It’s just over 15 years since the passing into law of the Land Reform (Scotland) Act – the wonderful piece of legislation which, among other things, gives us all the right to stravaig freely around the countryside – regardless of who owns it – as long as we behave ourselves while doing so. The “right to roam,” as it has become known, is usually spoken about in the context of land-based activities, particularly hillwalking, but the act also makes provision for those hardy souls looking to enjoy Scotland’s rivers and lochs – and, as a new book reminds us, one of the key events that helped pave the way for the act was a legal battle to gain access to the River Spey for recreational water users, fought in the late 1960s and early 1970s.
When Clive Freshwater passed away in 2015, he left an impressive legacy: he was an outdoor education instructor at Glenmore Lodge for most of the 1960s – an important period in its development; he served as the head of BASI (the British Association of Ski Instructors) for 12 years from 1967; and in 1969 he set up the now-thriving Loch Insh Outdoor Centre with his wife Sally, after leasing a small boathouse there from the Forestry Commission.
Because Loch Insh is really just a wide section of the Spey, Freshwater soon started taking groups of canoeists on expeditions along Scotland’s third-longest river – and it was at this point that his life became very much more complicated. As he puts it in his posthumously-published memoir, Making Waves: “A court action had been raised against us for canoeing on the river. We had been intercepted at Knockando more than once and been told in writing that we had to desist forthwith; I had written back to apologise and to assure the landowners that I would only be using the river on Thursdays. There had been no cheek intended... but [my letter] had seemingly been written not on Basildon Bond but on blue touch-paper, since a rocket had gone up.”
So began what came to be known as the “Spey Canoe Case,” later described by Lord Emslie as “the biggest case on water rights in Scotland for the last 250 years.” Wills’ Trustees, who owned land on both sides of the river at Knockando, set out to prove that Freshwater’s canoe expeditions were disturbing the salmon, and therefore making life more difficult for sport fishermen; Freshwater, meanwhile, represented by Kemp Davidson QC, set out to show that a public right of navigation had existed on the river for hundreds of years.
Most people in Freshwater’s position would simply have backed down when confronted with the initial legal challenge, but Freshwater wasn’t most people. “What riled me more than anything else,” he writes in Making Waves, “was that in simply chucking the weight of civil law around – using the last resort first – our opponents really did think we would buckle at the start... They knew we had no money, so they never expected for a moment that we would defend the action.”
It’s difficult for a layman to fully grasp the complexities of a case like this; fortunately, however, the man who edited Freshwater’s memoirs after his death, Tom Drysdale, is not only a friend of the family but also a retired solicitor, so who better to explain the various ins and outs?
“The case was immediately remitted from the Sheriff Court to the Court of Session because of its complexity,” he says, and [Freshwater] got the decision in his favour. Lord Maxwell said that there was a public right of navigation on the Spey and he could therefore take the trips [down the river].”
The key to winning, says Drysdale, was some of the research Freshwater himself did into the legal history of the river. “He gathered a lot of evidence to support his case. He rooted around in the Sheriff Court House in Elgin, and he and Alastair Cameron, his junior counsel, discovered 18th century cases where the loggers who were taking logs down to the shipyard at the mouth of the Spey actually took local people on the rafts they made out of the logs... So through that they established that the river was being used for public navigation.”
After Freshwater’s initial victory, the landowners appealed to the Appeal Court at the Court of Session, and once again the court found in Freshwater’s favour. “[The landowners] then appealed to the House of Lords,” continues Drysdale, “which I suspect was short-sighted of them, because the judgment in Appeal Court was quite marginal, but the House of Lords, which was the ultimate court of appeal for civil cases, found strongly in his favour. They established conclusively that the Spey was a public navigable waterway, and not only that, but because that right was a crown right it wouldn’t run out of time – so once it had been established, it would remain a right forever.”
And how does all this have a bearing on our right to roam? “I think this was quite a key factor in the move towards universal rights of access,” Drysdale concludes. “I’m not sure if this case was cited in the legislation, but I think it must have been very much in the minds of the legislators.”
Making Waves by Clive Freshwater, edited by Tom Drysdale, is published by Cairngorm Canoeing and Sailing School. Copies are available at Loch Insh Outdoor Centre (£10) or by phoning the Centre on 01540 651272 (£14 in the UK/ £16 Europe, inc. p&p). All profits will go to a new “Insh by Insh” fund to help youngsters in the Highlands and Islands achieve their sporting goals.