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Thread: Threatened Legal Action by Angling Trust

  1. #1
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    Default Threatened Legal Action by Angling Trust

    This press release appeared on the AT website today and this response from Canoe England/ British Canoeing on their facebook page. The Times picked up the story in what I thought was quite sympathetic article which starts
    There is absolutely nothing half so much worth doing as messing about in boats, as Rat advised Mole in The Wind in the Willows.

    Yet this ancient pastime could be curtailed on thousands of miles of rivers after a legal challenge by anglers, who hope to establish conclusively that the law does not give canoeists a general right of navigation.
    Amongst the AT claims reported in the Times is a "particular problem ...... on the Trent in the Midlands". King Richard II seemed pretty clear on that one in his appointment of Commissioners in 1383.
    The Trent .... has been used to, and aught to hold it's course from where it takes it's source to the castle and town of Nottingham .... and thence direct to the water of Humber and further into the high sea

    Since at that time he "owned" all land and rivers in England as God's chosen representative in England (others simply held it at his pleasure) he seems to be in quite a strong position to know what he's talking about.

    Nice calm response from Canoe England.
    Last edited by KeithD; 14th-August-2014 at 04:59 PM.
    Keith

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    And from the Parliament of our good Queen Bess in the Timber Act of 1588
    or of any Part of the Rivers ofThames , Severn, Wye, Humber, Dee, Tine, Teese, Trent or any other River, Creek or Stream, by the which Carriage is commonly used by boat or other Vessel to any Part of the Sea;
    Quote Originally Posted by KeithD View Post
    Amongst the AT claims reported in the Times is a "particular problem ...... on the Trent in the Midlands". King Richard II seemed pretty clear on that one in his appointment of Commissioners in 1383.
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    The fundamental issue is this; Fish Legal and BCU have different views as to the law relating the access by canoeists to English and Welsh rivers.

    Underneath the rhetoric is the intention of Fish Legal to obtain "declaratory relief". I understand this is a decision by a judge as to what the law actually is. Possibly naively, I think this would be a good thing. We would then all know where we stood. I have no idea of the implications of going down this path, and it is a pity that Fish Legal and BCU cannot pursue this together rather than as adversaries.

    It is also a pity that BCU, in their response, cast themselves as victims of the big bully, Fish Legal, when they could seize the initiative by setting out a positive course of action to move forward.
    Doug Dew
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    I'd imagine the fishermen do more harm than canoeists/ kayakers to be honest.
    Our local canal is full of fishermen who seem to be there just to escape. Most with cars, tents, chairs and beer cans all by their side. It's a shame that they can't just agree to play nicely together.

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    Quote Originally Posted by dougdew99 View Post
    We would then all know where we stood. I have no idea of the implications of going down this path, [...]
    This is my just sticking my finger in the wind - but I'd expect any judgement to be discrete, and limited to just the section of water in dispute here.
    I'd also expect the narrative to include something about whatever is decided here, it doesn't set a wider precedent.

    I can see the point in that too - whist having an answer would make it clear to everyone - it'd be the wrong answer for everyone.
    Deciding on water access universally strikes me as being 'too difficult' and would lead to as many appeals as there are sections of water (representing all kinds of interests).

    Jointly dealing with this collaboratively is clearly the way forward in principle, but clearly somewhat harder in practice.

  6. #6

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    So AT are launching legal action against BCU to make them

    "stop publishing information suggesting that there is a general right of navigation on non-tidal waterways in England and Wales, and/or that the law relating to navigation on rivers is unclear."

    Should they not also sue DEFRA, then, who said:

    "There is no clear case law
    on whether a ‘common law right of navigation’ exists on unregulated rivers. This is widely accepted
    to be an unclear and unresolved issue. "

    Very odd.
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    I would far rather the bcu be more proactive and robust in their response.

    Ie
    We attempted to negotiate for decades with fisherfolk to get reasonable access agreements but were rejected.

    Following years of no progress, a thesis into the law on access to water / navigation suggested the understanding of the law was wrong and that navigation existed.

    The environment agency suggest the law is unclear on access to water / navigation

    We welcome fish legals appriach to clarrify the understanding of the law in court and look forward to them clarrifying what incorrect advise we have provided as we move forward from a possition where fishing organisations refused to partake in meaningful negotiations.

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    Surely if all these paddlers are breaking the law then the AT would be better off taking action against a few of the actual offenders? Just saying

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    True. The offenders might not be BCU members..

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    Removed post promised myself I wouldn't post in here again
    Last edited by pipster3; 15th-August-2014 at 09:43 AM.

