Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[Jeff Woodhouse]

What qualifications he has as a lawyer or actual experience in practice I simply do not know.

Evan, would he not be registered with the Law Society or does that only apply to practising legal people? Don't know whether you can access that or not... A thought perhaps.

So go get that declaration. Put up or shut up. Prove your right or accept that you are just trespassing.

Methinks the BCU's campaign has proven that already, IMO.

However, my idea is that if it is demonstrated on one river, that the principle applies and most people would accept that it is generally applicable to other rivers without the bother of suing on lots of other rivers.

Why not take note of your BCU's campaign, they clearly know you do not have the right otherwise there would be no campaign - it would be signed, sealed and filed...

None of it matters a bean if no one gets sued...

You've read Windy's opinion on that and chose to disregard it. As you most probably would chose to disregard any part of any law that was quoted. IMO that is the mark of an anarchist, would you accept that as a title?

 

[waterways]

You've read Windy's opinion on that and chose to disregard it. As you most probably would chose to disregard any part of any law that was quoted. IMO that is the mark of an anarchist, would you accept that as a title?

I am again surprised by the lack of courtesy and respect... why cannot we discuss this important topic as gentlemen, rather than resorting to childish name calling?

I would describe myself as a pragmatist. I see that the legal experts cannot agree on this topic. I have no way of knowing who is right. I see that realistically, canoeists cannot be prevented from acting on their interpretation because no one is prepared to sue them. It seems only legislation can solve this issue. If Anglers and Canoeists got together (99% of both communities, I assume to be perfectly reasonable people), a joint solution could be presented to the politicians. I think this position is the antithesis of Anarchy.

Windy, with respect, are you going to present your assessment of the legal position impartially, or are you acting as advocate for the angling fraternity? Both are honourable objectives, but we should know your position...

 

[sam vimes]

Windy, with respect, are you going to present your assessment of the legal position impartially, or are you acting as advocate for the angling fraternity? Both are honourable objectives, but we should know your position...

I think Windy covered that a long way back in the thread.

Point one, understand your opponent and yourself. The veracity and reliability of any witness is to be understood in the context of who they are, their background, preconceptions and prejudices. "Where they are coming from" in modern parlance.

Me: Used to be a quite keen canoeist, dating back to my Scouting days and into my late 20's.
Got nothing against canoeists as a group from my position as a fisherman.

Ditto started fishing about the same age, ditto nothing against fishermen in my capacity as an occasional canoeist.

So maybe I am a reasonably neutral person considering the issue ?

 

[Fred Bonney]

Surely, with respect, a person who expects courtesy and respect for himself should read what's laid before him, before commenting on a subject ?
It may then be very obvious that Windy has been very neutural in his views/advice, as any good advocate should.

 

[waterways]

Fred
It was because of this response from Windy, that I asked this question... On the one hand he talks about his " opponent" and the other he talks of being "neutral"... I found this confusing.

Secondly an advocate is not required or expected to be impartial.. His job is to win his client's case... hence my question...

I am sure Windy understands this full well and will enlighten us as to his position. He might say my understanding of this wrong... I am no lawyer, so he could be right...

 

[geoffmaynard]

Or some angler having his cay ruined by a militant canoeist practising eskimo rolls in his swim because he thinks , and that isn't certain , that he has the legal right to.

To me , and again I don,t fish rivers , a bit of compromise and better publicised guidelines from all bodies could make this issue dissappear.

On the water I fish, where there is no PRN, the eskimo rolls you refer to happen on a daily basis, often several times a day. These are performed by experienced kayakers so they are not all gentlemen. However these guys are almost tolerable beside the vast armadas of badly handled rental craft full of screaming kids having a whale of a time who haven't got a clue they are doing anything wrong.
Here's my compromise: I'll obey the law and expect everyone else to. I don't think you can improve on that.

 

[Fred Bonney]

Fred
It was because of this response from Windy, that I asked this question... On the one hand he talks about his " opponent" and the other he talks of being "neutral"... I found this confusing.

Secondly an advocate is not required or expected to be impartial.. His job is to win his client's case... hence my question..
I am sure Windy understands this full well and will enlighten us as to his position. He might say my understanding of this wrong... I am no lawyer, so he could be right...

