The Legal Position & Background

[dougdew99]

The legal position is complex:

1. Rev Douglas Caffyn, a legal researcher, believes that virtually all rivers that are physically useable are legally usable... you can see his work in the next thread.

2. The traditional view is that the person who owns the river bank has a right to deny access to the river for canoeing, and can sue for trespass in a civil court.

These two views stand in opposition to one another. No-one knows for sure which is correct. Canoeists tend believe Rev Caffyn; land owners and anglers tend to believe the traditional view.

This dispute, which is a technical legal argument, could be resolved by a case in a high court. The case would cost money and no-one has yet volunteered to pay for it.

Independently of this dispute, we believe that laws should be made which give English and Welsh canoeists the same rights of responsible and sustainable access to all rivers as exist in Scotland. This would resolve the legal question and go further, by setting out a proper framework so that land owners, anglers and canoeists could co-exist on the river.

The threads below set out the views of different authors and organizations.

[dougdew99]

The Rev Douglas Caffyn has published legal research that suggests that we have a legal right to paddle on most inland waters stretching back to the Magna Carta. You can find this here.

The USA relied on the Magna Carta in the 19th Century as a basis for their own access to inland waterways!

Unfortunately, Rev Caffyn's view is not yet accepted by land owners and anglers. You can see an opposing view in the PDF at the bottom of this page.

It appears that nobody yet has come up with a plan to get this resolved, so that we all can know what the true position is.

The BCU is currently reviewing Rev Caffyn's work and we all are waiting to find out they propose as a way forward. This what Canoe England said on 20th February, 2011:

"In light of a meeting that Canoe England had on 14/2/11 with the Reverend Douglas Caffyn, concerning his latest research work and thesis River Transport 1189 – 1600, we will not, as a direct request from him, be announcing any changes to the existing access policy and VAA position statements; that is until feedback from responses to a number of actions he has requested of Canoe England, are completed and received.

We believe that we must respect his request; he has spent years of his life working on access matters.

Caffyn has undertaken to establish the extent of river transportation in the middle Ages. Investigation is made as to which rivers were physically usable, which were legally usable and the comparative cost of land and river transport. The evidence of historic use is examined and these records are compared with the recent limits of use of the rivers. The implication of this research for the present day law relating to public access on rivers is considered

Entitled “River Transport 1189 – 1600” and published last week, the thesis and his earlier work “The Right of Navigation on Non-tidal waters and the Common Law “2004 are available at www.caffynonrivers.co.uk

Caffyn has concluded in his opinion that:-

1. All rivers which were physically usable were legally usable.
2. There is a high probability that each section of a river which is now physically usable was usable by small boats in the period 1189-1600.
3. On the balance of probabilities each section of a river which is now physically usable was used during that period.
4. there is, therefore, a public right of navigation on all unregulated rivers that are physically usable."



This what Canoe England said on February 23rd 2011:

"Canoe England have recently received the finalised research and supporting publications by Douglas Caffyn. In view of the strength and quality of this research, and the comment it has generated, CE has been asked by other BCU federal nation members to refrain from further comment on Voluntary Access Arrangements (VAAs) or indeed any access policy.

CE will be discussing the implications of the work with the BCU federal nations over the coming week and thereafter advising any revisions to VAA and other access policies."

[dougdew99]

Access to water in England and Wales is restricted due to the common conception that permission is needed to access and use water that is not tidal or does not have a public right of navigation. In other countries, access to water is unrestricted, and permits those involved in non-powered water sport to use both inland rivers and lakes.

Parallels can be drawn between access for cyclists to highways and that of canoeists to inland waters. As non-polluting vehicles that promote health and well being, there is no need to be licensed, and in the absence of facilities to improve or enhance the enjoyment of the sport there is no need to pay for the use of a natural resource. It is clear that the act of canoeing presents a minimal impact to the environment.

The British Canoe Union and Welsh Canoeing Association have been continuously advised by government to secure access to water via voluntary agreements. Access Agreements have been sought for over 50 years. This approach has not delivered. The supply has not met demand.

In Wales only 13 of the 300 rivers that are canoeable have any form of access agreement. Even the majority of these agreements are antiquated and fail to meet the needs of today’s canoeists. They are restrictive in nature, usually permit use of small sections of rivers only and are for short periods of the year. Canoeing continues to enjoy growing numbers of participants for which sustainable access to water is essential to allow participants and rural economies to continue to benefit from what is a low environmental impact, high health promotion activity.

Recent Government studies confirm what canoeists have been saying for years: that access for canoeing is not freely available and is in short supply.

These studies have shown that access agreements cannot provide the necessary water resources needed for water sport.

50 years of negotiation has resulted in a pitiful 4% of the linear waters ways in England and Wales that are in private ownership being opened up via agreement. However, the Government decided that they way forward was to pursue further agreements in 4 study areas in England over a 2 year period. There is no guarantee that these studies will deliver acceptable agreements for canoeing.Furthermore, in England and Wales there are 7816 rivers to address.

The WCA does not accept that further access to water can be delivered by utilising the same methods that have failed again and again.

The WCA feels that a solution can only be achieved with a mechanism of access similar to that of the Scottish Land Reform Bill. Legislation is required to enshrine and enhance the right of access to the water, and provide clear roles and responsibilities for user groups in relation to the preservation of the environment.

