under the Treaty, the Hon. John Hamilton Gray, in setting forth the criteria for distinguishing rivers from sea arms, speaks in part as follows :—
“ There is no limitation as to size, or volume ; the Mississippi and the Amazon roll their waters over one fourth the circumference of the earth. The Tamar, the Ex. and the Tweed would hardly add a ripple to the St. Lawrence—yet all alike bear the designation, are vested with the privileges, and governed by the laws and regulations of Rivers. It is not the absence or prevalence, of fresh or salt water, that distinction has been expressly ignored in the celebrated case of Horne against McKenzie, on appeal to the House of Lords. It is not the height or lowness of the banks ; the Rhine is still the same river, whether flowing amid the mountains of Germany, or fertilizing the low plains of Holland. It is not the rise or fall of tide, or the fact that there may he little, if any, water when the tide is out. The Stour and Orwell in England are dry at low water ; yet they have always been recognized, and treated, as rivers. The Petitcodiac in New Brunswick, and the Avon in Nova Scotia, owe their width, their waters, their utility, entirely to the Bay of Fundy, yet their claim to be classed among rivers has never been doubted.” The Umpire then goes on to give, as a useful test, the existence or non-existence of bars at the river's mouth, assuming that such bars result from a conflict between the river waters and the waters of the sea. Where such bars are lacking he would rely upon “ the physical features of the surrounding country,” and other criteria independent of those mentioned above, in the application of all which criteria “ the exercise of a sound discretion ” is recognized as essential. A study of the disputed cases adjudged by the Umpire shows that most, if not all, of those declared to be rivers are subject to tidal movements or are entered by salt water, or both. The Umpire quotes the opinion of the distinguished hydrographer, Admiral Bay field : “ The point where the fresh water enters the estuary, and mixes with the tide waters, may be miles inland, but it does not, I think, cease to be a river until it flows over its bar into the sea,” and continues :—
“ This view of Admiral Bay-field, that such waters do not lose their character as rivers because flowing through an inlet, or an estuary, is confirmed by the principles laid down to determine what are “ navigable ” rivers, in the technical sense of the term, as distinguished from its common acceptation. To the extent that fresh waters are backwardly propelled by the ingress and pressure of the tide, they are denominated navigable rivers ; and to determine whether or not a river is navigable, both in the common law and in the Admiralty acceptation of that term, regard must be had to the ebbing and flowing of the tide. In the celebrated case of the River Banne, in Ireland, the sea is spoken of as ebbing and flowing in the river. These principles are recognized in the Courts of the United States and the authorities collated, and most ably commented upon by Angel.” *
These citations might be expanded at length, but enough has been said to show how the scientific fact that salt water and tidal undulations penetrate
* See Joint Appendix, Second Proof, Vol. IV, pp. 2047-2076: Final Print, Vol. V, pp. 2445-2478.
true rivers and lakes without altering their most essential characteristics, is fully recognized in law and in diplomacy as a sound basis of action in the practical affairs of mankind.
THE FACT THAT A RIVER OR A LAKE IS PERMANENTLY NAVIGABLE TO VESSELS ENTERING FROM THE SEA DOES NOT CONSTITUTE IT AN ARM OF THE SEA.
It would hardly seem necessary to state this geographically obvious proposition, were it not for the fact that Vice-Admiral Learmonth, in his Memorandum, has stated that “ for practical purposes a useful test often adopted in determining what is an inlet of the sea is whether the waters in question are permanently navigable by ocean-going vessels,” and has so applied the test as to support the contention that the Narrows and Lake Melville together constitute an arm of the sea. I do not question the accuracy of the Vice-Admiral's initial statement, but it seems to me that the gist of the whole matter lies in the words “ for practical purposes.” For what practical purposes? If for the purpose of navigation, it is clear that the test may be very useful, for one can understand that to the navigator the important point is not where he passes from sea into river or lake, but the point where he must halt and trans-ship his cargo to rail or to smaller vessels. But if the purpose be, as here, to determine where the line between oceanic and terrestrial water bodies should be drawn, the test is worse than useless. For not only would the application of the test place in the domain of the ocean extensive sections of many true rivers and some lakes ; it would at the same time exclude from the category of sea arms countless bays and inlets which all authorities accept as branches of the ocean, although too shallow to be navigable by ocean-going vessels.