Seems like a cross examination technique to me, or maybe just a nit pick to us uneducated in law?

Ah, but he would if he has already stated, as he has, that he is able to view both sides of this particular fence!

 

[Jeff Woodhouse]

I am again surprised by the lack of courtesy and respect... why cannot we discuss this important topic as gentlemen, rather than resorting to childish name calling?

It was a genuine question, courtesy aside. You know well what the law is, it has been highlighted by YOUR OWN organisation by the fact that they launched a campaign and failed. Now you are suggesting continuing paddling where you shouldn't and saying "sue me". That is no more than defiance of the the status quo and in many senses that makes you an anarchist.

Anarchist: a person who promotes disorder or excites revolt against any established rule, law, or custom.

QED I think.

It's quite civil as well. Either you are or you aren't.

 

[barney20]

As I stated in my first post on this thread I am a canoeist, I have read the thread with interest and I have a few observations to make.

There have been comments about the BCU and CE, firstly for clarity I should say that CE is part of the BCU. Many canoeists disagree with the CE's attitude to the access situation and recreational canoeing, they seem more focused on competition. Therefore many canoeists would not consider that CE is their representative on the access issue.

When this issue is discussed on a canoe forum most people look at the available information and conclude that the right to navigate exists. On a fishing forum the opposite conclusion is reached. Obviously this is a complex subject with many different points to consider, and most of us are not qualified to reach a reasoned judgement.
So we have to rely on the experts, unfortunately the experts seem as divided as the rest of us. So it is easy to believe the experts who say what we want to here.

I don't know who Windy is, but from the way he writes and the way others on here defer to his judgement I assume he is legally qualified, however there are people with similar qualifications who hold the opposite view.

The only way to get a definite answer to the question would be for a court to issue a ruling, but this would cost both sides large amounts of money which could presumably be better spent on other things.

Richard Benyon's statements are interesting, he does not categorically say that canoeists don't have the right to paddle, he uses a form of words which are open to interpretation. Is this just the natural way of talking for a politician?
Or does he know something that he doesn't want to say to an angling group?
I doubt he is hiding the fact that he believes the right to navigate exists, but he may well have been advised that there is not a simple yes or no answer to the question.

---------- Post added at 13:30 ---------- Previous post was at 13:20 ----------

It was a genuine question, courtesy aside. You know well what the law is, it has been highlighted by YOUR OWN organisation by the fact that they launched a campaign and failed. Now you are suggesting continuing paddling where you shouldn't and saying "sue me". That is no more than defiance of the the status quo and in many senses that makes you an anarchist.
[/COLOR]

I can't be sure of other peoples views, but I think most canoeists who paddle where you think they shouldn't be genuinely believe they are entitled to be there. There may be a few who get a kick out of breaking the law and winding anglers up, but they are a very small minority. In the same way that a very small minority of anglers seem to enjoy winding canoeists up.

CE have not "launched a campaign and failed", it is an on going project. Obviously it will not achieve all it's aims immediately but that does not make it a failure.

 

[Poshpaul (Angling Trust and PaSC)]

I don't know who Windy is, but from the way he writes and the way others on here defer to his judgement I assume he is legally qualified,

for info Barney 20 - he's a barrister.

 

[david perry]

Hi Guys.

My first post - and maybe if I don't get booed off the stage, perhaps not my last.


As you'll guess from the rest of my post I'm a canoeist (not a kayaker but never mind the difference!)

I do speak with some knowledge of fishing. I've been coarse fishing since 1960, although I don't imbibe in too much angling these days, but do take my gear (and canoe) along the odd river for a couple of days now and again. Great way of getting to those quiet and un-fished spots.



I've said this on the Song of The Paddle site so I'll say it here too as the comment is as relevant after reading through this long thread as it is after reading threads on the subject of access on the open canoeing forum.

It's quite clear to me, that folk on both sides believe they know the exactl position of the law regarding canoeing on rivers, and that both canoeist and anglers are willing to interpret what they understand as to the law in a way that suits them.

As every other country in europe gives canoeists access rights to rivers I wonder what problems are encountered over in those countries if any?

 

[Jeff Woodhouse]

CE have not "launched a campaign and failed", it is an on going project. Obviously it will not achieve all it's aims immediately but that does not make it a failure.

