Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[Berty]

To be clear one group of people have told me I do not have the right to access, and another have told me I do have that right. I am trying to get a greater understanding so I can make my own mind up.

You say I need written proof based modern on modern law, law doesn't need to be modern to be valid and enforceable, laws don't expire with age. I accept the Magna Carta and roman laws are not very relevant.
But there are many laws far newer than this which state or imply the right to navigate all rivers exist, therefore if the right to navigate no longer exists a newer Act must have gone through parliament that repeals this right. If some one will tell me what this Act is I and many other canoeists will stop annoying you.

Richard Benyon has phrased his statements on this issue carefully and does not clearly state there is not a right to navigate, this makes me suspicious of his views, why does he not give a totally clear view.

So Barney, are you happy to ruin the pastime of those engaged in 100% legal pastimes that they may have paid dearly for just because you THINK you MAY have a right to trespass?

You have been told the situation and if you choose to ignore that you are deemed to be acting against the law........we(anglers) are NOT and i suggest that your actions may be deemed to possibly cause a breach of the peace if those acting TOTALLY legally become so frustrated as to take it upon themselves to protect their PROVEN RIGHTS!

You all (canoeists) seem to admit nothing is proven, so untill you can prove things one way all the other let those of us who have rights alone!

 

[Jeff Woodhouse]

If an Act does exist that removed the right to navigate please tell me what it is.

It may not have been an act to remove a right. Just an act that when written perhaps on soemthing else overwrote the original act. We get that in fisheries by-laws all the time, it's the new ones we have to obey and forget the old.

I think Windy has summed it all up though if you've read through his posts.


Just as an aside, we came back from shopping today only to find a car parked directly in front of our drive despite having a newly restored white line in front of it and a red and white sign on the fence stating "NO PARKING - Driveway in constant use". That's the problem with so many people today, no respect for others. "I'll do as I please and b*****ks to you all." attitude and this is what rubs people up the wrong way. Whether it's driving, riding a bike (please don't get me on this one), or wanting to canoe where you like. If it's legally wrong or even if you're just not 100% sure, then why do it?



( YES, I do think cyclists should pay. They want separate sections on which to ride, like in Netherlands say, but they don't want to pay for it. So who does? The motorist of course. They should also have a number printed on their back unique to them so that cameras can trap them like they do motorists for going through red lights. Canoeists should also have a unique number on their craft so we can chase them down and bring injunctions against them, what's wrong with that? ) Rant over.....

 

[bennygesserit]

It may not have been an act to remove a right. Just an act that when written perhaps on soemthing else overwrote the original act. We get that in fisheries by-laws all the time, it's the new ones we have to obey and forget the old.

I think Windy has summed it all up though if you've read through his posts.


Just as an aside, we came back from shopping today only to find a car parked directly in front of our drive despite having a newly restored white line in front of it and a red and white sign on the fence stating "NO PARKING - Driveway in constant use". That's teh problem with so many people today, no respect for others. "I'll do as I please and b*****ks to you all." attitude and this is what rubs peopel up the wrong way. Whether it's driving, riding a bike (please don't get me on this one), or wanting to canoe where you like. If it's legally wrong or even if you're just not 100% sure, then why do it?

Jeff

I haven't fished a river since I was a kid , do canoes passing by make that much difference , what if its just the odd one , would that ruin your swim ? I know you said on some stretches they are ever present , but on the more remote areas would the odd paddler make a difference?

I know that most on the sotp forum try to pass by an angler responsibly but sometimes depending on the underwater topology it isn't always possible to use the far bank.

 

[Jeff Woodhouse]

I haven't fished a river since I was a kid , do canoes passing by make that much difference , what if its just the odd one , would that ruin your swim ? I know you said on some stretches they are ever present , but on the more remote areas would the odd paddler make a difference?

Even more so IMO. I once had a large shoal of chub almost feeding from my hand, fish from 2-5lbs and passing through my shadow across the water. I was about to get a rod and go for one or two when the group of kids came over the weir and the chub scattered like crazy.

I spent the next hour trying to get those fish back patiently feeding in pellets and finally after about 90 minutes they started coming back in and feeding confidently again. Only to find that the canoeists had gone around through the lock and back over the weir again. The fish scattered once again and I never saw them return after that. This is a quiet strip where there are no boats, since they can't get up the weir, and so compare with your quiet length that may only see a canoe every so and so.

