75 



or waters under its own jurisdiction, they may do so provided they 

 obtain the approval of this Commission; but, in doing so, they must 

 not transgress Article I. Article I says: 



"The High Contracting Parties agree that the navigation of all 

 navigable boundary waters shall for ever continue free and open for 

 the purposes of commerce to the inhabitants and to the ships, vessels 

 and boats of both countries equally, subject, however, to any laws 

 and regulations of either country, within its own territory, not 

 inconsistent with such privilege of free navigation, and applying 

 equally and without discrimination to the inhabitants, ships, vessels 

 and boats of both countries." 



The moment there is interference with what the article calls 

 "privilege of free navigation," then neither country has any juris- 

 diction in its own international waters, or its own territorial waters, 

 to do any act. Both countries might, if they saw fit, refer such a 

 matter to this Commission under other sections of this treaty. But, 

 until that is done — and it would have to be done by both countries — 

 neither one nor the other can do any act which will be inconsistent 

 with such "privilege of free navigation." That, I submit, makes the 

 old treaty power rights stronger than they were in the original. It 

 does not supersede it in any way. It does not destroy or annul or 

 alter it. But, by Article VIII, it is expressly provided that the fore- 

 going provisions shall not apply to or disturb any existing uses of 

 boundary waters. One of the uses of boundary waters is the use of 

 navigation. That is a use, and it is so described in Article VIII. The 

 three uses that are there permitted, and the priority in which they are 

 permitted, are stated to be, first, " for domestic and sanitary pur- 

 poses "; second, " uses for navigation, including the service of canals 

 for the purposes of navigation "; and, third, " uses for power and for 

 irrigation ". Navigation is a use and there is an express limitation 

 in Article VIII that the foregoing provision — -that is the provision 

 which confers jurisdiction on this Boards — shall not apply to or disturb 

 any existing uses; and the existing use that we rely upon in this case 

 is the use of navigation which was conferred on us by the Ashburton 

 Treaty, Article VII of which provides that this particular branch of 

 this particular river shall be kept " free and open to the ships, vessels, 

 and boats ", of both countries. 



Mr. Tawney: Do you observe in Article I that the limitation 

 there is to navigable boundary waters? 



Mr. Guthrie: Yes. 



Mr. Tawney: Do you make any distinction between navigable 

 and non-navigable boundary waters? 



Mr. Guthrie: I do not make the distinction, but notice that 

 the words "navigable boundary waters" are there, and I submit that 

 any water that is capable of navigation is navigable water. The 

 fact that ships do not ply does not affect the question of whether the 

 water is navigable or not. We have in Canada many rivers and 

 lakes upon which ships never ply. But there is deep water and some 

 day they might be used. Certainly it is abundaiUK' prowd by my 

 learned friends themselves that this stream, the South Sault, was 

 used for commercial purposes. It was used for pleasure boat piu- 

 poses. It was used for e.xcursion boat purposes, which is a conibiUii- 



