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Thread: A model to follow?

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    Default A model to follow?


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    We should all be inspired by what happened at Kinder Scout in 1932 but remember the Right to Roam (a very inferior right compared to the Land Reform (Scotland)Act) didn't come in until 68 years later. Another fundamental difference is that they were campaigning for a new right and the evidence shows the public right of navigation on physically navigable rivers already exists and has done since time immemorial.

    So not a perfect model to follow but an inspiration just the same.
    Keith

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    Having said that, might it not be better to approach land and water access as two parts of a bigger issue and tackle them together. The support from walkers could be a big boost to our cause.

    And the example from north of the border could picked up as a good model for reaffirming and protecting existing rights as well as new ones, under new and indisputable legislation. Which I think was the original intention in Scotland.

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    We have a prn. Why water it down with a claim asking for something new?

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    Well, we have a problem because that right is not accepted by all and is challenged. If it wasn't an issue then we wouldn't have an Access section here.

    What I'm trying to say is, it's a bigger issue than just water access, it could include the right to wild camp responsibly and the right to roam responsibly. And We could add strength to our campaign by allying with others who's access to the countryside is wrongly restricted. Rather than watering it down, it would strengthen our case.

    And there's a good example of the kind of legislation we need, right next door in the neighbouring country. A good solution is already there and is working, so why not follow that example and push for something similar?

    On another note, I see the campaign is called "River Access For All". Out of interest, is it meant to include lakes, or are they deliberately excluded? An approach similar to the Scottish one would cover this and more, for the benefit of all outdoors users.

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    What if we paddled on disputed waters where you can be fairly sure of a response from anglers and/or landowners? Just in small groups but on many rivers?

    We have a great deal of evidence that the public right of navigation exists. We know that anglers and land owners will never accept or agree to this, no matter how much evidence is provided.

    I would like our legal experts to set out what options are open to anglers or land owners when they object to us on 'their' rivers.

    They will honestly believe we are trespassing and we will honestly believe we are are not. No amount of dialogue on the river or bank will change that.

    What can they legally do to stop us? They do not seem to have many legal options. They might sue, but we cause no damage and the law is unclear. They can call the police... the evidence seems to be that the police will not attend. They can ask for our names and addresses, but I do not think they have the right to that information. Can they use force to remove us or our boats, or are they in fact practically powerless to prevent us exercising what we believe to be our right of navigation? Of course we would need to be careful to use public access to the river bank for entry and access to the river.

    If they are powerless, and we paddled in sufficient numbers, with the right communication to the media, then it might be clear to them, as it is to us, that the current confused situation must be resolved in a practical way, that is by clarifying the legal situation or by making new law.
    Last edited by dougdew99; 15th-February-2015 at 05:02 AM.
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    Quote Originally Posted by Crow View Post
    On another note, I see the campaign is called "River Access For All". Out of interest, is it meant to include lakes, or are they deliberately excluded? An approach similar to the Scottish one would cover this and more, for the benefit of all outdoors users.
    Now that is an interesting comment. I can see that lake access might be harder as, unlike rivers, there is no PRN. On the other hand lakes are more discrete entities with smaller numbers of landowners involved, and less conflict with anglers so they may be easier.
    Happy paddling ,
    Rob.


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    There are good reasons why there should be alliances between those with broad shared objectives but not as an alternative to a specific campaign for recognition of the evidence for the public navigation rights that already exist, and always have. But please recognise the limitations of such alliances. There was such an alliance in the run up to the Countryside and Rights of Way Act 2000 but all alliances require "compromise" and the compromise that prevailed in 2000 was that all mention of navigation rights was dropped by our allies "for the greater good" of limited progress concerning rights of way on land.

    RAFA believes the evidence for the existence of public navigation rights is clear - the battle now is to get others to recognise the evidence....... and then act on it. What is also clear is that navigating on privately owner rivers with no public navigation rights would be a trespass which could be dealt with by an injunction. The fact that no one has sought to bring such an action in circumstances where the evidence for PRN now available would be heard by the court must say something about their levels of confidence. Of course, the normal operation of the civilised world doesn't require all disagreements to be dealt with in court. The normal civilised way to proceed would be for those with evidence to contradict the evidence for PRN to offer it, but they don't do that either.

    River Access For All is campaigning for recognition of PRN on rivers (where we have the evidence to support). It's not about PRN on lakes where the current evidence is against us. That would be a different campaign that would require presentation of a broader, more diverse message. RAFA's message couldn't be more straightforward.

    The evidence for the existence of public navigation rights on rivers (subject only to issues of practicality dependant on the physical conditions of the river and the size/nature of the craft navigating them) is clear. It's also clear that such a right can not be lost by disuse and can only be extinguished by the clear will of parliament either via statute or the exercise of powers specifically delegated for the purpose. Unless someone can identify when and how this has been done (it hasn't ) the PRN must still exist.

    Anything that dilutes or diverts attention from this message is a distraction.
    Last edited by KeithD; 15th-February-2015 at 12:33 PM.
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    Quote Originally Posted by KeithD View Post
    The normal civilised way to proceed would be for those with evidence to contradict the evidence for PRN to offer it, but they don't do that either.
    I don't know a lot about court procedure but I think in a pre-action letter one would be expected to describe the grounds upon which your case is based. Certainly before a case got to court the court would expect that the claimant had stated the case which they expected to be answered and this would include the legal basis.

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    Quote Originally Posted by KeithD View Post
    There are good reasons why there should be alliances between those with broad shared objectives but not as an alternative to a specific campaign for recognition of the evidence for the public navigation rights that already exist, and always have. But please recognise the limitations of such alliances. There was such an alliance in the run up to the Countryside and Rights of Way Act 2000 but all alliances require "compromise" and the compromise that prevailed in 2000 was that all mention of navigation rights was dropped by our allies "for the greater good" of limited progress concerning rights of way on land.
    I didn't know about that. Seems a shame they didn't push for full access rights all round back then.

