Trade and commerce includes navigation and State railways.

98. The power of the Parliament to make laws with respect to trade and commerce extends409 to navigation and shipping410, and to railways the property of any State411.

CANADA.—The exclusive legislative authority of the Parliament of Canada extends to … (10) Navigation and shipping.—B.N.A. Act, 1867. sec. 91.

In each Province the Legislature may exclusively make laws in relation to … (10) local works and undertakings, other than such as are of the following classes:—

(a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province.

(b) Lines of steamships between the Province and any British or foreign country.—Id. sec. 92.

HISTORICAL NOTE.—In the Bill of 1891 “Navigation and Shipping” was included among the subjects to which the legislative power of the Federal Parliament extended.

At the Adelaide Session, 1897, the Draft of 1891 was followed. None of the Legislatures made any suggestion, and at the Sydney Session the sub-clause was passed without discussion.

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At the Melbourne Session, upon the discussion of the “railway rate” clauses, Sir George Turner proposed a new clause, of which the first part ran:—“The Parliament may make laws to provide for the execution and maintenance upon railways within the Commonwealth of the provisions of this Constitution relating to trade and commerce;” and the second part empowered the Parliament to prohibit unjust preferences (see Hist. Note to sec. 101). The long debate which followed was chiefly on the question of preferences; but Mr. Barton pointed out that the Parliament already had power to execute federal laws. The clause was carried by 25 to 16. (Conv. Deb., Melb., pp. 1372–1408.)

On the second recommittal Mr. Barton secured the recasting of Sir Geo. Turner's clause in a declaratory form, to provide that “The power of the Parliament to make laws with respect to the regulation of trade and commerce shall be taken to extend to railways the property of any State.” The object of substituting the declaratory for the enabling form was to prevent any limitation of the trade and commerce power being implied; and the object of the provision itself was to remove doubts as to whether State-owned railways were subject to the trade and commerce power. (Conv. Deb., Melb., pp. 2386–90.)

After the fourth Report the Federal control of “navigation and shipping” was for similar reasons expressed in a declaratory form by being omitted from the “legislative power” clause and inserted in its present position. Other drafting amendments were also made, and the effect of the clause was finally discussed. (Conv. Deb., Melb., pp. 2449–50.)