The representative body for anglers in England, the Angling Trust, wrote to the Chief Executive of the British Canoe Union (BCU) today demanding that his organisation condemns a planned illegal trespass protest on Saturday 22 October 2011 on the Hampshire Avon. The Angling Trust has also asked for public confirmation that no BCU staff will be involved in the protest, and that the BCU will make it clear to participants that they will not be covered by public liability insurance while participating in an activity which is not recognised by the National Governing Body for Canoeing.

The illegal trespass event could damage the fragile ecology of the Hampshire Avon, which is currently suffering from low flows. Gravel beds used for spawning by fish, and beds of Ranunculus fluitans (a water weed which is a vital habitat for invertebrates) could be damaged by large numbers of canoes passing through shallow water. The large, garish craft will also disturb the peace of the river and destroy anglers' enjoyment of their sport by scaring fish away. An angling match for 30 anglers is planned on the day of the protest and this will be ruined by the illegal trespass. The Hampshire Avon is one of the most iconic rivers in the country for both coarse and game angling. The organisers are claiming in their e-mail promotion see note 1 that the event is not a mass trespass, but merely an exercise of an ancient right of access. The law is clear: no such right exists see note 2 .

Mark Lloyd, Chief Executive of the Angling Trust said: " This trespass is irresponsible and dangerous and could do physical damage to sensitive habitats in a river already suffering from over-abstraction and diffuse pollution. We urge the BCU to advise its members to stay away and to adopt a new position on canoe access that is less confrontational and works with angling clubs and riparian owners to secure new access – with sensible restrictions – for the country's canoeists. Any sniff of support for this illegal protest would be highly irresponsible from a National Governing Body. We have contacted the police and have asked them to take action to arrest anyone participating in aggravated trespass. "

Stuart Wilson, the Riverkeeper employed by London Angling Association who have owned a stretch of the river since 1965, said: " Organising this event is completely unreasonable behaviour and will spoil the enjoyment of a group of anglers who pay a rod licence to fish and pay for a permit to fish at Britford. Their match has been organised for months and many will have travelled several hours to come and fish. They will be utterly disappointed if a group of canoeists who contribute nothing to the upkeep of the river come splashing through the river disturbing fish and other wildlife on an illegal process. They will spoil the fishing for the most of the rest of the morning. "

Stuart Wilson has experienced an increase in illegal canoeing over the past 3 years which is affecting the fishing and the presence of wildlife such as water voles.
 

1. A COPY OF THE TEXT OF THE E-MAIL WHICH WAS CIRCULATED:
Please forward this message to your club members or any other paddlers who you think might be interested. You are invited to join a paddle down the River Avon from Salisbury to
Fordingbridge on Saturday 22 October 2011. The background to this trip is to reconfirm the ancient Right of Navigation on the River Avon in the face of ongoing objections by vested interests.
However, this paddle is not intended to be a "mass protest" (or trespass across private land), but a positive demonstration of paddling as a legitimate activity on English and Welsh rivers. It's all about having a relaxing day out, in good company, and enjoying our natural environment. There is no formal organisation of this paddle, just turn up and paddle. More details (including route maps) on the Song Of The Paddle forum here: http://www.songofthepaddle.co.uk/forum/showthread.php?32172-Hampshire-Avon&highlight=avon

2. THE LAW OF NAVIGATION ON FRESHWATER IN ENGLAND AND WALES
The Angling Trust confirms its support for the Government's and the Environment Agency's clear position that the way forward for increased access for other waters users is by the creation of voluntary access arrangements. The Angling Trust is keen to promote voluntary access agreements on rivers at times and places where this is appropriate. It is not always appropriate that either angling or canoeing takes place on every day throughout the year.

The Trust does not advocate navigation or canoeing agreements on rivers:

i) Where there is potential for environmental damage to the river;

ii) On those small rivers where there is likely to be a significant risk of conflict between paddlers and anglers;

iii) On those where riparian owners, whose permission needs to be sought in law for access agreements, would suffer unreasonable interference with the enjoyment of their property.

The Angling Trust is very concerned that governing bodies of canoeing are frequently misstating the law on navigation on rivers in England and Wales and thereby encouraging conflict. This makes the commissioning of voluntary access agreements less likely or even impossible. However, this will not stop the Angling Trust continuing to promote access agreements as the way of increasing access for canoeists in line with Government and Environment Agency policy in both England and Wales.

The current position of the law is settled in that no general public right to navigate in non tidal
rivers exists in England and Wales. While the public has the right of navigation in tidal waters (e.g. Gann v Free Fishers of Whitstable (1865) 11 H.L.Cas; Blundell v Caterall (1821) 5B & Ald. 268), this depends on the presumption of the Crown's ownership of the land beneath the water. This presumption is rebuttable and there are some instances where the tidal riverbed is under private ownership.

The presumption of rights of navigation on tidal rivers contrasts with the very limited right on non-tidal rivers. The default position is that there is no such general right of navigation. Above the flow of tide the land beneath a river or stream is privately owned so that while the public can acquire navigational rights over such waters they cannot have them as of right. It has been held that rights of navigation on inland waterways are not analogous to rights of way on land (Wills' Trustees v Cairngorm Canoeing and Sailing School (1976) SLT 162 and AG
ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton [1992] 1 All ER 230).

Acquiring rights of navigation
Post-Wills Trustees, the public acquisition of a right to navigate on a non-tidal waterway cannot be based on the usual arguments used for "immemorial user" for rights of way on land. The basis of a public right of navigation in a non-tidal river should be treated as being in a legal class of its own. Of course, as is well recognised, a public right of navigation may also arise through statute. This is the most common way in which such rights arise.

No right for use of banks
Even in the situations where the public has a right of navigation in a non-tidal waterway (whether by grant, statute or immemorial user), this does not necessarily include the right to moor or to make use of the banks of the waterway in gaining access to or leaving the waterway. In A-G ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton [1992] 1 All ER 230, L Jauncy commented, obiter, that ". . .the public have no right to use the bed or banks of the river other than perhaps for anchoring in an emergency and for landing at a place where they are entitled so to do".

Therefore, to moor and access the river in such circumstances, canoeists would need the permission of the owner of the river bank to avoid to avoid trespassing.