    Quote Originally Posted by KeithD View Post
    RAFA believes the evidence for the existence of public navigation rights is clear - the battle now is to get others to recognise the evidence....... and then act on it. What is also clear is that navigating on privately owner rivers with no public navigation rights would be a trespass which could be dealt with by an injunction. The fact that no one has sought to bring such an action in circumstances where the evidence for PRN now available would be heard by the court must say something about their levels of confidence. Of course, the normal operation of the civilised world doesn't require all disagreements to be dealt with in court. The normal civilised way to proceed would be for those with evidence to contradict the evidence for PRN to offer it, but they don't do that either.
    Yes, I can see that makes sense. But a tough battle to win and it could end up in a stalemate situation. I still think clear new legislation in favour of open access would be better, but I do realise in the current political climate that doesn't look likely, in the near future at any rate.

    Quote Originally Posted by KeithD View Post
    River Access For All is campaigning for recognition of PRN on rivers (where we have the evidence to support). It's not about PRN on lakes where the current evidence is against us. That would be a different campaign that would require presentation of a broader, more diverse message. RAFA's message couldn't be more straightforward.
    I can see that, but lakes are an issue too. An example is Kielder Water, a great lake to paddle on but with extremely restrictive access. Yet only a couple of miles to the north east of it, you can paddle responsibly on any body of water. A crazy situation. It seems to me it would make sense to see what works well in neighbouring legislations and try and adapt something similar.


    Quote Originally Posted by KeithD View Post
    The evidence for the existence of public navigation rights on rivers (subject only to issues of practicality dependant on the physical conditions of the river and the size/nature of the craft navigating them) is clear. It's also clear that such a right can not be lost by disuse and can only be extinguished by the clear will of parliament either via statute or the exercise of powers specifically delegated for the purpose. Unless someone can identify when and how this has been done (it hasn't ) the PRN must still exist.

    Anything that dilutes or diverts attention from this message is a distraction.
    Well I disagree I'm afraid, I think it's part of a much bigger issue of access to the country in general. And to focus too narrowly on old (and contested) laws may not be so productive in the long run. And there's a lot to learn from how other countries do it, rather than focussing on a historically based approach, strongy justified though that is.

    But those are just my thoughts, and I think you're doing a great job. Keep up the good work.
    Last edited by Crow; 15th-February-2015 at 10:56 PM.

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    I made some enquiries about the response I might get from the "I own this river" crowd on my local River Ribble.

    Here is the answer to my emails stating that I was to paddle the river soon.

    My Email to the Ribbletrust.org.uk:

    It is a few years since I paddled the Ribble and my usual stretch is Edisford Bridge to Ribchester.

    On occasions I have encountered hostility from some anglers. There is someone who declares that he owns the stretch from Clitheroe to Mitton and often is threatening in his behaviour.

    I do not fish the river and I am respectful of the anglers I meet.

    Does the hostility still happen?

    I believe that the rivers of England and Wales are open for unpowered craft in accordance to the rights of the Magna Carta.

    I will canoe this river soon and hope to have a peaceful journey.

    I received this answer from the Ribbletrust.org.uk:

    As a conservation charity, I'm afraid we aren't really able to tell you much. As an angler I fish a day ticket beat that we manage, but here there is any access for entering or exiting of canoes via the river banks (put ins and exits). I have never seen canoeists on this stretch, and certainly nothing in terms of canoeist's and anglers.

    As an organisation that has no ownership of riparian land (or ownership of fishing rights), or regulatory power, I would suggest that in terms of whether there is still hostility or not, that you contact the Ribble Fisheries Consultative Association who represent angling interests.

    Many Thanks

    Jack Spees
    Trust Director
    Ribble Rivers Trust

    The hornets are stirred. Here is the answer to my email from the Ribble Fisheries Consultative Association:

    Jack Spees, Director of the River Ribble Trust,has passed your email to me as the Chairman of Fishery interests on the Ribble Catchment and stakeholder in Ribble Life. I regret to inform you that there is no navigable right of way on the Ribble. Certain landowners would give you permission to launch from their land but they cannot give you permission to canoe unless they hold the riparian rights. You mention in your email that you would launch at Edisford Bridge and it is true that the RVBC allow canoeong on the stretch they own.If, however,you canoe beyond their stretch then you will be acting unlawfully and will be challenged by any angler or anyone else on the bank if they so wish.You may or may not be aware that Fish Legal have sent a letter to BCU challenging their interpretation of the legal situation and asking them not to put misleading information into the public domain.

    Best wishes,
    David Hinks Chairman Ribble Fisheries Consultative Association.

    So for the fishy folk, things are no better. Except that
    they believe a letter to the BCU is going to make us step back.

    Who's up for a paddle on the Ribble?

    Doug
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    Quote Originally Posted by dougdew99 View Post
    What if we paddled on disputed waters where you can be fairly sure of a response from anglers and/or landowners? Just in small groups but on many rivers?
    Quote Originally Posted by dougoutcanoe View Post
    So for the fishy folk, things are no better. Except that they believe a letter to the BCU is going to make us step back.

    Who's up for a paddle on the Ribble?
    Let's not make this an issue between anglers and canoeists. There are many perfectly reasonable anglers (some of them also canoeists are members on here) and the future lies with constructive and amiable relationships with them and other river users.

    You may have noticed there is often a difference between what people say and what they do. Sometimes they say what they believe, sometimes what they hope and sometimes what they think they are expected by their members to say. They have a perfect right to talk total nonsense but must exercise much more care about what they do. Most people (and all courts) will expect reasoned evidence to justify what they say.

    When choosing where to paddle there are many good criteria to use. Where would be a nice paddle, with interesting flora and fauna? Where is convenient? Where is new or different? Where can you find the river conditions you want to paddle in? Where would be a good place to celebrate the navigation rights protected by Magna Carta?(Cathedral towns where the copies of the charter were sent or are housed today? Rivers where navigation rights were protected by Commissions? - see pages 26 and 27 of The Protection of Navigation on Rivers).

    Where we can provoke a reaction from anglers is not a good criteria and not one calculated to elicit sympathy from "the man on the Clapham omnibus".

    Wherever you paddle, please do so with consideration for the environment and other river users.
    Keith

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    There is a clear area where our interests and the Ramblers interests are the same and that is that they would like more paths running the length of our rivers, on the same principal as the coastal path. We need more access to the rivers so we could campaign together on this area without compromising the PRN rights we believe we already have. Due to the differences in the English peoples relationship to the land compared to the Scottish people I think this campaign will result in more access via new footpaths rather than complete open access. If that happens river paths will be invaluable to us and will give the public a sense of ownership of the rivers as they have for the canals, that will help normalise the public using the rivers in all sorts ways, including canoeing.
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    Quote Originally Posted by KeithD View Post

    Wherever you paddle, please do so with consideration for the environment and other river users.
    I always do but I would like it to be reciprocated by other river users!