It is the WCA’s submission that the law in relation to access to non-tidal water is unclear and lacks a definitive position. The research of Rev. Doug Caffyn suggests that a historical right of Navigation already exists on a vast number of waters; however, the law is unhelpful by being unclear.

Antiquated and unclear legislation causes the problems of access to water. Legislation must evolve.

The Government is responsible for legislation and its adaptation. It is the WCA’s submission that responsibility for inaction and the problems that this causes will also remain with the Government.

Ashley Charlwood
Access Development Officer
Welsh Canoeing Association

[dougdew99]

Access: The Legal Situation (an opinion)

Canoe Wales is not able to give permissions or a definitive answer to the question “Where can I go canoeing?” This explanation deals with the majority of non-tidal water in Wales.

Types of Law

There are two types of Law which are applicable in defining rights.

The first is Statute; i.e. that which is written down by the legislature. In Wales this could be either from Westminster or as a partially devolved legislative from the Senedd in particular fields of competence.

The second is Common Law; this is law which is arrived at through precedent in the courts. This involves the Judiciary or court system making decisions based on evidence presented in specific cases. Common Law cannot repeal statue.

The court system is is divided into Civil and Criminal Law. Ultimately the House of Lords is the most superior court in England and Wales. ("Now the Supreme Court" note by Adrian Cooper)

Sub-ordinate courts are bound by decisions made in superior courts, i.e. they cannot normally offer an opinion which can set a new precedent. A precedent can only be repealed by a superior court.

Canoeing and the Law.

There is no general Statute which prevents canoeing.

In Common Law there have been a very few cases (less than five we know of) where an action of Trespass that has been supported by the Courts. These have involved those holding fishing rights convincing the Judiciary that canoeists have impacted upon their private rights. These cases have been upheld in subordinate courts with small damages being awarded to the private rights holders.

In 2004, the Reverend Douglas Caffyn wrote a book “The Right of Navigation on Non-tidal Rivers and the Common Law”. In this he discusses areas where in Common Law the judicial decisions may not have been correct. It is argued that an assumption made in 1830 by a legal commentator made a precedent which the subordinate courts have subsequently been bound by. If this is correct, only when taken to the Court of Appeal or the House of Lords would a new precedent be set.

Private rights and Public Rights

In Wales, Private Rights are held subject to Public Rights. An example of this would be land ownership; you can own a field and exercise your (Private) Right to enjoyment. However if there is a Public Right, for example a Public Footpath, you may not hinder the Public Right in order to exercise your private right.

The Public Right to Navigate is the area in which any Legal Cases would need to be argued in a superior court, unless a competent legislative body were to confirm any existing Public Right.

In the early 13th Century the Magna Carta laid down the principals of Common Law and to a large extent codified Public Rights. It is widely regarded as the most important influence in modern Law.

So why could the Magna Carta be important to Canoeists? In 1872 and 1948 and 1969 Law Repeals Acts removed many of the Clauses in Magna Carta, leaving us with only four clauses in place in the 21st Century. Of this Clause 9 [1] remains on the Statute books. This Clause could mean that there is currently a Public Right to Navigate the non-tidal Waters in Wales.

In the United States of America it is currently held that the Rivers of America are in Public Ownership with a few exception. It is Clause 9 of the Magna Carta that persuaded the US Supreme court in 1842 [2] and 1892 [3] that British Law, was that Rights for the Public to use the Water were held as Crown Rights. If this was confirmed by Westminster or the Senedd it would mean a legal Right for the Public to use the waters of Wales (and England). Alternatively an individual or Organisation could test this in a Superior court (an extremely expensive and lengthy process) and set a binding precedent for the legal systems of England and Wales.

Whilst this is a general application of the Law, a similar lack of application of Law can exist on a local level, for example on the upper section of the Wye [4] .

Conclusion

Whilst many people argue that the current Common Law interpretation is the definitive position Canoe Wales, due to the discretionary nature of Common Law and lack of clarity in Statute cannot give a definitive position as to an individual’s Rights when using non-tidal water in Wales. The decision for anyone to go afloat lies with that individual.


[1] Clause (9) The City of London shall have all the old Liberties and Customs [which it hath been used to have]. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.
[2] Martin v. Waddell, 41 U.S. 367 (1842).
[3] Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387 (1892)
[4] 13 & 14 Cha. 2 c. xiv. (1662) and 7 & 8 Will. 3 c. 14. (1695) were repealed by the Wye Navigation Order (2002) with the exception of the upper rivers. In 1992, the National Rivers Authority (the predecessors to the Environment Agency) commissioned a legal opinion that cited these Acts and concluded an arguable case for a Public Right of Navigation on the Wye. The reasoning is untested and unrepealed by the 2002 Act.

[Adrian Cooper]

Ultimately the House of Lords is the most superior court in England and Wales.

Now the Supreme Court

[Sonar]

It is ALL sticky and very unclear.

There is as far as i can see no way that the law will be changed to give free access to all water for canoest .

Keep plugging away at Mps But I still can see a resolution .

Canoe unions british waterways and the enviromental agency and all canoeing clubs all have to give a 100%
backing for this to happen.

Only then maybe some thing may be done.

This is only my personal opinion ...

[KeithD]

There is as far as i can see no way that the law will be changed to give free access to all water for canoest.

The law doesn't have to be changed to give canoeists free access to rivers that are physically navigable. We already have it! Doulas Caffyn and Magna Carta agree.! The law has to be changed to make it clear to those that dispute this.

