river. Local coaches trying to use the Wye in the summer above Glasbury in the summer are actively hounded off the river. There could be a much larger economy around paddling (maybe double in some places?) if the public had a decent level of access to their own local resource.

    Thirdly, the lack of clarity on the law means that government agencies have to be ultra cautious and won't fund paddling initiatives predicated on universal access. Any encouragement of paddling is immediately challenged by landowner and fishing lobbies. I did some research a couple of years on the internet presence of fishing vs paddling on the WAG Visit Wales websites. Angling had a content rich dedicated website with the ability to sign up receive alerts etc. Paddling had one paragraph of text. The EA also shows huge bias in its recreation strategy. The Beacons National Park cannot promote anything other than paddling on canals and limited reservoirs during the summer which it finds very frustrating.
    Thanks for replying. It's nice to have some "specifics".

    I think it is probably worth emailing Journalists with links to this site to see issues like this because Mum's Net (what ever that is but I presume similar to this forum) seems to make the news simply because some Journalist(s) reads it. I've heard 2 or 3 stories on BBC news 24 and radio etc mentioning Mum's Net.

    Perhaps get an RSS feed going for various threads (maybe already done - I'll look) to give them a link to. Perhaps have one specific RSS feed that only one admin posts to, to make sure all posts are "newsworthy" and not general chit chat - a bit like a press release feed.

    Things would be easier to highlight if journalists were reading various threads on here. There's nothing quite like a quiet story day to get other issues highlighted...

    ...anyone? Or has this been suggested before - if so apologies.
    --
    Andy

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    Quote Originally Posted by samB View Post
    We’ll be working with local groups to turn our waterways into healthy wildlife habitats, sort out problems regarding ownership, access, and upkeep,
    I know I'll be labelled a curmudgeon but look at this statement from an anglers point of view and see if it sounds so good.

    We need a healthy environment for fish (and other wildlife we're not so interested in), we need to keep the canoeists off it to stop them disturbing the fish, the government is finally going to put an end to this right of access nonsense and enshrine in law that canoeists need to reach agreements with landowners if they want to use the rivers. Hear, hear they all shout!

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    ..... but there is a chance that it doesn't mean that. - If we all think pessimstically, we'd have given up a long time ago....
    Sam

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    Quote Originally Posted by Adrian Cooper View Post
    I know I'll be labelled a curmudgeon but look at this statement from an anglers point of view and see if it sounds so good.

    We need a healthy environment for fish (and other wildlife we're not so interested in), we need to keep the canoeists off it to stop them disturbing the fish, the government is finally going to put an end to this right of access nonsense and enshrine in law that canoeists need to reach agreements with landowners if they want to use the rivers. Hear, hear they all shout!
    I read that as access issues need sorting out so that all can benefit because the principle has been established that this new charity WILL be for all....and in that case it will set a good precedence for any future legal fight for access. Anything this big that believes all can live and use the waterways together gives judges etc a good pointer for the way forward through the argument. In effect everyone bar Anglers wins, even landowners as they will probably be paid for them giving access to the rest. It can then also be argued that Anglers don't lose if Anglers / boaters, walkers etc can be proven to exist side by side within the waterways of this new charity.

    The charity will have to make it all work because their funding relies on it if you look at their financial forecasts.

    For this to go ahead to the stage it has got to then also the principle that wildlife (including breeding fish and fish disturbance) isn't going to suffer by expanding the leisure activity around waterways.

    Any argument against better access is diminishing.

    In the following years the EA are supposed to be merged into this new charity also and the issue of the rod license just becomes another part of its income to throw into the big pot.

    Any small group against this charity's ideas are going to be fighting against a fairly big tide.
    --
    Andy

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    Smile take action!

    i think the ECU/WCA/SCA need to press home Rev. Caffyn's advantage SOON! and here's why....

    delay in action will allow the goverment of the day to change the statute and potentially deny access forever (the present gov has good form in looking after landowners and the privelidged few!).

    Rev. Caffyn makes some very clear points and i beleive a legal case possibly could be won at the supreme court?