    Doug
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    Afloat in the White Canoe.
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    Quote Originally Posted by dougoutcanoe View Post
    I always do but I would like it to be reciprocated by other river users!

    Doug
    I know you do. Keep that objective in mind.
    Keith

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    Keith,

    No-one has greater respect than me for the research work you have done. It provides a very firm basis for active campaigning. Unfortunately I don't think the research will bring about any real change on its own because it will never be accepted by anglers and land owners. We need to show them they have a real problem because they have no power over us.

    A few questions, asked with respect:


    How does the approach you advocate differ from the BCU approach which has a thirty year history of complete and utter failure?

    Should we only paddle on the 4,000 out of 40,000 miles of rivers that anglers 'permit' us to paddle?

    A nice paddle, with interesting flora and fauna, might have angry foul mouthed anglers on its banks. Should we not go there, to avoid the confrontation?

    Anglers will only learn that they cannot control us, if we confront them. Then they will come to conference table without their attitude that they have a God given right to decide what we can do.

    I think you will find that the average man in street will be very surprised to learn that we cannot paddle on rivers in England and Wales and will be on our side. The only people who have threatened me with physical violence, shouted at me and ruined my days paddling are anglers. How long you do expect us to endure this?

    What do you suggest as a concrete plan of action to bring about real change?

    With your legal knowledge can you set out an answer to my question about the powers anglers actually have?
    Doug Dew
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    Quote Originally Posted by dougdew99 View Post
    A few questions, asked with respect:

    Q. How does the approach you advocate differ from the BCU approach which has a thirty year history of complete and utter failure?

    A. RAFA has one objective. It's nothing to do with elite sport or clubs or government funding or negotiating a compromise with anyone. We research, publicise and campaign for recognition of existing public navigation rights on rivers - just as it says on the tin - nothing else. I think the evidence, including significant new evidence and expert opinion from academics and judges, is more effectively and readily available than ever before.

    Q. Should we only paddle on the 4,000 out of 40,000 miles of rivers that anglers 'permit' us to paddle?

    A. I don't believe anglers or landowners have any right to permit or deny navigation where there is already a PRN and I believe the evidence shows there is a PRN on all rivers that can be physically navigated, unless Parliament has clearly extinguished that right. Where you paddle is a decision for you.

    Q. A nice paddle, with interesting flora and fauna, might have angry foul mouthed anglers on its banks. Should we not go there, to avoid the confrontation?

    A. Where you paddle is a decision for you. I offer no advice on the subject beyond suggesting that actively seeking confrontation is not a good basis on which to select where to paddle. RAFA researches and publicises evidence on where you and the rest of the public have the right to paddle.

    Q. Anglers will only learn that they cannot control us, if we confront them. Then they will come to conference table without their attitude that they have a God given right to decide what we can do.

    A. Lot's of anglers I meet seem to understand the situation very well. Some benefit from being politely educated on the evidence for navigation rights. Public navigation rights don't depend in any way on conference tables and who comes to them.

    Q. I think you will find that the average man in street will be very surprised to learn that we cannot paddle on rivers in England and Wales and will be on our side. The only people who have threatened me with physical violence, shouted at me and ruined my days paddling are anglers. How long you do expect us to endure this?

    A. I don't expect you to endure it at all - there are laws against that kind of behaviour. I think the average man in the street has little sympathy for anyone who tries to impose their opinion on others by aggression and confrontation, whether on the street or a river, whether they have a fishing rod in their hand or a paddle.

    Q. What do you suggest as a concrete plan of action to bring about real change?

    A. Decide where to paddle for positive reasons. Paddle with full consideration for the needs of the environment, and other river users. Promote the evidence of what the law is to everyone who doesn't know. Don't let others see all your cards until they need to.

    Q. With your legal knowledge can you set out an answer to my question about the powers anglers actually have?

    A. I'm not a lawyer but there seems general agreement that anglers don't have any powers to control public navigation on rivers where there is a public right of navigation.
    Keith

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    Quote Originally Posted by dougdew99 View Post
    What if we paddled on disputed waters where you can be fairly sure of a response from anglers and/or landowners? Just in small groups but on many rivers?

    We have a great deal of evidence that the public right of navigation exists. We know that anglers and land owners will never accept or agree to this, no matter how much evidence is provided.

    I would like our legal experts to set out what options are open to anglers or land owners when they object to us on 'their' rivers.

    They will honestly believe we are trespassing and we will honestly believe we are are not. No amount of dialogue on the river or bank will change that.

    What can they legally do to stop us? They do not seem to have many legal options. They might sue, but we cause no damage and the law is unclear. They can call the police... the evidence seems to be that the police will not attend. They can ask for our names and addresses, but I do not think they have the right to that information. Can they use force to remove us or our boats, or are they in fact practically powerless to prevent us exercising what we believe to be our right of navigation? Of course we would need to be careful to use public access to the river bank for entry and access to the river.

    If they are powerless, and we paddled in sufficient numbers, with the right communication to the media, then it might be clear to them, as it is to us, that the current confused situation must be resolved in a practical way, that is by clarifying the legal situation or by making new law.
    It seems to me there are different clear cases here:
    1) There is a PRN (as in all navigable rivers) and no navigation authority appointed for that navigation. Here essentially nobody has the right to interfere with your navigation (aside from incidental closure if the Police are investigating a murder or there is a safety hazard etc).
    2) There is a PRN and a Navigation authority empowered to control that navigation. Here you will have to comply with the proper rules and regulations of that navigation. Typically this will require payment for a licence for which in return you might expect 'improvements' and maintenance of the navigation.
    3) There is no PRN such as on privately constructed and owned navigations (canals) or lakes. Here navigation will be at the discretion of the owner. If you do canoe over such private property against the wishes of the owner the Police should have no interest in the matter unless there is a breach of the peace or you are committing 'aggravated trespass'. To grossly simplify this that means you are deliberately and intentionally interfering with the owners use of his property as opposed to incidentally doing the same as a consequence of your intention to paddle. In terms of preventing such access the owner might use 'reasonable force' to evict you from the 'property' if you refuse to leave but that is all. If you cause damage you could be sued for those damages, but court cases seem to have either ruled out such damages as you might reasonably cause by canoeing - this is assuming you are not crashing over Salmon redds or on an SSI. If you persistently trespass the landowner might seek to take out a court injunction to prevent you - when you would be well advised to move to another stretch of water and leave that one for your friends with no such injunction taken out against them.