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    Fishing as a sport should clearly be banned ... end of problem


    • It inflicts damage, sometimes lethal, on living creatures for "sport", many of which species we are told are endangered.
    • It has and does infiict damage on wild bird and animal populations, notably swans through lead poisoning, though fishing shot is now lead free, but also swans and others through discarded line/equipment.
    • I, and others, have frequently tried (sometimes succeeded) to rescue hooked fish that are found dragging around a large float (the clue to the fish is now you see it, now you don't) where the line had broken between the float and the angler.


    Sorry ... I'm a paddler and an angler ... but really ... folks who live in glass houses shouldn't ......
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    Quote Originally Posted by monkey_pork View Post
    This is my just sticking my finger in the wind - but I'd expect any judgement to be discrete, and limited to just the section of water in dispute here.
    I'd also expect the narrative to include something about whatever is decided here, it doesn't set a wider precedent.

    I can see the point in that too - whist having an answer would make it clear to everyone - it'd be the wrong answer for everyone.
    Deciding on water access universally strikes me as being 'too difficult' and would lead to as many appeals as there are sections of water (representing all kinds of interests).

    Jointly dealing with this collaboratively is clearly the way forward in principle, but clearly somewhat harder in practice.
    monkey_pork are you speaking as a real lawyer, or a barrack room lawyer like the rest of us?
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    Quote Originally Posted by dougdew99 View Post
    monkey_pork are you speaking as a real lawyer, or a barrack room lawyer like the rest of us?
    I'm going on instinct here - so no, not a real lawyer (that what my 'finger in the wind' comment was about).
    It's just an opinion.




    I do however have a historical relationship with certain aspects of civil law (usually heard by tribunal, and entirely unrelated to this question) - where outcomes were almost always non-binding on subsequent decisions (at the same level of judicial proceedings), but could be reported and used as 'case law' where they were significant [enough], or where they clarified legislation (especially where they commented on recent amendments) - in which case they would then be followed (in principle at least). Those questions were about the interpretation of evidence in light of [modern] legislation tho' - not trying to make sense of long standing common law, custom and practice.

    I stand by my instinct tho' - I can't see that there is any one answer to the question, other than maybe declaring a universal right to all users, with 'private' property covered by existing common law, although that's really pretty much how it is now isn't it?. It's a really difficult issue for sure - and getting a judgement one river section at a time is going to take until the end of the universe to get to the end of it. How did the right to roam stuff (Countryside and Rights of Way Act 2000) get sorted out - was it the same way, or one big bang approach?

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    Quote Originally Posted by pipster3 View Post
    Removed post promised myself I wouldn't post in here again
    Good for you - I'm trying hard to sit on my hands.

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    As a fisherman for 30 off years and a paddler I say we should all have the right to use our beautiful waterways for our hobbies. My old man used to hate paddlers "buggering up his swim" till he got snagged up by a big barbel on the river Severn and a passing paddler managed to untangle him from the mess he was in, never said a bad word against again.

    It's all about respecting one and others sport and giving people space to enjoy IMO

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    A letter before action is still only a threat, a heightened threat, but still only a threat. Hopefully BCU will not be influenced by the threat and will maintain their position.

    It would be interesting to see both the letter and the BCU formal response. Presumably the letter, free of the rhetoric and posturing on the AT website will be specific in defining the issues where they believe the BCU are wrong. That in itself could be interesting because presumably it will set out the specific areas where the AT think they have valid contrary evidence or a strong enough argument to persuade a court of their views. That allows the BCU to review their position and focus their attention rather than being distracted by the usual rhetoric, misinformation and spin that comes out of the AT in any press release.

    As far as I understand a hearing to seek declaratory relief does not necessarily carry the large burdens of cost associated with the usual civil actions, I may be wrong but that's the way I read it. Certainly i don't see that damages could be awarded.

    If it does get to court and assuming the court finds against the AT it will still not properly resolve access to our rivers. What we need is a clear set of rights and responsibilities that legally set out things such as how and where we can get on and off the water and give some assurances to waterway users that weirs can be safely negotiated and tree strainers will be removed rather than laying in wait to kill some unsuspecting family. We will only get that with a change in primary legislation and we will only get a change in primary legislation if we have a proper campaigning organisation that keeps the issue at the forefront of the public and political mind.

    What disappoints me most is that we don't have a proper campaigning body and we never seem to take the initiative. The BCU seem content to have stated a view then sit back and roll with the punches as they're delivered by a noisy, aggressive and belligerent bullying AT. The BCU River Access Campaign seems anything but a campaign, rarely issuing press releases or campaigning information as far as I can see and sadly in these kind of disputes when the public, the press and government superficially know little about the issues they're prone to listen to he who shouts loudest. We have RAFA which is great to a point but it too is lacking because it is not a proper membership organisation with a spokesperson who is visible and active. All in all a pretty sorry state to be in over something that should be so simple.
    Mike

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    So the gloves are off, this is their first move towards their aim of destroying our sport as we know it. If they succeed we will be reduced to paddling only where they decide to let us, that must never happen.