[dougdew99]

The law doesn't have to be changed to give canoeists free access to rivers that are physically navigable. We already have it! Doulas Caffyn and Magna Carta agree.! The law has to be changed to make it clear to those that dispute this.

It is not clear to me that we already have it. Rev Caffyn may be right, or the other view may be right. If the lawyers cannot agree, I don't see how we non-lawyers can be sure of one view or the other.

My understanding is that this argument can only be settled in the Supreme Court and someone would have to find the money for this. I've heard an estimate of £500,000. I am not a lawyer so I don't really know. Once the BCU responds to Rev Caffyn, I hope we will hear more from either the BCU or Rev Caffyn on their ideas about to go forward very soon.

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"?

Whether the legal argument is settled or not, (and of course we want it settled in our favor), we need to get the same arrangements as in Scotland, by the passing of new laws in Parliament. We can help achieve this by contacting MPs, trying to get 38 Degrees involved, raising public awareness, influencing the BCU etc. This is not an overnight process. It is a long haul. We will need to persevere over months and years. We have to get organised and fight for it. Pretty simple really.

[KeithD]

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".

We don't need a Canoe Legal to compete with Fish Legal. If you look at the cases they are fighting not one of them mentions canoeing as an infringement of their rights and interests they are all about pollution etc. We are never going to get what we want - The law to be changed to make it clear to those that dispute our right of access - through winning a fight with anglers. At £500,000 no one is going to have that fight.

Our fight is with the politicians.

Who is "protecting the rights of canoeists and canoeing"?

If you start from a position where you don't believe Douglas Caffyn and Magna Carta you don't have any rights.

[idc]

We don't need a Canoe Legal to compete with Fish Legal. If you look at the cases they are fighting not one of them mentions canoeing as an infringement of their rights and interests they are all about pollution etc. We are never going to get what we want - The law to be changed to make it clear to those that dispute our right of access - through winning a fight with anglers. At £500,000 no one is going to have that fight.

Our fight is with the politicians.

If you start from a position where you don't believe Douglas Caffyn and Magna Carta you don't have any rights.

We don't need a 'canoe legal', but (in my opinion) a 'river legal' (though that is a horrible name) providing as broad a church as possible, including anglers, swimmers, walkers etc and campaigning for improving water quality and free access to the waterways for all these groups would be good. Out of interest what would happen if one campaigned for the abolition of the rod license? Would that attract the support of some anglers currently priced out of the system? I get the impression that the whole system of clubs and licenses for angling is a terribly outdated system of control. I'm not advocating a free for all--perhaps it would genuinely be a problem; just wondering what would happen if one did.

Anyway, thanks for all this campaigning and debate. It's all most interesting. I shall continue to assume I have a right to canoe until someone proves otherwise.

All the best,
Ian

[dougdew99]

Hi Keith

I absolutely agree that our fight is with the politicians. We have to get them to change the law.

"If you start from a position where you don't believe Douglas Caffyn and Magna Carta you don't have any rights".

I wouldn't want you to think I "don't believe" Douglas Caffyn and Magna Carta. The point I am trying to make is that while we can believe whatever we like, none of us are in a position to know what the law actually is. No-one knows. I want to present the legal situation as it actually is. I don't want to give the impression that because of Douglas Caffyn's work, the situation is now clear.

That doesn't mean we should not act according to our beliefs. If I believe I have a right to paddle on a river, then I can exercise that right as I wish. People may feel that they should exercise that right, in order to demonstrate that it exists. Everyone needs to make their own decision.

[dougdew99]

Here is an Environment Agency report which answers this question. It was written around 2000, and included advocacy of voluntary access agreements which have since been shown to have little value.

It says that in general, canoeing is not harmful to fish populations.

Depressingly there appears to have been little or any improvement to the access situation since then.

[theshanclan]

This is a pretty useful reference thread - thanks for a good idea.


Don’t get too excited about any possibility of a legal case any time in the near future. There are two main cases that are cited: the “Seiont” case and Rawson v Peters. Seiont is about trampling the river bed after begin told not to by a Bailiff. It isn’t about the right to be there, so it isn’t a useful precedent to anyone. All EA bailiffs are now EA employees. If you are asked to leave the river by an EA bailiff you have a right to see their identity card and they should have a valid reason.

Rawson v Peters is 40 years old and is laughably weak. Don’t be put off by it being a Lord Denning judgement. Even having won the case, the plaintiff only got 50p damages on the basis that no damage had been caused. Note that the case is about the right of fishing, not trespass (as in access) and that it relies on the presumption that canoeing disturbs fish. The world has moved on and there is far more evidence from all over the world that canoeing does not disturb fish.

Details here:

"(1972) 225 E.G. 89
(1972) 116 S.J. 884
Times, November 2, 1972

Summary

Subject: Environmental health

Keywords: Damage; Fishing; Remedies; Riparian rights

Catchphrases: Riparian rights; fishery; interference by boats; damages and injunction

Summary: A canoeist who disturbs the fish in a river and interferes with the right of fishing is liable for substantial interference with an incorporeal fishery even though no actual damage has been caused and no-one was fishing at the time. In the present case no damage had been caused; nominal damages of 50p were awarded, together with liberty to apply to the county court for an injunction. (Fitzgerald v Firbank [1897] 2 Ch. 96 followed and Holford v Bailey (1849) 13 Q.B. 426 followed).