    So, in reality, I think the ability of owners to prevent canoeing, even where we have no right at all, is more a matter of convention than any practical ability to enforce their rights. If enough people insist on canoeing waters that difficulty of prevention and more importantly lack of practical redress means the law becomes subject to ridicule and has to change. As the ramblers have proved.
    Happy paddling ,
    Rob.


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    Quote Originally Posted by gwing View Post
    If you persistently trespass the landowner might seek to take out a court injunction to prevent you - when you would be well advised to move to another stretch of water .....
    You missed out the stage where the judge listens to claims and counter-claims offered by each of the parties, weighs it up on the balance of the available evidence and then either grants or refuses the injunction. Even in the case of Rawson v Peters where the defendant, Peters, had paddled repeatedly up and down the same stretch of river and did not claim a PRN, the judge declined to grant an injunction.
    Keith

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    gwing, Keith,

    How do you tell which of your three cases applies to the river you wish to canoe on? Are nearly all rivers case 1? Is there a list of rivers that have a navigation authority and what it's rules are?
    Doug Dew
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    Quote Originally Posted by dougdew99 View Post
    gwing, Keith,

    How do you tell which of your three cases applies to the river you wish to canoe on? Are nearly all rivers case 1? Is there a list of rivers that have a navigation authority and what it's rules are?
    Very few rivers have a Navigation authority. The best known ones will be obvious, as they'll have locks and navigation signage, but there are others such as the Lugg where its not that obvious, though they might have signs at weirs and even approved portages.

    Off the top of my head: Thames, Severn, Trent, Wye, Wey, Medway, Great Ouse, Nene, Chelmer & Blackwater, Suffolk Stour, Weaver, half of Norfolk...

    ...and then of course there's the Hampshire Avon. Some are EA, some are private. Not sure there's a comprehensive list anywhere, but that would be useful.

    So I agree, most are case 1.
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    Quote Originally Posted by dougdew99 View Post
    gwing, Keith,

    How do you tell which of your three cases applies to the river you wish to canoe on? Are nearly all rivers case 1? Is there a list of rivers that have a navigation authority and what it's rules are?
    There's a list here on wiki http://en.wikipedia.org/wiki/List_of...United_Kingdom If in doubt with some of the lesser known authorities listed there you may need to research further so see exactly what (if any) powers they have but the page has links to source references.

    And if there is a navigation authority it doesn't mean there are likely to be any onerous restrictions on us - perhaps quite the opposite. For instance I search at random (actually the list listed) river WItham navigation and find their byelaws only include:

    20. Mooring of Vessels
    No person shall moor or place any vessel in any watercourse or to or upon the bank of any watercourse in such manner or by such method as to cause or be likely to cause injury to such bank or in such manner as materially to obstruct or impede the free flow of water in, into or out of any watercourse.
    21. Unattended Vessels
    No person shall leave any vessel unattended without taking due care to prevent such vessel from materially obstructing or impeding the free flow of water in, into or out of any watercourse or any sluice in any bank.
    22. Removal of Sunken Vessels
    No person who is the owner of a vessel sunk, stranded, damaged or adrift in a watercourse or, in the case of a sunken vessel which is abandoned, who was the owner immediately before the abandonment shall, after ten days from the day on which the Board serves on him notice in writing that the vessel is causing obstruction, permit the vessel to remain in the watercourse in such a manner as to impede or harmfully divert the flow of water in, into or out of the watercourse.
    23. Navigation of Vessels
    No person shall navigate any vessels in such a manner or at such a speed as to injure the bank of any watercourse and where the Board have by notice erected at any place limited the speed of vessels passing such place no person shall navigate a vessel at a speed greater than the speed so limited.
    Provided that the Board shall not exercise their powers under this Byelaw so as to limit the speed of:*
    (a) vessels in any tidal waters except after consultation with the Department of Transport; or
    (b) vessels navigating waterways of the British Waterways Board for which speed limits are prescribed by the Byelaws of such Board.

    None of which should prove any issue to us. So the river WItham looks a good place to paddle.
    Last edited by gwing; 17th-February-2015 at 09:22 AM.
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    Quote Originally Posted by dougdew99 View Post
    gwing, Keith,

    How do you tell which of your three cases applies to the river you wish to canoe on? Are nearly all rivers case 1? Is there a list of rivers that have a navigation authority and what it's rules are?
    We created the Access Map a few years back when (mostly) members on here pooled their knowledge. If you are only interested in rivers, you can screen out canals. Rivers with active navigation authorities are shown in green. There is a further category of rivers, those where in addition to the common law navigation rights that they always enjoyed, navigation authorities were created by Act of Parliament, but have since abandoned their role (e.g The Itchen Navigation and the Salisbury Avon). Sometimes this abandonment was sanctioned by Act of Parlaiment (e,g the River Rother and the River Ivel).

    The "rules" of active navigation authorities vary so there is no alternative to checking the wording of the Act that created them and talking to the navigation authority.
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    I have often wondered how a river controlled by a navigation authority affects our ancient rights to navigate. I fully understand that the authority would have invested a large amount of money developing the river by dredging and building locks and in return has the right to charge the larger boats for it's services. We of course do not use the locks and did not need the river dredged for our small boats so is it right that we should need permission and be charged to just use the water, or is it always the case that the ancient rights were removed to create a Navigation?. I believe that the Thames is actively policed and canoes need to display a licence but I have not heard of other rivers being controlled to the same degree, are canoes being stopped on the other Navigation's or are we generally ignored?
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    The situation varies river by river but I know of no case where common law rights were specifically removed by a Navigation Act. Usually it just authorises tolls for the carriage of goods which canoes and other small craft don't carry. It's often subsequent legislation that require craft to be licenced.

