BCA constitutional changes

Badlad

Administrator
Staff member
In response to comments made on the previous thread about the process of the BCA ballot

I don't wish to comment on the process of the ballot itself but I can comment on the reference to its importance for the CRoW debate. There are several constitutional amendments to the constitution proposed in this ballot but none will impact on the CRoW debate in reality.  I expect the one the poster was thinking about in the other thread is the removal of the sentence from section 4.6 of the constitution namely;

?That the owners and tenants of property containing caves have the right to grant or withhold access?

The BCA AGM, as final interpreters of the constitution, already voted overwhelmingly that ?This general meeting confirms that there is no impediment in the constitution to prevent the BCA campaigning for the Countryside and Rights of Way Act to apply to caving.?

However members do vote in this ballot it will not change the BCA position regarding a campaign to confirm caving comes under the CRoW Act.  The main reason for removing that sentence is that it is plain inaccurate.  Landowners and tenants of property do not have the right to grant or withhold access to caves on land covered by the Land Reform Act (Scotland), nor do they have the right to withhold access to the entrances of caves on land designated under the CRoW Act.  All that is disputed is how far down a cave you might go before the Act ceases to apply.

It has been of concern that some members have tried to use that sentence to prevent the BCA from campaigning for CRoW.  More worrying, if that had succeeded, is that the sentence could have been used equally by landowners or quarry owners who might wish to prevent BCA from campaigning for access or even to save caves from destruction.  BCA Council has dealt with this issue several times as quoted below;

?BCA Council is fully aware of the Guiding Principles as outlined in sections 4.2 - 4.8 of the constitution and always seeks to act in line with these.  However, the law of the land takes precedent over a constitution. Therefore, Council is happy that sections 4.4 - 4.8 are no impediment to BCA campaigning to change DEFRA?s current interpretation of the law, which by their own admission is not definitive.?

And..

?BCA Council has the utmost respect for landowners and recognises their right to decide how their land is used within the constraints of the law. It is now more than 15 years since the CRoW Act was introduced. At the time all sorts of potential concerns were raised by opponents of the legislation, but Council believes these have largely failed to materialise. Indeed in general landowners now seem content with the legislation and Council does not see this changing if caving is shown to also be included as a permitted activity. Furthermore CRoW legislation reduces landowners? potential liability to the lowest level possible in law and, as such, Council believes the majority of landowners will benefit if the CRoW Act is understood to apply to caves.?

The BCA AGM supported the changes as do the executive.  If people wish to vote against them then that is their right but they should be properly informed on what they are voting for.  Voting against the changes will probably only result in making life that little bit harder for some already hard working BCA officers.
 

Mrs Bottlebank

New member
I have found the article below helpful as it gives email address if you haven't (like me) yet received your ballot and help on trouble returning an email ballot. It also gives another view point.

I don't want to light a touchpaper, just make fellow cavers aware of some further information.

https://ukcaving.com/board/index.php?action=post;topic=22345.0;last_msg=282609
 

royfellows

Well-known member
Without any disrespect intended the information on DarknessBelow is both biased and legally incorrect.

For the benefit of those who don't know it, I am a landowner and mine owner (through my trust companies) and also the legal and insurance officer on Cambrian Caving Council.

As it stands sec 4.6 is legally "Ultra Vies" in that where mineral owner is not the soil landowner (such as my NALs ownership of Dinas) a mine will belong to the mineral owner not the landowner. A natural cave will belong to the the landowner, however a  (separate) mineral owner will have full rights ancillary to mineral ownership both above and below ground.

BCAs thinking on this is entirely correct.

Furthermore, CMT, who are landowners in fee simple (bar some grazing) at Cwmystwyth and mineral owners of some other land we shall be voting (as a group member) in favour of the proposed change
 

Ian Adams

Active member
Mrs Bottlebank said:
.... I don't want to light a touchpaper ....


That statement is entirely disingenuous. The original post is an explanation and begins with a rider offering no opinion or comment on which way anyone should vote.

Darkness Below (it's directing minds) are known opponents of the position to pursue caving under the CRoW act.