Many rivers are navigable to ocean-going vessels far into the interior of a country, often far beyond the uttermost limit ever reached by salt water, and sometimes far beyond the reach of the tides. Large merchant vessels can reach Montreal, 150 miles above Quebec. The Hudson River is navigable for first-class ships to the town of Hudson, 117 miles upstream. Large numbers of ocean steamers reach Rosario on the La Plata, 230 miles up from Buenos Aires. Grain has been shipped from St. Louis in sea-going vessels, 1,266 miles from the mouth of the Mississippi. Ocean-going vessels penetrate 680 miles into the heart of China, to Hankow, on the Yangtze. Steamers from England regularly ascend the Amazon to Manace, 860 miles above Para, while sea vessels, drawing 15 feet of water, reach Iquitos, 1,100 miles farther up the river, or nearly 2,000 miles from its mouth. In this connection we may refer again to the quotation given in an earlier section from the award of the Umpire under the Reciprocity Treaty, the Hon. John Hamilton Gray, in which he refers to “ the principles laid down to determine what are navigable rivers,” as confirming the view that navigable tidal streams are true rivers and a study of his award will show that so far from making navigability a cause for excluding a tidal stream from the class of rivers, in
more than one case he cites the presence of a navigable channel as one of the proofs that a given stream is properly to be classed as a river. Thus, Award No. 5 : “ The Murray is a river, and entitled to be so considered in view of its abundant supply of fresh water, its formation, and deep and navigable channel,” and Award No. 7 : “ The Boughton is entitled to be considered a river. It is deep and broad, affording accommodation for vessels, and facilities for ship building far in the interior.”
Perhaps it was the realization of the fact that navigable rivers can not appropriately be classed with sea inlets which led Vice-Admiral Learmonth to state that “ Such a test is specially applicable to cases where, as here, no rivers navigable by such vessels flow into the waters under consideration.” This seems to imply that if a navigable river entered Lake Melville, the application of the test would be less appropriate, and hence that the marine character of the waters would be more doubtful. If this be the meaning, the test for geographical purposes is highly artificial ; for why should the marine character of a supposed inlet depend upon whether or not one of the rivers which enters it happens to be navigable? One might perhaps argue that the large quantity of fresh water poured into a basin by a navigable river would make its marine character less obvious ; but in this case the real criterion becomes quantity of fresh water, and two or more non-navigable streams may bring in more fresh water than one which is navigable. And if the mere entrance of a navigable river into a basin makes the test of doubtful applicability, how much more completely must the test fail when a navigable river lies between the basin and the sea ! Lake Melville is separated from the sea by a long narrow channel navigable by ocean-going vessels ; and one of the essential points at issue is whether this channel (the Narrows) should be classed as an arm of the sea or as a navigable tidal river. If, as I shall show below, the latter classification is correct, it would seem that the test of navigability is in any event inapplicable to Lake Melville.
We must look to other criteria for a safe guide when drawing the limits between marine and terrestrial water bodies. Bays and sea inlets on the one hand, rivers and lakes on the other, have physiographic characteristics which distinguish them one from the other. In each and every class some examples are navigable, others are not. Hence, however important navigability may be from the standpoint of the marine officer, it is obviously irrelevant to the geographic problems of drawing coast-lines, determining coastal extent, and separating marine water bodies from rivers and lakes. And however valuable the classification of inlets presented by Admiral Learmonth may be from the point of view of the navigator, a scheme which would group together such diverse features as Lake Melville, the Amazon River, the Dardanelles Strait and the Black Sea, simply because all are navigable to ocean-going vessels, has no geographic significance or utility.
THE HAMILTON RIVER SYSTEM IS A UNIT FROM ITS SOURCES ON THE WATERSHED TO ITS MOUTH AT TIKORALAK HEAD. THE NARROWS AND LAKE MELVILLE REPRESENT THE TIDAL LOWER PORTION OF THIS RIVER SYSTEM.