    Some, like the the Act for the Itchen Navigation, (the same Act applied to the Test, and various other rivers) included specific protection and continuance of the common law rights
    “Provided always, that all such Boats of such Burthen in such manner and for such uses as have been used or accustomed to pass in or upon any of the said Rivers or any of them, before the Making, new Cleansing or Scouring the said River, or Enlarging the Passages thereof and other the aforesaid Premises, and the making this Act, shall and may continue freely to go and pass in or upon the said Rivers and other the Premises, so far and in such a manner as was or is accustomed before the Deepening, Enlarging or Making thereof this Act, or anything herein Contained to the contrary in anywise notwithstanding.”
    Some included express rights for the future with references that make clear there were pre-existing Common Law rights
    It is also hereby further Enacted and declared by the Authority aforesaid that the said River Kennett is and forever hereafter shall be esteemed and taken to be Navigable from the said Wharfe or Common Landing place at Reading aforesaid to the Town of Newbury aforesaid and that all the Kings Leige people whatsoever may have and Lawfully enjoy their free passage in along through and upon the said River Kennett from the River of Thames to the town of Newbury .. with Boats Barges Lighters and other vessels and have and enjoy all necessary and convenient Libertys for Navigating the same without any obstruction whatsoever paying such Rates and Dutys as have been usually paid to the Owners or Occupyers of any Locks Turnpikes or other Engines.
    My attitude is if the navigation authority says you need a licence, you need a licence. If they say you can't use the locks, don't use the locks but if they are silent, it's fair to assume your pre-existing common law rights remain unfettered.
    Last edited by KeithD; 17th-February-2015 at 11:18 AM.
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    Quote Originally Posted by KeithD View Post
    We created the Access Map a few years back when (mostly) members on here pooled their knowledge. If you are only interested in rivers, you can screen out canals. Rivers with active navigation authorities are shown in green. There is a further category of rivers, those where in addition to the common law navigation rights that they always enjoyed, navigation authorities were created by Act of Parliament, but have since abandoned their role (e.g The Itchen Navigation and the Salisbury Avon). Sometimes this abandonment was sanctioned by Act of Parlaiment (e,g the River Rother and the River Ivel).

    The "rules" of active navigation authorities vary so there is no alternative to checking the wording of the Act that created them and talking to the navigation authority.
    The access map is excellent.... Are there any "disputed" rivers that do not have a Common law right of navigation?
    Doug Dew
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    Quote Originally Posted by cloudman View Post
    I have often wondered how a river controlled by a navigation authority affects our ancient rights to navigate.
    It depends on the powers granted to the Navigation Authority in the Act(s) of Parliament governing the Navigation. These were usually to charge for any goods carried on the Navigation, to cover the costs of 'making navigable' the rivers in question and maintaining the navigation.

    Court cases have established the right of the public to navigate such statutory navigations (subject only to the tolls for any goods carried), except where the navigation authority has been granted powers to restrict such traffic (such as requiring a licence on the Thames)

    The Itchen in Hampshire is one example of rivers which are Navigations under Acts of parliament, but where there is no active navigation authority. Such rivers can be navigated (in theory) by the public. However physically exercising such a right can be difficult owing to the condition of the river concerned and the level of opposition from local interests.

    If the Navigation Act is repealed it should not remove any Ancient Right of PRN, unless the act specifically states this. The case of Yorkshire Derwent Trust vs Brotheron et Al (1992) went into this in some detail.
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    Keith & Brevan

    Thanks for that info, in practice has anyone heard of a canoeist being prosecuted for not having a licence other than on the Thames. Also does anyone ever get stopped for not having a licence on the canals, most new comers don't know they need one and I personally do not know of anyone who has been asked for one, a bit like cycling on the towpath you should have a permit but no one does.
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    Quote Originally Posted by cloudman View Post
    Keith & Brevan

    Thanks for that info, in practice has anyone heard of a canoeist being prosecuted for not having a licence other than on the Thames. Also does anyone ever get stopped for not having a licence on the canals, most new comers don't know they need one and I personally do not know of anyone who has been asked for one, a bit like cycling on the towpath you should have a permit but no one does.
    In practice, no. I have only ever been asked for one on the Thames.
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    Quote Originally Posted by dougdew99 View Post
    Are there any "disputed" rivers that do not have a Common law right of navigation?
    Magna Carta Cl 33 protected navigation "throughout the whole of England" (British Library Translation), 1472 Act for Wears and Fishgarthes "all rivers" .."throughout the Realm of England" (Statutes at Large translation), the case of the King v Clark, 1702 "to hinder the course of a navigable river is against Magna Carta" (Magna Carta wasn't referring to navigations created by navigation Acts because there weren't any). Lord Wilberforce in Will Trustees v Cairngorm Canoe & Saling School said "Rivers, with a few exceptions have always been there inviting use by man and man since long before history has had the means and occasion to use them. The interaction between natural and visible capacity for use and human exploitation thus produces by inevitable process a segregation between rivers of public use and other rivers and streams" and later "... in my opinion, the public right of navigationwhich has been established would extend to permit any operation which could reasonably be described as navigation by any vessel that could reasonably be described as a boat, as the word has hitherto been understood."

    RAFA believes that all adds up to "if it's physically navigable, it's lawfully navigable". It's for those that dispute this to show the justification for their views. I don't believe they can.
    Last edited by KeithD; 17th-February-2015 at 01:19 PM.
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    "Lord Wilberforce in Will Trustees v Cairngorm Canoe & Saling School said "Rivers, with a few exceptions have always been there inviting use by man and man since long before history has had the means and occasion to use them. The interaction between natural and visible capacity for use and human exploitation thus produces by inevitable process a segregation between rivers of public use and other rivers and streams" and later "... in my opinion, the public right of navigationwhich has been established would extend to permit any operation which could reasonably be described as navigation by any vessel that could reasonably be described as a boat, as the word has hitherto been understood."

    Was that not a case judged under under Scottish Law? (The clue was in the Cairngorm bit).

    So not sure of the relevance of this in the England and Wales legal context of the campaign.

