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Thread: Angling Trust and Fish Legal update

  1. #1
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    Default Angling Trust and Fish Legal update


  2. #2
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    Well I hope they didn't spend thousands on that QC advice. It is far too simplistic and doesn't appear to address any of the substance of the Caffyn report. They could have got that advice from a second year student. Still I suppose it tells them what they want to hear which might be half of the brief.

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    Lawyers exist to present the best case they can for their clients. In every court case there are two teams presenting different views - at least half of them are wrong! Judges are a different matter!

    “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.”
    - Lord Wilberforce.

    “Until the right of way (on land) is constituted along a definite route, it does not exist at all, and even after it has been constituted there may not be any visible indication of its existence. But a river exists as a physical feature plainly marking the route of any right of navigation and the purpose of use by the public is not in my opinion to constitute the right but to prove that the river is navigable. The theoretical basis of the right is that the Crown has not, and could not have, alienated the right to use the river for navigation but has retained it in trust for the public.”
    - Lord Fraser (my underlining)

    Beware weasel words - we are not seeking to establish a new public right of navigation but to exercise the right that has always been there and has been recognised by the common law since at least Roman times and was protected by Magna Carta, the 1472 Act for Wears and Fishgarthes and innumerable Royal Commissions (see here)
    Last edited by KeithD; 17th-February-2016 at 07:08 PM.
    Keith

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    This point: 7. Additionally, the use must also not have been under protest from the riparian owners, or by permission from them. On the contrary, use cannot be established unless it is shown that the owners have acquiesced with the passage of canoeists or other vessels throughout the period of use.

    Is very weak. The protests against canoeing, as far as I am aware have only happened in the last 20 or so years. The increased animosity from the AT and FL have is from arrogant folk that want to state lies, such as, "canoeing is illegal!" They have been driven by money and greed from those that sell exclusive fishing rights to the anglers.

    Well that's my
    penn'th.

    They are taking a long time to come up with a case!!!!

    Doug
    When there's trouble on shore, there's peace on the wave,
    Afloat in the White Canoe.
    Alan Sullivan


  5. #5
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    and several thousands of pounds
    ~20mins of QC time?

    unlawful canoeing
    I would be a tad surprised if this was a recognised crime? Just a buzz phrase I guess.

    The summary of the Advice
    Doesn't state who created the summary! - so I read this a "a convenient summary knocked up 'cos that way it can be made to reads like it supports a case that probably doesn't actually exist."

    we aim to publish the full document... after further discussion with the Canoeing Governing Bodies.
    Have to think if their 'work' had any legal standing, it would be published and tested in court by now.

    Comments Off
    'nuff said.


    Certainly nothing read thereon that would change my general belief that the polite/respectful sharing of the waterways is both right and a right.


    1p kerching.

  6. #6
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    The problem with the Anglers view point is that they only think in terms of living memory, before the development of a highways network the rivers would have been used to transport goods and people for 1000's of years, so the 60 to 80 years test is easily established.

    6. The law is, however, not absolutely clear on how long is required to establish “time immemorial”, but it is likely that between 60 to 80 years of use needs to be established by those who assert a PRN.
    "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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    The 60 years, 80 years or any other period required to establish a PRN is totally irrelevant. It applies to establishing a new PRN and we are not seeking to do that. There is already a perfectly good PRN. The Romans recognised it on all flowing water. Magna Carta, the Act for Wears and Fishgarthes and innumerable Royal Commissions protected it, throughout the realm and on rivers great and not so great. (You can't protect something that doesn't exist!) The question of "how" and "when" the PRN came to be, and what period of time might have been relevant to doing this, is irrelevant - it did come to be and was recognised and protected by the relevant organs of the state which was comprehensively documented.

    Parliament has not extinguished it and neither has any appropriated authority sanctioned by parliament - therefore it still exists. The fact that the relevant clause in Magna Carta has been repealed has changed the nature of the protection of PRN (it's not statutory any more) but it is still protected by the common law.

    The Angling Trust and Fish Legal have no evidence to challenge these key facts.
    Keith

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    Thanks for the explanation Keith, but it does show that even using their own statements it would not be too difficult to show that most rivers have had at least 60/80 years of use in the last few hundred years and they would have to prove that it was contested consistently during that period. As I see it they lose on both counts.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  9. #9
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    Don't even go there! It involves a river by river establishment of a new PRN with the burden of proof falling on canoeists. The evidence for an ancient PRN covers all navigable rivers with unimpeachable evidence and to successfully challenge it would require evidence that the Institutes of Justinian have been misunderstood /mistranslated for hundreds of years, that when Magna Carta said "throughout the Realm" it meant "in a few parts of the realm" and that the Act for Wears and Fishgarthes didn't mean "all rivers"and "so ships and boats should have their free passage" but meant "some rivers" and "if landowners and fishing clubs agree".

    Plant your flag on the high ground and don't move!
    Keith

  10. #10
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    Quote Originally Posted by cankay.org.uk View Post
    ~20mins of QC time?
    Have to think if their 'work' had any legal standing, it would be published and tested in court by now.
    'nuff said
    The post does mention a more detailed (19 Page) document to follow.

    You'd expect it to show clearly how the right of Riparian owners to control navigation of vessels on Non Tidal Waters has been established through and supported by the courts.

    And, because of the number and consistency of the judgements over a prolonged period of time, how pointless any challenge to this right would be.

    And how easy it is to protect that right by taking successful legal action through the courts. Evidenced by a long list of cases against those trying to Navigate without permission.

    Should I wish to fish without the owners permission (or permission of those who the rights have been passed to) then there is that clear body of legal evidence showing that is clearly a trespass.