One canoe or many canoes, I believe the effect is the same and yet I have had nice couples going through in a tandem and waving and teh fishing has died for quite a while. It's the annoyance, but the river is navigable so can't complain. We did question the use of the weir structure and the EA were a bit perplexed - first they were up in arms, then they said OK so long as no one holds us responsible... As if!!!

 

[Paul Boote]

Jeff

I haven't fished a river since I was a kid , do canoes passing by make that much difference , what if its just the odd one , would that ruin your swim ?

Very telling. Nothing to do with spoiling one's brief selfish pleasure, rather more to do with effin up what remains of Wild Britain.

Unless a lot of us Anglers, from the Poshos and their me-too, good-lifer politician hangers-on (the cause and continuing cause of The Problem in their desperate, p-poor, Self-attention-seeking, closing the stable door long after the nag has bolted, efforts to redress it) to the "Ain't me, mate" rest, get a grip ... well ... who wants to go after ducks, feathered or scaled, in some priced-up tap-filled barrel...?

 

[Poshpaul (Angling Trust and PaSC)]

Just to emphasize. An act is not necessary in order for the principle of no automatic right of access. It is embedded in the Common Law which is established through precedent set by case law not statute.Trespass is common law. If you haven't got permission you have no right of access or indeed travel.

I find this all most enlightening because I have never had any negative experiences with canoeists. Those I come across have been without fail pleasant, considerate...indeed helpful (retrieving the odd lost float etc)...even the school party that paddled right through a swim I had been pre-baiting for over an hour on the Teme were doing what they thought was the right thing. Sticking diligently to the far bank, as far away a possible from where I sat!! Poor kids couldn't understand why I was hooting with laughter...until explained to teacher ....then the little sweeties were mortified.

What is sad is that quite clearly elsewhere arrogance and taking liberties, indeed contravening the law, clearly takes place.

I'm fortunate that the stretch of canal I frequently fish has a mutually respectful and friendly group of regular anglers, cyclists, narrow boaters and canoeists.

 

[geoffmaynard]

I have already listed the arguments, and I don't see where the law has been clearly spelt out.

You are right attempting to weasel-word around facts won't help, please tell me the facts, not your opinions. i.e the actual laws.

To be clear the Acts I refered to in my first post all state or imply the right to navigate existed, so where is the law that removed this right. The case law quoted by AT and others cannot over rule Acts of Parliment. If an Act does exist that removed the right to navigate please tell me what it is.

I refer you to Windy's post No 114. "The question itself is misconceived in its underlying assumptions. There is no such "law" as in written down piece of wisdom or statute which can be directly and definitively quoted as, "ta dah, the answer". It's like the right to free speech before the Human Rights Act made it statutory. It's common law."

 

[Windy]

If some one (Windy?) can provide a comprehensive legal arguement, based on legal instruments and case law, that discredits those arguements put by the BCU and the Rivers Access Campaign, there are a large number of canoeists who will stop paddling on rivers where there is not a Navigation Act.

Please pm me your email address.

I trust you enjoy being bored at length :wh.

Beware what you ask for, you may get it.

I haven't done much fishing today, good thing it was peeing down. The first draft of my views is not complete, given the shoal of red herrings running up and down this particular river.

What I would say is that you and your fellow sincere canoeists should beware. Be very careful indeed. There is a very sensible rule against political posting on this forum which I do not lightly touch upon. However. I think you and your fellow canoeists are being used. There is a very definite and I think organised political element underlying much of what has gone on in this country over recent years.

The attack on fox hunting and the protests that followed, not to decry the very sincere people who care about foxes and their welfare, were very much used by a political element that was and is more interested in attacking what they perceive to be red clad toffs and burger all in reality to do with fox welfare.

I have little doubt that there is a pretty hefty element amongst the activists urging civil disobedience and direct action that has the same views about property ownership being theft, and that fishermen are salmon catching toffs and aristocrats who have it coming to them.

There are other disputes and issues which have been similarly hijacked, or where the goodwill and sincere beliefs of the moderate and sensible majority are being twisted abused and used by activist elements in this way.

I probably go too far in relation to breach of this sites rules in referring to the apalling political hijack of the Miner's dispute by Scargill and the rest. Don't get me wrong or think me a tory toff, I am the grandson of a pick and shovel wielding Welsh miner who died of pneumoconiosis many years before his time leaving five kids for my Gran to bring up. I am apalled at what was done to manipulate, abuse and hijack in just the same way. The political motives and complete disregard for the Miner's true and legitimate interests is not something I am making up, go read a few of the websites setting out in vainglorious chapter and verse just what it was really all about.