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Quote Originally Posted by cloudman View Post
    Due to the differences in the English peoples relationship to the land compared to the Scottish people I think this campaign will result in more access via new footpaths rather than complete open access. ....
    Could you expand please. What are the differences in the English people's relationship to the land compared to the Scottish people?

    In my experience they've been very similar.

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Quote Originally Posted by Crow View Post
    "Was that not a case judged under under Scottish Law? (The clue was in the Cairngorm bit).

    So not sure of the relevance of this in the England and Wales legal context of the campaign.
    Lord Wilberforce said
    I have referred to these cases drawn from differing systems of law to support the existence of a rule, which is really one of the common law of nations, resting ultimately on facts and needs not confined to any one place or time, that the use of river according to its natural quality and capacity, for downstream floating is recognised by law, and to support the use of broad and liberal principle for the statement and application of the rule.”
    Although dealt with under Scottish Law, Lord Wilberforce considered the law under other jurisdictions & thought it applied everywhere. The common law of nations was a concept originally from Roman law. He went on to say
    “... in my opinion, the public right of navigation which has been established would extend to permit any operation which could reasonably be described as navigation by any vessel that could reasonably be described as a boat, as the word has hitherto been understood.
    Last edited by KeithD; 17th-February-2015 at 03:02 PM.
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    Well that sounds very positive and clearly stated.

    Does this statement carry weight under English law? If it does, then it would appear to be pretty definitive and would guarantee free access rights in itself, which is great.

    (For rivers at least. The problem with lake access in England and Wales still needs to be addressed.)

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    I should say that the law on access to lakes is probably pretty settled. I'm not aware of anyone opening up a line of argument on the subject. There may be a few particular examples where navigation rights might be argued such as Llyn Tegid where there is a navigation authority in place but a navigation argument might be structured around travel on the Dee at both ends.

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    Quote Originally Posted by Crow View Post
    Well that sounds very positive and clearly stated.

    Does this statement carry weight under English law? If it does, then it would appear to be pretty definitive and would guarantee free access rights in itself, which is great.
    I'm not a lawyer but my understanding is that this would not be binding under English Law but will be "persuasive" to an English court, in the same way that the law in Scotland was decided by reference to the law elsewhere. (Lord Wilberforce was an English Law Lord and according to Wikipedia "His decisions were known for being reserved and cautious."

    And of course in England we also have, Magna Carta, the medieval statutes, the commissions concerning specific rivers and counties, the case of The King v Clark .... (yawn, yawn)
    Last edited by KeithD; 17th-February-2015 at 04:53 PM.
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    Quote Originally Posted by cloudman View Post
    Keith & Brevan

    Thanks for that info, in practice has anyone heard of a canoeist being prosecuted for not having a licence other than on the Thames. Also does anyone ever get stopped for not having a licence on the canals, most new comers don't know they need one and I personally do not know of anyone who has been asked for one, a bit like cycling on the towpath you should have a permit but no one does.
    I have never personally been stopped on the Cam. (And if I were, I have a BCU licence so should be covered.) But according to the Conservators of the Cam a licence is required. And I believe they do enforce this for punts, so it seems likely they will also for Canoeists should they happen across one. But that does beg the question of how often they make an effort to enforce it ...

    http://www.camconservancy.org/#!visiting-boats/c6pp
    It looks as though a 'visitor licence' costs 5% of an annual licence, i.e. 5% of 84 for over 5m canoes/kayaks or 43 for under 5m canoes/kayaks.

    All the best,
    Ian
    Last edited by idc; 17th-February-2015 at 04:50 PM. Reason: put answer after question

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    Quote Originally Posted by Crow View Post
    ...


    I can see that, but lakes are an issue too. An example is Kielder Water, a great lake to paddle on but with extremely restrictive access. Yet only a couple of miles to the north east of it, you can paddle responsibly on any body of water. A crazy situation. It seems to me it would make sense to see what works well in neighbouring legislations and try and adapt something similar.
    ...
    Kielder water is not a lake, like almost all other reservoirs it is a damned river.

    Once a road always a road?
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    Quote Originally Posted by Crow View Post
    Could you expand please. What are the differences in the English people's relationship to the land compared to the Scottish people?

    In my experience they've been very similar.
    When talking to Scottish walkers and climbers over the years they have said that even before the Land Reform Act in 2003 the access in Scotland was far easier than in England and that the land owners in general were more relaxed about people on their land. I know there were hot spots on the shooting grounds and prime salmon beats but in general with most of the land not being fenced and the population density being 6 times less than England there isn't the pressure on the land we have further south. The fact that the Scottish people have adapted to open access so quickly is testament to their attitude towards the land. Also the Scottish Government saw this as a way of boosting the valuable tourist industry so there was a desire from inside the government to make it happen.

    In England there is such an entrenched "Get off my land" attitude it would in my opinion make getting a similar Act passed here virtually impossible. Add to that the fact that so many MP's and Government officials are land owners, this would make legislation very difficult to get passed, you only need to watch the current documentary on The House of Commons to see how easily they can kill a controversial bill. Practically it would be a nightmare, farming close to built up areas would be very difficult if people could just walk and camp anywhere. Can you imagine how many wild campers you would have in Cornwall in the summer, why pay 15+ a night to camp if you can just pitch a tent on the headland for free, it would be impossible to control. There are just too many people in England for it to work.

    I would be very happy to see it happen, I just don't think it will. Whereas creating more access and footpaths in specific areas I see as achievable, if you ask for too much you may get nothing.
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    Quote Originally Posted by idc View Post
    I have never personally been stopped on the Cam. (And if I were, I have a BCU licence so should be covered.)
    Yep. Covered by CE membership http://www.canoe-england.org.uk/news...from-cambridge
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    Quote Originally Posted by idc View Post
    http://www.camconservancy.org/#!visiting-boats/c6pp
    It looks as though a 'visitor licence' costs 5% of an annual licence, i.e. 5% of 84 for over 5m canoes/kayaks or 43 for under 5m canoes/kayaks.
    At 2.15 for a visiting canoe it would cost more to collect and process it, we would be doing them a favor by not paying
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    And if you ask government to take a serious look at rights of navigation and to enact some suitable legislation you can expect that they will do a thorough job, repealing all previous rights, consulting stakeholders and putting in plsce a compromise package which balances the competing interests. Don't expect that they will just agree your intrrpretation of the law and set that in stone.

