MEMORANDUM BY MR. A. LANDMARK.
SOMETIME INSPECTOR OF THE FRESHWATER AND SALMON FISHERIES
In my opinion the following are the factors which mainly come into consideration in deciding the question as to whether an area covered by water at the outlet of a large river, which is connected with the sea by a comparatively narrow and shallow channel, must be regarded as a bay of the sea or as a part of the watercourse :—
(1) The average height of the water in relation to the sea outside the narrow connecting channel ;
(2) The salinity of the water in the partly enclosed basin ;
(3) The nature of the vegetable and animal life there.
With regard to these factors :—
Re (1) On account of the tidal movements in the sea and also of the irregularity of the supply of water in the watercourse caused by variations in the weather, it follows as a matter of course that the relation between the height of the water in the partly enclosed basin and that of the surface of the sea is not constant but varies incessantly. If the threshold in the narrow connecting channel lies higher than the level at high water in the adjacent sea, the surface of the water in the partly enclosed basin will always be more or less above the level of the sea, and in that case it is clear that the partly enclosed basin is a part of the watercourse and not a part of the sea. Doubt will only arise when the threshold is lower than the level of an ordinary high tide in the adjacent sea, since it may readily happen that the level of the water during high tide is higher outside the threshold than inside and the reverse during ebb tide. As a result the current in the connecting channel will be alternately in-going and out-going. If, however, in such cases the surface of the water in the partly restricted basin is known on an average to be higher than in the sea outside, and if as a result the current is known to be out-going for a longer time than it is in-going, it would appear to be difficult to regard the basin as a bay of the sea. For disregarding the accumulation of water which the tidal movement of the sea, with or without the assistance of storms, occasions at certain places, especially in open sea bays which run to a point, it would appear to be incompatible with the natural law of equilibrium that the main height of the surface of the sea at one place should be known to be higher than at another and adjacent place.
Re (2) and (3) When the threshold of the connecting channel lies sufficiently low, the salt water of the sea outside, on account of its greater specific weight. will run into the basin and thus by degrees to a greater or lesser extent replace the lighter fresh water in the deeper parts of the basin. But this is nothing other than what is also the case in relatively large and some what sluggish rivers, even though they have no deeply lying or extensive basin at their outlet, beeause during high tide the salt water will penetrate a longer or shorter distance up the river along its bed, even though the current in the higher layers of water runs out the whole time, The circumstance that the water has a considerable salinity in the deeper layers of the basin is therefore no hindrance to regarding the partly enclosed area as a part of the watercourse. It is only when the salinity in the upper layers of water becomes relatively large that there would appear to be reason to regard the basin as belonging to the sea.
But even if we disregard the fact that the salinity is not constant at all parts of the basin, but in the upper layers in any case will vary with the dimensions of the mass of water which the river conveys to the basin at any given time, it would scarcely be possible to state any definite degree of salinity either at the surface or at a slight depth below it, as a decisive factor in reply to the question as to whether the basin is to be regarded as part of the sea or part of the watercourse. Valuable guidance is given here, however, in the nature of the vegetable and animal life inside the connecting channel as compared with the corresponding conditions outside the latter. For if the majority of the vegetable and animal forms characteristic of the salt water outside the connecting channel are lacking in the less saline basin within, whilst in their place appear species which are characteristic of fresh or slightly saline water and which are lacking outside, this would appear to indicate so great a difference in the character of the basin that it could not reasonably be regarded as a part of the salt sea, and this applies to an even greater degree the more sudden the transition is from salt water to fresh water (brackish water) flora and fauna.
With regard to the special case lying before us, it appears to me from the information contained in the documents of the case, that all the three factors mentioned above tend towards the opinion that Lake Melville is a part of the Hamilton watercourse. According to the observations which were made uninterruptedly for two months, the main height of the water inside the narrows lies 5-6 inches higher than that outside the same, and at every spring tide the current is about one hour longer out-going than in-going, and at neap tide about three hours longer outgoing than ingoing. The salinity in the upper layers of water is also seen to diminish considerably in the narrows and markedly so inside Henrietta Island, and in full agreement therewith both the vegetable and animal life within the latter island are essentially of a different character from that outside the narrows, in particular there are quite lacking, as far as I can see, seaweed and practically speaking cod. It may also be mentioned that the name of the basin in question is Lake Melville which indicates that from ancient times
the basin has been regarded as part of the watercourse and not as a bay of the sea. As far as I can see the name given was employed in oldest maps, whilst it was not until more recent maps that the basin was given the name Hamilton Inlet. In my opinion, therefore, it is correct to regard Lake Melville as a part of the Hamilton watercourse. It is no argument against this that the connecting channel between the sea and Lake Melville is so broad and deep that large sea-going ships can pass through it. Because this is nothing else than what applies to numerous rivers of approximately the same size as the Hamilton River, e.g., the Thames and the Tyne.