Cases Cited

Fitzgerald v Firbank, [1897] 2 Ch. 96 (CA)
Holford v Bailey, (1849) 13 Q.B. 426
END OF DOCUMENT"

[dougdew99]

Theshanclan

Can you explain the mechanics of how a case might be brought? Who has to sue who? Does it start in a lower court then get appealed until it ends up in the Supreme Court? How is the precedent created and come into force?

[Mal Grey]

We are never going to get what we want - The law to be changed to make it clear to those that dispute our right of access - through winning a fight with anglers.

Hear, hear. Making this a Canoeists v anglers fight would be totally the wrong way to approach it. We're not against anybody. We just want the access rights we believe we have to be clear & obvious, like in Scotland!

[theshanclan]

Theshanclan

Can you explain the mechanics of how a case might be brought? Who has to sue who? Does it start in a lower court then get appealed until it ends up in the Supreme Court? How is the precedent created and come into force?

I am not a lawyer...

We are talking civil law here. The person (the plaintiff) who believes that a wrong has been done (a tort) and who has suffered damages as a result has to sue the person they believe did wrong (the defendant).

For a landowner the case might look like this:

- I have property rights over the river on my land and the fishing rights (rights)
- a wrong has been done against those rights (a tort) because Doug trespassed on my river and disturbed me when I was fishing
- it was Doug (the tortfeasor) who did wrong. I have a photo and it is clearly him.
- what Doug did caused me to lose money (damages/cause). The people who used to fish here don't come because Doug frightened the fish away (not another canoeist - just Doug).

If he wins the landowner can ask for damages and for an injunction to stop you doing it again.


For canoeists a case might look like this:

- I have the right to navigate this river (rights)
- a wrong has been done against these rights (a tort). The landowner stopped me from getting on the river.
- It was the landowner who did wrong (the tortfeasor). I have a video of the whole proceedings.
- what the landowner did caused me a loss (damages) because I drove from Kent and booked into a 5 star hotel for a week of paddling.

You could also ask for damages and an injunction.

[dougdew99]

Theshanclan

Can you explain the mechanics of how a case might be brought? Who has to sue who? Does it start in a lower court then get appealed until it ends up in the Supreme Court? How is the precedent created and come into force?

thanks theshanclan

Can anyone answer the question above or has a lawyer friend? It is technical question about the process not about the laws themselves....

[Jon Wood]

and why they don't work.
Please see below a few links regarding the 'Brighton Report'.

Rivers Access Campaign summary

Advice from the Environment Agency
You would laugh if the situation wasn't so sad.

Comment from "Boating Business"

Canoe England's position in March 2009

Canoe England's position in October 2010


"Canoe England's current Policy on VAA's can be viewed at /access-and-environment/policies/policy-on-voluntary-access-agreements/"
Don't bother trying to open it-the link is broken. Does that mean they have no policy?
So what is CE's current thinking?
And how many extra miles have been opened up for its members through VAA negotiation in the past 18 months?

[dougdew99]

Here is the web site of a solicitor who specialises in helping Anglers. It makes interesting reading. I am going to ask him what he thinks about Rev Caffyn's work.

[dougdew99]

See here They are struggling with the same issues as us.

[wayne]

Doug.

Have you had any reply from Canoe England yet?

[Sonar]

Here is the web site of a solicitor who specialises in helping Anglers. It makes interesting reading. I am going to ask him what he thinks about Rev Caffyn's work.

Just a note have people read the navigation advise. Very interesting stuff ...
Worth a read.

[theshanclan]

Their piece on navigation mentions Attorney General v Brotherton (1991)

From elsewhere (http://www.swarb.co.uk/lisc/Land19911991.php):

The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it. Held: The 1932 did apply, and public rights of way applied, but no public rights had been created in this particular case. Several cases and learned textbooks before 1932 refer to a right of navigation as or as analogous to a public highway. If a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a "right of way". A waterway is water in a channel passing through land, and it is no misuse of language to refer to a right of navigation as a right of way "over" land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. The Act sets out to overcome the difficulties inherent in establishing a dedication by sufficiently continuous user. This applies to establishing a right of navigation just as much as as it does to establishing a right to walk or drive on terra firma. Last, a river or other waterway is properly and literally described as "land covered by water," the land being the bed of the stream, lake or pond in which the water is contained. "Accordingly we are satisfied that, at the time when the Act of 1932 was passed, the general law was such that public rights of way could exist over a navigable river which was then, in legal parlance, a highway and that such rights of navigation were properly described as rights of way" and 'If . . . the object of the Act of 1932 was to simplify the law relating to the proof of the acquisition of public rights of way over highways, there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz. navigable rivers.'

The 1932 Act is the Right of Way Act 1932.

[dougdew99]

See here.

[Brevan]

Their piece on navigation mentions Attorney General v Brotherton (1991)

The quoted case was overturned on appeal.

The appeal court held that the 1932 Rights of Way act DID NOT apply to waterways. The result of that ruling was the act could not be used to establish a right of navigation over water, in the way as it could be used for a right of way on land.

This case ruling does not preclude other means of establishing that public rights of navigation may already exist, as shown by Caffyn's research for example.

For it to be quoted as proving that a public right of Navigation over inland rivers does not exist is not correct (in my view).

Brevan

[Adrian Cooper]

Here is an Environment Agency report which answers this question. It was written around 2000, and included advocacy of voluntary access agreements which have since been shown to have little value.