    I'm prepared to get arrested if someone will front the cash and i'd like Rev Caffyn to represent me! Any wealthy paddlers out there prepared to stand up for our community?

  18. #78

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    I am told a minimum of £500,000 would be required.

    The BCU said, several months ago, that they are considering what to do next re Rev Caffyn.

    I don't think we have heard anything more definitive from them on this issue.

    It would be good to know what action, if any, they plan to take. My guess is they plan no action.
    Last edited by dougdew99; 22nd-July-2011 at 08:24 PM.
    Doug Dew
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    Default but.....

    I reckon there's always a fear of setting the wrong precedent, after all legal actions could find against or for and a finding against our access desires could be the end of the legal argument.

    However given the length of time given to other action over the past 40-50 years maybe it's about time we (as a community) tried something risky! after all the walkers managed to improve their lot by launching a cohesive, planned campaign.

    Some great documents were given to me some years ago regarding the office of the deputy prime minister (last gov) who had published guidance for local authorities on public open spaces it was really helpful for an access issue we had on a beach regarding kite surfing. There was also some useful EU stuff but i lost my copies and despite many attempts trawling the net i cannot find the publications again. If anyone knows these publications though, they might prove useful and provide another route to clarity?

    Personally i only ever had one issue with a fisherman / Gilly sor many years but since moving OOooop North i'm shocked at the lack of access on rivers up here and i'm pretty fed up with the whole access issue in the U.K.

    I was laughed out of a store in the French Alps on my first visit as i asked (in pigeon french) if it was O.K. to paddle the river! Some people just don't know how good they've got it!

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    I wouldn't mind if the legal position clarified that going on the rivers was illegal. It would give an absolute solid background with which to make a solid protest. It would also be something solid enough for newspapers to cover, and I can't see the public at large letting such a decision fall by the wayside so easily. Might be a bit like the forest selloff debacle.

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    Quote Originally Posted by SimonMW View Post
    I wouldn't mind if the legal position clarified that going on the rivers was illegal. It would give an absolute solid background with which to make a solid protest. It would also be something solid enough for newspapers to cover, and I can't see the public at large letting such a decision fall by the wayside so easily. Might be a bit like the forest selloff debacle.
    here, here!

    Still, i reckon that folk need to be cohesive in their protest / campaign and that this all really needs co-ordinating properly. Griff Rhys-Jones did a nice job of raising awarness with the TV thang, but where was our (paddlesports community) follow up?

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    It won't happen. They have been organised before and not many get involved. Even the London paddle was not brilliantly supported.

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    Quote Originally Posted by Quicky View Post
    It won't happen. They have been organised before and not many get involved. Even the London paddle was not brilliantly supported.
    I was there!
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    he he I wasn't,

    By the comment I mean there was a limit of 100 places but due to the time it had to be held and the limits(due to the police allowance) even so it was hard to get all the places filled.

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    It was not as simple even as that Quicky. There was a lot of discussion about the trip on UKRGB and the limit on numbers which the PLA had stipulated. But the clincher for many people not turning out, was the campaign announcing that places were fast filling up and to get in quick. For many people, a Wednesday off work was hardly practical and if the places were likely to be filled anyway, there was no need to make that extra effort. This was a shot in the foot by the organisers.

    I was there.

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    It was always going to be tricky. The other idea of walking to the houses of parliament in kayaking gear and with kayaks was virtually poo poo'd by the police after they stated the hoops to just through just to do it.

    Just received a letter about the Welsh access video which I am waiting for a reply from the WCA after being mentioned in the forming of the code. Will hopefully get a reply soon.

  27. #87
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    What a shame we've become so apethetic that we won't fight for access!

    Still i'm guilty of not being at protests but i have written to my MP as per advice on this thread and BCU. Surley in the days of the interweb and facebook there may be better ways to organise wider public support for access?

    With enough people the voice will be large enough to be heard even without physical demonstration?

