Who's freedom wins?

Nether Wallop Mill September 1st 2014

Canoeists? You’d hardly think they would feature much in my thoughts sitting here as I am in the transit lounge of Chicago O’Hare airport en-route to Jackson Hole for the annual One Fly.  But they do thanks in part to an excellent article in last week’s Country Life, a conversation with the venerable Jim Glasspool ex-secretary of the Test & Itchen Association (T&I) and what I know is ahead of me in the tumbling white waters of the Idaho and Wyoming rivers. More of the latter two in a moment, but first the piece from Country Life that I reproduce in full:

“The continuing ill-feeling between anglers and canoeists could come to a head in court. The Angling Trust’s legal arm has issued canoeing organisations with a ‘letter before action’ demanding that they stop publishing information that suggests canoeists have a legal right of way on non-tidal waters. The trust points out that canoeists have 2,000 miles of waterways open to them and suggests they should deal with landowners for any other access.

The trouble stems, in part, from a thesis by the Rev Douglas Caffyn, in which he invokes Magana Carta in suggesting there is a public right of way on rivers. However, this has been refuted by Defra, which says that canoeists must negotiate voluntary access agreements with landowners.

The Angling Trust complains that canoeists can disturb fish and stir up river beds. ‘Our members have often tried to make agreements with canoeing clubs for greater access, with reasonable conditions to protect the water environment and avoid interference with fishing’, explains chief executive Mark Lloyd. However, these offers are repeatedly rejected because canoeing governing bodies insist that such agreements must allow unlimited access or that permission is not needed.”

The canoeist lobby seem to have fire in their belly for a fight, I guess empowered by the Right to Roam legislation but the truth is that right to paddle is nothing new and I had to dredge my memory to a time long before fly fishing was my living, to when this was last a serious issue. Back in the 1980’s the members of the Test and Itchen Fishing Association as it was then (the word fishing was dropped recently because it lacked inclusivity) clubbed together and pledged  £70,000 to fight a court case against the British Canoe Union (BCU) who were asserting the right of navigation on the River Itchen. 

It was a mighty sum of money to put at risk for an association that numbered less than two hundred and as Jim Glasspool reminded me should the judgment have gone against the T&I all the money would have been lost. But as things turned out the BCU capitulated on the court steps, accepting there was no public right of navigation.  Costs of £40,000 were awarded against the BCU and as an impoverished student I was pleased to get back £80 of the £100 I had pledged.  And there the position has pretty well lain since then, excepting a similar fight on the River Derwent (funded in part by a £10,000 contribution by T&I members) a few years later, where the judgement was the same.

However, thirty years on the social landscape has changed so can we be sure a court would come to the same conclusion today? After all who’s freedom is more important? Should the angler have the right to pursue the quiet enjoyment of his pastime to the exclusion of others or should the canoeists be free to paddle on the streams that are part of nature’s landscape?

 It is a tricky one. There is no doubt that the two can often happily co-exist; on the rivers of Wyoming that are beloved by both fly fishers and white water rafters I know I’ll will see quite literally hundreds of the latter on an average day this coming week, so much so that we’ll sometimes stop casting momentarily for fear of snagging a rafter. I for one have never felt the fishing suffers for the rafting, but then again these are big rivers, as much as 200 yards wide and I suspect that the volume of water that comes down the Jackson River in one hour is as much as comes down the Itchen in a year. On the other hand across the border in Idaho the speedboaters have grandfathered–in rights to sweep up the Snake River often causing such wake that we’ll have to hang on to the gunwale of our drift boat to avoid being tipped out.

Back at home I suspect we’ll face many a conundrum agreeing what style of navigation is suitable for what kind of river. Plenty of voluntary access agreements are already in place, including on stretches of the Itchen outside the fishing season.  Will this be enough for the right to paddle lobby? In the short term maybe, but in the long term I doubt it. The ecologically fragile chalkstreams will make a sound case for remaining canoe-free but ultimately a Court of Human Rights will decide who’s freedom wins.

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