Section 6.5 on page 22 of that report is interesting.

[Bob Andrews]

Adrian,

Nothing loads - could be me?

[Quicky]

The doc takes a while to load even on a fast pc

[Adrian Cooper]

Adrian,

Nothing loads - could be me?

As Quicky says, the document takes a while to load (5.6Mb) and then the top part of the first page is blank so you think you have nothing until you scroll down.

[dougdew99]

This site sets out the access code in Scotland. This is what we need in England and Wales.

[samB]

While researching and thinking about my reply to my MPs letter, I've thought about the following:

· If we accept Caffyns work as legally correct, we have the right to paddle freely on all navigable rivers.
· We accept that land owners control the rights of access across their land and we must access at public access points.
Then what do we do when we come across a weir or lock that cannot be paddled through or over, and we need to portage?

I’m sure I can’t be the first to have thought of this – so what is the law abiding answer?

Sam

[Pete in the Peak]

Where a known obstacle exists that would require portage the landowner's consent should be gained.
If we do not then we are commiting the civil offence of trespass.

Either that or plan your trip with consideration to the existing rights of way network and public lands so that you are legally allowed to access/egress the river.

[Izzetafox]

Portaging?

Didn't someone comment that the riparian owner on whose land the obstacle, requiring the portage, exists then historically previous owners were responsible for creation of the obstacle and as such have a duty to provide a portage route?

Terry

[KeithD]

......... and as such have a duty to provide a portage route?

That sounds reasonable ........... and we must be reasonable

[samB]

But I think it best if someone else tells this to the land owner and his dog rather than me doing it while standing in his garden with a boat on my shoulders!

Sam. sorry I mucked up your great post... I am still getting used my vast powers as a moderator... Doug

[dougdew99]

See here http://www.canoewales.com/access-the...situation.aspx

This is in relation to Rev Caffyn's position...

"Alternatively an individual or Organisation could test this in a Superior court (an extremely expensive and lengthy process) and set a binding precedent for the legal systems of England and Wales."

I wonder how much "extremely expensive" is and how the money could be raised...

[wayne]

Perhaps the BCU could add a levy on the membership fee that went directly towards a fighting fund.

Could be an optional tick box like gift aid if people strongly objected to contributing.

Whilst I loath giving them my cash I would be happy to contribute to a legal fund to get a proper judicial review of access in England and Wales.

[owain harris]

......... But I think it best if someone else tells this to the land owner and his dog rather than me doing it while standing in his garden with a boat on my shoulders!:nice_hat: =
sam

Reminds me of the story of the guy who used to give cards to London taxi drivers which said he objected to tipping on principle... no doubt he met a similar fate...

Surely common sense would prevail in this /these examples? If someone has altered the natural course of a river so as to prevent lawful navigation, then I would say they were duty bound to offer an alternative, as before the obstruction you would have no need to get out onto their land? either steps, fish ladder with brushes, a lock - anything??

Owain - 1
Riparian - 0

[dougdew99]

The Early Day Motion - RIVER ACCESS FOR NON-POWERED CRAFT
See here and here

[dougdew99]

The Early Day Motion - RIVER ACCESS FOR NON-POWERED CRAFT
See here and here.

Can someone tell the story of this?

[Brevan]

Where a known obstacle exists that would require portage the landowner's consent should be gained.
If we do not then we are commiting the civil offence of trespass.

I'd need to refer back to Wisdom's law of watercourses, but I'm fairly sure that where a right of navigation exists, and there is an obstruction, then there is a right to go onto adjacent the land to go round it (or have it removed). I'm fairly sure I can find quotes from legal cases to support this. Most navigations have a towpath to facilitate this.

The law also supports it. Magna Carta made such obstructions illegal (unless approved by royal consent, and later act of parliament, and where navigation acts were in force, they included penalties for obstruction (as well as protection agains malcious damage in the Turnpike Acts)

There are quotes from legal cases about what can and can't be done when the Navigation is obstructed,

The first case where a public right of Navigation was disputed (Bourke V Davis) was about the right of someone trying to Navigate to remove an obstruction to the navigation placed by the landowner.

I'll see if I can reference some examples.

Brevan

[dougdew99]

Thank you for contacting Canoe England /BCU. Canoeing is essentially an environmentally benign activity, and the BCU are very keen to ensure this remains the position by promoting responsible use of inland and marine waters.

Identifying a safe level to avoid coming into contact with gravel spawning beds should take into account the draught of a canoe/kayak is typically up to 10cm. This suggests that allowing at least a 15-20cm depth of water should be adequate to pass over gravel beds with the minimum risk of grounding. Care should be exercised using a paddle in reduced depth conditions to avoid contact with a gravel river bed, and it is recommended to revert to a paddle if poling an open canoe.

Fish seek out gravel river beds for spawning and in this respect water levels are not an issue on a muddy or silt laden river bed.

General guidance on good practice for canoeing in a responsible manner is provided in the leaflet “You, your canoe and the environment” as attached and available from the Canoe England web site - http://www.canoe-england.org.uk/acce...t/environment/
This document has recently been endorsed by the Environment Agency and Natural England.

To comment further on water levels, and canoeing in the spawning season. There are claims, and it can be often perceived that canoeing can damage fish spawning grounds. The Environment Agency report entitled “W266 – The effects of Canoeing on Fish Stocks and Angling” concluded there is no empirical evidence linking canoeing with damage to fish spawning and fish stocks. Furthermore, English Nature (now Natural England) and the BCU have a MoU to note that no lasting detrimental effects on the water environment result from responsible canoeing.