With regard to the true interpretation of the expression “ coast ” employed in the Royal Proclamation of October 7th, 1763, I assume that the English (American) word, like the corresponding Norwegian word “ kyst,” can be employed in somewhat different ways. In addition to indicating actual coast line, i.e., the boundary line between the sea and the land, the expression can be employed to indicate a large or small area of land adjoining the sea, the extent of which must be estimated according to the rest of the text in which the expression occurs. Thus we may speak of coast fishermen, in contradistinction to fjord fisherman, of coast districts in contradistinction to inland districts, of coast climates in contradistinction to inland climates. In the explanation of the said Royal Proclamation of October 7th, 1763, the object is said to be the promotion of fishing “ to the end that open and free fishing of our subjects may be extended to and carried on upon the coast of Labrador and the adjacent islands.” But as the promotion of “ open and free fishing ” is the sole object of the measure, the territory which it is intended to include in the expression “ coast ” must be restricted to the comparatively insignificant stretch of land along the sea, which it is necessary for fishermen to be able to make use of in order to carry on fishing and to utilise its products. Moreover, since, as far as I can see. in 1763 just as now no commercial fishing of salt water fish was carried on in Lake Melville, but at the utmost an inconsiderable amount of fishing for household purposes, the expression “ open and free fishing ” appears to apply only to the great sea fisheries of Labrador and Newfoundland, and even if we regard Lake Melville as a part of the sea, it would not appear probable that the expression “ coast ” was intended to include the land adjoining the basin as well.
Although on account of the dissimilarity of the conditions the following is only of slight interest in the case before us, I will add that the question as to whether a basin lying at the outlet of a river which is connected with the sea by means of a comparatively narrow and shallow channel, is to be regarded as a part of the watercourse or of the sea, has been submitted to the courts of law in Norway for decision twice. Both cases, however, applied to areas of water of a very inconsiderable extent in comparison with Lake Melville.
One concerned Mivannet in Hardanger, which lies at the outlet of a quite small river. It is only a little more than 1 kilometer long and
somewhat less in breadth, and it is separated from the sea by a channel of less than 100 metres in length. Its height above the level of the sea is not greater than that the salt water of the sea flows in at every high tide, and its bed is, therefore, covered with salt water in which there occur a number of salt water fish, although not in very large numbers. The water at the surface is also so saline that cattle will not drink it. The surface of the basin however lies on an average somewhat higher than the surface of the adjacent arms of the sea, although it is not possible to state the exact figure. Both the lower court and the High Court came to the conclusion that the basin must be regarded as part of the watercourse and special emphasis was given to the circumstance that the surface on an average lies higher than that of the sea. In addition, importance was also attached to the fact that the fish in the basin are mainly fresh water fish.
The other case concerns what is known as Bolstad Fjord in Nordhordland, which lies at the outlet of the Voss River, which at its outlet in the basin has a catchment area of 1,450 square kilometers. Bolstad Fjord is about 16 kilometers long and on an average not more than 1.5 kilometer in breadth. The depth goes down to 75 fathoms. The channel which connects the fjord with the arm of the sea lying outside is 2-3 kilometers long, but at its narrowest part only 50-60 meters broad, and its threshold is situate 1.6 meters below the lowest level of water in the sea outside. When the water is at its lowest, the smallest depth of water in the channel is about 2.2 meters. At that time it was regularly traversed by a small steamer, but only when the water was somewhat high in the sea. The level of Bolstad Fjord at ebb tide is about 0.7 meter higher but at high tide 0.1 meter lower than the surface of the sea outside, that is on an average 0.3 meter higher than the sea. There are found a number of salt water fish of various kinds, but not very many, and there is no seaweed. The two lower courts came to the conclusion that Bolstad Fjord must be regarded as part of Voss River, importance being attached to the fact that the level of water on an average lies higher than that of the sea, but in addition importance was attached to the information submitted regarding the nature of the animal and vegetable life in the fjord. In the Supreme Court, however, the question as to whether Bolstad Fjord should be regarded as a part of the river or a part of the sea was not decided, the Court finding that the question regarding fishing rights could be decided on a foundation which was independent of the question regarding Bolstad Fjord's nature as a watercourse or sea.
Oslo, August 26th, 1926.
For the legalisation of the above official signature of A. Landmark, Inspector Fresh Water Fisheries, Norway.
Dated at the British Consulate at Oslo this Thirtieth Day of August, 1926.
(Seal) British Pro Consul.