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    Cool

    I'm new to this so please forgive my errors in advance.
    My work has bought me into contact with many landowners and in most cases (Exception being game keepers involved with salmon fishing)(Unfortunatly a dying breed) they have little if any opinion on canoes on there rivers as long as they pass quietly and with the minimum of disturbance. However this opinion changes drastically as soon as anyone sets foot on land. Most of the resistance from them is not paddling, but access to and from and launch, which some paddlers seem to think is included in any rights.
    I believe that any campaign to extend usage would do well to bear this in mind, IE paddleing between two road bridges posses little interferance whereas crossing through gates and over land is tresspass. Ps Tresspass is not illegal!
    If the river is divided down its centre line between two landowners and you are confronted by one can you move closer to the other bank? My reasoning is how would anyone prove damage to property in a common law suite when a floating canoe leaves no trail , which is more than can be said for ramblers (not knocking ramblers ) And are they going to come dashing in to drag you out, I doubt it because there crime would be far greater than any committed by you.
    Remember. He wont have the powers to detain you or demand your personal details, unless accompanied by a police officer.. Try it out. I think more and more canoes are taking to the rivers , slowly we will become the norm. Just be polite, Be prepared to leave without confrontation but keep doing it and we will force the landowners who do have the £500,000 to stump up the cash to prove we are doing harm..
    There is a nice and fitting quote from Mark Knoppler of Dire Straits fame at one of his indoor concerts in which he said " I know your not suppossed to stand up but if everyone does it they can't do a thing about it "

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    I believe that any campaign to extend usage would do well to bear this in mind
    I've mentioned this before, that the use of the word 'access' creates confusion. I was proved right with the Sustainability Commission debates when one of the panel members (the lady, can't remember her name) really grilled one of the kayakers/canoeists about them thinking they could cross private land. She seemed to think that 'access' meant the right to cross private land, and so I think others do too, when this isn't what is being asked for.

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    Maybe we need to think about another way to word it Simon, including a short and snapy version as a slogan.

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    Surely 'navigation' is the word you are looking for. Ian

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    'Navigation Rights' is a good start, but not enough. The Scottish model provides 'Access Rights', ie access not only to the water but the right to cross land to reach the water and to avoid obstacles.

    This is what we should be fighting for. What is the point of getting navigation rights if you cannot launch your canoe on the water and you have no right to access the river bank to avoid obstacles, such as weirs or trees?

    Our rivers are a wonderful natural resource which should be available for recreation and adventure for young people, families, and everyone who enjoys the outdoors. Canoeing is an activity that is accessible to all because it is not expensive and everyone lives close enough to a river to enjoy it.

    There is no rational argument against this idea; only the selfishness or ignorance of land owners and anglers.
    Doug Dew
    "The best is yet to come" My Father


  33. #93
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    Quote Originally Posted by idc View Post
    Surely 'navigation' is the word you are looking for. Ian
    Exactly
    Navigation is what paddlers are doing in between getting on and off the water (assuming they are passing along the water in a craft)
    Access (over land) is needed to reach and leave the water.

    The law on access is very clear and established - if you cross private land without permission it is likely to be a trespass, and the courts have good precedence for dealing with this civil matter, and powers to deal with any criminal offences also committed.

    The law (In the UK except Scotland) on the act of Navigating is what is disputed and what needs to be clarified.

    Brevan

    Obstructing a river (preventing passage of vessels and fish) was illegal under the Magna Carta, so to do so (by constructing locks and weirs across a river to allow passge of larger vessels) required the consent of the king (through an act of parliament - a Navigation act) - see King V Clark (1558), Hind V Manfield (1669)
    Brevan,
    1664 - a great year for river access
    Romsey, Hampshire
    Twitter: BrevanM
    Follow my blog at http://riveraccessrights.blogspot.com/

  34. #94
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    Default A very reasonable riparian owner

    Whatever we paddle we sometimes don't help ourselves. I came across this on iGreen when looking for a guide on the R Wye.