Both the EA report W266 and MoU are posted on the Canoe England web site - http://www.canoe-england.org.uk/acce...t/environment/. Natural England has since also stated “ we do not have evidence that kayaking per se causes damage or disturbance to river wildlife. Damage can be caused if canoeists seek to modify the river channels, e.g. to create white-water situations,”

It is to be hoped the report from the Environment Agency and position of Natural England as competent authorities for the natural environment can reconcile any objections for canoeing in the fish spawning and breeding periods.

River canoeists should be aware of the sensitive times for fish spawning and if possible know where it happens. Spawning seasons vary with species and the location. Salmon and sea trout generally spawn in the period October to February, course fish species and trout breed in the following months through to the end of May. Knowing the location of spawning beds can be problematic, especially for game fish as those with this knowledge are often loathe to disclose this information with concerns for poaching. The EA on line rivers level service: http://www.environment-agency.gov.uk...s/default.aspx can provide an indication of river conditions to gain a reasonable idea of what water levels to expect.

The Salmon & Freshwater Fisheries Act 1975 has provisions to safeguard spawning beds from intentional disturbance and it is an offence to do so. Other points to note to those mentioned above to avoid disturbance to gravel beds are not to wade in gravel bed at sensitive times and follow any local guidance for where to get out and launch.

I hope this helps.

Regards

Kevin East
Access and Environment Manager
Canoe England

[John Saunders]

...from the Country Land and Business Association (CLA):

"Under English law all land, including the bed of a river or lake, belongs to someone e.g. private individual, local authority. It is usually necessary to obtain permission for access to such land or water for fishing or canoeing. If this has not been obtained, access constitutes a legal trespass, whether or not the owner actively enforces his rights.

There is no ownership of the flowing water and all may reasonably use it, provided that they have both a right of access to it and a right to use it for their permitted purpose. Where such rights do not exist, the water may be used for angling, canoeing, swimming, and so on, only with the consent of the owner e.g. fishing licence or an access agreement for canoeing.

The Rev.d Caffyn has published his view that there is a right of navigation on rivers, this would include motorised boats, through his paper “The Right of Navigation on Non-tidal Rivers and the Common Law”. The CLA legal department has examined the paper in detail and commented as follows:

“The Rev. Caffyn, whilst having made a painstaking review of the historical legal texts and judgments on the issue of whether there is a public right of navigation on non-tidal rivers, has produced a work with a very distinct slant to it. It is as if he has decided on his conclusion first, and then worked back from that point to find any material he can muster to support that conclusion. In doing that he has tended to either ignore or brush over any evidence which is not helpful to his case.

In the case of England and Wales the Crown owns the bed of a river up to the limit of the tidal reach. Beyond this point the bed of a river is in private hands, sometimes as a separate legal tract (say where it is owned by a fishing club) but more usually by the adjoining landowners each owning to mid-stream. Those landowners are free to decide to what use to put their part of a river unless there exists a public right of navigation created by immemorial user, an express grant or statutory authority such as a Navigation Act. There is clear legal authority in support of this approach culminating in the ruling of the House of Lords in The Attorney-General ex rel. Yorkshire Trust v Brotherton [1991]. Whether or not there has been mis-interpretation of ancient authorities that is where the law currently stands on the matter”.

The remainder of this article is only available to Logged in Members."

I have no legal training but there would appear to be some shooting of own feet here. Nevertheless, this just goes to reinforce what paddlers are up against.

[Brevan]

It's odd that they should quote the Brotherton case, as I beleive it was an attempt by the Yorkshire Derwent trust to gain the right to restore the locks on a river cut crossing private land, which would have only been possible to construct and maintain under powers granted by the landowner or under a navigation act. Those powers would have been granted to the navigation company (presumably the powers have expired or now reside with the Environment Agency)

I'll have a look at the case ruling and see if I can find out what may support the statement made above.

Brevan

[John Saunders]

Hi Brevan

I thought it was a bit of a strange reference, even though I don't have your resources or knowledge (but I saw this).

According to the Rev'd Dr. "In 1991 the House of Lords was asked to decide whether the Rights of Way Act 1932 applied to rivers. They decided that it did not because:

1. The words of the Act did not imply that the Act applied to rivers. This reason
is binding on all other courts.
2. The law relating to highways, rights of way over land, is different from the
law relating to navigation, rights of way over water. This reason was
expressed so clearly, and at such length, that it seems that all other courts will
reject any argument based on the equivalence of the two laws. This has the
effect of nullifying previous cases based on the equivalence of the two sets of
laws, eg. Bourke v Davis.

This decision of the House of Lords denies the validity of the commentaries on the

Law relating to the public right of navigation along rivers."

Therefore, the CLA seem to be quoting irrelevant law.

In response to their comment that "Whether or not there has been mis-interpretation of ancient authorities that is where the law currently stands on the matter" Rev'd Dr. Caffyn also notes that "Lord Denman when Lord Chancellor said ‘When, in pursuit of truth, we are obliged to investigate the grounds of law, it is plain, and has often been proved by recent experience, that the mere statement and re-statement of a doctrine, - the mere repetition of the cantilena of lawyers, cannot make it law, unless it can be traced to some competent authority.’ The authors of the commentaries do not make the law."

