The winter issue of 'Water Space' issued by the Water Space Amenity Commission carries an interesting article on the right of navigation on rivers, written by Arthur Telling. The article goes into the existing rights which are a bit vague, when it comes to the point, and what ought to be done to clarify the position. The following are some relevant extracts from the article.

In tidal rivers and estuaries, the existence of a public right of navigation will be presumed unless the contrary is proved; it will also be presumed in the absence of proof to the contrary that the river or estuary is vested in the Crown. Lord Hale, a Chief Justice of the seventeenth century, described tidal waters as "arms of the sea".

In non-tidal rivers, the position is quite different; the river bed will normally belong to the riparian owners. There is therefore no general right of navigation. But the public may have acquired the right to navigate. One of the ways in which the public may have acquired such right is by "immemorial user", that is, user over the centuries. There is no doubt that on many rivers the public do have the right to navigate for considerable distances upstream as a result of such immemorial usage. What is often uncertain is how far upstream these ancient rights extend. In the case of non-tidal rivers, it is for those who assert that there is a public right of navigation to prove their case; otherwise riparian owners and anglers can successfully object to the passage of boats.

Public rights of navigation may have been created by statute. In the seventeenth and eighteenth centuries, entrepreneurs were frequently authorised by private Act of Parliament to improve the navigation on rivers or to make navigable rivers previously not passable. The difficulty here is that it is not always easy to trace these old private Acts or to find out whether they have subsequently been repeated. The public right of navigation is said to be a right to pass and re-pass along the river and to do things reasonably incidental to navigation. Where it exists, it is a right to use the river to its full capacity and it is paramount to other uses of the river.

However, it must be exercised reasonably, having regard to the physical capacity of the river and the rights of other navigators. It may therefore be unreasonable for very large craft to use the river. "Obviously, you cannot take the Queen Mary up the Thames" - a proposition put to Allan Blenkharn, when he was giving evidence to a parliamentary committee. Mr. Blenkharn agreed!

Moreover, although at common law the right of navigation (where it exists) is paramount, it must be exercised reasonably in relation to anglers. Thus where there is a public right of navigation, fishermen cannot complain of disturbance resulting from the passage of a boat in a normal and reasonable manner. But fishermen have every right in law to complain of abuse of the public right of navigation, e.g. excessive speeds by power boats and possibly the more acrobatic forms of canoeing.

A navigable river is really a species of highway similar to, but not identical with, a highway on land. Some differences necessarily result from the fact that whereas a highway on land has a stable surface, a river is fluid and the level of flow variable. A question which may have to be settled in the future is whether the right to pass above or under the surface as well as along the surface of the river.

So far as common law rights of navigation are concerned, the Cairngorm case decided in 1976 settles clearly enough that the right to navigate includes navigation for recreational purposes. Where rights of navigation were originally created by statute, the extent of those rights must be determined by reference to the statute itself; but, unless the terms of the statute clearly limit the right of navigation to the carriage of goods, there seems no reason to deny a right to navigate for pleasure.