Don't let the canoeing lobby go down that path. It's not just your freedoms at risk, its all of ours.

Good luck to all canoeists exercising the General Right of Navigation as and where it exists. But not where it doesn't and never has.

 

[barney20]

Just to emphasize. An act is not necessary in order for the principle of no automatic right of access. It is embedded in the Common Law which is established through precedent set by case law not statute.Trespass is common law. If you haven't got permission you have no right of access or indeed travel.

I find this all most enlightening because I have never had any negative experiences with canoeists. Those I come across have been without fail pleasant, considerate...indeed helpful (retrieving the odd lost float etc)...even the school party that paddled right through a swim I had been pre-baiting for over an hour on the Teme were doing what they thought was the right thing. Sticking diligently to the far bank, as far away a possible from where I sat!! Poor kids couldn't understand why I was hooting with laughter...until explained to teacher ....then the little sweeties were mortified.

What is sad is that quite clearly elsewhere arrogance and taking liberties, indeed contravening the law, clearly takes place.

I'm fortunate that the stretch of canal I frequently fish has a mutually respectful and friendly group of regular anglers, cyclists, narrow boaters and canoeists.

I agree that common law is established by case law, but this is overruled by any statutes that exist. The argument for the right to navigate is based on statutes, therefore they can not be overruled by common law, there must be a statute that removed the right to navigate, otherwise it still exists. The Acts that confirm the right to navigate are the Act for Wears and Fishgarths 1472, and virtually every Navigation Act passed after that date up until the 19th century confirms the right to navigate existed.

As you say trespass is a common law offence, if the permission exists and/or rivers are not private property then no offence has been committed. All I am asking for is an explanation of how and when the permission was removed, case law can not be used to prove this.

---------- Post added at 15:31 ---------- Previous post was at 15:27 ----------

So Barney, are you happy to ruin the pastime of those engaged in 100% legal pastimes that they may have paid dearly for just because you THINK you MAY have a right to trespass?

You have been told the situation and if you choose to ignore that you are deemed to be acting against the law........we(anglers) are NOT and i suggest that your actions may be deemed to possibly cause a breach of the peace if those acting TOTALLY legally become so frustrated as to take it upon themselves to protect their PROVEN RIGHTS!

You all (canoeists) seem to admit nothing is proven, so untill you can prove things one way all the other let those of us who have rights alone!

If I have a right to navigate I will not be trespassing. Thinking I may have a right is not enough for me. I would like a clear answer based on the law.

 

[Windy]

I agree that common law is established by case law,

No. Case law and precedent is just one part of it. The elements of the common law in play here are long and ancient custom and user and the royal prerogative. That if it has been done for long enough there is a right to continue doing it, plus the King's protection of the rights to freely navigate the great rivers without let, hindrance or obstruction.

but this is overruled by any statutes that exist.

Yes, statute can overrule common law based on long user and statute.

That isn't applicable here tho, as the argument isn't that the common law has been over ruled.

Per contra, the canoe lobby's argument is that the common law establishes a universal general right of navigation over all physically navigable waters and that it hasn't been repealed or over ruled by any subsequent statute.

The argument for the right to navigate is based on statutes,

Terminologically inexact, fudged and wrong.

The general right to navigate claimed is based on common law, see above.

The right to navigate where there is a statute providing for such a right in or on a particular water, canal or complex of waterways is certainly based on statute, but that statute is confined to those specified waterways and purposes.

Neither is it a General right of navigation, it is a particular right of navigation.

therefore they can not be overruled by common law, there must be a statute that removed the right to navigate, otherwise it still exists.

Yes, but you are begging the question.

There is no argument about the historical great rivers, there plainly was and is a general right to navigation at common law which continues to subsist, subject to any local statutes.

You / the lobby are however asserting a much larger general right of navigation on all waters. Either there is or isn't such a wider common law right. If there isn't - which seems to me plain - then you don't need a statute to remove that which never existed in the first place.

The Acts that confirm the right to navigate are the Act for Wears and Fishgarths 1472, and virtually every Navigation Act passed after that date up until the 19th century confirms the right to navigate existed.

No, no and nope. Go read them.