I never mentioned CE.

I was talking about the BCU, that is your organisation and one would have thought they have spent a considerable amount of your money already looking into this. They say you don't have the right, that is why they want a campaign to get that right.

Canoeists (et al) join the BCU to represent them (presumably) and they do this and come up with a plan to try and obtain those rights. It fails, I concede that they may try yet again later or go for appeal, but for now, the jury has sat (Mr Benyon) and has decided there will be no change to the present position, i.e: YOU DO NOT HAVE THE RIGHT TO PADDLE ANYWHERE YOU LIKE!

This is getting a little bit like talking to brick walls. It may not have been the answer you were looking for, but until the Minister in charge at any time in the future decides there will be a change you are still not allowed to paddle where you like. You can only paddle on rivers where there is a right of navigation and others where you have first of all obtained voluntary permission.

Now that is in just about as plain English as I could think of putting it. It doesn't have to be settled by a Judge in Court. Whether you are happy with that situation or not, it is fact! Do not paddle where you shouldn't otherwise what is the point of joining your precious BCU?

What part of the above is NOT clear?

---------- Post added at 21:34 ---------- Previous post was at 21:30 ----------

It's quite clear to me, that folk on both sides believe they know the exactl position of the law regarding canoeing on rivers, and that both canoeist and anglers are willing to interpret what they understand as to the law in a way that suits them.

Been done for you son, Read the BCU site's campaign.

As every other country in europe gives canoeists access rights to rivers I wonder what problems are encountered over in those countries if any?

We're England, not other countries in Europe... Sorry, it may sound as if I'm getting stroppy, but so I am. It's like teaching naughty children in class who no matter what you try to tell them are defiant in believing only what they want to believe despite them being wrong.

If you have a problem with the facts, take it back to the BCU.

 

[bennygesserit]

it has been pointed out to me on "sotp" that the canoe England position has changed

Canoe England: Position Statement
Access Arrangements for the shared use of non-tidal waters by manually powered craft
1
Access to Water
Canoe England fundamentally believes in the principle for access to and along unregulated (1) non-tidal
waters and does not subscribe to the present assumption by some for these waters to be deemed private.
Recently published research contests this assumption (2).
Canoe England also takes a pragmatic view and believes that where Access Arrangements (3) are a means
for shared use, they shall be on a joint local management basis that helps to protect the environment and
respect the rights of other user interests.
The legal situation in England and environmental use of the waterways is detailed in the Canoe
England Waterways and Environment Charter (4) and document “You, your canoe and the
environment” (5).
From this position Canoe England will endeavour to:
1.1 Work constructively with partners, agencies, the local community, interest groups and the “Big Society”
concept to support and develop the shared use of physically usable waters when environmental
conditions (especially water levels) are suitable.
1.2 Develop acceptable management measures with partners to protect the environment and enable the
wider use of waterways at all times as per the benchmark set by the Government access feasibility
studies (2004): River Waveney - agreed minimum water levels, and no permit requirements; R Mersey
– based on Dedication (6) for using waters.
1.3 Dispense with formal signed documentation, and for Access Arrangements’s (AA’s) to be based on
statements/memorandums of understanding and/or Dedication.
1.4 Make these arrangements publicly available to all canoeists for self regulation.
1.5 Encourage canoeists to follow the guidelines of such arrangements.
1.6 Promote best environmental practice and responsible use and consideration for others on all waters.
Canoe England cannot regulate or police AA’s or grant access to any waters with or without an AA, and will
advise canoeists to only canoe when conditions are suitable (5). The decision whether or not to canoe is
the responsibility of the individual canoeist(s).
Canoe England acknowledges the different opinions on the legal position where public rights are not
recognised. An AA shall be without prejudice to the views of the legal position of either Canoe England or
the riparian owners and other interests. An AA shall neither confirm nor reject any party’s views or
interpretation of the legal situation.
2 Public Rights
An AA shall not invalidate public rights to non-tidal waters physically usable by manually powered craft, to
include canoes, should it be subsequently established:
2.1 Such rights have not been extinguished.2.2 The historic use of usable waters is recognised to provide that right.
References
1 Use of non-tidal waters
The position of public rights and the use of non-tidal waters in England are not straightforward:
Where there is an active Navigation Authority or where historic rights are recognised, rights are defined.
Where there is not an active Navigation Authority, waters are classified as unregulated and include
abandoned navigations and other waterways on which there is a public right of navigation.
There is an assumption by some that many unregulated waters are private and use is resisted or shall be by
way of a structured AA.
There is an overall lack of clarity for the shared use of non-tidal waters.
2 River Transport 1189-1600, February 2011; The Rev’d Dr Douglas Caffyn, Caffyn on Rivers - Home Page
3 In the absence of a recognised public right to a waterway, the previous and present Government’s
policy in England are for Voluntary Access Agreements (VAA’s). These can have conditions of use
independently set by third parties, rather than being mutually agreed. Canoe England uses the
terminology Access Arrangements (AA’s) rather than agreement.
Historically VAA’s are without rights, insecure, being subject to termination at short notice. When
arranged, the periods of use imposed can be limited to a few days or weeks per annum and make some
provision for those requiring a greater certainty of access at particular times. VAA’s are few in number
due to the difficulties as highlighted by the Government sponsored demonstration access feasibility
projects (2004). The project schemes on the Rivers Teme and Wear were unsuccessful.
The policy for VAA’s has been shown to have failed to meet an unmet demand when Canoe England
has a remit to promote canoeing on all suitable waters in England. They may work well for some
individuals or small organisations, however they cannot be used for securing public access.
4 Canoe England Waterways & Environment Charter –
Policies
The Charter takes into account the recently published research (2) that has established a strength of
evidence for a historic public right of navigation to exist on all non-tidal waters that are physically
usable. Canoe England believes the lack of certainty for public rights and the law has created tensions
between user groups that can be resolved by a presumption in favour of a right of access; supported
by appropriate local management measures.
5 You, your canoe and the environment -
Environment
6 Dedication – leads to a public right of access. The Countryside & Rights of Way Act 2000 has
provisions for Dedication by landowners and relaxing specific restrictions in the Act.
8 June 2012