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    Quote Originally Posted by KeithD View Post
    I'm not a lawyer but my understanding is that this would not be binding under English Law but will be "persuasive" to an English court, in the same way that the law in Scotland was decided by reference to the law elsewhere. (Lord Wilberforce was an English Law Lord and according to Wikipedia "His decisions were known for being reserved and cautious."

    And of course in England we also have, Magna Carta, the medieval statutes, the commissions concerning specific rivers and counties, the case of The King v Clark .... (yawn, yawn)
    Well that all sounds very positive.

    So we shouldn't have a problem.

    Unfortunately we still do seem to have one, so maybe a different tack, or an additional one I should say, would help.
    Last edited by Crow; 17th-February-2015 at 09:21 PM.

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    Quote Originally Posted by Adrian Cooper View Post
    I should say that the law on access to lakes is probably pretty settled. I'm not aware of anyone opening up a line of argument on the subject. There may be a few particular examples where navigation rights might be argued such as Llyn Tegid where there is a navigation authority in place but a navigation argument might be structured around travel on the Dee at both ends.
    Pretty settled? In whose favour?

    There are many lakes in England and Wales I have come across where paddling is not permitted, or is severely restricted or where they try to get fees from you.

    Whereas north of the border access to lochs is considered the same basic right as access to rivers (or mountains or beaches for that matter).

    Many of us paddle on lakes, or would like to, so it's all part of the water access problem in these countries.

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Quote Originally Posted by cloudman View Post
    When talking to Scottish walkers and climbers over the years they have said that even before the Land Reform Act in 2003 the access in Scotland was far easier than in England and that the land owners in general were more relaxed about people on their land. I know there were hot spots on the shooting grounds and prime salmon beats but in general with most of the land not being fenced and the population density being 6 times less than England there isn't the pressure on the land we have further south. The fact that the Scottish people have adapted to open access so quickly is testament to their attitude towards the land. Also the Scottish Government saw this as a way of boosting the valuable tourist industry so there was a desire from inside the government to make it happen.

    In England there is such an entrenched "Get off my land" attitude it would in my opinion make getting a similar Act passed here virtually impossible. Add to that the fact that so many MP's and Government officials are land owners, this would make legislation very difficult to get passed, you only need to watch the current documentary on The House of Commons to see how easily they can kill a controversial bill. Practically it would be a nightmare, farming close to built up areas would be very difficult if people could just walk and camp anywhere. Can you imagine how many wild campers you would have in Cornwall in the summer, why pay 15+ a night to camp if you can just pitch a tent on the headland for free, it would be impossible to control. There are just too many people in England for it to work.

    I would be very happy to see it happen, I just don't think it will. Whereas creating more access and footpaths in specific areas I see as achievable, if you ask for too much you may get nothing.
    Well, that is partly true, but there are a lot of problems with a tiny percentage of people owning a vast percentage of the land. Which does cause resentment of the landowners and the restrictions they put on people who live there, as well as visitors.

    But to say that ordinary people in England have a different attitude to land access is belied somewhat by the Ramblers and people such as the mass trespassers on Kinder Scout. (To get back to the original topic of this thread. )

    It is often said (usually by people in England) that enlightened access laws couldn't work there due to the high population. And it only works in Scotland because it's less densely populated. Now while that's true of the country as a whole - the Central Lowlands where most people live, is just as densely populated as say, the north of England. There's more to Scotland than the Highlands, despite what some seem to think. But the access laws haven't caused the end of civilisation, and Galloway or Fife haven't been swamped by people camping on the headlands trying to avoid a 15 a night fee. (All right, parts near Balloch have been, but anyone with any sense manages to avoid them! )

    As for getting an Act passed, you're probably right, it would be very difficult. But that's not a reason to give up. If you ask for too much you may fail, but you might just win. If you ask for too little you might just end up with the status quo.

    I can just hear the chanting at the canoeist's mass trespass paddle:

    "What do we want?
    Gradual change!
    We do we want it?
    In due course!"

    Last edited by Crow; 17th-February-2015 at 09:25 PM.

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    Quote Originally Posted by Adrian Cooper View Post
    And if you ask government to take a serious look at rights of navigation and to enact some suitable legislation you can expect that they will do a thorough job, repealing all previous rights, consulting stakeholders and putting in plsce a compromise package which balances the competing interests. Don't expect that they will just agree your intrrpretation of the law and set that in stone.

    You have a very high opinion of the government, Adrian!

    I would expect them (of whatever shade) to do a shoddy job, consult stakeholders but ignore any inconvenient responses, then go ahead with whatever legislature they already wanted to do in the first please, to keep the noisier of their backbenchers quiet.

    Isn't that the time honoured way of doings these things?

    Last edited by Crow; 17th-February-2015 at 09:26 PM.

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    Quote Originally Posted by DougR View Post
    Kielder water is not a lake, like almost all other reservoirs it is a damned river.

    Once a road always a road?
    True.

    It is a dammed river and also a damned pain to get a canoe on it!

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Quote Originally Posted by Crow View Post
    You have a very high opinion of the government, Adrian!

    I would expect them (of whatever shade) to do a shoddy job, consult stakeholders but ignore any inconvenient responses, then go ahead with whatever legislature they already wanted to do in the first please, to keep the noisier of their backbenchers quiet.

    Isn't that the time honoured way of doings these things?

    Not really. When it comes to a choice of policy the party donors are more important than the back benchers. But sometimes, hopefully, votes are more important so there is still a chance of democracy working. Maybe.

    We'd probably better stop that line of discussion though - I'm sure we're infringing something in the site rules somewhere. At least we should be - no-one with any sense wants even more political discussion than we need.
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    Here is why the Anglers Trust remain confident and dismissive of us.

    [IMG][/IMG]

    They know they will never see a group of canoeists actually standing up for their rights like the Ramblers do. We do not deserve success and we will not obtain it. The idea that politicians will suddenly see the light and protect us from the evil land owners, without active campaigning on our own behalf is naive and absurd.... things are getting worse not better...
    Doug Dew
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    I disagree Doug, I think things are getting a lot better.