    " Lydbrook Access issue
    The owner of the fishing rights at Lower Lydbrook writes:
    Lower Lydbrook Riverside Park has been closed to canoe launching since Oct 1st 2006. The Park does not have legal access to the riverbank, which is retained by the Courtfield Estate. Excessive commercial use of Lydbrook for canoe launching has damaged the riverbank, and repeated use of the salmon pools by kayakers doing breakout manoeuvres has jeopardised the fishery. Although salmon stocks, have improved the rapids remain a sensitive area of habitat for salmon migrating upstream. The disturbance by canoeists is such that salmon rods cannot be let at weekends.
    I assure you I respect the rights of navigators canoeing the waterway in a proper manner and enjoying the extraordinary beauty of this river. I have no desire to obstruct that right unlawfully. I cannot feel the same about kayakers carrying out a recreational activity, which is about as divorced from the right to pass and repass as doing do'nuts on the main road.
    Regards
    Don Wright "

    If Don Wright is an example of a very reasonable riparian owner, then I am not at all surprised that we are having so much trouble establishing 'rights to navigate'. Perhaps we need to get our own house in order first?

    ‘Thought comes before speech’ Ota Kte (Chief Luther Standing Bear of the Lakota Sioux)

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    I think you should look at your title o get an idea on his thoughts straight away and the follow up comment... It was also written in 2006!

    iGreen comment
    Don Wright's letter is a model of restraint. He has paid for the rights to fish this part of the river but cannot do so on certain stretches because canoeists settle on his rapids to practice their kayaking skills. He is also justifiably upset when others make a living guiding parties of novice canoeists downriver and launch from his land without paying. How long have we got to wait for canoeists to start paying for their sport like fishermen?

  36. #96
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    Default He is still a very reasonable riparian owner

    Quote Originally Posted by Quicky View Post
    I think you should look at your title o get an idea on his thoughts straight away and the follow up comment... It was also written in 2006!
    Don Wright paid for his fishing rights and any reading of the piece is quite clear his complaint is that someone else is making money by using the land for access for running canoe training, interfering with his own fishing activities and not making any financial contribution. Don has no problem with canoeists who just want to pass through along the river, e.g. navigation rights. Up against other landowners, Don Wright is indeed reasonable. The one fault with the article is that it interchanges 'canoe' with 'kayak' and furthermore whether it was written in 2006 or tomorrow morning it is still relevant.

    ‘Thought comes before speech’ Ota Kte (Chief Luther Standing Bear of the Lakota Sioux)

  37. #97
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    Don, might have bought fishing rights but that does not mean he has full access to the use of the river at the detrement of everyone else.

    As for people going across his land that is different, it is up to him to make that known and inform the people that it is his land and he does not want people going across it.

    We should all be considerate to other river users but we should not be allowed to say that our interest group has more rights that anyone else as has been the case with certain groups of river users.

    The EA's own reports into Canoeing and Kayaking state that Canoeing does not disturb fish.

    As for the comment of paying for our sport, a lot of us do. Licences, Memberships etc.

  38. #98
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    Default Motion carried

    Quote Originally Posted by Quicky View Post
    Don, might have bought fishing rights but that does not mean he has full access to the use of the river at the detrement of everyone else.

    As for people going across his land that is different, it is up to him to make that known and inform the people that it is his land and he does not want people going across it.

    We should all be considerate to other river users but we should not be allowed to say that our interest group has more rights that anyone else as has been the case with certain groups of river users.

    The EA's own reports into Canoeing and Kayaking state that Canoeing does not disturb fish.

    As for the comment of paying for our sport, a lot of us do. Licences, Memberships etc.
    Agreed

    ‘Thought comes before speech’ Ota Kte (Chief Luther Standing Bear of the Lakota Sioux)

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    I've read this thread throughout with both interest and concern. I am about to purchase a Canadian Canoe and re visit the sport again, after some 30 odd years out of it, however, I was not aware of such conflicts regarding the right of way and access permissions. To have an effective voice and substantiate your opinions, surely the "peers" of the sport should be involved, and by that I refer to our Olympic canoeists. Why haven't they made their feelings known, or do they not suffer the same obstacles, I am sure they must. We are well represented in the sport of canoeing and kayaking at the highest level and anticipate our Olympic team will take many medals in the forthcoming games. What is needed is their voice to tell the powers to be that there is a problem which needs urgently addressing, or has that avenue been taken of which I'm not aware. I don't think legal argument will resolve anything as the problem appears to have been ongoing for an eternity. Geoff