The article is nothing less than biased propaganda designed to derail the democratic process and undermine the wishes of the majority who voted in the original referendum.

Add to that Roy's comments.

Shame.

Ian
 

royfellows

Well-known member
So that there is no doubt about the "ancillary rights" mentioned in my posting above, this is an extract from a conveyance of mineral rights which describes these rights in detail. Most mineral conveyances just refer to "all mines and minerals" as the rights below have been ratified in case law.

........TOGETHER with full liberty and power for the Vendors and their successors in title and their Lessees agents servants and workmen at all times hereafter to enter upon the said property or any part thereof to search for dig raise make merchantable and carry away the said mines and minerals without leaving any support for the surface of the said property or any part thereof and with full liberty and power for the Vendors and their successors in title and their Lessees agents servants and workmen to make sink maintain and use all such pits shafts levels drains water courses and reservoirs and to construct erect maintain and use all such spoil-banks railroads tram roads and other roads bridges buildings works engines machinery and conveniences whatsoever and to do all such things in under upon through or over the said property or any part thereof or any such roads or ways aforesaid as may be necessary or convenient for all or any of the purposes aforesaid

Goes a little bit further than just access, yes.
As can be seen at a glance, the legal situation may be quite complicated, and full of pitfalls were anyone to attempt to define it in a general sense.

One other thing worth mentioning is that no one can contract out of law, the law of course being decided by parliament and the courts.
 

droid

Active member
Ian Adams said:
The article is nothing less than biased propaganda designed to derail the democratic process and undermine the wishes of the majority who voted in the original referendum.

Presumably the majority the voted 'yes' in the referendum will vote 'yes' to the constitutional changes.

So any attempt at 'derailing' or 'undermining' (nice pun Ian  :LOL: ) will be doomed to failure.
 

Pitlamp

Well-known member
"Biased propaganda"? "Derailing"? "Undermining"?

Don't you want a balanced and democratic discussion?

I'm minded to go along with most or all of the proposed constitutional amendments, having come to terms with a lot of it. I don't want the volunteers who act as BCA officers on my behalf being caused unnecessary hassle. My only real concern now is the suggestion (which has appeared variously) that the sentence which would be removed by proposal 1 is factually incorrect. I've not really followed the fine detail of the CRoW act over the years personally but I thought that landowners do have the right to close access to CRoW land on a certain number of days each year. In which case the sentence in question is actually true.

I'm not campaigning for anything here - frankly I'm fed up with the whole damn thing and I just want to get on with caving as normal. I'm merely trying to get my head around all the facts before I decide which way to vote - then all I have to do is work out how to vote (i.e. circumvent suggestions of some rogue hyphen in the return email address). So I actually found that article on the Darkness Below site had some helpful content.

I'll be glad when all this is over, however it eventually pans out.
 

badger

Active member
as a council member I voted for the 4.6 amendment. however having received the voting paper, i find the explanation put forward completely unhelpful and pointless.
 

JasonC

Well-known member
Surely the point is that, whatever the truth or falsity of the statement
?That the owners and tenants of property containing caves have the right to grant or withhold access?

- it has no place in a constitution of any organisation, including the BCA.  The law determines landowners' and others' rights, nobody else.

As it stands, it's a source of confusion and a fertile spawning ground for red herrings.  As has been amply demonstrated ad nauseam.
 

royfellows

Well-known member
JasonC said:
Surely the point is that, whatever the truth or falsity of the statement
?That the owners and tenants of property containing caves have the right to grant or withhold access?

- it has no place in a constitution of any organisation, including the BCA.  The law determines landowners' and others' rights, nobody else.

As it stands, it's a source of confusion and a fertile spawning ground for red herrings.  As has been amply demonstrated ad nauseam.

Yes
(y)
 

TheBitterEnd

Well-known member
JasonC said:
Surely the point is that, whatever the truth or falsity of the statement
?That the owners and tenants of property containing caves have the right to grant or withhold access?