---------- Post added at 22:18 ---------- Previous post was at 22:17 ----------

http://www.canoe-england.org.uk/medi...%202012%20.pdf

---------- Post added at 22:34 ---------- Previous post was at 22:18 ----------

A law could only be passed which would allow you to use it, not the other way around! i.e. you have no right to navigate anywhere unless you have the permission of the owner to do so.
If you too want to try the Act for Wears and Fishgarths 1472 as a counter to this statement, perhaps you should first peruse this:
http://andybiddulph.co.uk/ESW/Files/Case_for_Claimant.pdf
(And this guy used every argument in the book, much respect to him!)
As for your expectations; if the owner forbids Navigation there is nothing which forces him to accept your money and agree to your demands. NO, often in my experience means exactly that.

---------- Post added at 21:49 ---------- Previous post was at 21:46 ----------




And often bestows the power of bailiff on the purchaser to help protect the water from illegal activities which could damage the fishery in some way.

Geoff I think I am being thick - who won the Andy Biddulph thing ? what was the outcome ? It looks like from his website he is still fighting the case.

 

[Windy]

Windy
I am not sure why you make such a disrespectful and aggressive reply.

However, my idea is that if it is demonstrated on one river, that the principle applies and most people would accept that it is generally applicable to other rivers without the bother of suing on lots of other rivers. I am no lawyer...l just applying common sense...

My apologies Waterways, wasn't intended that way. Dashed off in the five minutes I had to comment before heading out the door for a drive in heavy traffic (why is Tuesday the worst day of the week ? it makes no logical sense at all) and a twelve hour day.... only now finished eating far too late and time to catch up....

Far too abrupt, I agree.

To establish a precedent a case needs to decide an issue of law, not fact, and to be a judgment of a court of record. That means the High Court and above, not the County Court or Magistrates Court where a case of either minor damages for trespass or Section 5 criminal issues would be tried. To establish a precedent from those Courts would require an appeal to the Divisonal Court or Court of Appeal and there on above. Even then that higher Court would have to be persuaded that there was a real issue of disputed law of public importance which required to be decided on the facts of that particular case. Rare as hens teeth. 25 years of practice and I only managed one judgment in one case which achieved that status. Upheld in the House of Lords *blush*.