    It is time we started to look at their activities and fight back in any way we can, the laws protecting fishing rights were formed to protect the right to control and harvest an important food supply from our rivers, we should look at how relevant they are to the current activity of playing with fish, there is a big difference in playing with an animal just for your own pleasure and protecting an important food supply.

    The Anglers think their position is untouchable due to their over inflated financial benefits to the economy claims, but their activities in their present form are supported on a very fragile prop, that being their exclusion from the Animal Welfare Act 2006 this is their big weakness, we should exploit it and give them something to think about that is far more important than we are, all is fair in love and war.
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  18. #18

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    Totally disagree!

    There is nothing to be gained by attacking the 'rank and file' angler. He is not an enemy as most encounters prove.

    It is the Angling Trust that need to be challenged but do it correctly and in the knowledge that the paddlers have used the law applicable to paddling.
    Many anglers happily share their waters, why alienate them? Many of them have no allegiance to AT and may indeed be supportive.

    I run a freshwater kayak angling forum and face similar and perhaps more challenges. I use the by line:
    " Responsible access to appropriate water" which is not an unreasonable request."

    Terry

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    Quote Originally Posted by Izzetafox View Post
    Totally disagree!

    There is nothing to be gained by attacking the 'rank and file' angler. He is not an enemy as most encounters prove.

    It is the Angling Trust that need to be challenged but do it correctly and in the knowledge that the paddlers have used the law applicable to paddling.
    Many anglers happily share their waters, why alienate them? Many of them have no allegiance to AT and may indeed be supportive.

    I run a freshwater kayak angling forum and face similar and perhaps more challenges. I use the by line:
    " Responsible access to appropriate water" which is not an unreasonable request." Terry
    I have never had a problem with any individual Angler so I agree it is unfair that they should suffer but if this argument goes to the courts both sides will suffer. Unfortunately in a war it is always the rank and file that take the brunt of the pain, if you anglers do not agree with what the AT are doing you should stop them not us, we will just responding to their attacks.

    " Responsible access to appropriate water" which is not an unreasonable request."
    This is fine if it is agreed on an equal basis, it will never work with one side dictating the terms.
    "Rules are for the obedience of fools and the guidance of wise men"
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  20. #20

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    I am not a member of the AT and as such I have no influence over them.

    I just think that to talk of 'WAR' then you are being rather extreme in your views. This will eventually be decided either in court or by negotiation.
    If your intention is to antagonise the anglers on the bank do you really think even if access is won that you will be greeted with open arms.

    I always paddle when I fish but do not always fish when I paddle. Either way I have never had conflict.

    To talk of trying to outlaw angling is playing right into the AT's hands and with a post like yours for them to use in their propaganda you will drive the neutral anglers straight into AT's membership and fill their coffers.

    Your post would do more to radicalise the SOTP site and show that there is no confidence in the legitimacy of the evidence that is currently being used.

    Terry

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    Quote Originally Posted by Izzetafox View Post
    I am not a member of the AT and as such I have no influence over them.

    I just think that to talk of 'WAR' then you are being rather extreme in your views. This will eventually be decided either in court or by negotiation.
    If your intention is to antagonise the anglers on the bank do you really think even if access is won that you will be greeted with open arms.

    I always paddle when I fish but do not always fish when I paddle. Either way I have never had conflict.

    To talk of trying to outlaw angling is playing right into the AT's hands and with a post like yours for them to use in their propaganda you will drive the neutral anglers straight into AT's membership and fill their coffers.

    Your post would do more to radicalise the SOTP site and show that there is no confidence in the legitimacy of the evidence that is currently being used.

    Terry
    Dave,

    What Terry says is true. Most anglers are fine with paddlers. The AT is doing something (at long last and with a notable lack of enthusiasm) to keep it's rank and file happy.

    Let's go to Court and see where it goes from there (nowhere I suspect).
    Anyway, are you not interested to see what BCU come up with?

    I am, and I haven't been a member for years!

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    David & Terry

    As I have said above I have never had a problem with any individual anglers and have never been anything other than polite and considerate to the anglers I meet. If the AT are successful in their action all fishing groups will take advantage of it and start to restrict access, so whether we like it or not this is effectively a class action by all anglers against all paddlers. I certainly do not want to outlaw angling, fishing has been an action of man from year dot it is the most basic of instincts to hunt for food, shooting is included in the Animal Welfare Act and they are still able to continue with their sport and I am sure angling would adapt in the same way. If people or animals are cornered they lash out in any way they can, that is also a basic instinct.