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    Why haven't they made their feelings known, or do they not suffer the same obstacles
    A couple of reasons. The first is that they may not be general paddlers, instead concentrating purely on competition venues and training grounds where there are no issues and actually, amazingly, may not be aware of the issues. The second is that to make a voice on the subject would upset the apple cart, and hence perhaps their funding and/or place on the Olympic team.

  41. #101
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    Quote Originally Posted by dougdew99 View Post

    As a canoeing community it would be good to be as well organised as the anglers. There is no "Canoe Legal" to match "Fish Legal". Check out the "Fish Legal" web site here... "to protect the rights of Anglers and Angling". Who is "protecting the rights of canoeists and canoeing"?
    They have a very professional site and obviously look after their members interests well. It is interesting to find therefore no current comments about paddlers and none in the recent archives, most of their work is fighting pollution. Some pollution is sewage other from industry and farmers, so it seems their biggest enemy's are the rich industrialists and the land owners, the very people who are accusing us of damaging angling. Strange old world isn't it.

    Also on their site is an advert for an Angling Trust Kayak Club, this quote is from their advert.

    "Kayak Fishing is the most rapidly developing discipline in Angling. In recognition of this the Angling Trust have put together an innovative membership and support package to compliment the dynamic nature of the sport.

    Kayak fishing is a truly national sport with no regional club structure and as such the Angling Trust's support is designed to directly support the individual member."


    Does this seem a little two faced to anyone else?

  42. #102
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    I think kayak fishing mainly takes place on the sea and lakes, they are probably not having the same issues.

  43. #103
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    Quote Originally Posted by theshanclan View Post
    You are right that most experienced people will have no problem most of the time. However, the perceived lack of clarity in the law means that there are some hotspots where there is real conflict resulting in people not paddling. In Wales, examples include:


    • the Dee which should be a touring destination river of international repute and should be generating far more money for the local economy.
    • the Tawe which is more remote where there have been recent threats and damage to cars. There are many seasoned paddlers who give it a wide berth because it isn't worth the hassle.
    • Beginners are put off generally once they start looking into the access situation.

    A second consequence is that legitimate businesses are driven off the river. Local coaches trying to use the Wye in the summer above Glasbury in the summer are actively hounded off the river. There could be a much larger economy around paddling (maybe double in some places?) if the public had a decent level of access to their own local resource.

    Thirdly, the lack of clarity on the law means that government agencies have to be ultra cautious and won't fund paddling initiatives predicated on universal access. Any encouragement of paddling is immediately challenged by landowner and fishing lobbies. I did some research a couple of years on the internet presence of fishing vs paddling on the WAG Visit Wales websites. Angling had a content rich dedicated website with the ability to sign up receive alerts etc. Paddling had one paragraph of text. The EA also shows huge bias in its recreation strategy. The Beacons National Park cannot promote anything other than paddling on canals and limited reservoirs during the summer which it finds very frustrating.
    It's why we need agreement between anglers and canoeists/kayakers/other river users at grassroots level.

    I mentioned damage to cars in an earlier thread. I hope it wasn't taken as a suggestion that I was in agreement with vandalism - I'm not.
    But I know it happens (but not on my patch of the Wye).

    I notice that little differentiation of angling has been made here. The problems seem to come from the salmon anglers (I'm one), and on salmon rivers.
    From personal experience the coarse-fishing guys are generally very laid-back about canoes.

  44. #104
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    Quote Originally Posted by Adrian Cooper View Post
    I know I'll be labelled a curmudgeon but look at this statement from an anglers point of view and see if it sounds so good.

