Wednesday, October 27, 2010

A confusion of meanings

The legal system has not helped in the debate over public rights of navigation by its confused use of terms.

In the debate about access, much is made over the terms used to describe waterways.

You will find tidal waters referred to as 'Navigable' and inland waters as 'Non-navigable' and 'Private'. At first glance these terms would seem to clearly refer to the right to pass along the water in a vessel such as canoe.

navigable is used in 3 different ways in legal cases.
  1. To distinguish between tidal (navigable) waters where the soil under them is in the possession of the crown, and there are public rights of fishing (in general) AND non tidal waters (non-navigable) where the soil is generally in the possession of the owner of the adjacent land, and with it the rights to fish, extraction and use of the water and banks (the 'Riparian rights')
  2. To describe if a river is physically capable of navigation. Acts of parliament have been passed giving powers to 'make rivers navigable' and provide compensation to the owners of the land for any losses by such works.
  3. To describe if the river may be navigated or not in a legal sense.
You can probably see where the problem lies, if all the rivers described as non-navigable under meaning 1, were then interpreted as being non-navigable under the third meaning. All non tidal waters would not be legally navigable.

Cases up until Bourke V Davis (1890) did not discuss 'navigation' of inland waters but if the river was 'navigable' in relation to ownership of the soil, so that ownership of disputed rights to fish could be determined.

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