    This is not a war yet but it could so easily turn into one, the CROW act was round 1, the rivers were not dealt with in that act so creating the current conflict. Round 2 is at the "Chamberlain" stage, lets hope it doesn't move to the "Churchill" stage.
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    Quote Originally Posted by cloudman View Post
    (much cut.......)

    If the AT are successful in their action all fishing groups will take advantage of it .
    My clubs a fishing group - kayak anglers are another fishing group - when you say all fishing groups who do you mean exactly?

    If AT are successful.......
    That's just it - they won't be. All that will happen is that they will make a bit of a fuss - BCU will do nothing much, and we'll all settle down again.
    BCU and AT between them are, to put it bluntly, sh*t-stirring for their own gain/votes/memberships/whatever.
    They don't really care about access, fairness, or much else apart from their own agendas, it seems.

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    This is not a war yet but it could so easily turn into one, the CROW act was round 1, the rivers were not dealt with in that act so creating the current conflict.
    rivers were going to be in the act but the angling interests complained so much they were removed.....

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    Quote Originally Posted by davidh View Post
    My clubs a fishing group - kayak anglers are another fishing group - when you say all fishing groups who do you mean exactly?

    If AT are successful.......
    That's just it - they won't be. All that will happen is that they will make a bit of a fuss - BCU will do nothing much, and we'll all settle down again.
    BCU and AT between them are, to put it bluntly, sh*t-stirring for their own gain/votes/memberships/whatever.
    They don't really care about access, fairness, or much else apart from their own agendas, it seems.

    I was thinking of Angling Clubs and fishery owners, but I suppose anyone who thinks they could take advantage of it.

    I agree that the chance of success is small but the challenge has to be taken seriously otherwise they could win by default. It is ironic that there has been very few reports of conflict on the rivers this year suggesting that we are starting to get used to each other. Maybe that is the problem AT thrive on conflict so they thought they would stir it up a bit.
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    Quote Originally Posted by Quicky View Post
    rivers were going to be in the act but the angling interests complained so much they were removed.....
    Not according to post 10 of this thread.

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    Quote Originally Posted by cloudman View Post
    I was thinking of Angling Clubs and fishery owners, but I suppose anyone who thinks they could take advantage of it.

    I agree that the chance of success is small but the challenge has to be taken seriously otherwise they could win by default. It is ironic that there has been very few reports of conflict on the rivers this year suggesting that we are starting to get used to each other. Maybe that is the problem AT thrive on conflict so they thought they would stir it up a bit.
    I think you have it in one!

    Our club isn't bothered either way - the kayak anglers aren't bothered (they don't seem to like AT), and most anglers, I suspect, aren't bothered either.

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    Quote Originally Posted by davidh View Post
    Not according to post 10 of this thread.
    I think both are probably true, the official line and the back room deals.
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    Quote Originally Posted by cloudman View Post
    I think both are probably true, the official line and the back room deals.
    Very possibly, but no point in stirring the poo with rumourmongering until we know for certain.

    I would really like BCU to get off the fence and make some kind of positive statement to counter AT.
    Will they though?

  30. #30

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    A post I have just put up on Anglers Afloat below, what mandate do the BCU have?
    Terry

    ===================
    Just been doing some number crunching......
    AT openly admit they have less than 20,000 members
    Angling research by the National Lottery estimates there to be 4.2 million anglers in the UK

    I appreciate that the figures may have a error of about + or - 5%

    But assuming they are correct that equates to 0.476% of anglers consider the AT a worth while investment.

    With this mandate AT call themselves ' Angling's governing body'.

    Make of this what you wish. It just makes me wonder where their credibility is.

    Terry

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    Quote Originally Posted by Izzetafox View Post
    A post I have just put up on Anglers Afloat below, what mandate do the BCU have?
    Terry

    ===================
    Angling research by the National Lottery estimates there to be 4.2 million anglers in the UK

    Terry
    4.2 million is an irrelevant figure when talking about the Angling/Paddling debate, it is a figure produced for marketing purposes only. To arrive at this number they include sea anglers, private lake anglers, casual day anglers who may only fish for one day a year and people who say they may fish sometime in the year. None of these are affected by paddlers at all so this number is misleading. I did 3 days from Hereford to Monmouth last year and passed maybe 10 anglers at most, a day trip on the Severn a few weeks ago had no anglers in 15 miles. I would be surprised if there were any more than 250,000 Anglers who come into contact with paddlers on a regular basis, and of those only a small percentage are bothered by them.
    "Rules are for the obedience of fools and the guidance of wise men"
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  32. #32

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    I think you attitude is slightly antagonistic and misses the point!

    I was arguing that AT claim to represent angling with less than half of one percent of their participants interested in them. It was not meant to be a boast about how many anglers there are! If you think I was trying to flatter the AT or angling community then you have clearly chosen to misread the post.