    We need a healthy environment for fish (and other wildlife we're not so interested in), we need to keep the canoeists off it to stop them disturbing the fish, the government is finally going to put an end to this right of access nonsense and enshrine in law that canoeists need to reach agreements with landowners if they want to use the rivers. Hear, hear they all shout!
    Unfair.

    Most of the anglers I know are interested in all wildlife, not just fish.

    If you trawl back though my posts you will find one quoting our angling club secretary, to the effect that anglers should not worry about dogs, canoes, or people plodging. "The fish don't mind and have seen it all before". This was on a handout map given to anyone buying a day ticket on our water. We still hold by that (we are well upstream of Glasbury) and have, in general, no problems with canoeists or kayakers.

  45. #105
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    Quote Originally Posted by cloudman View Post
    (Some cut) They have a very professional site and obviously look after their members interests well. It is interesting to find therefore no current comments about paddlers and none in the recent archives, most of their work is fighting pollution.
    Do we accept that we anglers and paddlers may have some common ground here?

  46. #106
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    Quote Originally Posted by davidh View Post
    Do we accept that we anglers and paddlers may have some common ground here?
    Not some common ground, a lot of common ground!!

    We both love the rivers.

    We both want to enjoy our time on the river peacefully.

    We both want clean rivers.

    We both enjoy seeing the fish and wildlife.

    The bottom line is that paddlers are happy for the Anglers to use the rivers 365 days a year if they want to, but Anglers want to restrict our use of the water to outside the fishing season. We will never agree to that, so this is where the work needs to be done.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  47. #107
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    Quote Originally Posted by cloudman View Post
    Not some common ground, a lot of common ground!!

    We both love the rivers.

    We both want to enjoy our time on the river peacefully.

    We both want clean rivers.

    We both enjoy seeing the fish and wildlife.

    The bottom line is that paddlers are happy for the Anglers to use the rivers 365 days a year if they want to, but Anglers want to restrict our use of the water to outside the fishing season. We will never agree to that, so this is where the work needs to be done.
    You are wrong.

    Some anglers, and some vested interests, and I'm thinking (on the Wye) of the Wye and Usk Foundation and some riparian owners specifically, but I could include some factions of the EA too, want to restrict your use of the water.

    I'm an angler. I'm perfectly happy for responsible paddlers to use rivers 365 days of the year.
    Please note the word responsible.

    Let's tease this out a little. Not all anglers are against paddlers (see Ratty's thread on what anglers think).
    Equally, many paddlers experience no problems with anglers.

    The problems are, as far as I can see, on salmon rivers or premium trout rivers. The middle and lower Wye is a good example of this.

    The bottom line (to quote you) is not that paddlers are happy for the anglers to use the rivers 365 days a year.
    The bottom line is that although there are pre-arranged "agreements" in place (sanctioned by government in the case of the Wye I believe) there is no consensus of opinion between anglers and canoeists on river use for all parties.

    We didn't agree - you didn't agree.
    Hence the conflict.

  48. #108
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    The statement was [Do we accept that we anglers and paddlers may have some common ground here] I agreed with you and added to it. Obviously there are still access disagreements, but I thought we were talking about the things we have in common.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  49. #109
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    Do you also agree, then, that not all anglers want to restrict responsible paddlers, given, agreed, that some do?

  50. #110
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    Quote Originally Posted by davidh View Post
    Do you also agree, then, that not all anglers want to restrict responsible paddlers, given, agreed, that some do?
    Yes I do agree, I have just spent 2 weeks on a caravan site (Lucksall) full of Anglers and Canoeists and there has not been one bad word between them. We have all got on fine and enjoyed many drinks and long conversations together. The only complaint was from an Angler against his wife because she always had better catches tham him.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  51. #111
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    Quote Originally Posted by cloudman View Post
    Yes I do agree, I have just spent 2 weeks on a caravan site (Lucksall) full of Anglers and Canoeists and there has not been one bad word between them. We have all got on fine and enjoyed many drinks and long conversations together. The only complaint was from an Angler against his wife because she always had better catches tham him.
    Women!

