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Growing up in a relatively small country town and having a keen interest in fishing, I often heard stories about farmers (landowners) being quick to pull shotguns on people who were fishing on their land without permission.
No one in their right mind would ever like to bellow at the top of their lungs to their mates while fishing, “the farmer is on his way with a shotgun. RUUN”. I hope all of you keen fishermen reading this, share that same sentiment.
How do we as fisherman ensure we never come face to face with an angry farmer with a gun?
The answer is: we educate ourselves on what trespassing means and then on how to avoid trespassing when accessing our fishing spots. That being said, if you fish often and long enough, chances are, you are going to encounter a landowner who is not happy you are fishing, ‘their river’, even if you have accessed the river legally.
Reading this article will inform you about your land access rights when fishing and will give you tips and tricks for when you do inevitably encounter a landowner who is less than receptive to your angling pursuits.
What Is Trespassing? The Legal Mumbo Jumbo of Trespassing in NSW:
The term “Trespassing” is a complicated one but put simply – if you are on someone’s land which is surrounded by a fence, and you do not have a reasonable excuse to be on their land, then you are committing a trespass.
If you are found to be trespassing, the Police can issue hefty fines to the person found to be trespassing, and the Police may even charge you with the more serious crime of “breaking and entering”.
Trespassing in the fishing context can be illustrated simply. Imagine this, you are making your way to your fishing spot, and you see an agricultural paddock and then a river on the other side of it. If you then drive through gates and across the paddock in your 4wd to get to the river, and you have not obtained permission to do so by the person who owns or occupies the land – YOU ARE COMMITTING THE CRIMINAL ACT OF TRESPASS.
The easiest way to have a ‘reasonable excuse’ to be on the landowner’s land, is by gaining permission to be on the land from the landowner or occupier. It is important to remember that permission to be on the land may be revoked at any time by the person occupying or who owns that land.
This means, after gaining permission to be on the landowner’s land, they may revoke that permission at any time. In that circumstance, if you are asked to leave, and you refuse to do so, you are trespassing. The legislation also specifies that if your conduct after being asked to leave is “offensive”, things will be worse when it comes to dealing out the penalty for trespassing.
I will now give an example of when permission is revoked. Pretend Joe Blogs advertises his fishing rod and reel for sale on Facebook Marketplace. An agreement is then made for you to attend upon the seller’s property to purchase the rod and reel. You will have been given express permission to attend on their property for the purpose of buying the rod and reel. But say for example, you get to the sellers house and refuse to buy the fishing rod and reel and start getting angry and saying, “That is not the brand I like. That is very expensive. What a joke!”. The landowner then has the right to ask you to leave their property. Upon the seller asking you to leave their property, if you do not do so immediately, you are now trespassing.
That same example can be applied to the fishing context. For example, you could have permission to be on someone’s land for the purpose of fishing the river flowing through their property. The landowner permits you access to their land to get to that spot and then in turn to leave that spot. Pretend now that the landowner finds you littering and gets upset about it before asking you to leave. In that instance, you must do so immediately. If you do not leave immediately, you are trespassing.
It is important to remember permission to be on the landowner’s land can be revoked at any time, so it is best to be on your best behaviour at all times when fishing on someone’s property.
The relevant legislation to look at about the laws surrounding trespassing in NSW is the Inclosed Lands Protection Act 1901.[1]
Nothing contained within this blog constitutes legal advice. You should seek legal advice from a lawyer if you have found yourself in trouble with the law for trespassing or for breaking and entering.
[1] Inclosed Lands Protection Act 1901. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1901-033#sec.6
Consequences of Trespassing:
In the event you are found trespassing, landowners have the power to use reasonable force to remove you from their property. If you are caught trespassing by the Police, the Police also have powers to issue on the spot fines.
It is interesting to note, the laws in NSW make it an offence for you to leave gates open, remove gates, or disable gates. This means you cannot damage gates to get to your fishing spot. Even accidentally leaving a gate open, can see you fined 15 penalty points (a significant amount of money).
It is also concerning that the legislation accounts for individuals entering into inclosed land who are in possession without reasonable excuse, of “nets, traps, snares, poison, explosives, ammunition, a knife, a hunting device or hunting equipment”. In this instance, if the trespassing offence occurred on agricultural land, you can be fined 120 penalty units or face 12 months in prison. If you are in the company of two or more persons when found to be trespassing, this aggravates the punishment, and you can be issued with a fine of 200 penalty units or face three years in prison. These are serious offences and carry with them, serious penalties.
It is important to remember most fishermen will be entering onto agricultural land when going for a fish, and they would likely be carrying a knife as well as a fishing rod, which might be deemed ‘hunting devices’ or ‘hunting equipment’.
Now we have got the scary stuff out of the way, we will discuss the fisherman’s land access rights, and how to avoid trespassing altogether, so we never find ourselves in a sticky situation with the law when trying to catch the fish of our dreams.
Nothing contained within this blog constitutes legal advice. You should seek legal advice from a lawyer if you have found yourself in trouble with the law for trespassing or for breaking and entering.
What Are The Fisherman’s Right To Land Access:
In NSW, anglers are allowed to fish sections of rivers, streams, and creeks, if they are on private land, but only if they are walking within the riverbed of the river.
This right is set down in section 38 of the Fisheries Management Act 1994 (NSW). Section 38 states:
"A person may take fish from waters in a river or creek that are not subject to tidal influence despite the fact that the bed of those waters is not Crown land if, for the purpose of taking those fish, the person is in a boat on those waters or is on the bed of the river or creek."