    Similarly any figures of the gross number of paddlers will include the once a year paddler as well as the dedicated any weather guys.

    You do nothing for your cause when you cannot recognise a sympathetic post and respond like this. It is this behaviour that devalues the responsible posts that other members make in a reasoned way.

    I am sorry if I, like you, have misunderstood a post.

    I was hoping that someone would help me to understand whether the BCU are a more representative voice of their sport than the AT. I believe they are and hopefully someone will give a more reasoned reply.

    Terry

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    Terry

    I did not intend to be antagonistic, if you like you could say that the 20k members of the AT are likely to be the people most concerned about paddlers so they could represent 25% or more of the concerned Anglers. The legal system is such that if a point of law has been proven by just one person then all can benefit from it, so whether they have a mandate to represent all the Anglers makes no difference to them, they are just working for their own members.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  34. #34

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    I thought this was what everyone was crying out for, a court case to put the Rev. Cafynís theory to the test. Wasnít that what Angut was trying to do with the fishing club from Burton? Donít people trust the claims anymore?
    My main concern has always been the disturbance of spawning salmon during November, December and January. It is my intention to press the NRW to do their duty and protect them from the disturbance of canoes and wading anglers by bringing prosecutions under the Salmon and Freshwater Fisheries Act 1975.
    http://www.legislation.gov.uk/ukpga/1975/51
    2 Roe, spawning and unclean fish etc.
    (4) Subject to subsection (5) below, any person who, except in the exercise of a legal right to take materials from any waters, wilfully disturbs any spawn or spawning fish, or any bed, bank or shallow on which any spawn or spawning fish may be, shall be guilty of an offence.
    Note the wording, ďwilfully disturbs any spawn or spawning fish, or any bed, bank or shallow on which any spawn or spawning fish may beĒ, proof that fish are there is not needed.
    The definition of the word ďwilfullyĒ in this case would be using any stretch of river known to be a spawning area for salmon and trout. A clear sign at access points would be sufficient.

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    I'm afraid you're coming at it from the wrong angle.

    To succeed the following elements would need to happen:-

    a) Catch/arrest/identify a canoeist. Or indeed an angler wading which you'll know a lot do.

    b) Prove there was spawn in the particular bit of water where the canoeist was alleged to have caused the the offence.

    c) Prove the fisherman (sorry I mean canoeist) 'Wilfully disturbs spawn or spawning fish'. I actually like your use of a sign as evidence. That instantly stops fisherman wading in the gravel!! Although I suspect the use of a sign would not succeed as it is NOT evidence that there is spawn or spawning fish there at all times and in all places between access points - NB, the sign is not proof of breeding fish it is simply a sign stating that fish/spawn could be or may be there when the alleged disturbance happened.

    d) Prove that the spawn or spawning fish etc., was actually disturbed by the passage of a canoe. (How would you do that?)
    http://www.davidwperry.blogspot.co.uk/

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    Quote Originally Posted by wrongangle View Post
    Note the wording, “wilfully disturbs any spawn or spawning fish, or any bed, bank or shallow on which any spawn or spawning fish may be”, proof that fish are there is not needed.
    The definition of the word “wilfully” in this case would be using any stretch of river known to be a spawning area for salmon and trout. A clear sign at access points would be sufficient.
    You will have seen that 'may', 'shall' and 'may be' are used on numerous occasions. These have specific meanings in formal / legal English and these meanings are not always the same as they are in everyday English. Thus, for example, 'shall' is always used to indicate obligation:

    "(3) A grating shall be constructed and placed in such a
    manner and position as may be approved by the Minister."

    No argument possible here, this is what must happen.

    'May' has three separate uses. This first is to indicate permission or discretion:

    "4) Any officer of Customs and Excise may, between 31st
    August and the following 1st May, open or cause to be opened
    any parcel entered or intended for export.... and may detain or cause to
    be detained any salmon or trout found in the parcel "

    This gives a power to an authorised Officer, a permission from the court to act in a certain way. However, it's up to the Officer to decide whether to exercise this power or not. If it was mandatory the Act's wording would use 'shall'.

    The second use of 'may' indicates possibility:

    "Any person or association entitled to an exclusive right
    of fishing in any inland waters may be granted a general licence
    to fish in those waters ..."

    Here, the meaning is fairly clear. There is no absolute right to a licence, but there is a possibility that a licence could be granted. Because a person or association has an exclusive right they qualify to be granted a licence. However, it is possible (as is covered in another part of the Act) that the number of licences available is limited for some reason. It's possible that not everyone who applies will get a licence.