As you say trespass is a common law offence, if the permission exists and/or rivers are not private property then no offence has been committed.

The General right of navigation exists on the great rivers under the King's prerogative protection and has plainly done so since time immemorial.

It doesn't exist on any other waters unless granted by statute.

Rivers plainly are private property, and trespass is committed unless a general right of navigation exists to rebutt any trespass.

All I am asking for is an explanation of how and when the permission was removed, case law can not be used to prove this.

I can't cite you a law that removed something that never existed. You assume it exists when it didn't, doesn't and never has.

---------- Post added at 15:31 ---------- Previous post was at 15:27 ----------

If I have a right to navigate I will not be trespassing.

Correct

Thinking I may have a right is not enough for me. I would like a clear answer based on the law.

You have a clear right to paddle on any and all of those waters which are subject to an historical common law General right of Navigation and those waters where such a right or equivalent has been granted by statute.

Anywhere else, you are trespassing.

 

[The bad one]

I think you have just fatally holed another canoe Windy
Seems they just can't grasp the argument you are making.
None so blind as those that can't see or won't see.....Now what did them three monkeys do....Oh yeh, eyes, ears just need them to put the hands over their mouths and it'll be a full house

Any chance soon they'll go for a "determination" do you think? Or is the goldfish going round a few more times.

Oh and Benney I really can't let the cycle anywhere in your park pass. Only if it's stated in the Park bylaws you can. Having read many park bylaws from around the UK, Yep, I research parks coz I'm a sad man, I've never come across as yet any bylaws stating any such thing. Many still state you are not allowed to ride a pushbike in a park and you must dismount at the gates and wheel the bike through or around the park.
Even more interesting, many of those old bylaws have never been repealed.

 

[Terry wright]

Do you know what really confuses me?
One set of facts.
Viewed by 'qualified minds' representing two groups.
Two different interpretations.
Ultimately court case(s) and large fees.

Unfortunately this seems to be the purpose of the legal profession. Those differing views generate massive earnings for the professionals and massive costs for the man in the street.

Those who seek advice don't really stand a chance.

 

[twotrucks]

Windy,

Thank you for your very careful analysis, in which you very correctly stand your argument on the following key issue:

I can't cite you a law that removed something that never existed. You assume it exists when it didn't, doesn't and never has.

You may be interested to read the wealth of painstaking research at Caffyn on Rivers - Home Page for a Master of Laws in 2004 and a Phd in 2010. The conclusions of both are exactly contrary to your assertion above. After you have done this, please come back and tell us if you are still able to make the quoted assertion.

 

[Poshpaul (Angling Trust and PaSC)]

The conclusions of both are exactly contrary to your assertion above.

Looking at the conclusions of both theses....the conclusions are not "exactly contrary". In the conclusions the author makes it quite clear there is a lack of clarity and comes to a view...i.e. an opinion, not a statement of fact. There are parts which differ from Windy's, there a bits that concur.

That's the joy of law

It is a splendid bit of Historical Investigation. Please note that although s/he discusses much of the legal disputations it is essentially a piece of historical research. (Reminds me of my sister-in-law, a Professor of Accountancy, who won a major international prize for a piece of work in her field; for a piece of work which was the first academic study of how many of the great country houses of the Georgian era were financially managed by the lady of the estate! Accountancy it touched on, historical research it was!)

 

[twotrucks]

There are parts which differ from Windy's, there a bits that concur.

The important difference is that Windys entire analysis relies on his theory that a general public right of navigation has never existed:

I can't cite you a law that removed something that never existed. You assume it exists when it didn't, doesn't and never has.

Windy has cited no evidence for this rather definite sounding statement.

Caffyn on the other hand has painstakingly assembled over many years a large body of evidence that a general public right of navigation has always existed on all rivers that were physically navigable.

 

[bennygesserit]

In giving judgement in a case decided under Scots Law Lord Hailsham said,
I am further fortified in this opinion by the reflection that what I have now held to be the law of Scotland happens to coincide with what I believe to be the law of England which, without going into the authorities, I take it to be as stated in Jowitt’s Dictionary of English Law at p. 1211: “The question whether a river is navigable or not seems to depend partly on its size and the formation of its bed, and partly on the use to which it has been put.”


No way I am getting into an argument with such experts but if the decision about whether a river is navigable depends on its use and that river is used for fishing then surely that has an influence.

Just a caveat one side or the other "winning" seems rather pointless when the majority simply want to get along.