  52. #112

    Default

    Hi folks.
    I thought I would share this news item. http://www.bbc.co.uk/news/uk-northern-ireland-19840966

    "Lough Neagh supplies 40% of the water used in Northern Ireland and it is home to industry, business and tourism generating millions of pounds. The earl, Nicholas Ashley Cooper, does not have control of the water, his ownership only applies to the bed of the Lough."

    Just something else to reference in any access discussion.
    "If you are not part of the solution, maybe you are part of the problem!"

    Recreational paddler & outdoor activity instructor

  53. #113
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    Not sure why he owns a chunk of N Ireland anyway. Maybe one of his predecessors was chief a**e w****r to a royal. Years ago I used to do work on the Shaftesbury estate in Battersea, at least one of the Shafesburys was happy to spread around part of his unnecessary fortune.

  54. #114
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    Quote Originally Posted by Quicky View Post
    Don, might have bought fishing rights but that does not mean he has full access to the use of the river at the detrement of everyone else.

    As for people going across his land that is different, it is up to him to make that known and inform the people that it is his land and he does not want people going across it.

    We should all be considerate to other river users but we should not be allowed to say that our interest group has more rights that anyone else as has been the case with certain groups of river users.

    The EA's own reports into Canoeing and Kayaking state that Canoeing does not disturb fish.

    As for the comment of paying for our sport, a lot of us do. Licences, Memberships etc.
    I met Don this year, and can confirm that he is still quite a reasonable guy.

    The EA will, of course, say whatever suits them........ I can assure you that I could disturb a pool in short order armed with nothing other than a kayak and my usual ham-fistedness with a double bladed paddle.

  55. #115
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    Letter from R Benyon MP ref. Petition to Parliament - Navigation on unregulated watercourses.

    DEFRA have failed to answer the petition again.

    Benyon has sent the following letter to my MP.

    Thank you for your letter of 6 February to the Secretary of State enclosing a copy of a petition submitted by your constituent, Mr Douglas Malpus, about rights of navigation on unregulated watercourses.


    Our unregulated water courses serve many users and I believe that the needs of canoeists need to be balanced with those of anglers, industry and conservation as well as the property rights of landowners. The law in this area has, as far as I am aware, not been tested in the courts. I am aware of the research in this area which has been undertaken by Mr Malpus and others but I am not in a position to offer an opinion as to its validity or otherwise. I am unable to justify using public funds to undertake the research necessary to offer such an opinion and it would remain just that - an opinion - until considered and ruled upon by the courts.


    I am also not at all convinced that a voluntary approach does not work. During the department's study of pilot agreements, we were able to demonstrate the successful conclusion of agreements which managed the site specific issues and tensions which arose Moreover. 99% of 400 landowners contacted said they were willing to consider voluntary agreements. Many, however, are put off from pursuing agreements because the governing bodies of canoeing in England and Wales do not support the use of agreements. I also receive some correspondence from angling organisations frustrated that the canoeing bodies do not engage with the process. Clarifying the law in this area by legislating in the terms you suggest is not a priority for the Government and is not reflected in the coalition agreement. Departmental resource is therefore currently focused on other priorities.

    Signed personally by,
    RICHARD BENYON MP

    As usual it is full of holes and absolutely useless.

    It is purely his personal opinion.
    Funding - is this the same funding he was to use to study the predation of pheasants by buzzards?
    The Voluntary Agreements bit does not need repeating we all know its dismal history.
    Last edited by dougoutcanoe; 5th-March-2013 at 10:47 AM.
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  56. #116
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    The letter is of value if only because of this statement (The law in this area has, as far as I am aware, not been tested in the courts.) This will seriously undermine the AT line that the legal position is clear?