    The third use is the one that is causing all the bother. It's a use that isn't usually found in everyday English, but is found in legal / formal language. It's the one that is really the same as saying 'is' or 'are':

    " " immature " in relation to salmon means that the salmon... is of a length
    less than such length (if any) as may be prescribed by the PART vi
    byelaws applicable to the water in which the fish is taken"

    Here, 'may be' doesn't mean 'could be prescribed', it means 'is prescribed' in the appropriate byelaws. As this length can be changed, the wording covers any such changes by using 'as may be'...

    This same use is contained in the clause we are interested in:

    "...wilfully disturbs any spawn or spawning fish, or any bed, bank
    or shallow on which any spawn or spawning fish may be, shall
    be guilty of an offence."

    'May be' does not mean 'could be', it means 'are' - however the 'shall be' makes absolutely no bones about it - if anything is done to 'wilfully disturb' an offence is committed.

    Your final sentence also takes things just a little too far. Surely you cannot 'wilfully' disturb something which you cannot not know is there just because it might be there.

  37. #37

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    Sorry David, youíre wrong.
    a) This is one of the reasons there are calls for identification marking on canoes. Iíll be out with a camera this spawning season (November, December & January) looking for canoes and wading anglers, collecting registration numbers at access points and known anglers parking places (on my local river).
    b,c&d) Read the act carefully!!! ďany bed, bank or shallow on which any spawn or spawning fish may beĒ No proof needed.
    The NRW (and most anglers) know where salmon spawn, usually the upper reaches and tributaries of any river that has a run of migratory fish. (I could show you up to a dozen places within 3 miles of my home, I like watching them.) In the case of NRW, itís their job to know.

    Adrian, Iíve discussed the SaFFA with my former landlord, a retired barrister and Iím happy with my interpretation.
    Ē ImmatureĒ in relation to salmon is a juvenile fish which hasnít been to sea. These are called parr until they take on their silver appearance when they are ready to migrate to sea and are then called smolt. They are mature salmon on their return.

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    So why doesn't it say 'any fish might be' since this is an unambiguous wording which describes your interpretation?






    (the note about immature salmon was just to use an example where 'may' has a different meaning, not that I didn't understand what an immature salmon was.)

  39. #39

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    So why doesn't it say 'any fish might be'
    I don't know. Maybe () it's legalese. As I said , i've discussed it with a retired barrister and am happy to press NRW with that interpretation.
    ps. I'm not a member of AT and of all the anglers I know only one is a member.

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    Quote Originally Posted by wrongangle View Post
    ps. I'm not a member of AT and of all the anglers I know only one is a member.
    Good man - .
    Last edited by davidh; 29th-August-2014 at 06:03 PM.

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    But Wrong Angle I still need convincing - How will you prove that a particular canoe 'disturbs' the spawn and/or fish?

    I have absolutely no problem with canoeists, or fishermen or indeed anyone else being prosecuted who willfully disturb spawning beds (redds - where fish "may be") or indeed the fish themselves whilst they are in the process of spawning.

    I live close to a Salmon river, The River Esk. Over my life time I've seen a fair few Salmon & Sea Trout spawn whilst watching from the bank. The places where I've watched this happening are not in the main flow of channels and are generally fairly shallow. I can't see how a canoeist passing along a deeper water channel away from Redds and paddling the main flow can 'willfully disturb' the fish given they aren't disturbed? I appreciate that a canoeist who does venture into very shallow water would or could disturb the fish. In any case if you passed by 20 minutes after spawning you'd have to rake up the bottom to disturb the eggs. Paddling over the eggs which are mostly buried won't cause the eggs to be disturbed - thats why the fish bury them to stop them simply washing away in floods or normal flow.

    My defence would be that I wasn't disturbing fish because in that particular place there were no fish. I can't disturb fish that aren't there - can I?

    If you are correct in that no proof is required that fish are actually present and that a passing canoeist who ignores a sign put up at some access point is guilty then all you need do as an angling club is simply put up signs at all access points along a river - no need to put them near redds just all the bridges on your club/association water and hey presto you have an effective ban on canoeing.

    Its a bit like under the Countryside & Wildlife Act allowing the prosecution of people who wilfully disturb protected birds & their nests being prosecuted even if no birds are on the nests and/or its outside the accepted breeding season.

    You must prove the intent as well - mustn't you?
    http://www.davidwperry.blogspot.co.uk/

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    Daja vu!