However, without knowing what additional commentary has been provided to CLA members, the simple fact that the CLA is promulgating this position demonstrates that they may be, at best, disambiguous in their statements. And as we know, sticks!

P.S. Paddle up my way this week?

[Brevan]

The Brotherton case (well, the appeal and subsequent lords ruling) dealt with 5 points relating to the Derwent
1) Was there a public right of Navigation prior to the 1702 Navigation act - agreed there was not
2) Did the 1702 act create a public right of Navigation? - agreed that it did not (onnly to navigate when laden with cargo and on payment of the charge)
3) Did a public right of navigation arise after the act (and not solely because of it) agreed that it did not.
4) What rights of Navigation did the 1930's drainage act extiguish? agreed that only those created by the 1702 act (it would not affect any prior or other rights)
5) Could the 1932 Rights of way act (and others relating to rights of way on land) be used to establish rights of navigation on water - ruled that they could not
In points 1-4 the lords agreed with the appeal court decision and ruled sperately in detail on point 5.

Any new case based on proving a public right of navigation existed before the 1702 act would (if successful) invalidate point 1 and not be affected by points 2-5. This is what Caffyn's work relates to.

The CLA article is correct in this is the most recent judgement applying to rights of Navigation inland rivers (on the Derwent at least), but that does not mean it would automatically be followed in any new case, if new evidence is put forward.

Brevan

[John Saunders]

Thanks Brevan

On a slightly related issue, and ignoring the facts that this is from Brighton Uni and that this 'new' article quotes 2008 (and earlier) UKRGB references with the use of phrases such as 'bandits' - so much for the use of 'netnography' -there might be some interesting background thoughts on how access/navigation rights may be effectively pursued: Download the Word doc titled "Paddling, property and piracy: the politics of canoeing in England and Wales (with N. Ravenscroft), Sport in Society, 2011, forthcoming".

[dougdew99]

It is my fervent hope that no tax payers' money was used in the production of this nonsense from Gilchrist and Ravenscroft.

[wayne]

It is my fervent hope that no tax payers' money was used in the production of this nonsense from Gilchrist and Ravenscroft.

whilst I agree with your sentiment Doug I suspect our posts to deleted.

[Quicky]

Maybe for your use of language, my kid reads this forum as well and despite hearing every swear word under the sun in the media nowadays I would hope that we would not have to stoop that low to express our annoyance especially with the people watching theres forums.

It woruld be better to write to them an politely point out the errors in there document, How about talking to paddlers rather than nicking old post off websites...

Although he is now tarring Cameron with the same brush as he is supporting a charity paddle by 'bandits'.

I am amazed they get paid to write this tosh....

[KeithD]

We argue that the dominance of property rights has created an asymmetrical position that has underpinned riparian rights holders’ claims to exclusive use of rivers while simultaneously delegitimising the apparently equally valid claims of paddlers and others seeking access along rivers.

Read it again. They are on our side!

In order to substantiate their claims, paddlers need to shift the point of their attack from that characterised by the roving and ephemeral bandit to that of the settled ruler, in the process establishing a claim over inland waters that is as strong as that already imposed by the anglers.

They are trying to give helpful advice on how we can better gain recognition of "the apparently equally valid claims of paddlers and others seeking access along rivers."

Whilst their message is obscured by academic language and theories I think it just says that we should stop acting like criminals (having "bandit runs") and start asserting our rights openly and authoritatively.

[idc]

Thanks, Keith. That was my reading too, but I couldn't think how best to phrase it. I think it is a shame that some branches of academia become so steeped in their own jargon that they become almost unintelligible to the layman.

Re the comments about getting paid to write this stuff, you might be surprised how many graduate students are paying--and how much they pay--to be trained to write this way. Government subsidies to the university sector are pretty pathetic and falling fast. There aren't any paid academic jobs at the end of the line for 98% of them, and the few jobs there are are hardly well recompensed (especially if you factor in the opportunity cost, i.e. loss of earnings, in taking graduate degrees).

Strangely, though, higher education remains a huge export industry for the country with undergraduate degrees heavily subsidised by the number of foreign graduates the universities take to balance the books.

Anyway, this was meant to be about paddling ...
Ian

(Which was all by way of saying that messrs Gilchrist and Ravenscroft may well not be being paid 'to write this tosh'. 'Spose there's no accounting for tastes. )

[dougdew99]

Keith
Can you translate what they mean in terms of specific action?

[samB]

I’m not at all sure the authors are ‘anti’ in any way at all. I think it is commentary on how our access campaign is developing at the moment, and is a sociological observation rather than a criticism:
This is my interpretation:
It is pointed out that those who sit on the land have an easier job claiming control of the land, and that if you are sitting on the land it will take a mighty effort to move you. The anglers, because they needed access to the water made agreements or bought their way onto the land and so control it. The anglers are more numerous, have been there longer (- I don’t think paddling was a big past time in the past unlike fishing) and so we are having a difficult job shifting them (or their views) The land owners have no incentive to give us access – we aren’t going to pay them as much as the anglers and if they allow us and the anglers both to use the water, the anglers might leave and they will lose their money.
Roving bandits or pirates are those who paddle anywhere because they want to. They are romanticised in the paddling world because they go where they want to, but their attitude of ‘up yours’ is no good for the rest of the paddling community. We all end up tarred with the same brush – we are not reasonable people, we take what we want by force, and we have no respect for other river users.
The social bandits paddle where they want because they feel they have the right to be there. Because of this argument, that they have a moral right to be present, they begin to own the water, and when they do own the water things will be good. In this way, it is argued they are more similar to anglers than the roving bandits because they have a (moral) ownership of the water and the anglers have a (paid for) ownership of the banks.
A problem is though, that roving pirates are needed to make the social pirates look like they have a moral right (whether they do or not is irrelevant) and also to bring media and public attention to the problems of access. So, despite making all paddlers look uncaring, selfish and unreasonable, we need them to give us a moral position to argue from.
It’s also pointed out that although there is a swell in the numbers of social bandits who are taking moral ownership of the rivers, the battle is not won - “ when legal and moral passages are closed for the pursuit of rights claims, new escape channels open – discipline provokes resistance and new bands of ‘outlaws’ spring into being” and in future these outlaws could be anglers fighting back against our recognised rights!