What, then, are the criteria for discriminating between bays and other sea inlets on the one hand, and rivers and lakes on the other? They are physiographic, and have to do with the forms of the containing channels or basins, rather than with the composition of the waters which occupy them. Both rivers and lakes may be salt under certain circumstances, even when far in the interior of a continent ; but their channels and basins have certain physical characteristics quite independent of their water content. What those characteristics are form the subject matter of text books of physiography. Streams in an early stage of erosion appear differently from those more advanced in the cycle of stream development. Valley forms vary with the internal structure of the rocks in which they are cut, with the presence or absence of fractures or “ faults,” and with other geological factors. Glacial erosion modifies valley forms according to well-recognized laws. Lake basins are formed in a great variety of ways, a single text book sometimes describing eight or ten distinct types of lakes. Obviously, then, any general consideration of all the peculiar features of rivers and lakes would be much beyond the scope of the present report.
Fortunately no such extended treatment is necessary for the purpose in view, since the features essential to a proper determination of the true character of the Narrows and Lake Melville are few in number and easily apprehended. We need concern ourselves first, with the features common to all streams and lakes ; and, second, with those features especially characteristic of streams and lakes in a glaciated region of crystalline rocks, such as Labrador. In following this program it will be convenient to deal separately with river characteristics and with lake characteristics, in the order named.
THE NARROWS STREAM IS A TIDAL RIVER.
The normal features of a river are five in number :—
(a) It ordinarily occupies a depression or “valley” which is long in proportion to its breadth.
(b) The walls of the valley are sensibly parallel, although usually farther apart toward the river's mouth than toward its head, and in weak rocks than in resistant rocks.
(c) The pattern of the valley is apt to be irregular or more or less sinuous in horizontal rocks and in massive crystalline rocks, but may be straight for long distances where parallel to tilted layers of sedimentary rocks or determined by a fracture.
(d) The floor of the valley descends toward its mouth at variable rates, but always continuously enough to conduct water prevailingly seaward. Exceptional floods, or the incoming of the tide in the valley mouth, may locally and temporarily reverse the current ; and some parts of the valley floor may be deeper than others. But these facts never prevent the river from discharging its waters through the valley in a single direction.
(e) Because of the relations described in the preceding section, the surface of a river, no matter how much checked by obstacles such as shallows, or how much embarrassed by incoming tides, has an average surface slope inclined seaward.
Such are the normal characteristics of rivers in general. When we apply to the stream through the Narrows these five tests for a river, we find that it meets them all. The stream in question occupies a depression which is long in comparison with its width. Charts and maps show a total length for the whole passage from Lake Melville to Tikoralak Head of some twenty miles or more, with a width varying from a little more than one mile to a little more than three miles. Descriptions and pictures agree in giving to this passage the typical form of a fairly youthful valley cut by a stream in resistant crystalline rocks. The walls of the valley are in general strikingly parallel, although farther apart in some places than in others, the greatest breadth occurring near the mouth. In pattern the Narrows passage shows the irregular or roughly sinuous course typical of river valleys cut in crystalline rocks. The floor of the valley is notably irregular, some parts being much deeper than others ; but the average slope is seaward, from depths (below sea-level) of ten to twenty fathoms at the head of the western passage around Henrietta Island, and twenty-six to thirty fathoms at the head of the eastern passage, to thirty-five to fifty fathoms near the mouth. Despite the “ deeps ” in the channel (to which reference will again be made), and the fact that incoming tides temporarily reverse the current, the waters of the Hamilton River system never fail to discharge seaward through the valley in a single direction. Careful surveys show that the average surface slope of the water in the valley inclines seaward at a rate comparable with that of the Ottawa and St. Lawrence (Joint Appendix, Second Proof, IV, pp. 1914, 1958, Final Print. Vol. V, p. 2320). In every respect the Narrows passage conforms to the requirements of a river valley, and I see no room for the slightest doubt that it is a true river valley, which, like most rivers of the Atlantic seaboard, is markedly tidal in its lower portion because a subsidence of the land, or a rise of sea-level, has permitted sea water to enter more freely into the valley than it otherwise would. Like the St. Lawrence above Quebec, the Hudson to Albany, the Potomac beyond Washington, the Narrows is a typical “ drowned river ” which has not been sufficiently affected by the drowning to lose its true river characteristics.
The normal features of a river described above impose upon the tidal