    So produce the same for Navigation of inland waters. Or find a way for both fishing and navigating to coexist sensibly, as it has done in the past millenia.
    Brevan,
    1664 - a great year for river access
    Romsey, Hampshire
    Twitter: BrevanM
    Follow my blog at http://riveraccessrights.blogspot.com/

  11. #11
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    Quote Originally Posted by KeithD View Post
    Plant your flag on the high ground and don't move!
    I agree, I was just pointing out the weakness of their argument.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  12. #12
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    Quote Originally Posted by Brevan View Post
    You'd expect it to show clearly how the right of Riparian owners to control navigation of vessels on Non Tidal Waters has been established through and supported by the courts.
    You'd need more than that. There is no dispute about riparian rights. Those owning the bed and banks of a river (riparian owners) have the right to control the rights of navigation that come with that ownership (riparian rights of navigation). If we were seeking to make use of those rights we would need permission.

    Exercising a public right of navigation is an entirely different matter and requires consent and permission from no-one. It is an established principle of English law that public rights take precedence over private rights (including private navigation rights). Unless those challenging the existence of the public right of navigation can overturn this long established principal, the issue is nothing to do with riparian rights - its solely about the existence (or not) of the public right of navigation which is a matter decided on the balance of available evidence. Our evidence is clear, authoritative and well documented. Theirs will need to be in the 19 pages which I await with interest.
    Keith

  13. #13

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    Is the BCU preparing a response to this? Do they have a QC?
    Doug Dew
    "The best is yet to come" My Father


  14. #14
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    Is this the full half-hour moaning session, or do I need to pay for more?

    MB

  15. #15
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    Hopefully a little mood lightening, that kinda comes to mind on the non-existent 'crime' of "unlawful canoeing".



    "Come in, shut the door."


    "Yes, sir."

    "Now then, Markage, I want to talk to you about some charges that you've been bringing lately. I think that perhaps you're being a little over-zealous."


    "Which charges did you mean then, sir?"

    "Well, for instance this one: 'Loitering with intent to paddle over a ford.' Markage, maybe you're not aware of this, but it is not illegal to paddle a ford, neither is 'smelling of bacon butties' an offence."

    "Are you sure, sir?"

    "Also, there's no law against 'Open canoeing on non-tidal rives' or 'Enjoying the fresh air without due care and attention."'

    "If you say so, sir..."

    "Yes, I do say so, Markage! Didn't they teach you anything at training school?"

    "Erm, I'm sorry, sir..."

    "Some of these cases are just plain stupid: 'Failing to leave any trace of passage' - Is this some kind of joke, Markage?"

    "No, sir."

    "And we have some more here: 'Paddling under a road bridge with cracks in the pavement,' 'Wearing in a personal floatation device in a built-up area during the hours of darkness,' and 'Canoeing lakes with an offensive wife.' In short, Markage, in the space of one month you have brought one hundred and seventeen ridiculous, trumped-up and ludicrous charges."

    "Yes, sir."

    "Against the same man, Markage."

    "Yes, sir."

    "A Mr Windson Canoego, of Flat BC, Union Road."

    "Yes, sir."

    "Sit down, Markage."

    "Yes, sir."

    "Markage, why do you keep hassling this man?"

    "He's a villain, sir."

    "A villain..."

    "And a jail-bird, sir."

    "I know he's a jail-bird, Markage, he's down in the cells now! We're questioning him on a charge of 'Possession of a wooden paddle and a Kelly Kettle."'

    "Well - well, there you are, sir."

    "You provoked him, Markage!"

    "Thank you, sir."

    "Markage, would I be correct in assuming that Mr Canoego is a canoeist gentleman?"

    "Well, I can't say I've ever noticed, sir."

    "Stand up, Markage! - Markage, you're a bigot. It's staff like you that give the A.T. a bad name. The press love to jump on an instance like this, and the reputation of the A.T. can be permanently tarnished. Your whole time at work is dominated by hatred of sharing a free resource and petty personal vendettas. Do you get some kind of perverted gratification from going around stirring up trouble?"

    "Yes, sir."

    "There's no room for men like you in my organisation, Markage. I'm transferring you to F.L. "

    "Thank you very much, sir."

    "- Now get out!"

    And just in case you've never seen the original




    No personal affront intended or implied. Any facts expressed here belong to everybody, the opinions to me. The distinction is yours to draw...
    Last edited by cankay.org.uk; 20th-February-2016 at 07:15 AM.

  16. #16
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    Can't quite make the video out! is it a documentary or a comedy program

    Either way half those offences should be illegal.
    "Rules are for the obedience of fools and the guidance of wise men"
    Grp Cpt Sir Douglas Bader CBE,DSO,DFC,FRAeS.

  17. #17
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    Brilliant!
    I remember this from the first time round...
    "I have no other choice but to transfer you to the SPG! "

    Well, thank you very much Sir!"

    At the time, we also had the likes of 'The Young Ones' going on with the likes of Rik Mayal & Ade Edmundson who I once met on the high street in Richmond Upon Thames, and in one of their sketches, an episode, way back there in the Eighties, and one that has stayed with me ever since, and filmed in Bristol!

    "On your way out watch out for the special branch".

    "I don't see what's so special about that".

    Branch on the tree then replies: "I've got a degree in computer science,that's what!"

    There's then some unforgettable Alexi Sayle input as he goes into 'his style' phonetic alphabet..."Alpha, Charlie, Teakettle, Over!" - Just brilliant! and has kept me 'laughing out loud' for quite some time now....

    As will Jons' post here!
    Keep yer paddles wet, and powder dry....

    MB

    `..`. ><(((( ((>
    `..`..`. ><((((>

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