You need not to have committed an act of trespass to gain access to the riverbed in the first place. This means, you cannot climb over a fence, climb through a fence, or open a gate, to get to the riverbed in the first instance.
You must find access to the riverbed in a legal way. Once you are then legally in the riverbed of the river, you can walk as far as you like in the riverbed to fish, as long as you do not cross the land outside the riverbed at any point. To cross outside the riverbed without permission from the landowner would result in a trespass.
A river will usually be broken into three parts:
1. The riverbed;
2. The lower river bank; and
3. The higher river bank.
It is only the riverbed and the lower river bank which is allowed to be walked on when fishing without the permission of the landowner. My rule of thumb here has usually been, if I am standing on rocks in the riverbed, then I am not trespassing, and if I am wading the river, I should run into no issues at all.
“My rule of thumb here has usually been, if I am standing on rocks in the riverbed, then I am not trespassing and if I am wading the river, I should run into no issues at all”.
The Department of Primary Industries (NSW), Recreational Freshwater Fishing Guide, has an excellent illustration on page 11 depicting what is considered the legal versus illegal way to approach fishing in a riverbed. CLICK HERE to see the guide.
Best Ways to Avoid Trespassing:
The easiest ways to ensure you are not trespassing when heading out for a fish, is to do the following:
1. Gain permission to be on any landowner’s land before you access it. A simple knock on the landowner’s door with a bribe in the form of a carton of beer/bottle of scotch, could be a nice touch to see your permission granted. Alternatively, a promise of picking up any litter you find along the river while fishing, may see a landowner happy to let you onto their property. In fairness, I have always been too intimidated to try the tactic of knocking on landowners’ doors and offering booze as a bribe, so let me know if it works.
2. Access the river through public land such as parks, crown land, or reserves.
3. Access the river at points where a road requires a bridge to pass over the river. When fishing smaller rivers, bridges are usually spots where you can drop down into the river without going under, over, or through a fence.
4. Use the Angler Access Map found on the Department of Primary Industries of NSW’s website. This map gives you specific fishing spots and details how to access them legally.
"A simple knock on the landowner’s door with a bribe in the form of a carton of beer/bottle of scotch, could be a nice touch to see your permission granted."
Dealing With Angry Landowners:
In our opinion, if you fish often and long enough, you are bound to run into some landowners who are the bad apples amongst the bunch. These types of landowners would rather see you prosecuted to the full extent of the law for walking on one single blade of their pristine grass, than allow you the chance at fishing on their property.
Some people in our community do not like fishing as a sport and this can be for ideological, political, environmental, or agricultural reasons. The bad apples amongst the bunch will become hostile when you are fishing in ‘their river’, even if you have accessed that river in a completely legal way.
I get it, sometimes you will want to tell these bad apples to go to hell, but trust us, that is not the best way to go about being face to face with an upset landowner.
I have now been fishing seriously for roughly the past five years and by ‘fishing seriously’, I mean that I usually head out for a fish once to three times a week (I fished more recreationally before this time). In the last five years, I have had roughly four run-ins with landowners who were less than impressed to see me fishing ‘their river’.
Trust me, each time I have encountered a bad apple, I have been cussing the landowner out in my head thinking, “how dare you not know I am entitled to fish the river running through your property if I did not trespass to get to it. Go **** yourself”, but trust us, a hostile approach does not work. After all, farmers could very well have access to guns, and guns go BANG BANG (spooky).
In each instance I have come across an upset landowner, I calmly explain to them that I am a serious fisherman who knows the rules of trespass. I also explain to the landowner the way in which I got to where I was – telling them how I obtained access to the river (i.e. from the park, from crown land, or through bridge access etc). I then usually let the landowner know I will not walk outside the boundaries of the riverbed – stressing to the landowner that I will not come further up than the lower river bank.
The focus when you encounter an angry landowner should be on advising them of your legal rights while being both authoritative and respectful, all at the same time, not coming across as aggressive – when you do this just right, it usually de-escalates the situation because it shows you have taken the time to educate yourself about trespassing and that you will not be bullied or pressured into leaving when you are not required to do so.
The biggest advice I have which will win the favour of most landowners is: if you are walking the riverbed, pick up other people’s rubbish along the way and then put it in your backpack. If you come across an angry farmer, subtly work into the conversation, “I have been picking up rubbish along the way, want to see it” and then go to take off your bag. This has got me out of a bind or two because usually the landowners love having their land cleaned.
Pick up other people’s rubbish along the way and then put it in your backpack. Showing an angry landowner your cleaning efforts, can often diffuse some of their hostility.
It is important to remember, no fish, or number of fish, is worth getting unnecessarily fined over or getting into serious trouble with the law over. If a landowner becomes hostile even though you have accessed the river legally, it is best to move on and find another spot. If you gauge the landowner is likely to get physically aggressive, offer to leave the river promptly.
Fighting hostility with ‘your rights’, is occasionally a futile pursuit and can be a situation better worth walking away from. There will always be more fish in other spots.
Summing Up:
Trespassing can be a complicated topic to understand, but we hope by reading this, you are in a better position to understand your land access rights when it comes to accessing rivers, streams, and creeks to go for a fish.
No fisherman wants to part with their money by having to pay fines when that same money could be better spent on more fishing gear and lures so be smart guys. Next time you head out for a fish, make sure you are not trespassing on your way to, or from, your fishing spot.
The Finatic Blogger...
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