    Didn't we have test case on this a few years ago. http://www.bbc.co.uk/news/uk-wales-n...wales-15727059

    The judge threw out the case saying
    Judge Shaw said it had crossed his mind that, in the troubled economic climate, taxpayers may not be happy about the prosecution.He awarded costs from central funds.
    He said: "Proceedings were commenced by the Environment Agency in good faith, subsequently the defence flagged up issues that have been accepted by me."
    Keith

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    I agree there are places on the river that are wide and deep enough for canoes to pass without causing much disturbance. The area Iím concerned about there are shallows and gravel beds that simply canít be avoided, where the river is only a few yards wide with the gravel beds covering its full width and at normal level only a few inches deep. A 15lbs salmon is a good 6 inches deep (depending on condition) and when they are spawning in these areas, their backs are out of the water. When theyíve finished spawning and completed their redd, the pile of gravel might only be an inch or two below the surface, shallow enough to be ďrakedĒ by a passing canoe which could easily destroy some (probably not all) of the eggs. Iíve actually seen redds that have dried out as the river dropped and had sheep walking on them. (Their defence was ďBaaaaaĒ) I donít think you need to prove intent, just knowingly going to known spawning areas where you will disturb any fish that are present. After all, if you can (?) be prosecuted for disturbing an empty birds nest, why not an empty river?

    I remember that one too Keith, the mistake they made was trying to prosecute the organisers of the event (Coventry council) and not the paddlers themselves. They shouldn't make the same mistake again.

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    No, No,!!!!,,,

    wrongangle I wasn't actually saying you can be prosecuted for disturbing an empty birds nest. It was my poor attempt at being ironic. Ironic that eh?

    Anyway, enough! Time for a pint!!
    http://www.davidwperry.blogspot.co.uk/

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    Quote Originally Posted by wrongangle View Post
    I agree there are places on the river that are wide and deep enough for canoes to pass without causing much disturbance. The area I’m concerned about there are shallows and gravel beds that simply can’t be avoided, where the river is only a few yards wide with the gravel beds covering its full width and at normal level only a few inches deep. A 15lbs salmon is a good 6 inches deep (depending on condition) and when they are spawning in these areas, their backs are out of the water. When they’ve finished spawning and completed their redd, the pile of gravel might only be an inch or two below the surface, shallow enough to be “raked” by a passing canoe which could easily destroy some (probably not all) of the eggs. I’ve actually seen redds that have dried out as the river dropped and had sheep walking on them. (Their defence was “Baaaaa”) I don’t think you need to prove intent, just knowingly going to known spawning areas where you will disturb any fish that are present. After all, if you can (?) be prosecuted for disturbing an empty birds nest, why not an empty river?

    I remember that one too Keith, the mistake they made was trying to prosecute the organisers of the event (Coventry council) and not the paddlers themselves. They shouldn't make the same mistake again.
    Hmmmmm.

    I looked at this one last year (or was it the year before?).

    On the Wye at least, I could find no evidence of paddlers disturbing redds, even though a certain organisation keen on habitat restoration had put one of it's VAA Access Point signs right beside gravels on the upper river!
    There was certainly evidence of grayling anglers wading on redds - I did it myself before I realised fish had spawned where I was standing.
    Should Wye and Usk Foundation be reported?

    Paddlers disturbing redds is something of a red herring. Salmon face far bigger threats than that.
    Also, you may be interested to learn that some of the guys on here made useful suggestions which were later included in our keep off the redds notices on the upper river.

  46. #46

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    Quote Originally Posted by David Perry View Post
    No, No,!!!!,,,

    wrongangle I wasn't actually saying you can be prosecuted for disturbing an empty birds nest. It was my poor attempt at being ironic. Ironic that eh?

    Anyway, enough! Time for a pint!!

    I hadn't heard of anything like that, hence the words "if you can(?)" Having said that, the RSPB have got so much clout nothing would surprise me.

    Also, you may be interested to learn that some of the guys on here made useful suggestions which were later included in our keep off the redds notices on the upper river.
    I know. Do you know the river above the Elan, Marteg and Dernol? There are water height restrictions in place in these areas to prevent disturbance. These are regularly ignored, several contributors to this forum have admitted to doing so on here.
    Last edited by wrongangle; 29th-August-2014 at 10:22 PM.

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    Quote Originally Posted by wrongangle View Post
    I remember that one too Keith, the mistake they made was trying to prosecute the organisers of the event (Coventry council) and not the paddlers themselves. They shouldn't make the same mistake again.
    I don't condone anyone wilfully damaging spawning beds but this case was three years ago. If the case was lost because of a simple technical error as you suggest, why haven't they just corrected their error and done things right. Could it be that no-one has been able to find anyone that met the "wilful" criteria needed for a successful prosecution. As with many of the issues that some anglers object to concerning canoeing the answer lies in co-operation and education not heavy handed prosecutions and threats.
    Keith

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    Quote Originally Posted by wrongangle View Post

    I know. Do you know the river above the Elan, Marteg and Dernol? There are water height restrictions in place in these areas to prevent disturbance. These are regularly ignored, several contributors to this forum have admitted to doing so on here.
    It's a red herring, as I said before.
    Other redd disturbers include grayling fishers, 4x4s, and spates.
    The answer to this is cooperation, not antagonising paddlers (or anglers).