The costs of elevating a case to such a level are immense. The cases that give rise to a genuine question of law as opposed to fact are equally rare.

A case of trespass / Section 5 on a particular water at a particular geographical location is almost never going to decide anything more than what the Court considers applies to that water at that time and at that place, no more.

It is not impossible that the "right" case might not be found to elevate that issue to the question whether a general right of navigation existed in those circumstances on that water at that time, but it is almost inconceivable that it could be elevated to a level that requires the Court of Appeal etc. to decide the much wider issue of claimed general rights of navigation over every river with sufficient draft to float a log raft (prehistoric), dug out log (bronze age +) or coracle (as the predecessor of the modern canoe or kayak).

Which is what the Reverend Caffyn effectively maintains to be the case. Relying on the suggested application and survival of Roman law from 44AD when the Romans left Britain, through the next thousand years of development of the quite different and distinct Anglo Saxon basis of the Common Law, as subsequently modified by the introduction of Norman law on top of the established Anglo Saxon custom and practice. It is frankly balderdash. Not helped by even more spurious balderdash about Magna Carta and the rest.

I'm not saying that this is not a matter of public interest worthy of the judgment of a Higher Court, to the contrary, I think it is. Otherwise law abiding people are being cozened, cajoled and encouraged with spurious arguments into behaviour that is illegal, provocative and will frankly end in tears at the behest of those who are intent on promoting what they see as legitimate class war. It is the innocent and sincere canoeists thus misled who will suffer.

That's what I would have drafted had I not had two minutes to dash for the door, sandwiches in hand and a long day ahead.

Sincerely, not intended to be eithe unpleasant or rude.

 

[geoffmaynard]

Geoff I think I am being thick - who won the Andy Biddulph thing ? what was the outcome ? It looks like from his website he is still fighting the case.

According to his Navigation page, he withdrew from the case. It's on his website.

 

[bennygesserit]

According to his Navigation page, he withdrew from the case. It's on his website.

But it seems he did not withdraw because he was proven wrong ( I have just been reading his thread on sotp ) but because of legal issues and costs , very similar to the ones Windy has mentioned above.

 

[sam vimes]

It's painful, but strangely compelling, wading through an awful lot of the legal stuff. It becomes painfully apparent that the law is vague, at best, and can easily be described as wilfully obtuse. Too much is open to interpretation, be that by a plaintiff, defendant, judge or their legal representatives involved with a specific case. I suppose that the lawyers wouldn't want it any other way!

The bottom line seems to be that the winners, other than lawyers, will be the ones with the deepest pockets. Sadly, in the case of canoeists versus anglers, it'll be neither, as such. The law will protect the interests of the landowners/crown and whichever side happens to coincide best with their interests.

 

[bennygesserit]

It's painful, but strangely compelling, wading through an awful lot of the legal stuff. It becomes painfully apparent that the law is vague, at best, and can easily be described as wilfully obtuse. Too much is open to interpretation, be that by a plaintiff, defendant, judge or their legal representatives involved with a specific case. I suppose that the lawyers wouldn't want it any other way!

The bottom line seems to be that the winners, other than lawyers, will be the ones with the deepest pockets. Sadly, in the case of canoeists versus anglers, it'll be neither, as such. The law will protect the interests of the landowners/crown and whichever side happens to coincide best with their interests.

Sam what have your encounters with canoeists been like ?

 

[sam vimes]

Sam what have your encounters with canoeists been like ?

Varied. From fairly pleasant exchanges with consideration ("morning, which way would you prefer me to go?" followed by a quick glide through the indicated path past my swim) to wilfully beligerent and intent on spoiling my day (seeing me, not acknowledging my existence, then proceeding to hold station and/or paddle up and down my swim).

 

[bennygesserit]

Varied. From fairly pleasant exchanges with consideration ("morning, which way would you prefer me to go?" followed by a quick glide through the indicated path past my swim) to wilfully beligerent and intent on spoiling my day (seeing me, not acknowledging my existence, then proceeding to hold station and/or paddle up and down my swim).

thats just sad , the belligerent aspect I mean , what on earth is the reason for that ?
testosterone probably !