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C'est à n'en pas douter l'une des considérations qui ont amené les tribunaux de l'Amérique du Nord britannique à décider que le droit public de navigation, contrairement à ce que prétendaient les Anglais, s'étend à tous les fleuves et rivières navigables, peu importe qu'ils soient ou non à l'intérieur de l'aire de flux et de reflux; voir notamment, In re Provincial Fisheries (1895), 26 R.C.S. 444; voir aussi mon ouvrage intitulé Water Law in Canada: the Atlantic Provinces (1973), aux pp. 178 et 179, dans lequel la jurisprudence est résumée.
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Quite apart from judicial authority, the very nature of the activities of navigation and shipping, at least as they are practised in this country, makes a uniform maritime law which encompasses navigable inland waterways a practical necessity. Much of the navigational and shipping activity that takes place on Canada's inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law. This is most obviously the case when one looks to the Great Lakes and the St. Lawrence Seaway, which are to a very large degree an extension, or alternatively the beginning, of the shipping lanes by which this country does business with the world. But it is also apparent when one looks to the many smaller rivers and waterways that serve as ports of call for ocean going vessels and as the points of departure for some of Canada's most important exports. This is undoubtedly one of the considerations that led the courts of British North America to rule that the public right of navigation, in contradistinction to the English position, extended to all navigable rivers regardless of whether or not they were within the ebb and flow of the tide; see inter alia, In re Provincial Fisheries (1895), 26 S.C.R. 444; see also my book, Water Law in Canada: the Atlantic Provinces (1973), at pp. 178-79, where the jurisprudence is summarized. It probably also explains why the Fathers of Confederation thought it necessary to assign the broad and general power over navigation and shipping to the central rather than the provincial governments, and why the courts quickly accepted that this power extended to the regulation of navigation on inland waterways, provided they were in fact navigable; see Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova Scotia, [1898] A.C. 700; Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A.C. 153; Booth v. Lowery (1917), 54 S.C.R. 421. For it would be quite incredible, especially when one considers that much of maritime law is the product of international conventions, if the legal rights and obligations of those engaged in navigation and shipping arbitrarily changed as their vessels crossed the point at which the water ceased or, as the case may be, commenced to ebb and flow. Such a geographic divide is, from a division of powers perspective, completely meaningless, for it does not indicate any fundamental change in the use to which a waterway is put
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