    Canoeists are standing up for their rights. They have a new confidence in the extent of those rights and are quietly exercising them. Every time you go out canoeing on a river without asking permission from anyone, you are taking possession of a resource to which you are rightly entitled. The ramblers in the picture know that they currently have no rights of access to the forests and are asking for these to be granted to them. We are not asking for anything, we already have it.

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    Quote Originally Posted by Adrian Cooper View Post
    I disagree Doug, I think things are getting a lot better.

    Canoeists are standing up for their rights. They have a new confidence in the extent of those rights and are quietly exercising them. Every time you go out canoeing on a river without asking permission from anyone, you are taking possession of a resource to which you are rightly entitled. The ramblers in the picture know that they currently have no rights of access to the forests and are asking for these to be granted to them. We are not asking for anything, we already have it.
    Agreed. Even within my short 6 years or so paddling, its becoming the norm to paddle rivers that have had a reputation almost as "no go areas".

    However, Doug makes a valid point that where there are issues there is little chance that a big bunch of paddlers/river users will get together and turn up.
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    Adrian & Mal

    You make good points, but you are wrong.

    1. There is no agreement among the people who administer the law, i.e. Judges and Lawyers, that the PRN that we claim exists. In fact, I am told by lawyers that 99% believe it does not it exist. They regard our view as the rantings of barrack room lawyers. Dodging about quietly on rivers makes no change to their perceptions, and claiming the existence of the PRN among ourselves has no effect on them either. As far as the legal fraternity is concerned we are campaigning for a right that does not exist, and one of our strategies is to pretend it does. This is reality.

    2. It might be that more people are paddling on disputed waters now. If they are, then they are keeping very quiet about it. How many such trips are blogged here or other forums, let alone the reporting of incidents?... virtually none. You would think they would want to broadcast good news about formerly disputed rivers where paddling is now hassle free. I doubt whether either of you have anything more than anecedotal evidence of any significant growth in paddling on disputed waters. Lets face it, it is very unpleasant to do so. How many clubs, scout groups and other youth groups hold club trips on disputed rivers? I hope you can tell me that they all do, then I will shut up.

    3. The problem we have is that we have got our heads in the sand thinking that we na-na-na long enough to each other, some thing will change. It won't. Are you saying that no change is required and/or that if we creep about quietly, change will come?
    Doug Dew
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    I tend to agree with Doug on this one.

    We believe we are in the right, based on ancient statutes and precedences, but others don't. So it stays in stalemate. And those rights don't even cover lakes.

    Which is why I was suggesting that we make a working alliance with the ramblers, and go for a full solution, involving proper access to all of the countryside, including rivers, lakes and land. And that recent (ish) legislation which works in Scotland would be a good model for England and Wales to push for.

    Shy bairns get nowt, as the saying goes.

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    Quote Originally Posted by dougdew99 View Post
    I am told by lawyers that 99% believe it does not it exist.
    My guess is that 99% of lawyers have not done any significant investigation into the law to have made an informed opinion.

    Quote Originally Posted by dougdew99 View Post
    It might be that more people are paddling on disputed waters now........... I hope you can tell me that they all do, then I will shut up.
    I'm not aware of any database of canoeing activity. I do know, anectdotally that loads of people are paddling loads of rivers and really not asking anyone for permission in the way that was done even 10 years ago.

    Quote Originally Posted by dougdew99 View Post
    Are you saying that no change is required and/or that if we creep about quietly, change will come?
    What I am saying is what I have said many times before. Be careful what you wish for. If you badger the government into making a law on the subject, my expectation is that the law they come up with fall far short of the law we would like and would be a lot less than our current investigations have lead us to believe we have. The Ramblers' right to roam is a case in point. I guess they are fairly disappointed with the access they have gained in, say, the south east. The government in its various forms have commissioed reports into river access and these have rcommended a system of local voluntary access agreements; why do we think the government will not take that advice and enshrine it in law?

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    Various governments have already said that they do not think the Scottish model will work in the rest of the UK. River architecture, blah, blah blah...

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    Various governments have opposed many different reforms over the years. But despite that, things have been achieved by campaigners.

    One thing is for sure - if nobody says or does anything, nothing will change.

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Surely it is madness to push for a change in the law if the current law with existing PRNs allows us to paddle? If, and only if, that is challenged and a test case actually goes against us is it the time to try for a change in the law.

    What we need to do for now is paddle, confidently and publically. The more of us that do so the sooner perceptions will change. We don't need a mass trespass because we don't need to trespass, which isn't to say there won't be value in some organised groups having a paddle together in strategic locations.
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    So if there's not a problem, why is there a campaign and why do we have an Access section on here at all?

    Now I wish to God I'd joined those men when they were set ashore, but I chose a wild and a reckless life serving under Captain Moore.

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    Quote Originally Posted by Adrian Cooper View Post
    I disagree Doug, I think things are getting a lot better.

    Canoeists are standing up for their rights. They have a new confidence in the extent of those rights and are quietly exercising them. Every time you go out canoeing on a river without asking permission from anyone, you are taking possession of a resource to which you are rightly entitled. The ramblers in the picture know that they currently have no rights of access to the forests and are asking for these to be granted to them. We are not asking for anything, we already have it.
    We keep giving out mixed messages which doesn't help the situation. I agree totally with the above, we can't claim our ancient navigation rights and campaign for access at the same time, it has to be one or the other. There is no sign that the government want to get involved, they have consistently sat on the fence, so either the riparian owners accept our right to paddle or prove their case in court. The longer the status quo continues the weaker their case becomes. Firstly everyone will become used to seeing canoes on our rivers as the norm and we are demonstrating that we can coexist with the anglers without destroying their sport. Secondly they know that if they were to take it to court they will be in a lose/lose situation, they may lose in court but if they win they will have cleared the muddy water and given us a clear case to campaign for. That is the time for the marches and active campaigning because we will be in a much stronger position, fighting for something that has been taken away from us. History has shown that both the public and politicians are more likely to support a healthy outdoor activity like canoeing and increased access to the countryside over a blood sport with questionable animal rights issues.
    "Rules are for the obedience of fools and the guidance of wise men"
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    RAFA researches and publicises evidence for the public right of navigation on rivers which has existed from time immemorial and campaign for recognition of those public rights. We do not campaign for any change in the law.
    Keith

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