    Small steps get you there in the end.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  57. #117
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    The River Access For All campaign is grateful to the Paddler ezine for its help in communicating the total inadequacy of DEFRAs position on the public right of navigation on all rivers in England and Wales. (see http://www.issuu.com/thepaddler/docs...w&pageNumber=4 page 4)

    For many years DEFRA has talked of the need for "permission" from riparian landowners. Now they have acknowledged that the law is unclear (as long as they ignore the evidence from Revd. Dr Douglas Caffyn and others that there is clear historic evidence of the public right of navigation which, not being extinguished by legislation or exercise of statutory authority, must still exist). Their position is that a court case is needed to clarify the law but only the Attorney General is authorised to bring such a case to assert a public right of navigation. Their position is that DEFRA can not justify committing public funds to investigate the existence of a public right of navigation. They haven't committed public funds to investigated the existence of riparian rights to control navigation for which there seems no evidence but they have assumed they exist anyway.

    Their position has changed and it will change again if we continue to present the evidence for a PRN and to demonstrate that their policy of advocating navigation only subject to permission by riparian landowners is one-sided and untenable. Of course there will be issues on a local basis that will benefit from discussion and objective analysis of impartial evidence. But the days of requiring "permission" from landowners and angling interests on the basis of assumed rights not supported by statute or case law are over.

    The genie is out of the bottle. Sign up as a supporter of River Access For All and add your voice to those working with their MPs to gain recognition of the public right of navigation.
    Keith

  58. #118

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    Statutory Interpretation by the Courts

    A few of statutes have been cited when considering un-fettered access. There are a number of ways of interpreting statutes and Judges will use them in combination. One example is a purposive approach, which looks at the purpose of the legislation and then interprets the words in-line with that purpose. So lets take the Wear and Fishgarthes Act 1472.
    An Act for taking away weirs and fishgarths.
    There is your first clue on how the effect of the Act with be interpreted by the courts by gauging the purpose of the Act. The literal interpretation would be that if the Act was meant to allow rights of passage, why wasn’t that included in the long title? The description says; ‘Statutes that have been for the pulling down or reforming of weirs’. So the Act wasn’t drawn up to allow navigation at all, it was written to see that weirs and fish holding pools were removed. Have they? Is this good law? Is the Dangerous Dogs Act [1991] good law? I’d say it is a fine example of law made in haste in response to red-top media outrage. It banned four breeds after a spate of well publicised dog attacks, two of those breeds were not even in the country at the time. If you walk into a Police Station and insist that the Pit-bull type dog on the end of your road should be impounded and that the courts should use their power and have it destroyed, would they listen? Of course not! It isn’t good law.
    A likely interpretation of this text would be that all weirs should be removed for access to be allowed for ships and boats. The Mischief Rule would ask what mischief is the Act wishing to remedy? Navigation? Yes. Fishing spawning and fry survival? Yes. Once the weirs and weir pools designed to hold fish were removed, then (rightful?) passage would be possible.

    The Golden Rule is used by Judges to interpret what the statute should have said. This doesn’t support the case for navigation either because obviously those drawing up the Act could only foresee rivers being used for commercial navigation and not as a leisure activity. So ships and boats, in order for people to live, once the weirs have been removed?

    What does the Act say that is of interest?

    Whereas by the laudablestatute rf/" Magna Charta, amongst other things it is contained, That all kedels by Thamise and Medway, and throughout the realm of England, Jhould be taken away, saving by the sea-banis, which Jlatute was made for the great wealth of all this land, in avoiding the straitnefs of all rivers, so that/hips and boats might have in thm their large and free passage, and also in safeguard os all the fry of fijh spawned within the same

    There is a fair amount there to challenge the interpretive abilities of their Lordships. It is clear therefore that those wishing to rely on this Act to promote their personal paddling interests, supposedly granted to them under the above statute, would do well to better understand the rules of interpretation and how the courts look at Acts within the division of powers.
    Last edited by Robbo11; 21st-March-2013 at 12:19 PM.

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    Robbo, the one thing you haven't included is the *reason* behind the act of taking away weirs and fishgarthes. The text of the act makes it clear that the reasoning for this is to allow free passage of vessels. I don't see a separation between commercial and leisure use. A vessel is a vessel, no matter who it is owned by.

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    Robbo11.........What boat do you paddle?
    All that is necessary for the triumph of evil is that good men do nothing.

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