- it has no place in a constitution of any organisation, including the BCA.  The law determines landowners' and others' rights, nobody else.

As it stands, it's a source of confusion and a fertile spawning ground for red herrings.  As has been amply demonstrated ad nauseam.

Well said  (y)
 

cap n chris

Well-known member
JasonC said:
Surely the point is that, whatever the truth or falsity of the statement
?That the owners and tenants of property containing caves have the right to grant or withhold access?

- it has no place in a constitution of any organisation, including the BCA.  The law determines landowners' and others' rights, nobody else.

As it stands, it's a source of confusion and a fertile spawning ground for red herrings.  As has been amply demonstrated ad nauseam.

Point taken but...

Notwithstanding what the law may or may not say, would a caveat along these lines be considered out or order, irrelevant or inadmissible?

"That the wishes of owners or tenants regarding access to caves contained within their land shall be respected".

I'm not suggesting it as any kind of alternative, but merely adding it to the debate. Are cavers generally intending the law to be on their side such that they can do as they wish whenever it pleases them, irrespective of what a landowner or tenant feels or begs? i.e. avoid night-time visits so that dogs don't bark, or perhaps make a courtesy call to say what you are doing,.. etc..
 

NewStuff

New member
Cap'n Chris said:
Are cavers generally intending the law to be on their side such that they can do as they wish whenever it pleases them, irrespective of what a landowner or tenant feels or begs?

Of course they are not, as well you know. The fact that you give "pro" campaigners such little regard is insulting, You seem to think cavers of the opinion that CRoW applies to caving are automatons that will just go where they feel when it's clarified, with no regard to the landowner/Tenant. That's not just stupid, that's nasty. I shouldn't really expect more from you and a few others though, as you've repeatedly shown the levels you'll stoop to.
 

Ian Adams

Active member
Cap'n Chris said:
"That the wishes of owners or tenants regarding access to caves contained within their land shall be respected".


I agree and I agreed on this point previously. I don't know that it needs to be in the constitution, I think it is plain common sense. I think that the vast majority of pro-CRoW and neutrally positioned cavers would also do the same in the context in which you suggest. Same with conservation - We all have varying opinions on how far we (cavers) should go with conservation but, regardless, we all respect caves and treat them as such even if we don't agree with miles of seemingly unnecessary conservation tape.

Of course there will be a minority rogue element (there is with everything) but that "element" will do as they please no matter what the BCA and its members decide.

For the benefit of the rest of us (99.9%?) on both sides of the fence, is it not time to cut the red tape and trust that our caving companions will behave with respect to the landowners, respect to the cave and within the law?

:)

Ian
 

TheBitterEnd

Well-known member
Cap'n Chris said:
Point taken but...

Notwithstanding what the law may or may not say, would a caveat along these lines be considered out or order, irrelevant or inadmissible?

"That the wishes of owners or tenants regarding access to caves contained within their land shall be respected".

What does the BCA constitution say about car parking, bolting, digging? There are a lot of things which might benefit from, say, a code of practice/ethics which are just not appropriate to be in a constitution. Constitutions may set out broad aims and objectives but generally deal with how an organisation is ?constituted? and operates and are best left at that. If there is a need to advise on things like member?s behaviour then those things are better off in a separate document, it?s how most other organisations arrange things for good reason.
 

royfellows

Well-known member
The constitution of any non corporate (not a company) organisation is the 'glue' that legally binds it together. An organisation without one does not legally exist.
A person who joins an organisation is making a contractual agreement to abide by the constitution, so the organisation only exists by virtue of the contractual agreement between its members.
If an organisation has a clause in its constitution that is outside of the law, its challengeable. Dead simple.

My arguments outlined in this thread take no account of CROW whatsoever, my only interest is in the law as it stands as enacted by parliament and ratified by the courts. I am however, fully aware of the points that have been raised in the past regarding the possible conflict between the existing sec 4.6 and BCA pursuing the CROW argument.

As far as the CROW argument, "does it or doesn't it" applies, its for the future to decide.

I also sympathise with those who are fed up with all this and just want to get on with their caving.
 
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