Defra publishes legal opinion on Canoeists’ “unconvincing” claims of universal access
After long running correspondence and a formal complaint from Fish Legal, Defra has now published its legal opinion confirming that there is no general public right of navigation (PRN) on non-tidal rivers or other inland waters in England and Wales.
Some campaigning canoeists have argued that Defra (The Department for Environment, Food & Rural Affairs) supports their false assertion that there is a PRN on non-tidal waters, contrary to the long-established property rights of others. Fish Legal repeatedly pressed Defra to clarify its position to stop false claims from the British Canoe Union, Canoe England, Canoe Wales and others that such a right might exist.
In a damning note on Rev Dr Caffyn’s thesis (upheld by canoeists as establishing a universal right to canoe wherever and whenever they like), Defra Legal said:
“The document appears to be a thesis for a Masters degree written by someone who admits to having no legal training. He has published the thesis himself. The basic point which the writer seems to wish to achieve is to open up the rivers for canoeists at the expense of anglers”;
“The generally held legal view is that there is a general absence of public right of navigation on non-tidal waters or inland lakes. The public right of navigation that exists on tidal waters does not apply. The soil of rivers is vested not in the Crown, but in the riparian owners and in the case of inland lakes, in the adjoining proprietors. This is established in a series of common law cases…”
“The Reverend Caffyn attempts to argue against these and against Halsbury’s Laws of England but without giving any real or convincing reason why he considers them to be incorrect.”
In a further significant blow to canoeists seeking to take away the rights of anglers (and other people who lawfully own or use rivers and lakes) based on the work of Rev Dr Caffyn, Defra’s view demonstrates that his work has no legal force whatsoever.
An email about this opinion from Defra Legal sent to the Private Secretary to Alun Michael MP, the then Minister for Rural Affairs and Local Environmental Quality, concludes succinctly that:
“As you will see [Defra Legal] considers Mr Caffyn’s arguments unconvincing… Mr Caffyn’s work can only be regarded an expression of a personal view.”
The Fish Legal complaint arose from Defra’s February 2013 email, responding to an enquiry from a paddler inviting them to comment on Rev Dr Caffyn’s academic work on Public Rights of Navigation (PRN).
The email said “There is no clear case law on whether a ‘common law right of navigation’ exists on unregulated rivers. This is widely accepted to be an unclear and unresolved issue.” Thanks to Fish Legal’s perseverance, this statement has been shown to be incorrect.
Nevertheless, some paddlers and paddlers’ organisations seized on the email and sought to exploit it, repeating it on websites which encourage widespread (and often unlawful) paddling.
Fish Legal wrote to DEFRA in June 2013 enclosing extracts from leading legal texts and court cases and a Barrister’s Opinion which confirmed “…the law is clear … there is no prima facie PRN on non-tidal rivers at common law.” It was clear to Fish Legal that DEFRA had not done its homework.
A major concern was that DEFRA’s email conflicted with the Government’s own policy of encouraging locally agreed voluntary access arrangements (VAAs), based on the established legal requirement that people wishing to canoe had to ask permission of the land owner or his tenant – such as an angling club. Fish Legal supplied examples of DEFRA’s email being mis-quoted by paddlers and paddlers’ organisations and websites as a justification for paddlers ignoring and sometimes refusing even to discuss entering into new VAAs, or amending or extending the terms of existing VAAs.
The Welsh Assembly Government confirmed last Friday (16 May 2014) that it would not be pursuing legislation to impose universal access in Wales and re-iterated its support for VAAs.
Fish Legal referred DEFRA to a 2013 BBC article with comments from Jonathan Karas QC who said:
• “…the legal starting point is that there is no general public right to navigate on non-tidal rivers.”
• “They are owned as part of the land through which they pass”
• “The suggestion that there are general public rights of navigation dating from medieval times is a misunderstanding. Old statutes do not grant general navigational rights. Magna Carta refers to removing dams and weirs but this was concerned with limiting the power of the King not confirming a right of navigation.”
Fish Legal Solicitor Cameron Hogg said
“The law is clear - there is no general common law PRN. Why DEFRA says there is no clear case law and that the issue is widely accepted to be unclear and unresolved - when that is simply not so – remains unknown. Similarly, why DEFRA has failed to clarify its email after we provided examples of paddlers exploiting it and it contributing to unlawful paddling, is as perplexing as it is unclear. DEFRA should have rectified its mistake, particularly now that it has published material clearly showing it took an internal legal opinion on this matter which confirmed that the law is clear and that Rev Dr Caffyn’s work is unconvincing and does not change the law.”
Fish Legal and Angling Trust Chief Executive Mark Lloyd said
“This Defra legal opinion makes it absolutely clear that the claims by campaigning canoeists that there is a universal right of access to non-tidal water are completely spurious. We call, once again, on the Canoeing governing bodies to stop distributing incorrect information suggesting that there might be such a right. To do so is irresponsible and in our view encouraging members of the public to trespass unlawfully, which is causing widespread damage to fishing rights of our member clubs and riparian owners, and conflict on the riverbank.”