    As a matter of interest, who specifically on here is happy to paddle over redds in low water?

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    Quote Originally Posted by wrongangle View Post
    I know. Do you know the river above the Elan, Marteg and Dernol? There are water height restrictions in place in these areas to prevent disturbance. These are regularly ignored, several contributors to this forum have admitted to doing so on here.
    As David say's these were used as a means of restricting paddlers under the guise of conservation, that is why they are sometimes ignored. Those responsible have done a disservice to anglers by devaluing the legitimate signs.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

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    Quote Originally Posted by cloudman View Post
    As David say's these were used as a means of restricting paddlers under the guise of conservation, that is why they are sometimes ignored. Those responsible have done a disservice to anglers by devaluing the legitimate signs.
    True. This is a prime example of how do do something totally ineffective whilst at the same time antagonising another group of water-users.

  51. #51

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    the answer lies in co-operation and education
    I agree Keith, but what do you do with those who refuse to be educated, even about something as simple as where and when salmon spawn.

    As a matter of interest, who specifically on here is happy to paddle over redds in low water?
    I can’t remember which thread it was David, I’ll try to find it. I do remember however that only one paddler, (I’ll name him by PM if you really want), agreed that the red line on the WUF gauges was at about the right height. Other comments included things like “I’ve paddled there when the river was below the red line without much trouble” and “I’ve been paddling that stretch at much lower levels than that for 20 years” and “Novices might find it too pushy with the level at the red line”
    I’ll also dig out a few photos of the upper river at “normal” winter level, 4 or 5 inches above summer flow.

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    Quote Originally Posted by wrongangle View Post
    I agree Keith, but what do you do with those who refuse to be educated, even about something as simple as where and when salmon spawn.
    One of the biggest obstacles is a simple lack of trust. That's unfortunately been generated by those situations where environmental issues have been "weaponised" and misused by those that will use any pretext to inhibit canoeing. There may not be that many of them but they prevent the development of trust and co-operation that the rest of us need to share rivers effectively. I can guess at the levels of frustration that you feel. I feel a similar frustration with those that refuse to be educated about navigation rights. My solution is to stay calm, keep amassing the evidence and try to find and then build on any common ground with those of a different persuasion. It's slow but it's working.
    Keith

  53. #53

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    Caffyn wanted his work to inspire people to debate the subject. Iím a lawyer and have written a peer reviewed legal rebuttal which has polarised as his work. It will be available when we all litigate. For now, Iím just bored of the subject. The sooner it comes to court the better, but as the claimant is likely to be a land owner, it will come at a time and on a water of their chosing so that the arbitrator or judge will be asked to confirm whether in fact an Englishmans home is his castle or not. Those with half a brain cell will have guessed that it will be decided on matters of land law and not fishing rights. John Roberts. Leek.

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    Your first sentence doesn't make sense.
    I'm an Expert Witness, and notice these things.

    Whether you are just bored or not, would you care to clarify?

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    Quote Originally Posted by davidh View Post
    Your first sentence doesn't make sense.
    Are you really talking about the second sentence? "Iím a lawyer and have written a peer reviewed legal rebuttal which has polarised as his work."

    I'm not a Barrister or an Expert Witness.
    Keith

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    Quote Originally Posted by KeithD View Post
    Are you really talking about the second sentence? "Iím a lawyer and have written a peer reviewed legal rebuttal which has polarised as his work."

    I'm not a Barrister or an Expert Witness.
    Ha!

    Are you then qualified to question my mistake (even though you're right)?

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    Robbo, I'd be interesting in reading your peer reviewed rebuttal. And as an added bonus the peer comments.
    http://www.davidwperry.blogspot.co.uk/

  58. #58

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    Quote Originally Posted by davidh View Post
    Your first sentence doesn't make sense.
    I'm an Expert Witness, and notice these things.

    Whether you are just bored or not, would you care to clarify?

    'Caffyn wanted his work to inspire people to debate the subject'. If you read his 2004 work Douglas Caffyn mentions it in his summary or conclusions.

  59. #59

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    Quote Originally Posted by KeithD View Post
    Are you really talking about the second sentence? "I’m a lawyer and have written a peer reviewed legal rebuttal which has polarised as his work."

    I'm not a Barrister or an Expert Witness.
    "I’m a lawyer and have written a peer reviewed legal rebuttal which is as polarised as his work".

    Legal dissertations do not debate both sides. It isn't for the author to contribute a single point in favour of the opposite view. That's why DC's work reads in the way that it does. It's a horrible way of writing but it serves a purpose.

  60. #60

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    Quote Originally Posted by David Perry View Post
    Robbo, I'd be interesting in reading your peer reviewed rebuttal. And as an added bonus the peer comments.
    I bet you would!

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