Sam

[KeithD]

It says that many anglers feel threatened by "bandits" which makes them defensive and aggressive against what they see as a threat from aggressive paddlers who don't follow rules.

It says it's tempting to see parallels with ramblers and anti-road protesters and argue for such protests but they argue that this can actually do more harm than good as it reinforces the view of paddlers as "bandits" and can cause moderate anglers who are prepared to share to retreat to their loyalty to other anglers if and when they feel under threat from "bandits".

It promotes practices of "good citizenship" (river clean up events?) to help canoeists claim the moral high ground and working through existing power structures (parliament? press?) to promote legitimate rights and responsibilities for all citizens. It also suggests we would be more effective if we used club structures (Sotp? Canoe England?, neighbourhood clubs?) to promote our case and give angling clubs someone else with a club understanding (which anglers know and trust) to interface with.

It predicts that eventually we will be friends with the anglers in a world were we both have settled rights - and then some new bandits will come along and upset all of us!!

[samB]

If you can see that, and I can see that, why can't the government save us all a lot of bother and change the access laws tomorrow so that we can get together with our angling buddies and wait for the next lot of baddies to come along!
Sam

[wayne]

It says that many anglers feel threatened by "bandits" which makes them defensive and aggressive against what they see as a threat from aggressive paddlers who don't follow rules.

It says it's tempting to see parallels with ramblers and anti-road protesters and argue for such protests but they argue that this can actually do more harm than good as it reinforces the view of paddlers as "bandits" and can cause moderate anglers who are prepared to share to retreat to their loyalty to other anglers if and when they feel under threat from "bandits".

It promotes practices of "good citizenship" (river clean up events?) to help canoeists claim the moral high ground and working through existing power structures (parliament? press?) to promote legitimate rights and responsibilities for all citizens. It also suggests we would be more effective if we used club structures (Sotp? Canoe England?, neighbourhood clubs?) to promote our case and give angling clubs someone else with a club understanding (which anglers know and trust) to interface with.

It predicts that eventually we will be friends with the anglers in a world were we both have settled rights - and then some new bandits will come along and upset all of us!!

Keith we have been doing that for years. Promoting positive relationships, blogging nice family friendly trips with suitably cute kids in the photos, rescuing wildlife etc we have waited patiently for decades for the BCU to act and nothing changes.

We need a multifaceted approach to our campaign. A focussed and well structured positive campaign that highlights all the good that can come from paddling and shows how unfair the current system is.

[dougdew99]

There is one organisation in the UK who have been successful in challenging and defeating the landowners... it is the Ramblers. They were criticized by the land owning interests they fought, for their protests; just in the way you describe might occur in our situation. In fact it is a certainty that this will happen if we engage in public protest. We will be accused of all the things you describe. So what?

The bottom line is that by a combination of campaigning activities including public demonstration, they obtain the access rights they were seeking. Many commentators say the basis of their victory was public protest; that they were achieving nothing until they started to protest...

Many movements for change employ public protest, because time and time again it is successful in helping obtaining the change they seek. What is different about our campaign that means public protest should not form a part of it?

The Ramblers are still protesting... so should we...

[samB]

As I read it, the article says we need a multi faceted approach, but it strongly suggests that we need to be able to morally justify our position in order to be able to 'own' the water. The bandit runs have and will be effective in bringing attention to our cause but then the majority will have to overcome the negative publicity that the bandit runs produce. While we continue to do things that the anglers think are illegal, disruptive and unreasonable, we will struggle. There are many more anglers than paddlers and because they organised themselves a long time ago and have financially invested in the river bank, they are in a strong position and we are not. We need (I think)to be being as reasonable as we possibly can and making sure we don't upset the majority of anglers who can probably see that actually, sharing the rivers wouldn't be that bad.
Don't forget that the ramblers were quite a comparably large group protesting against a comparably small group of landowners. People could see that they had a moral right to walk the hills, and in the post war years, the government were on the side of the people. Public protest is a tool we should use to make people aware, but we must be careful not to wind people up and anagonise them.
Sam

[KeithD]

We need a multifaceted approach to our campaign. A focussed and well structured positive campaign that highlights all the good that can come from paddling and shows how unfair the current system is.

I agree with that of course...... and the multi faceted campaign should be carefully structured to mobilise more support than opposition. I am sure there are some paddles that can do that but I'm also sure there are some that can have the opposite effect.

Good luck with your protest paddles. I hope they prove successful in making a positive contribution to the overall campaign.