 

[Poshpaul (Angling Trust and PaSC)]

a large body of evidence that a general public right of navigation has always existed on all rivers that were physically navigable.

Is an interpretation of the implication of his/her research (re-reading the Doctoral conclusion I'm not convinced it is exactly what s/he argues)...however the rules of interpretation (again dependent on which "rule" a judge may or may not choose) may make the term "right of navigation" far more narrow....the current trend is a purposive approach...the judiciary more likely to interpret "rights of navigation" to refer to commercial traffic than leisure.....what was the purpose of ancient rules (if they existed or are accepted)...to ensure trade and commercial activity is unhindered.

It's a jolly minefield. Much better (and cheaper) if sensible and sensitive cohabitation is the norm which, as I have illustrated, is my experience.

 

[Jeff Woodhouse]

Unfortunately this seems to be the purpose of the legal profession. Those differing views generate massive earnings for the professionals and massive costs for the man in the street.

Windy has cited no evidence for this rather definite sounding statement.

I do believe that were I either of you two or any other member of the canoeing fraternity, I would accept very much what Windy says. It's FREE advice and he is more than well qualified to state that case, very difficult to argue with such a learned former member of the legal profession and Barrister to boot. When advice comes free from such a source it is best to place tail between legs and walk away from the argument before making an even bigger fool* of one's self.

* and I used that term in a general sense, as I have also been a fool on some occasions when pride got in the way of logic. I will not site them.

 

[bennygesserit]

Trouble is Benyon wasn't clear in what he said either

1. Will you rule out a statutory 'right to paddle' for canoeists?
I want to be really clear about this. While we want more people to get out and enjoy activities in the countryside they must be complimentary. There are plenty of places to canoe where it is appropriate and others where it is not. There will be no change to our policy of supporting voluntary access agreements as the only way forward. Anglers and fishery owners spend a lot of time and money caring for our rivers and streams and their rights deserve to be respected

He certainly did not say that there is no right to navigation

---------- Post added at 12:34 ---------- Previous post was at 12:32 ----------

I do believe that were I either of you two or any other member of the canoeing fraternity, I would accept very much what Windy says. It's FREE advice and he is more than well qualified to state that case, very difficult to argue with such a learned former member of the legal profession and Barrister to boot. When advice comes free from such a source it is best to place tail between legs and walk away from the argument before making an even bigger fool* of one's self.

* and I used that term in a general sense, as I have also been a fool on some occasions when pride got in the way of logic. I will not site them.

Sorry Jeff completely disagree , if either side had the definitive answer and could prove it then this would have been a very short debate.

 

[twotrucks]

Just a caveat one side or the other "winning" seems rather pointless when the majority simply want to get along.

Couldn't agree more.

As you've probably guessed from my sympathies, I sometimes go paddling in both an Open Canoe (which is BTW a kind of boat, not a dangerous 5th column movement) and a kayak. Actually the biggest part of my fishing experience is sea fishing from both bigger boats and sea kayaks, so I would really like to understand why there is so much antagonism on English rivers only.

When I'm paddling down a river and come across someone fishing a swim, provided I see them and their gear in time, I will always stop a little distance away and try to get them to signal where to pass them as it isn't always clear.

About 80% of the time, we will have a good natured exchange, pass the time of day for a few seconds or minutes I'll pass by where they want me to and we will both feel good about life as I paddle away.

About 15% of the time the fisherman will just entirely blank me like I'm not there. Now I don't want to spoil their solitude, but I really do want to avoid passing their swim exactly where they don't want me to so after waiting patiently for a short while I am likely to try just a bit harder to get their attention, at that point they sometimes turn into one of last 5%...

It's these 5% of folks that I have a real problem with, you can generally identify them by their first few words which are generally of the four letter variety. They will use threatening and abusive language, make all sorts of threats real or imagined and will generally also tell me that I'm breaking the law (I'm not, but in their posturing and choice of language they are!). I really don't get the point of this. I suppose that they are trying to ruin my day because they would rather have the river to themselves and somehow think that I will go away, but by getting hot under the collar, all they are doing is ruining their day too. Totally unnecessary, so why would they do this?

What is the actual result of a canoe or kayak passing through a swim?

I've heard it both ways, as I say, 80% of folks I pass have no real problem, but clearly some folks think that this is a big enough issue to make a big noise about it and I would really like to understand the issue so that I can better deal with it.